KAVITA GUPTA Vs. SUBHAS KUMAR GUPTA

JUDGEMENT

(1.) THE parties are Hindu and were married on 22- 11-2002 at Allahabad. THE wife came to the husband's house on 23-11-2002. After about four months of marriage the husband filed a petition on 24-4-2003 under Section 12 of the Hindu Marriage Act, 1955 (in brief the Act) for declaring the marriage to be null and void. THE appellant, wife on 10-11-2004 filed an application under Section 24 of the Act for litigation expenses and interim maintenance against the respondent, husband. THE application filed by the appellant under Section 24 of the Act had been dismissed by the Additional Judge, Family Court, Allahabad on 20-5-2006 as it does not lie. This order is under challenge in the present appeal.

(2.) WITH the consent of learned Counsel for the parties given on 9-11-2006, this appeal is being finally heard. We have heard Sri Rajesh, learned Counsel for the appellant and Sri Amit Kumar assisted by Smt. Renu Rajat, learned Counsel for the respondent. Learned Counsel for the appellant has urged that the application filed by the wife under Section 24 of the Act was maintainable and the appellant was entitled for interim maintenance as well as litigation expenses. On the other hand, learned Counsel for the respondent has urged that this first appeal is not maintainable under Section 19 (1) of the Family Courts Act, 1984 (in brief the F. C. Act) as it challenges the validity of the order dated 20-5-2006 passed by the Family Court, Allahabad which is an interlocutory order which can be challenged only in a writ petition. He has placed reliance on a decision of this Court in Madhu Mishra alias Guriya v. Additional Judge Family Court Allahabad & Anr. , 2006 (2) JCLR 8 (All) : 2006 (9) Allahabad Daily Judgements 357 (All ). He has further urged that in proceedings under Section 12 of the Act, interim maintenance under Section 24 of the Act could not be granted.

(3.) THE next question is whether an application under Section 24 of the Act would lie in proceedings under Section 12 of the Act? It is not disputed by the parties that they were married on 22-11-2002 at Allahabad and on 24-4-2003 the husband had filed a petition under Section 12 of the Act for declaring the marriage null and void. During its pendency the wife moved an application under Section 24 of the Act for grant of interim maintenance as well as litigation expenses. THE Court below has held that it does not lie by its order dated 20-5-2006 which is extracted below: "section 24 H. M. A. does not lie at this stage as the case relates to declaration of marriage void. O. P. is directed to file W. S. on 8-7-2006. "