ORDER
A. Hanumanthu, J
1. The legal point involved in this appeal is
whether a Hindu Woman who is married, after
coming into force the Hindu Marriage Act,
1955 (hereinafter called as ‘Act’), to a Hindu
male having a living lawfully wedded wife,
can maintain a claim for maintenance under
Section 18 of the Hindu Adoption and
Maintenance Act, 1956 (hereinafter called as
‘Maintenance Act1).
2. Having disagreed with the
view expressed by a single Judge of this Court in C.
Obuta Konda Reddy v. Pedda Venkala
Lakshmamma, , that
the ‘Hindu wife’ contemplated by Section 18 of
the Maintenance Act means, a Hindu wife
whose marriage is solemnized, though void under the
Hindu Marriage Act, she is entitled to claim
maintenance from the husband, our learned brother
Ramesh Madhav Bapat-i made this reference to
lay down the correct position of law to the Division
Bench/Full Bench/Larger Bench. This is how this
appeal has come up before this Full Bench.
3. In the reference order, our
learned brother has narrated the facts leading to
filing of this appeal and briefly stated, they are as
under :
The appellant herein is the
defendant and the respondent herein is the plaintiff in
O.S. No.131 of 1987 on the file of the
Principal Subordinate Judge, Chittoor. The
respondent-plaintiff filed the said suit informa
pauperis claiming maintenance from the appellant at
the rate of Rs.1,000/- per month and
Rs.13,000/- towards the cost of gold
chain and other ornaments gifted to her by her
father at the time of her marriage with the appellant
herein, and also to create a charge over the
‘B’ schedule property for the amount that may be
decreed against the appellant-defendant. The case of
the respondent-plaintiff is that the appellant married
her according to Hindu rites and customs on 1-7-
1984 in Kasi Vishwanada Svvami
Devasthanam, Palamaner, that the marriage
was also registered before the Sub-Registrar,
Palamaner on 7-11-1984, that after
consummation of the marriage in the plaintiffs
parents’ house, she was taken by the appellant to
his village and there she came to know that the
appellant was already married to one
Parvathamma who begot two daughters
through him and the said two daughters were
already married and that the first wife
Parvathamma was residing in the appellant’s house
in the village. It was also her case that during the
negotiations for her marriage, the appellant did not
inform the respondent and her parents that he was
already married and his first wife was living and
that the plaintiff was made to believe as if it
was his first marriage. It was also the case of
the plaintiff that she reconciled herself on the advice
of the elders and lived with him
discharging her conjugal responsibilities till the
middle of 1985 and that differences arose
between the plaintiff and the defendant’s first wife
Parvathamma and on the instigation of the
first wife, the appellant began to ill-treat her and
neglected to maintain her and beat her on two or
three occasions and drove her out of the house on
30-12-1985 after snatching away gold chain
worth Rs. 13,0007- which was presented to her
at the time of her marriage by her father, and that the
plaintiff returned to her parents and since then she is
residing with them. It is also the case of the
plaintiff that she would not have agreed to
marry the appellant if he had divulged the fact that he
was a married man having his first wife living.
The plaintiff filed the said suit for the reliefs stated
supra. The plaintiff also contended that the appellant
gets an annual income of Rs.20,000/- from
his agricultural lands, that he has money lending
business and that the plaintiff does not have separate
property or any independent source of income and
that the plaintiff is entitled to get maintenance from
the defendant who is her husband.
4. The appellant-defendant resisted the
claim of the respondent-plaintiff. He
categorically disputed the allegation that he married
the plaintiff. He also pleaded that his first wife
was living and that he has got two married daughters
and that he has no reason to marry the plaintiff. He
also denied the income as alleged in the plaint. The
defendant also pleaded that the plaintiff is living in
adultery and that she is not entitled to claim
maintenance.
5. The trial Court settled the necessary
issues and allowed the parties to lead the
evidence. The respondent-plaintiff examined
PWs.l to 5 and marked Exs. A-l A-2, A-
2(a) and A-2(b). The appellant-defendant
examined DWs.l to 3, but no documents were
marked on his behalf. The first wife of the
defendant was examined as DW-2 and she
deposed with regard to her marriage with
defendant and begetting two daughters through
him. She also denied the marriage of the plaintiff
with the defendant. The trial Judge on a
consideration of the oral and documentary
evidence placed before him, held that the
solemnization of the marriage of the plaintiff with the
defendant has been established, and as such, she is
the legally wedded wife of the defendant and that
the defendant neglected to maintain her without any
reason and that the defendant snatched away the
gold chain, and other ornaments of the plaintiff. The
learned trial Judge relying on the decision in , held that the plaintiff is
entitled to claim maintenance under Section
18(2) of Maintenance Act. Hence, the plaintiff’s
suit has been decreed as prayed for, but without
costs. Aggrieved of that judgment and
decree, the defendant has preferred the
appeal.
