Rakesh vs Smt. Ram Shakti Urf Gayatri
2023 Latest Caselaw 422 MP

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                                                         M.P. No.2914/2022


        IN THE HIGH COURT OF MADHYA PRADESH
                      AT INDORE
                       BEFORE
            HON'BLE SHRI JUSTICE VIVEK RUSIA

                 ON THE 6th OF JANUARY, 2023

                 MISC. PETITION No. 2914 of 2022

BETWEEN:-
RAKESH S/O GOPALKRISHNA JI JOSHI, AGED ABOUT 33 YEARS,
OCCUPATION: MAJDURI LADUNA TEHSIL SITAMAU (MADHYA
PRADESH)
                                                      .....PETITIONER
(SHRI VISHAL PATIDAR, LEARNED COUNSEL FOR THE PETITIONER.)

AND
SMT. RAM SHAKTI URF GAYATRI W/O KAMLESH UPADYAY, AGED
ABOUT 32 YEARS, OCCUPATION: ADYAPIKA GRAM LADUNA TEHSIL
SITAMAU (MADHYA PRADESH)
                                                    .....RESPONDENTS
(SHRI AMIT RAVAL, LEARNED COUNSEL FOR THE RESPONDENT.)


      This petition coming on for hearing this day, the court passed
the following:
                                ORDER

The petitioner has filed the present petition being aggrieved by order dated 28.6.2022 whereby learned Family Court, Mandsaur has fixed the maintenance @ 1,500/- per month.

Facts of the case, in short, are as under :

The petitioner and the respondent performed the marriage by way of signing agreement on 23.10.2007. Thereafter, respondent gave birth to 2 children out of the said marital agreement. The petitioner approached the Family Court by way of an application u/s. 11 of the Hindu Marriage Act seeking declaration that the marriage

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M.P. No.2914/2022

by way of an agreement be declared void as the respondent performed the marriage with Kamlesh S/o. Yashwant Upadhyaya held on 10.3.2007. In the said pending proceedings, the respondent filed an application u/s. 24 of the Hindu Marriage Act seeking maintenance @ Rs.20,000/- per month. The application was opposed by the petitioner by submitting that the respondent is working as a Government Teacher and earning Rs.80,000/- by way of salary and also that the marriage is void, therefore, he is not liable to pay maintenance.

Learned Family Court has considered the rival submissions of the parties and passed the impugned order which is under challenge before this Court by way of present petition.

Learned counsel for the petitioner submits that once the respondent was not competent to perform the marriage with the petitioner by way of Section 5 of the Hindu Marriage Act as she was already having a living spouse. Only a declaration is to be made by the learned trial Court u/s. 11 of the Hindu Marriage Act, therefore, the respondent cannot be called as wife of the petitioner and hence, she is not entitled for maintenance u/s. 24 of the Hindu Marriage Act. In support of his contention he has placed reliance over the judgment of Punjab & Hariyana High Court in the case of Manjeet Singh V/s. Parson Kaur : II (1990) DMC 447.

On the other hand, learned counsel for the respondent submits that the petitioner has not only performed the marriage with the respondent but thereafter the respondent has delivered two children and now he cannot run away from the responsibilities to maintain them. The application u/s. 24 of the Hindu Marriage Act is maintainable as, as on today, the relationship of husband and wife

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M.P. No.2914/2022

has not been discontinued by declaring the marriage as void.

Learned counsel for the petitioner fairly submits that the amount of maintenance awarded by the learned Family Court is reasonable and he is not disputing the quantum of maintenance but disputing the award of the maintenance amount because the respondent performed the marriage with the petitioner when she was having living husband.

As on today, there is no admission on the part of the respondent. The petitioner is required to establish that at time of marriage by way of an agreement, the respondent was already married and her husband is alive. So far as applicability of Section 24 is concerned, it is specifically provided that where in any proceedings under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent source of income for survival and husband is efficient to pay the maintenance, it can pass the order of maintenance. Therefore, with due respect to the Punjab & Hariyana High Court, the application u/s. 24 of the Hindu Marriage Act is very much maintainable. The respondent, unless the marriage is declared void, comes under the category of 'wife'. The application filed u/s. 24 is maintainable even in the proceedings filed u/s. 11 of the Hindu Marriage Act. I do not find any ground to interfere with the order impugned.

Accordingly, this petition is dismissed.

( VIVEK RUSIA ) JUDGE Alok/-

Digitally signed by ALOK GARGAV Date: 2023.01.06 18:08:36 +05'30'