petition for interim alimony filed by the respondent in the main petition filed by her in M.O.P. No: 166 of 2004 seeking to declare the marriage alleged to have been performed between the petitioner and the respondent as null and void.

In the High Court of Judicature at Madras

Date :  17 ..10..2008


Coram :


The Honble Mr. Justice V. Periyakaruppiah

C.R.P. (P.D.)  No: 2056 of 2008

Elavarasi,
Door No: 4, Plot No: 15,
6th Cross Extension,
Thanthai Periyar Nagar West,
Puducherry  5.   Petitioner

-vs-

Iyyanar,
No: 10, Old Market Street,
Aandiyan Thopu,
Mudaliarpet,
Puducherry.   Respondent

..  ..  ..

Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal order dated 20th May, 2008 passed in I.A. No: 120 of 2008 in I.A. No: 1763 of 2007 in M.O.P. No: 166 of 2004 on the file of the Court of the Family Judge at Puducherry.
For petitioner      :   M/s. P.V. Rangarajan
For respondent    :   No appearance
..  ..  ..
O R D E R

This revision has been filed by the petitioner against the dismissal of her petition, which is filed before the lower Court for stay of I.A. No: 1763 of 2007.  I.A. No: 1763 of 2007 is a petition for interim alimony filed by the respondent in the main petition filed by her in M.O.P. No: 166 of 2004 seeking to declare the marriage alleged to have been performed between the petitioner and the respondent as null and void.

2.  The brief facts stated by the parties before the lower Court are as follows :-
  Petitioner herein has filed M.O.P. No: 166 of 2004 on 26.07.2004 itself for the relief of declaration that the alleged marriage between the petitioner and the respondent as null and void since it was solemnized before the Registrar of Marriages, Cuddalore, on 09.07.2004 against her Will, without her free consent, under coercion and under immediate threat to her family members. When the main petition is pending at the stage of cross examination of P.W.1, the respondent herein filed I.A. No: 1763 of 2007 seeking interim maintenance.  Hence, petitioner came out with I.A. No: 120 of 2008 seeking stay of all further proceedings in I.A. No: 1763 of 2007 on the ground that the subject matter of both the petitions are also directly and substantially one and the same and hence, it is just and necessary to grant an order of stay as prayed for.
     The respondent claimed that the petition is not maintainable either in law or on facts and it has to be dismissed in limini.  The petitioner wants to curtail the legal rights of the respondent by circumventing the provisions of Section 24 of the Hindu Marriages Act, which entitle pendente lite remedy and expenses for proceedings because he has no independent income sufficient for his support and the necessary expenses of this proceedings.  According to the respondent, without deciding I.A. No: 1763 of 2007, the petitioner has no right to continue the proceedings much less to stay all the proceedings and hence, the petition may be dismissed with exemplary costs. 


3.  On the pleadings and evidence produced before it, the trial Court had come to the conclusion that the petition filed by the petitioner, the alleged wife, seeking stay of the petition for interim alimony filed by the alleged husband  respondent in I.A. No: 1763 of 2007 till the main O.P. No: 166 of 2004 is disposed of, was not sustainable.  Against the said order, the revision petitioner / wife, had preferred this revision.



4.  Heard the learned counsel appearing for the petitioner.  The respondent did not appear before this Court.  The facts which cannot be disputed in the case submitted by both the parties are that the petitioner has filed O.P. No: 166 of 2004 seeking a relief of declaration that the alleged marriage between the petitioner and the respondent as null and void since it was soleminised before the Registrar of Marriages, Cuddalore, on 09.07.2004, against her will, without free consent, on co-ersion and under immediate threat to her family members.  The said petition was resisted by the respondent by filing counter and the said petition is also ripe for trial and the proof affidavit of the petitioner was also filed on 13.06.2007 towards examination in Chief as P.W.1 and the documentary evidence have also been admitted on the same date.  The petitioner is yet to be cross examined as P.W.1.  In the meanwhile, the respondent had filed another petition in O.P. No: 137 of 2007 against the petitioner herein for the relief of divorce and since the said petition is subsequent one and the issues and the cause of action are one and the same in both the cases, the petitioner herein had filed a petition in I.A. No: 1100 of 2007 in M.O.P. No: 137 of 2007 for stay under Section 10 read with Section 151 C.P.C. till the disposal of the M.O.P. No: 166 of 2004 and the said petition is pending.  Knowing full well all these facts, the respondent had filed a petition for interim alimony in I.A. No: 1763 of 2007 against the petitioner wife giving false particulars and the said petition was filed by the petitioner while P.W.1 was in box and her cross examination was due.  Therefore, the petitioner  wife had filed the petition to stay the subsequent proceedings in I.A. No: 1763 of 2007 till the disposal of the main proceedings in M.O.P. No: 166 of 2004.  According to the learned counsel for the petitioner, in an interim alimony application it has to be seen as to whether the marriage in between the petitioner and the respondent is  valid and legal  and is in accordance with law and after finding the marriage prima facie legal, the interim alimony can be ordered by the Court. So far as this case is concerned, the marriage said to have been soleminised between the petitioner and the respondent is itself in question, which can be decided only after a full fledged trial, and therefore, any order to be passed in the interim alimony petition would definitely depend upon the order to be passed in the main O.P. as the issue arising in both the applications is one and the same.  He would further submit that and even though it is a single case, the proceedings are different and the later proceedings namely the interim alimony petition filed after the commencement of the trial has to be stayed under Section 10 C.P.C. He would cite an authority reported in A.I.R. 1993 Madras 90 [Radhika Konel Parekh vs. Konel Parekh] in support of his case.  He would further submit in this argument that the lower Court has landed  in a wrong conclusion that Section 24 application has to be disposed of prior to the trial of the main O.P. and, therefore, it has not considered the plea of stay under Section 10 which is against the cannons of law as envisaged under Section 10 C.P.C.  He would further submit in his argument that the respondent had frivolously filed the petition for interim alimony knowing full well that the petitioner is only a student without any income.  Therefore, he would request the Court to interfere with the order passed by the lower Court and to pass an order of stay under Section 10 C.P.C. in the said petition staying the interim alimony application till the disposal of the main O.P.