6. It may be stated here, as a fact, that
the plaintiff examined as PW-1 stated in her cross-
examination thus:
“It is true that I became
pregnant about one and half years after
I filed this suit. The defendant used to visit
my house. It is not true to suggest that I
did not (sic) become pregnant through
somebody else.”
The father of the plaintiff examined as PW2
stated in his cross-examination thus:
“The defendant used to
visit our house for about 6 months now
and then after he drove away PW1. He
was coming even for one year after he
drove away PW1.”
This evidence of PWs.1 and 2 is also
relevant in the light of the plea taken by the
defendant that the plaintiff is living in
adultery. The trial Judge has not considered this
aspect.
7. The learned Counsel Sri S.
Ramamitrthy Reddy appearing for the
appellant-defendant raised the sole contention that
the alleged marriage of the appellant with the
respondent even if it is admitted to have been
solemnized, is null and void in view of the
provisions of Section 5 read with Section 11 of
the Hindu Marriage Act and such a marriage,
therefore, cannot confer status of a wife on the
respondent-plaintiff which would entitle her
to make a claim for maintenance under
Section 18 of the Maintenance Act. He further
elaborates that in order that a woman is
entitled to claim maintenance under the said
provision, she must satisfy the Court that she is
the ‘legally wedded wife’ and a woman whose
marriage contravenes the provisions of Section 5
read with Section II of the Hindu Marriage
Act cannot claim the status of a ‘wife’ and
the mere fact that necessary ceremonies
of a marriage under the customary Hindu Law
have been gone into, cannot confer on her the status
of a “legally wedded wife” which is a condition
precedent for claiming maintenance under
Section 18 of the Maintenance Act. The
learned Counsel further submitted that a
marriage if void ab initio does not alter or
affect the status of parties and does not
create between them any rights and obligations
which must normally arise from a valid
marriage.
8. On the other hand, Sri C.
Pattahhi Rama Rao, appearing for the
respondent-wife raised the following
contentions:
(i) The Maintenance Act does
not define “Hindu Wife” and sub-
section (1) of Section 18 says that a
“Hindu Wife” married either before or
after the commencement of the Act
shall be maintained by her husband and
subsection (2)(d) of Section 18 says
that a “Hindu wife” shall be entitled to
live separately from her husband
without forfeiting her claim for
maintenance if he has any other wife living
and reading of the two subsections
together, a “Hindu wife” whether
married cither before or after the
commencement of the Act is entitled to live
separately from her husband without
forfeiting her claim for maintenance if
he has any other wife living and as the
first wife of the appellant-defendant
is living, the respondent-plaintiff is entitled
to live separately and claim maintenance
from her husband, the appellant herein.
(ii) Section 18 of the Maintenance
Act confers a statutory right of maintenance
on every wife irrespective of her
marriage being legal or void and there is no
valid reason to restrict the application of such right
only to a legally wedded wife.
(iii) All that a wife has to establish in such a case is that
her marriage was performed after going through
the necessary ceremonies as per the customary
Hindu Law and once that is established, it would not
make any difference whether her marriage with
the appellant contravenes Sections 5 and 11 of
the Hindu Marriage Act.
(iv) The marriage of the respondent with the
appellant is a voidable marriage under Section
12 of the Marriage Act as the appellant suppressed
the feet that he was already married and his first
wife is living and suppression amounts to playing fraud on the
respondent and her father and if that feet had been
divulged by the appellant to the respondent, the
latter would not have agreed to marry him and
therefore, the marriage is voidable under Section 12
of the Act and as no steps were taken either by the
appellant or respondent to annul that voidable marriage, it
remains valid and continues to subsist for all
purposes unless a decree is passed by a Court annulling the
same. Hence, the marriage of the respondent with the
appellant is subsisting and by virtue of her status as wife
of the appellant, she is entitled for maintenance.
(v) The Maintenance Act is a piece of beneficial
and social legislation, it must be liberally construed in the
context of present social changes and the intention of the
Legislature to confer additional rights on women
and children. Therefore, even if the marriage is void ab
initio, the respondent is entitled for maintenance
as she continued to lead conjugal life with the
appellant as a married wife.
(vi) Section 25 of die Hindu Marriage Act confers
jurisdiction on the Court to grant permanent alimony
and maintenance to a wife or a husband
while passing any decree for restitution of
conjugal rights, judicial separation, dissolution of
the marriage by divorce, etc. and that even
a woman, whose marriage is declared, to be
null and void under Section 11 of that
Act, is entitled to get alimony and
maintenance and therefore, it has to be
inferred that Legislature intended to confer
statutory right for maintenance and
alimony even in cases where her
marriage contravenes the conditions
prescribed under Section 5 and is declared to
be null and void under Section 11 of that
Act.
