KAMLESH Vs. VIRENDRA KUMAR UIKS

JUDGEMENT

(1.) THIS revision under Section 115 of the Civil Procedure Code (hereinafter referred to as the 'code') has been directed against the orders dated 25. 1. 1990 and 12. 2. 1990, by the applicant, who is the wife of the- non-applicant and contesting the petition under Section 9 of the Hindu Marriage Act, filed against her by her husband, the non-applicant, herein.

(2.) THE husbond non-applicant filed a petition under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Acts) against his wife, the applicant herein, for restitution of conjugal rights. In her written statement, the applicant took the plea that the parties to the proceedings are Gonds Adivasi by casts and belonged to schedule tribe and as such the provisions of Hindu Marriage Act are not applicable to them. On these pleadings, it has been averred that the trial Court has no jurisdiction to entertain and try the same. The applicant wife also made an application under Section 24 of the Act for grant of maintenance pendente lite and expenses of the proceedings as she has no idependent income sufficient for her support and the necessary expenses to defend hereself in proceeding initiated against her. The learned trial Judge by his order dated 5. 1. 1989 allowed the applicant's application under Section 24 of the Act directing the husband-non-applicant to pay maintenances pendente lite at the rate of Rs. 150/per month as well as Rs. 200/- towards the expenses of the proceedings. Later on, the applicant made an application under Order 14 Rule 2 (2) of the Code before the Trial Court with a prayer to decide the issue regarding the maintainability of the suit as a preliminary issue, the learned trial Judge took the view that the applicant after accepting the jurisdiction of the trial Court, has taken advantage of the provisions of Section 24 of the Act, Secured the order for maintenance and expenses and has actually received the payment and therefore, unless the applicant returned the amount obtained by her to the non-applicant, her application under Order 14 Rule 2 (2) of the Code could not be entertained decided. The trial Court, therefore, by order dated 25. 1. 1990 directed the applicant to refund all the amounts to the non-applicant received by her. On 12. 2. 1990 the Counsel for the applicant expressed the inability of the applicant to refund the amount paid to her and, therefore the learned trial Judge rejected the applicant's application under Order 14 Rule 2 (2) and, therefore, this revision against the aforesaid two orders.

(3.) LEARNED Counsel appearing for the wife applicant assailed the orders by contending that the trial Court committed a grave error in directing the refund of the maintenance allowance and expenses of the proceeding as a condition precedant for the entertainment of applicant's application to decide the jurisdictional issue as a preliminary issue. Hg submitted that the wife-applicant was entities for the benefit of Section 24 of the Act as long as the proceedings under Section 9 of the Act were pending and as the issue regarding the maintainability of the suit and jurisdiction of the trial Court could be decided without recording the evidence, the trial Court was duty bound to allow the applicant's application and the refund of the amount of maintenance could not be made a condition precedent to the entertainment and decision of the application. After hearing, the learned Counsel for the parties and on perusal of the impugned orders, this Court finds that there is sufficient force in the arguments advanced by the learned Counsel for the applicants.