MOUSUMI BASAK Vs. SOMNATH BASAK

JUDGEMENT

(1.) The husband is showing his aversion to maintenance granted to the wife under Section 24 of the Hindu Marriage Act, 1955 in a proceeding instituted by her under Section 9 thereof. Prior to the institution of the aforesaid proceedings by the wife, the husband instituted a suit for divorce under Section 13 of the said Act before the competent Court. Admittedly, an application under Section 24 of the said Act was taken out by the wife for alimony pendente lite which was allowed by the Trial Court granting maintenance of Rs. 3,500/- per month to the wife and the minor child together with litigation costs. The order was assailed before this Court in C.O. 2827 of 2011 and the quantum of maintenance was enhanced to Rs. 5,000/-. It has been observed in the said order that the husband has concealed the actual income, which cannot be less than Rs. 40,000/- per month as alleged by the wife.

(2.) Subsequently, the wife filed an application under Section 9 of the Act for restitution of conjugal rights which was registered as Matrimonial Suit No. 33 of 2014. This Court does not find any impediment in maintaining the subsequent application for conjugal right even if the suit for divorce has been filed by the husband. Section 24 of the Act entitles either of the spouse to claim maintenance pendente lite in a proceedings instituted under the said Act, the wife took out a fresh application under Section 24 of the Act claiming maintenance not only for her but also for her minor child.

(3.) It is apparent from the record that the wife did not suppress the institution of suit for divorce by the husband and the factum of granting maintenance under Section 24 of the said Act in the said proceedings. The written objection does not contain any averments that the subsequent application under Section 24 of the said Act is hit by principles of res judicata.