9. It is not in dispute that the parties to
the proceedings arc Hindus and they are being
governed by their personal laws. The Hindu
Marriage Act, 1955, The Hindu Adoption and
Maintenance Act, 1956. The Hindu Minority and
Guardianship Act, 1956 and the The Hindu
Succession Act, 1956 are package of enactments
being part of socio-legal scheme applicable to
Hindus. In view of the divergent schools
governing the personal laws of the Hindus,
the Parliament codified the personal law relating
to the Hindus and enacted the said four Acts.
Hindu Marriage Act codifies the law relating to
marriages, and the Hindu Adoption and
Maintenance Act, 1956 codifies the law of
maintenance applicable to Hindus.
10. In the instant case, it is not disputed
that the appellant had a legally wedded wife living
with him at the time when he married the
respondent on 01-07-1984 as per the Hindu
rites and customs. Though the appellant had disputed
the said marriage of the respondent with him, the
trial Court, on an appreciation of the oral and
documentary evidence on record, has rightly
held that the marriage of the respondent with
the appellant had taken place on 01-07-1984
as per Hindu customs and the said marriage
was also registered on 11-7-1984 as seen
from Ex.A2. i.e. the Register of
Marriages maintained in the office of the Sub-
Registrar, Palamaner and there is an entry with
regard to the marriage of the appellant with the
respondent in that Register and the same has been
marked as Ex.A2(a) and the signature of PW4 in
the said Register has also been marked as
Ex.A2(b). PWs.3 and 5 have proved the said
documents. Thus, the respondent has, factually,
established her marriage with the appellant. It is also
the case of the respondent-plaintiff that the appellant
had a living wife DW2 at the time of her
marriage. The respondent-plaintiff, both in her plaint
as well as in her evidence as PW1 admitted that
when she was taken to the house of the
appellant, she found, to her surprise, that he
had already married one Parvathamma (DW2)
and he got two daughters through her. She has also
not disputed the validity of the marriage of the
appellant with his first wife Patvathamma.
Therefore, the next aspect to be considered is
what is the status of the respondent vis-a-
vis her marriage with the appellant and
whether she could get the status of a legally
wedded wife of the appellant.
11. For appreciating the status of a
Hindu woman marrying a Hindu male having
a spouse living, some of the provisions of the Hindu
Marriage Act, 1955 have to be examined.
Section 5 of the Act lays down conditions for
a Hindu Marriage solemnized after the
commencement of the Act. Clause (I) of that
Section lays down the necessary condition
that “neither party has a spouse living at the time of
the marriage”. Section 11 of the Act declares such
a marriage solemnized in contravention of clause (i)
as null and void in the following terms:
“Section 11.
Voidmarriages :-Anymaniage solemnized after
the commencement of this Act shall be null and
void and may, on a petition presented by either
party thereto against the other party be so
declared by a decree of nullity if it
contravenes any of the conditions specified in
clauses (i), (iv) and (v)of Sections.”
“Section 17 reads thus:
Section 17. Punishment
of bigamy .–Any marriage between two
Hindus solemnized after the commencement of
this Act is void if at the date of such marriage
either party had a husband or wife living;
and the provisions of Sections 494 and
495 of Indian Penal Code, 1860 (45
of 1860), shall appiy accordingly,”
Thus, Section 17 not only, declares
such a marriage as void, but the parties to
that marriage are also liable for bigamy. Section 12
of the Act relates to voidable marriages and it reads
as follows:
“Sec. 12, Voidable
marriages :–(1) Any Marriage solemnized,
whether before or after the commencement of
this Act, shall be voidable and may be
annulled by a decree- of nullity on any of the
following grounds, namely:
(a) that the marriage
has not been consummated owing to the
impotence of the respondent; or
(b) that the marriage is in contravention of the
condition specified in clause (ii) of Section 5;
or
(c) that the consent of the petitioner,
or where the consent of the guardian
in marriage of the petitioner (was required
under Section 5 as it stood immediately
before the commencement of the Child
Marriage Restraint (Amendment)
Act, 1978) the consent of such guardian
was obtained by force (or by fraud as to the
nature of the ceremony or as to any
material fact or circumstance
concerning the respondent); or
(d) that the respondent was at the time of the
marriage pregnant by some person other
then the petitioner.
(2) Notwithstanding anything contained in
sub-section (1) no petition for annulling a
marriage
(a) on the ground specified in
clause (c) of sub-section (1) shall be entertained if
(i) the petition is
presented more than one year after the
force had ceased to operate or, as the case
may be, the fraud had been discovered;
or
(ii) the petitioner has, with his or her
full consent, lived with the other party to
the marriage as husband or wife after the
force had ceased to operate or, as the case
may be, the fraud had been discovered;
(b) on the ground specified in clause (b) of
sub-section (1) shall be entertained unless the
Court is satisfied;–
(i) that the petitioner was at the time
of the marriage ignorant of the facts
alleged;
(ii) that proceedings have been instituted in the case
of a marriage solemnized before the
commencement of this Act within one
year of such commencement within one year
from the date of the marriage; and
(iii) that marital intercourse with the
consent of the petitioner has not taken
place since the discovery by the petitioner of
the existence of the said ground.”
