JUDGMENT
M.S. Liberhan, J.
1. For the purpose of deciding this application under Section 24 of the Hindu Marriage Act (for short ‘the Act’), the skeletal necessary facts are that the applicant-respondent sought annulment of marriage with the appellant under Section 11 of the Act and prayed that marriage of the applicant-respondent with the appellant be declared as nullity as the husband had a living spouse when the respondent was married to him.
2. The trial Court found that the husband was already married; that the marriage was subsisting, and that the spouse was alive at the time of alleged marriage with the applicant-respondent. Thus, the applicant’s marriage was declared to be void.
3. The appellant has challenged the decree of declaration declaring the marriage to be a nullity in this appeal. The applicant-respondent has preferred an application under Section 24 of the Act claiming maintenance pendente lite and expenses of the proceedings in this appeal. She claimed herself to be the wife and averred that she had no independent income sufficient for her support and for necessary expenses in the proceedings. The husband was said to be earning about Rs. 2,000/- per month being in service, though the husband has denied the fact contending that he was under suspension and was drawing only subsistence allowance.
4. The husband resisted the application for maintenance on the ground that the maintenance could be granted during the pendency of the proceedings only to the ‘wife’. Though the wife has not been denned anywhere in the Act, but in the ordinary parlance and as understood by a common man, wife has a definite connotation of the society. The wife enjoys a particular status in the life of a person. Only a legally married person has a right to claim herself to be the wife of a person. Illegal or void marriage or marriage against law cannot confer the status of a wife on a person. The wife does command a respect in the society and is expected to discharge certain social, religious and other obligations. The declaration of marriage being void is not a must. The formal declaration need not be there and void marriage cannot be considered to be a void marriage only on the grant of declaration by a Court in a proceeding. Void marriages are void ab initio which means that in the eye of law that marriage has never come into being.
5. Learned counsel for the applicant relied upon Mohinder Kaur v. Gobind Singh, 1989 (XII) Marriage Law Journal 429. The law laid down in this judgment is that the proceedings under Section 24 of the Act are summary proceedings and are intended to give reasonable opportunity of defence to a spouse having no independent income for his or her maintenance. This is an ad hoc interim arrangement. There is no quarrel with the proposition of law laid in this judgment, but it has no applicability to the question to be determined in these proceedings.
6. So far as the precedent cited, reported as Rajinder Kaur alias Parminder Kaur v. Attinderjit Singh, 1989 (XII) Marriage Law Journal 371, is concerned, it was observed therein that the relevant consideration for the Court while disposing of the application under Section 24 of the Act is whether applicant has no independent means sufficient for her support and the Court should not go into veracity of the allegations in the pleadings of the parties at that stage. It was further observed that the pleadings of the parties as well as the finding arrived at cannot be gone into while determining the application under Section 24 of the Act. Again, the proposition of law laid down in the said judgment is not pari materia on the question to be determined in this case. There can be no gainsaying that the relevant consideration is the condition of the spouse having no independent source of income sufficient for his or her support, but at the same time it cannot be ignored that it is only the wife or the husband who can maintain an application under Section 24 of the Act. It has to be determined whether the applicant is ‘wife’ before any order for maintenance can be passed in her favour. The moment it is found as a fact that the applicant is not a wife, the Court has no jurisdiction to grant maintenance under the statute.
7. In so far as the pleadings etc. before the trial Court are concerned, this petition stands entirely on a different footing. The entire evidence has come on record. The pleadings are on record. The findings in the judgment are there. Whether a person is a wife or a husband and is entitled to maintain an application for maintenance, is within the jurisdiction of the Court to decide and the Court can certainly go into the question whether applicant enjoys the status of husband or wife or not. Summary procedure does not absolve the Court of its duty to prima facie find out whether there is a relationship of husband or wife or not on the basis of the material already produced on the record. The above observations of mine find support from the order in Civil Miscellaneous No. 20M of 1988 in F.A.O. No. 54M of 1988 (Veena Rani v. Jagdish Mitter Malhan) passed on September 28, 1988.
8. Learned counsel for the applicant has sanguinely relied upon Dayal Singh v. Bhajan Kaur, AIR 1973 Punjab and Haryana 44 in order to contend that though wife has not been defined anywhere under the Act, yet liberal view should be taken and wider meaning should be given to the term wife and illegally married woman should also be considered to be a wife and be treated so for the purpose of Section 25 of the Act. I am afraid, I cannot subscribe to the view taken in the said judgment. I would have referred the matter to the Division Bench for decision as this question is likely to arise in many cases; but the same is not being done for the reason that the Supreme Court while dealing with the word ‘wife’ under Section 125 of the Code of Criminal Procedure in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr., 1988(1) Supreme Court Cases 530, has observed that wife means a legally wedded wife and marriage in contravention of Section 5(i) is void ab initio. It can be held to be so when there is a formal declaration by the Court in proceedings under Section 11 of the Act. It was observed by the Supreme Court that :
“The word ‘wife’ is not defined in the Code except indicating in the Explanation its inclusive chatacter so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must, therefore, be given the meaning in which it is understood in law applicable to the parties, subject to the Explanation (b), which is not relevant in the present context. It is only where an applicant establishes her status on relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the Section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law.”
9. A marriage in violation of Section 5 of the Act has to be ignored as non-existing in law. If and when such question arises, the fact that marriage has not been declared so earlier is of no avail. Section 11 of the Act permits only a formal declaration to be made with respect to a void marriage; otherwise a marriage in contravention of Section 5(i) is a void marriage and shall be deemed to be always so. It is pointedly clear from the fact that the Legislature has not used the word ‘wife’ in Section 11 of the Act. Only in case of Sections 9, 10, 13 and other Sections of the Act reference has been made to word ‘wife’. In view of the judgment of the Supreme Court in Yamunabai Ananlrao Adhav’s case (supra) and the judgments earlier cited, the view taken by the Single Bench in Dayal Singh’s case (supra) stands impliedly not accepted.
10. The learned counsel for the applicant further relied upon Pritam Kaur v. Rajinder Singh, 1983 H.L.R. 27. The view expressed therein, that the conduct of a spouse asking for reliefs under Section 24 of the Act is totally irrelevant for the grant of relief, apparently has no hearing on the facts and circumstances of the present case.
11. I am of the considered view that, on the admitted facts that at the time of the alleged marriage of the applicant-respondent with the appellant, the appellant was already legally married and was having a living spouse, her marriage with the appellant was in violation of Section 5 of the Act and was a void marriage. Thus, in the eye of law the applicant-respondent never attained the status of a wife, which has a definite connotation as observed above and as understood by the society. Section 24 of the Act statutorily confers a right of maintenance on a spouse during the pendency of the proceedings under the Act but when the marriage itself is void and none of the spouse enjoys the status of husband/wife, neither of the spouse can stake claim for maintenance during the pendency of the proceedings. In view of this, I find no force in the application and the same is dismissed with no order as to costs. However, the views expressed here will not be taken note of at the time of deciding the appeal on merits.