RAM BABU Vs. SECOND ADDL CIVIL JUDGE KANPUR

JUDGEMENT

(1.) By this writ petition, the propriety of an order dated 7th April, 1982 of the Court of the IInd Additional Civil Judge, Kanpur, passed under Section 24 of the Hindu Marriage Act; awarding the sum of Rs. 500/- for the expenses of the proceeding and Rs. 100/- per month for main tenance pendentelite with effect from the date of the application, viz 4th December, 1981, has been challenged. The grounds of challenge are that there is no specific finding about the income of the husband. On the other hand the finding is that the husband is not having a regular monthly income and depends on the daily wages available sometimes only, but he is capable of earning, and he is Under a legal duty to maintain his wife. According to the application under Section 24, the income of the husband is said to be about Rs. 400/- per month, while according to the husband's reply it was said to be about Rs. 200/-per month. It is now necessary to advert to certain other facts. The original petition in which the application under Section 24 of the Hindu Marriage Act was made, is by the wife The petition is for divorce on the ground that she was under 15 years of age when the marriage took place and having attained the age of 1 5 years but not the age of 18 years, she had repudiated the marriage. The petition was filed by the wife's father and next friend, as on the own allegations made in the petition the wife was a minor. The reply of the husband was that the wife was over 18 years of age: that the petition was not filed by the wife but was filed by her father who had no right to file it, therefore, the petition was bad in law and not maintainable. It appears from the copy of the written state ment o, the husband that has been made as Annexure II to the writ petition that there was an earlier proceeding which was suit No. 309 of 1978 between the parties. The plea taken by the husband in the written statement was that the decision in that suit operated as resjudicata. The certified copy of the judgment in that suit which is dated 17th March, 1980, was passed on to me for perusal by the learned counsel. The judgment shows that that suit was dismissed on the ground that the wife had not attained the age of 15 years when that petition was filed according to the allegations made therein. It further shows that in that case also the husband's case was that the wife was major at the time of the marriage. The net result is that according to the case of the wife she was a minor below 15 years when the marriage took place and is still a minor. On the other hand according to the husband's case the wife was over 18 years of age when the marriage took place and is not a minor For the purposes of Section 24, it is clear that the wife was no adequate means of maintaining herself and it has not been suggested that she has any independent income of her own. As to the means of the husband the amount awarded for expenses of proceeding and the amount of maintenance is so small, that any one who claims himself to be a married man should he able to pay that much for the support of his wife and if the husband is not in a position to pay even that much to the wife he has no right to the society of wife even if the marriage between them was valid in law. Since it is the case of the husband that the wife was over 18 years of age when the marriage took place and the marraige was right and proper he should have instead of filing this application against the order under Section 24, tried to have the main petition for divorce decided as early as possible. His liability for maintenance will continue only upto the date of the decision of the main petition. I may in the end observe that the orders under Section 24 do not decide or adjudicate upon the rights of the parties. No appeal lies against them and on the facts of the present case even a revision does not lie. This is not a fit case for interference under Article 226 of the Constitution either. .