Provisions under Section 18 of the Hindu
Adoptions and Maintenance Act, 1956 may also
be extracted as the respondent herein is claiming
maintenance under the said Act. It reads thus :
“Section 18-
Maintenance of wife ;-(1) Subject to the
provisions of this Section, a Hindu Wife,
whether married before or after the
commencement of this Act, shall be entitled to be
maintained by her husband during her life-
time.
(2) A Hindu wife shall be entitled to live
separately from her husband without
forfeiting her claim to maintenance
(a) (b) (c) not relevant.
(d) if he has any other wife living;
(3) A Hindu wife shall not be entitled to
separate residence and maintenance from her
husband if she is unchaste or ceases to be a Hindu by
conversion to other religion.”.
(c), (f), (g) not relevant.
12. Section 5(i) of the Hindu Marriage
Act which lays down that the marriage will be solemnized between
any two Hindus if neither party has a spouse living at the
time of the marriage, introduces monogamy in the Hindu Law.
The word ‘spouse” used in this Section means, a
“lawfully married husband or wife”. Therefore, before a valid
marriage can be solemnized after the commencement of the Act,
it must be shown that the parties to the marriage must be either
single or divorcee or a widow or widower and then only,
they are competent to enter into a valid marriage. If at the
performance of the marriage rites and ceremonies, one
or other had a spouse living and the earlier marriage
had not already been set aside, the later marriage is no
marriage at all and being in contravention of the condition laid
down in Section 5(i) of the said Act, it is void ab initio.
Section 11 of the Act as quoted earlier, lays down that any
marriage solemnized after the commencement of this Act
is null and void if it contravenes conditions specified under
Section 5(i) and may, on a petition presented by either
party thereto, so be declared by a decree of nullity. It has been
consistently held by this Court and various other High
Courts and Supreme Court that under the provisions of
the Hindu Marriage Act, a second marriage contracted while the first
marriage is subsisting, is void.
13. The learned Counsel appearing for
the respondent submitted that the marriage of the
respondent with the appellant, in the instant case, comes
under “voidable” marriage described under Section 12 of
the Act as the respondent was not informed about the
appellant’s earlier marriage when she was married
to him and thus, the appellant obtained her
consent by playing fraud on her, and that till the
marriage is annulled, that marriage is a valid
one and the respondent gets all the rights as
a wife under a valid marriage. We are
unable to accept this contention of the
learned Counsel for the respondent.
14. Sections 11 and 12 of the
Act as quoted earlier, deal with cases where a
marriage is void and cases where a marriage is
voidable at the option of either of the party to
the marriage respectively. In Section 11,
the expression used is “null and void” while the word
“voidable” is used in Section 12. This indicates the
intention of the Parliament that they wanted to make
a distinction between a void marriage and a voidable
marriage. The distinction is further indicated by
Section 17 which makes the parties to void
marriage criminally liable, while there is no such
penalty for the parties to a voidable marriage.
Of course, both Sections 11 and 12 speak
of a decree of nullity; but Section 11
speaks of only declaration of the marriage as null
and void by such a decree, while Section 12 speaks
of the annulment of a voidable marriage by a decree.
As a void marriage is non-existent in the eye of law,
only a declaration is sufficient, but an annulment
of a voidable marriage is necessary because
such a marriage shall be deemed to be valid
until it is annulled by a decree of nullity. Further,
the marriage which is null and void for contravening
the provisions of Section 5(i) ofthe said Act cannot
be treated as voidable under Section 12. We get
support for this view from the decision of
Supreme Court in Smt. Yamunabai Anant Rao
Adhav v. Ananta Rao Shivram Adhav and
another, . It is also held in
the same decision that the fact that the wife
was not informed about the husband’s earlier
marriage when she married him would be of no
avail and the wife cannot rely on the principle
of estoppel so as to defeat the provisions of the Act.
Thus, there can be no doubt that the words
“void” and “voidable” have been used in the Act in
two distinct senses. The argument that after
solemnisation of marriage, the appellant treated
her as his wife is again of no avail as the issue
lias to be settled under the provisions of the Act,
It is the intention of the Legislature as could be seen
from the provisions of the Act which is relevant and
not the attitude of the party.