5.  There is no representation for the respondent.  However, the contention raised by him in the counter could be perused for appreciating his case, if any.  After giving anxious consideration to the contentions raised on either side, it has become necessary for this Court to take note of the dates of filing of the petitions by both the parties.  The first petition filed by the petitioner is M.O.P. No: 166 of 2004 on 26.07.2004 for declaring the marriage, said to have taken place on 09.07.2004 in between the petitioner and the respondent, as null and void. Thereafter, the respondent had filed a petition in M.O.P. No: 137 of 2007 seeking divorce under Section 13 (1) (1a) and 13 (1) (b) of the Hindu Marriage Act.  Subsequently, on 13.06.2007, the petitioner has filed proof affidavit in M.O.P. No: 166 of 2004 for being examined as P.W.1.  She has also filed a petition in I.A. No: 1100 of 2007 in M.O.P. No: 137 of 2007 under Section 10 read with 151 C.P.C. for stay of all proceedings in M.O.P. No:137 of 2007 pending disposal of M.O.P. No: 166 of 2004.  Thereafter, the respondent has filed a petition for interim alimony in I.A. No: 1763 of 2007 on 19.11.2007 seeking a monthly payment of Rs.1,000/- per month from the petitioner / wife. On a careful perusal of the aforesaid strategy of the case, we could see that the respondent has not chosen to file the interim alimony application at an earlier point of time which is pending from 2004, when the main O.P. No: 166 of 2004 was filed by the petitioner.  He had filed the said petition in I.A. No: 1763 of 2007 after a long period namely after the commencement of the trial in the said petition, on 13.06.2007.  There is no dispute that the interim alimony application has to be disposed of prior to the main O.P. But the said principle has to be applied depending upon the facts and circumstances of each case.  The main dispute in between the parties is revolving on the validity of the alleged marriage said to have taken place in between them.  The petitioner had challenged the said marriage as a coercive one since her consent was not obtained  freely and genuinely but it was obtained by threat.  Therefore, the validity of the marriage can be decided only after a full fledged trial.  Similarly, the question of validity of the marriage has to be necessarily considered for the purpose of awarding interim alimony by one of the spouses to the other side.  Therefore, the case to be decided in the main O.P. and the prima facie case to be seen in the interim alimony application namely I.A. No: 1763 of 2007 are one and the same and if the application in I.A. No: 1763 of 2007 for interim alimony is disposed of earlier, the findings of the Court may prejudice the parties either and it may affect their case in the main O.P.  Therefore, in the facts and circumstances of this case, it has become necessary for this Court to order for simultaneous disposal of the main O.P. and the I.A. No: 1763 of 2007 to render justice to both the parties.  If for any reasons the petitioner succeeds in the main O.P. the application for interim alimony will also be dismissed.  On the other hand, if the petition filed by the petitioner seeking the marriage as null and void is dismissed after a full fledged trial, the plea for grant of interim alimony to the respondent is always available, subject to the merits of employment and non-employment and status of the parties.  For the foregoing reasons, this Court is of the opinion that the main O.P. and I.A. No: 1763 of 2007 have to be clubbed together for joint trial of common disposal by the lower Court.  Therefore, the order passed by the lower Court dismissing the petition for stay under Section 10 is liable to be interfered with and the Civil Revision Petition is ordered accordingly.  The Court below shall dispose of the main O.P. and the I.A. No: 1763 of 2007, after a joint and common trial, as expeditiously as possible, preferably within three months from the date of receipt of the copy of this order.   No costs.






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[ PRV / 15974 ]