ELAVARASI Vs. IYYANAR

JUDGEMENT

(1.) 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.) 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.