15. A Hindu is under an
obligation to maintain his wife, his minor
sons, unmarried daughters and aged Parents. The
obligation is personal. It arises from the very
nature of the relationship and exists whether he
possesses any property or not. The Maintenance
Act gives statutory form to that obligation. The right
of a Hindu wife for maintenance is an incident of
the status of matrimony. Subsection (1) of
Section 18 of the Act substantially
reiterates that right and lays down the
general rule that a Hindu wife whether
married either before or after the
commencement of the Act is entitled to be
maintained by her husband during her life time. The
rule laid down in this Section is subject to the
exceptions stated in sub-section (3) which lays
down that she cannot claim separate
residence and maintenance if she is unchaste or
ceases to be a Hindu by conversion to
another religion. Under sub-section (2) of
Section 18 wife is entitled to live separately from
her husband without forfeiting her claim for
maintenance, in the circumstances stated in clauses
(a) to (g) mentioned in that subsection.
Under clause (d), wife is entitled for separate
residence without forfeiting her claim for
maintenance if her husband has any other wife
living. The claim for maintenance is
maintainable under this Section irrespective of the
fact that the marriage had taken place after
or before the marriage of the applicant wife, provided
the other wife is living. The ground laid down in this
Section can, obviously exist only in case of any
marriage solemnized before the Hindu
Marriage Act came into operation. It is
obviously for the reason that the Hindu Marriage
Act, 1955 laid down monogamy as a rule of
law and Hindu husband cannot marry another
wife after the commencement of that Act.
A bigamous marriage contracted after the coming
into force of that Act, would be null and void
and no question of having another wife can
arise. Therefore, the word “Hindu wife” in
Section 18(1) connotes only a legally wedded
wife of Hindu and such wife alone is entitled
to claim maintenance from her husband under this
Section. If her marriage is void ab initio, she is not
entitled to claim maintenance under this Section.
“Hindu wife” in this Section, we reiterate,
only means a wife whose marriage is valid
under the provisions of the Hindu Marriage Act,
1955. The wife whose marriage has been
solemnized, but is void on the ground that the
first wife of the husband is living at the time of the
marriage is not entitled to claim maintenance under
this provision.
16. The expression ” any other wife” in
Section 18(2)(d) of the Act came up for
consideration before Karnataka High Court in
Subbe Gowda v. Hanamma, , and it is held by that Court
that:
‘The expression ‘any other
wife .’ in Section 18(2)(d) means, any
other legally wedded wife. Therefore, even
if the husband is living with another
woman treating her as his wife, it
cannot be said that he has any other wife
living within the meaning of Section 18(2)
(d).”
While the personal law governing the parties
prohibits bigamous marriage, on a parity of
reasoning, it. can also be stated that the
expression ‘Hindu wife’ in Section 18 means
only a legally wedded wife and not a wife
whose marriage is void under the provisions of the
Hindu Marriage Act. The second
marriage/bigamous marriage being void cannot
create a legal statute of “husband” and “wife”
between the parties. That marriage is void ab initio
and the woman cannot get the status of a wife nor
the male gets the status of husband to her.
Therefore, she cannot get a right to claim
maintenance under Section 18 of the
Act.
17. It is also significant to note
that no attempt was made to amend or
make provision in the Act to include the case of a
woman whose marriage is void by reason of
provision of Section 5(i) of the Hindu
Marriage Act, for claiming maintenance against a
person with., whom she underwent illegal marriage.
Even though the Parliament in its anxiety to protect
the legitimacy of the paternity of the child born
out of that void marriage made a provision in
Section 16 of Marriage Laws (Amendment)
Act, 1976, it has not extended similar
protection in respect of the mother of that child.
Further, in our considered opinion it does not appear
to be the intention of the Act while such
marriage is rendered void, nevertheless, the
bigamous relationship should be recognised for
purpose of maintenance.
18. It is no doubt true that
Maintenance Act is a piece of beneficial
legislation conferring additional rights on
women and children. But, it cannot be
construed as conferring maintenance rights
on a woman whose marriage is void under Hindu
Marriage Act. While a legislative enactment may be
liberally construed, the liberality cannot overstep the
legislative limits of interpretation, putting to the
legislation something which is not there. If it is
felt that a particular enactment causes
hardship or inconvenience, it is for the
Legislature to redress it, but, it is not open
to the Court to ignore the legislative
injunction.
19. Now, we will refer to some
of the decided cases on the point. In Bami
Dharjha v. Chabbi Chalterji, AIR 1967
Pat. 217, Division Bench of Patna High
Court white dealing with the claim of a
woman for maintenance under Section
125 Cr.PC and such a woman being
married to a married man whose wife was living
at the time of her marriage, held that if the petitioner
on the date of marriage with the claimant-
woman had already wedded wife, his
marriage with the claimant woman is void under
Section 11 of the Hindu Marriage Act and a
marriage void ab initio does not alter or affect the
status of parties nor docs it create between
them any rights and obligations which must
normally arise from valid marriage and a void
marriage is non-existent in the eye of law.
20. In Pothula Manika Reddy
and Another v. Govt of A.P, rep. by
the Special Tahsildhar, l&nd Reforms,
Ranga Reddy, 1978 (1) APLJ 360.
a learned single Judge of our High Court, while
considering the status of a second wife who was
married to a person while his first wife was
living, held that a woman who is married to
a party who has already living spouse cannot be
treated as his spouse in the legal sense and such
a second marriage is null and void and it docs not
create any rights and obligations.
