IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26482 of 2009(R)
1. T.P.SUDHEESH BABU,S/O.P.K.RAGHAVAN,
... Petitioner
Vs
1. SHERLY P.,D/O.NARAYANAN,
... Respondent
For Petitioner :SRI.K.V.SOHAN
For Respondent :SRI.GRASHIOUS KURIAKOSE
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :22/10/2009
O R D E R
R. BASANT &
M.C. HARI RANI, JJ.
-------------------------------------------------
W.P.(C) No. 26482 of 2009-R
-------------------------------------------------
Dated this the 22nd day of October, 2009
JUDGMENT
Basant,J.
Are the provisions of Sec.24 of the Hindu Marriage Act,
1955 applicable when the proceedings before the Family Court
is under Sec.12 of the Hindu Marriage Act for declaration of
nullity of marriage? This is the short question of law which is
canvassed before us.
2. The vital facts first. The marriage between the
petitioner and the respondent was solemnised on 13/5/05. The
spouses lived together for some time; but thereafter started
separate residence. The petitioner filed O.P.No.148/06 under
Sec.12 of the Hindu Marriage Act for a declaration that his
marriage with the respondent is null and void. During the
pendency of that petition, the respondent filed I.A.No.628/06
W.P.(C) No. 26482 of 2009-R
-: 2 :-
under Sec.24 of the Hindu Marriage Act claiming monthly
maintenance at the rate of Rs.5,000/- and litigation expenses of
Rs.10,000/-.
3. The said application was resisted. The learned Judge of
the Family Court by Ext.P3 order directed the petitioner to pay
an amount of Rs.2,000/- per mensem as interim maintenance and
to pay an amount of Rs.3,500/- as litigation expenses. That order
was not promptly challenged; but was sought to be reviewed by
filing I.A.No.956/07. The learned Judge by Ext.P4 order turned
down the prayer for review of Ext.P3 order.
4. In the writ petition the petitioner assails Exts.P3 and P4
orders. What is the ground? The learned counsel for the
petitioner advances two grounds before us. First of all, the
learned counsel contends that Sec.24 of the Hindu Marriage Act
can have no application whatsoever when the proceedings are
pending under Sec.12 of the Hindu Marriage Act for declaration
of nullity. Secondly, it is contended that the quantum of monthly
maintenance and litigation expenses awarded is excessive.
5. Called upon to explain the contention that Sec.24 of the
Hindu Marriage Act has no application, the learned counsel
argues that this is a case where the very validity of the marriage
is questioned and, in these circumstances, Sec.24 can have no
W.P.(C) No. 26482 of 2009-R
-: 3 :-
application.
6. We are unable to agree with this contention. The plain
language of Sec.24 of the Hindu Marriage Act which we extract
below clearly shows that the powers under Sec.24 can be
invoked when “any proceeding” is pending before the court:
“24. Maintenance pendente lite
and expenses of proceedings.– Where
in any proceeding under this Act it
appears to the court that either the wife or
the husband, as the case may be, has no
independent income sufficient for her or
his support and the necessary expenses of
the proceedings, it may, on the application
of the wife or the husband, order the
respondent to pay to the petitioner the
expenses of the proceedings, and monthly
during the proceeding such sum as,
having regard to the petitioner’s own
income and the income of the respondent,
it may seem to the court to be reasonable:
Provided that the application for the
payment of the expenses of the proceeding
and such monthly sum during the
proceeding, shall, as far as possible, be
disposed of within sixty days from the date
W.P.(C) No. 26482 of 2009-R
-: 4 :-of service of notice on the wife or the
husband, as the case may be.”
(emphasis supplied)
7. It is very evident that Sec.24 applies when any
proceeding under the Act is pending and no exception can be
carved out for proceedings under Sec.12 of the Hindu Marriage
Act.
8. It is true that Sec.24 employs the expressions “wife”
and “husband”. The mere fact that a marriage already
solemnised is sought to be avoided by declaration of nullity
under Sec.12 cannot militate against the status of the spouses as
husband and wife until such a declaration of nullity is granted.
9. Solemnisation of marriage is admitted. The status of
the husband and wife for the purpose of Sec.24 has been
achieved by the spouses by such solemnisation. The mere fact
that the said relationship is sought to be annulled by initiation of
the proceedings under Sec.12 of the Hindu Marriage Act cannot
justify a contention that the respondent herein is not a “wife” to
whom alone Sec.24 can apply. The objection raised on both
grounds – that Sec.24 is not applicable to the proceedings under
W.P.(C) No. 26482 of 2009-R
-: 5 :-
Sec.12 and that the petitioner cannot be said to be a husband
coming within the sweep of that expression in Sec.24 of the
Hindu Marriage Act, cannot be accepted.
10. It is next contended that the quantum of monthly
maintenance and litigation expenses awarded is excessive. The
evidence clearly indicates that the petitioner is employed abroad.
He does not dispute the fact that he was employed abroad; but
according to him, the agony resulting from the controversial
marriage has led to his loss of employment. According to him,
he has now lost his employment. Surprisingly, he does not deny
the fact that he continues to be residing abroad and that is
evident from the prosecution of the petition by the Power-of-
Attorney holder of the petitioner in his absence. In any view of
the matter, we are satisfied that the quantum of monthly
maintenance pendente lite awarded at the rate of Rs.2,000/- for
the wife of the petitioner, admittedly a person employed abroad
is not excessive or unreasonable. His theory about the loss of
employment and continuance aboard as an unemployed person,
cannot be swallowed by a prudent person. The litigation
expenses awarded is most modest and frugal.
11. The above discussions lead us to the conclusion that
the impugned order does not warrant any interference. The
W.P.(C) No. 26482 of 2009-R
-: 6 :-
same is found to be legal, reasonable, fair and just. At any rate,
the extraordinary constitutional jurisdiction under Art.227 of the
Constitution does not deserve to be invoked.
12. In the result, this writ petition is dismissed. The
amount, if any, deposited as per the order dated 26/11/07 shall
forthwith be released to the respondent.
Sd/-
R. BASANT
(Judge)
Sd/-
M.C. HARI RANI
(Judge)
Nan/
//True Copy//
P.S. to Judge
W.P.(C) No. 26482 of 2009-R
-: 7 :-