BEENA DEHARIYA Vs. VIMAL DEHARIYA

JUDGEMENT

(1.) The petitioner/defendant (wife of respondent) has filed this petition under Article 227 of the Constitution of India, being aggrieved by the order dated 6.2.2013 (Annexure-P-1) passed by the IInd Upper District Judge, Chhindwara in Civil Original Suit No.18-A/2012, whereby, her application filed under Section 24 of the Hindu Marriage Act (In short 'the Act') for appropriate direction to the respondent/husband to pay her interim alimony and litigation expenses, has been dismissed.

(2.) Petitioner's counsel after taking me through the papers placed on the record along with the impugned order argued that the respondent herein has filed the petition against her under Section 9 of the Act for restitution of conjugal rights. In response of such petition, by filing the written statement, she has also filed the counter-claim to declare the alleged marriage as ab-initio void on account of impotency of the respondent. In pendency of the petition, she has filed the impugned application under Section 24 of the Act, contending that under compulsion she is residing with her parental family and did not possess any source of income for her livelihood and to meet the expenses of the impugned litigation and prayed to direct the respondent to pay her Rs. 3,000/- per month as interim alimony and Rs.5,000/- as expenses to defend the petition. He further said that, in response of such application no documentary evidence was filed on behalf of the respondent/husband to show that the petitioner/wife has any source of income to meet such expenses, the same has also been observed by the trial Court in the impugned order. But inspite that by holding that the petitioner being working as Guest Teacher in some institute, has a source of income, dismissed her application under the wrong premises. Such application has also been dismissed on the ground that she has filed the counter claim to declare the alleged marriage abinito void on the ground of impotency of the respondent. With these submissions by saying that the impugned order being contrary to record and the existing legal position, deserves to be set aside and prayed to set aside the same by allowing the application by admitting and allowing this petition.

(3.) On the other hand, responding the aforesaid arguments, Smt. Daheria by justifying the impugned order said that, the same being based on proper appreciation of the factual matrix of the case is in conformity with law. The same does not require any interference at this stage. She also said that the respondent did not have regular source of income to pay the sum of the interim alimony or for the litigation expenses to the petitioner. She also said that in view of the counter-claim filed by the petitioner on the ground of impotency of the respondent, she is not entitled to get any interim alimony from him and prayed for dismissal of this petition.