21. While considering the scope
of Section 11 of the Hindu Marriage Act,
the Division Bench of Patna High Court in AIR
1967 Patna 277 (supra) held thus:
“A marriage which
contravenes the conditions referred to in
Section 5 is in law no marriage at all being void
ipsojure and it is open to the party to the
marriage even without recourse to the Court to
treat it as a nullity. Neither party is under
any obligation to seek the declaration of nullity
under this Section though such a declaration
may be asked for the purpose of pre-caution or
record.”
22. At page 687 of Mulla’s Hindu
Law 14th Edition a passage reads thus:
“The person, an innocent
party to a bigamous marriage, may go to a
Court for declaration that a bigamous
marriage is null and void. That would
be for the purpose of precaution or record or
evidence. That the bigamous marriage is
a nonexistent and simply because there
is no recourse to the Court, it cannot be
said that it exists unless and until a
decree is passed declaring it to be null and
void.”
Therefore, the mere fact that the parties
had not approached the Court for
declaration as contemplated under Section
11 does not in any way alter the conditions
and thereby, it cannot be said that the marriage is
a valid and subsisting one.
23. In Baji Rao Gagoba
Thambra v. Ms. Tholan Bhai and
another, 1980 Crl. LJ 473, a Division
Bench of Bombay High Court white considering the
claim of a woman whose marriage was void,
for maintenance tinder Section 125 Cr.PC
held thus.
“A woman whose
marriage was void cannot get the legal
status of a wife and therefore, if the
marriage is void by reason of contravention
of Section 5 read with Section 11 of
Hindu Marriage Act, she is not competent to
make an application under Section 125 of the
Cr.P.C That provision merely speaks of a”
Wife” and its meaning cannot be extended
to a case of a void marriage.”
24. In Smt. Yetmtnabai Anantha
Rao Adhav v. Anantha Rao Shivram
Adhav and another, (supra) while
considering the question whether a Hindu
woman who is married after coming into force of
the Hindu Marriage Act, 1955, to a Hindu male
having a living lawfully wedded wife, can maintain
an application for maintenance under Section
125 Cr.P.C. the Supreme Court held
thus:
“Section 5(i) of Hindu Marriage
Act lays down, for a lawful marriage, the
necessary condition is that neither party should
have a spouse living at the time of the marriage.
A marriage in contravention of this
condition therefore, is null and void. The plea that
the marriage should not be treated as void
because such a marriage was earlier recognised
in law and customs cannot be accepted. By
reason of the over-riding effect of the Act as
mentioned in Section 4 no aid can be taken
of the earlier Hindu Law or any custom
or usage as a part of that Law inconsistent
with any provision of the Act, such a marriage
also cannot be said to be voidable by
reference to Section 12. So far as
Section 12 is concerned, it is confined to
other categories of marriages, and it is not
applicable to one solemnized in violation of
Section 5 (i) of the Act.”
It is further observed by the Supreme Court
thus:
“It is also to be seen
that while the Legislature has considered it
advisable to uphold the legitimacy of the paternity
of a child born out of a void marriage, it
has not extended a similar protection in respect
of the mother of the child”
The Court further observed thus:
“For the purpose of extending the
benefit of the Section to a divorced woman and
to an illegitimate child, the Parliament
considered it necessary to include in the
Section specific provisions to that effect, but it
has not done so with respect to woman
not lawfully married.”
The above decision of the Supreme Court will
apply in all tours to the case on hand arising under the
Hindu Marriage Act.
In Sayatma v. Lakshmi Bhai Alias
Hanuma Bhai and another, , this Court while relying on the
decision of the Supreme Court in (supra) observed:
“When the Legislature itself
incorporated in the Hindu Marriage Act that a
second marriage contracted while the first
marriage is subsisting is void, it cannot be
comprehended how the second wife is
entitled for maintenance.”
