RANJANA VINODKUMAR KEJRIWAL Vs. VINOD KUMAR KEJRIWAL

JUDGEMENT

(1.) SMT. Ranjana had filed the petition before the Family Court at Bandra for restitution of conjugal rights. According to her, the marriage between her and respondent was performed on 26-4-1987. The marriage was performed at Shree Ganganagar, Rajasthan. After marriage she came down to Bombay for permanently staying with the respondent. Then while they are in Bombay, she came to know that the respondent had already married, that marriage was subsisting and then petition was filed by him for divorce which is pending. This fact according to applicant Ranjana was suppressed by the respondent from her and thereby he cheated her. With these allegations, she filed the petition for restitution of conjugal rights. She has also filed complaint before the Metropolitan Magistrate, 43rd Court at Borivali on 27-7-1991 bearing No. C. C. No. 22/w/91 against the respondent under sections 493, 495, 496, 420 and 114 etc. of I. P. C. While her application for interim maintenance was taken up for hearing, the respondent filed an application, (Exh. 35) for framing a preliminary issue on the point of maintainability of the main petition itself. The Appellate Court while considering the preliminery issue it was found that the petition for conjugal rights filed by the appellant is not maintainable.

(2.) HEARD the Counsel for petitioner and respondent. We had also posted this matter for some time for facilitating the parties to come to settlement, but was not successful. Therefore, we have to dispose of this appeal on merit. The learned Counsel for the appellant submits that the dismissal of the petition is illegal. The learned Family Court according to him, committed grave injustice in disposing of the main petition itself. While considering application for interim maintenance, she also cited a decision in (Laxmibai v. Ayodhya Prasad) A. I. R. 1991 M. P. 47 wherein under section 24 of the Hindu Marriage Act, the expression "wife and husband" need not be given strict literal meaning as to convey only legally married wife and husband. In other words the expression "husband and wife" occuring in section 24 of the Hindu Marriage Act can be a person claiming to be of wife or husband. We do not dispute this proposition as laid down in the aforesaid judgment and canvassed by the learned Counsel for the appellant. But question is not about the status of the appellant. We found earlier, the appellant herself approached the competent Court of jurisdiction to take criminal action against the respondent on the allegation that the respondent cheated her and he had entered into a marriage with the appellant suppressing the first marriage of the respondent with another lady. On her own allegation, it can be seen that the marriage of the appellant with the respondent cannot be treated as a valid marriage and their marriage definitely be a void marriage, because it was taken place at the subsistence of the first marriage of the respondent. Therefore, in such a situation, on her own showing the marriage of the appellant with the first respondent can be held to be a void marriage. In such a circumstances we are at a loss to understand how the relief of restitution of conjugal rights could be granted in her favour. Application for restitution of conjugal rights could be maintained only against wife or the husband as the case may be when their marriage was a legal marriage. Therefore, we find no illegality in the order passed by the Court below holding that the petition filed by the appellant is not maintainable.

(3.) IN the result, appeal fails and is dismissed. There shall be no order as to costs. Appeal dismissed.