HARPAL SINGH Vs. ADDITIONAL SESSION JUDGE

JUDGEMENT

(1.) Heard Sri Amar Nath Srivastava learned counsel for the petitioner. Respondent No. 2-Smt. Nanhi had filed a petition No. 33 of 1996 u/s 3 of the Hindu Marriage Act (hereinafter referred to as 'the Act') for dissolution of marriage against the present petitioner. During the pendency of the said Matrimonial petition, respondent No. 2 moved an application u/s 24 of the Act claiming pendente lite alimony and litigation ]expenses. This application was registered as Misc. Case No. 36 of 1997. Learned trial court, by the impugned order dared 13.1.1999, has awarded a sum of Rs. 2,000/- as litigation expenses and Rs. 600/- in total as pendente lite alimony (Rs. 400 for the maintenance of Smt. Nanhi- wife- and Rs. 200 for the maintenance of the daughter). This order has been challenged by the petitioner primarily on the ground that his marriage was never solemnized with the respondent No. 2 and, therefore, question of payment of any pendente lite and litigation expenses to an woman, who is stranger to him, does not arise. Sri A.N. Srivastava, learned counsel for the petitioner pointed out that in proceedings under Section 125 Cr.P.C , initiated by respondent No. 2, it has been held that she is not legally wedded wife of the peti- tioner and that the daughter for whom pendente lite was claimed was not born out of the wed-lock in between the petitioner and the respondent No. 2. It was urged that the finding recorded in proceedings under Section 125 Cr.P.C. would operate as res judicata in the application u/s 24 of the Act and, therefore, the trial court was not justified in awarding the amount of litigation expenses and pendente lite.

(2.) So far as the question of finding of fact recorded by the criminal court in proceedings u/s 125 Cr.P.C. is concerned, they are ''rrevelant for the purpose of the petition u/s 24 of the Act. Whatever has been said in a criminal case about the relationship of the petitioner and the respondent No. 2 is of no consequence. A finding, if at all, given in a criminal case, does not operate as res judicata in a civil suit/petition. Even otherwise, it would appear that there is no concrete finding recorded by the criminal court in proceeding u/s 125 Cr.P.C. that the respondent No. 2 is not wife of the petitioner. By order dated 11.1.1994, Judicial Magistrate concerned has awarded a sum of R. 250/- and Rs. 1250/- respectively as maintenance for the wife and the daughter under the provision of Section 125 Cr.P.C. The present petitioner filed a revision application No. 11 of 1994 which was allowed on 8.11.1996 and the case was remanded for recording of fresh evidence on the concession made by the parties and their counsel. As it is, therefore, no concluded finding has been recorded by the criminal court that the respondent No. 2 was not married to the petitioner. The mere fact that the respondent in a matrimonial petition denies the factum of marriage is no bar to me power of the court to make an order under Section 24. Of course, a good prima facie case about the marriage would have to be made out by the petitioner before any such order could be made by the court in case of any such contention being raised by the respondent. In this connection a reference may be made to Jain v. Jain.

(3.) On the basis of the material available on record, the trial court has recorded a finding that the petitioner has married respondent No. 2 and out of their wedlock a daughter, who is living with respondent No. 2, was given birth. There is an entry in the family registered in which Smt. Nanhi Devi-respondent No. 2 and her daughter Sunita have been shown as wife and daughter of the present petitioner. The trial court has, therefore, rightly come to the conclusion that prima facie there subsists a relationship of man and wife between the petitioner and the respondent No. 2 and Km. Sunita as their daughter. The order for the grant of Rs. 2,000 as maintenance and Rs. 400 as pendente lite alimony passed by the trial court is quite justified, apt and equitable taking into consideration the means of the present petitioner. Another point raised by learned counsel for the petitioner Sri A.N. Srivastava is that under Section 24 of the Act, grant of pendente lite alimony can be made only to the wife and not to the children. In support of his contention, he placed reliance on the decision of the apex court reported in Capt. Ramesh Chand Kaushal v. Mrs. Veena Kaushal & Ors.I have thoroughly studied the said ruling and find that the point which learned counsel for the petitioner wants to make out, does not find support from the decision aforesaid.