25. Thus, the Supreme Court and
various High Courts including Andhra Pradesh High
Court had taken the view that a woman whose
marriage is valid under the provisions of the Hindu
Marriage Act alone is entitled to claim maintenance
from her husband and the woman whose marriage
is void ab initio cannot make any claim for
maintenance; as such a marriage cannot create a
legal status of husband and wife between the
parties. We are also of the firm view that the
words “Hindu Wife” appearing in Section 18 of
Hindu Adoption and Maintenance Act has to be
interpreted as a wife whose marriage is valid
according to the provisions of the Hindu
Marriage Act. We do not agree with the
observations of the learned single Judge in “” (supra) that the provisions of
Hindu Adoption and Maintenance Act do not
warrant interpretation of such a Hindu wife and
such an interpretation renders the provisions
of Section 18 of Maintenance Actotiose.- In our
view such an interpretation stands to reason when
we take into consideration all these four Acts
which were passed as a package of
enactments being part of one Socio-legal
scheme applicable to Hindus and codifying the
various laws prevailing in various parts of the
country before that codification. By
codifying the personal laws prevailing and
applicable to Hindus, the Parliament intended to
have monogamy among the Hindus and
therefore, Hindu Marriage Act was passed to
prevent bigamous marriages and for that
purpose, it is enacted that a bigamous marriage is
void and also constituted such a marriage as a
crime for which punishment has been
provided. Therefore, it does not appear to be the
intention of the Parliament that while such a
bigamous marriage is rendered void, the
bigamous relationship should be recognised for
purpose of maintenance. Further, as
observed earlier, the Parliament while passing
Marriage Laws Amendment Act, 1976 (68/
76) has considered it advisable to uphold
the legitimacy of the paternity of children
born out of a void marriage; it has not
extended a similar protection in respect of
the mother of such children. Further, if the
bigamous relationship should be recognised for the
purpose of maintenance of a woman, the very
purpose of introducing the provisions in the
Hindu Marriage Act while introducing
monogamy among the Hindus will be
defeated.
26. The learned Counsel for
the respondent submitted that under Section 25 of
the Hindu Marriage Act, a wife whose marriage is
void would be entitled, as of right, of relief of
permanent maintenance once her marriage is
annulled by a decree of nullity under Section
11 or passing a decree of a kind envisaged
under Sections 9 to 14 of the Hindu Marriage Act,
and therefore, it allows that the Hindu Marriage
Act, 1955 recognizes notwithstanding the fact
that the marriage is null and void, that the wife
has the status atleast for limited purpose of
applying for alimony and maintenance. This
statutory intention, according to the learned
Counsel for the respondent, has to be borne in
mind in considering the claim of the respondent in
this case to maintenance. The support of this
contention the learned Counsel relied on the decision
of a learned single Judge of Bombay High Court in
Smt. Rajesh Bai and others v. Shantha Bai, AIR
1982 Bom. 331. In that case, the first wife of
the deceased filed a suit for partition against the
brothers of her deceased husband and the
2nd wife of her husband by name Rajesh Bai.
The defendants in that suit took the plea that
the plaintiff was divorced by her husband as
per the caste custom and after divorce, he
married 2nd wife Rajesh Bai. The learned
single Judge while holding that the marriage
of Rajesh Bai is void in view of the
subsisting first marriage of the deceased with
Shantha Bai, granted maintenance to 2nd wife
Rajesh Bai relying on the part materia provisions
of Section 25 of the Hindu Marriage Act
and also relying on the inherent powers of the Court
under Section 151 C.P.C. to meet the ends
of justice. The learned single Judge
observed thus:
“The rights recognised by
Section 25 of the Hindu Marriage Act
can clearly be worked out in any civil
proceedings subject to consideration of facts and
circumstances so as to meet the ends of justice
by resort to the inherent powers conferred upon
the Courts by Section 151 C.P.C. The
statutory references do not indicate that
there is any prohibition or any specific
Provision in this regard. On the other hand, the
principle is statutorily recognised that upon a decree
being passed for nullifying the marriage as void de jure,
the Court is possessed with ample power to make order
as to alimony and maintenance. What could,
therefore, be available in special proceedings
cannot be said to be not available when the same
issue is involved collaterally in competent civil
proceeding.”
The learned Judge further observed:
“Ultimately, having based the relief under
Section 151 C.P.C. with the aid of inherent powers
and drawing upon the principle underlying
Section 25 of the Hindu Marriage Act, it is
implicit that before maintenance is granted, the
need to grant such must exist as well as the grantee must
fulfil the ordinary conditions like that of chastity,
not being married with any other person and further of not
being in a position to maintain herself.”
With due respect, we are not in a position to
accept the said reasoning of the learned Judge. Firstly, the
assumption that Section 25 recognizes the right of a
woman bigamously married to claim maintenance at
the time when a decree of nullity is passed is not
correct. Secondly in the absence of a proceeding under
Sections 9 to 14 such a relief cannot be granted by
invoking Section 151. Section 151 could liave no
application to such a situation.
27. Section 25 of the Hindu Marriage
Act as it now stands after amendment by Act 68/76 is
reproduced hereunder:
“25. Permanent
alimony and maintenance :-
(1) Any Court exercising
jurisdiction under this Act may, at the time
of passing any decree or any time subsequent
thereto, on application made to it for the
purpose of either the wife or the husband, as
the case may be, order that the
respondent shall pay to the applicant for
her or his maintenance and support such
gross sum. of such monthly or periodical
sum for a term not exceeding the life of the
applicant as, having regard to the respondent’s
own income and other property if any,
the income and other property of the applicant
(the conduct of the parties and other
circumstances of the case), it may seem to the
Court to be just and any such payment may be
secured, if necessary by a charge on the
immovable property of the respondent.
(2) If the Court is satisfied that
there is a change in the circumstances of either
party at any time after it has made an
order under sub-section (1) it may at the
instance of cither party, vary modify or rescind
any such order in such manner as the
Court may deem just.
(3) If the Court is satisfied that the
party in whose favour an order has been
made under the Section has remarried, or
if such party is the wife that she has
not remained chaste, or if such party is
the husband, that he has had sexual
intercourse with any woman outside
wedlock, it may, at the instance of the
other party, vary, modify or rescind any
such order in such manner as the Court
may deem just.”
It is clear from this provision that it confers a
statutory right on the wife and the husband
and confers jurisdiction on the Court to pass an
order of maintenance and alimony in
proceedings under Sections 9 to 14 of the
Hindu Marriage Act. At any time before or after the
decree is passed in such a proceeding, therefore, the
wife or husband could make such a claim and the
conditions of Section 25(1) will have to be
satisfied. There must be a matrimonial
petition filed under the Hindu Marriage Act,
then, on such a petition, a decree must be passed by
the Court concerning the material status of the
wife or husband. It is only when such a
decree is passed that the right accrues to the
wife or the husband and confers jurisdiction on
the Court to grant alimony. Till then, such a right
does not take place. Not only that the Court
retains the jurisdiction even subsequent to
passing of such a decree to grant permanent
alimony when moved by an application in
that behalf by a party entitled to, the Court further
retains the power to change or alter the order in view
of the changed circumstances. Thus, the whole
exercise is within the gamut of a broken
marriage. Thus, the Legislature while codifying the
Hindu Marriage Act, reserved the right of permanent
maintenance in favour of the husband or the wife as
the case may be depending on the Court
passing a decree of the kind as envisaged under
Section 14 of the Act. Thus, Section 25 should not
be construed in such a manner as to hold that
notwithstanding the nullity of the marriage, the wife
retains her status for purposes of applying for
alimony and maintenance. In our view, the proper
construction of Section 25 would be that where a
marriage admittedly is a nullity, this Section will have
no application. But, where the question of nullity is in
issue and is contentious, the Court has to proceed on
the assumption until the contrary is proved, that the
applicant is the wife. It is in that sense
Section 25 should be appreciated. Further,
in the instant case, there are no proceedings
between the parties and there is no decree of the
kind as envisaged under Section 14 of the Act
disrupting the material status of the respondent with
appellant. Hence, the respondent is not entitled
to invoke the provisions under Section 25 of the
Act. On the other hand, the respondent is
seeking maintenance under Section 18 of
Hindu Adoption and Maintenance Act. When the
marriage of the respondent is void ab initio, she is
not entitled to claim maintenance under the said
Act. Hence, it is not open to the Court to
grant relief of maintenance under Section
25 of Hindu Marriage Act in the proceedings
initiated under the provisions of Hindu Adoption and
Maintenance Act, as held by the Apex Court in Smt.
Chand Dhawan v. Jawaharlal Dhawan, 1993
(3) Scale 1. As is evident, both these statutes are
codified laws on the respective subjects and by
liberality of interpretation, inter-changeability cannot
be permitted so as to destroy the distinction on the
subject of maintenance.
28. We are also of the opinion that
even the principles of justice, equity and
good conscience do not come to the rescue of the
respondent as the subject of maintenance is covered
by statute law and there is no scope to invoke those
principles where the legislative enactments on the
subject do not permit the grant of maintenance to a
woman who was a party to a bigamous
marriage.
29. Moreover on the facts of the
case also, the chastity of the respondent is doubtful
as she admits in her evidence that she became
pregnant after she was driven out of the
matrimonial home of her husband, the appellant
herein. Thus, viewed from any angle, the
respondent is not entitled to maintenance.
30. In the light of the foregoing
discussion, we hold on the point that a Hindu
Woman who is married after coming into force of
the Hindu Marriage Act, 1955 to a Hindu male,
having a lawfully wedded wife cannot maintain a
claim for maintenance under Section 18 of
the Hindu Adoption and Maintenance Act,
1956. In view of this decision, the
decision of the learned single Judge of this
Court in is liable to be
over-ruled. Accordingly, the said decision is over-
ruled.
31. In view of the above decision
taken by us, the claim of the respondent for
maintenance, whose marriage is void ab initio,
against the appellant is not maintainable.
Hence, the decree and judgment in O.S. No. 131
of 1987 on the file of the Principal Subordinate
Judge, Chiltoor, is liable to be set aside.
32. In the result the appeal is
allowed. The judgment and decree in
O.S.No.131 of 1987 on the file of the
Principal Subordinate Judge, Chittoor, is set
aside and the suit O.S.No.131 of 1987 is
dismissed. In the circumstances of this case,
parties are directed to bear their costs through
out.