{"id":24834,"date":"1998-07-27T00:00:00","date_gmt":"1998-07-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/abbayolla-m-subba-reddy-vs-padmamma-on-27-july-1998"},"modified":"2018-05-31T12:25:41","modified_gmt":"2018-05-31T06:55:41","slug":"abbayolla-m-subba-reddy-vs-padmamma-on-27-july-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/abbayolla-m-subba-reddy-vs-padmamma-on-27-july-1998","title":{"rendered":"Abbayolla M. Subba Reddy vs Padmamma on 27 July, 1998"},"content":{"rendered":"
Andhra High Court<\/div>\n
Abbayolla M. Subba Reddy vs Padmamma on 27 July, 1998<\/div>\n
Equivalent citations: 1998 (5) ALD 465, 1998 (5) ALT 152, I (2000) DMC 266<\/div>\n
Author: A. Hanumanthu<\/div>\n
Bench: P V Reddi, K S Shrivastav, A Hanumanthu<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
  A. Hanumanthu, J    <\/p>\n
 1. The legal point involved in this appeal is
\nwhether a Hindu Woman who is married, after
\ncoming into force the Hindu Marriage Act,
\n1955 (hereinafter called as ‘Act’), to a Hindu
\nmale having a living lawfully wedded wife,
\ncan maintain a claim for maintenance under
\nSection 18 of the Hindu Adoption and
\nMaintenance Act, 1956 (hereinafter called as
\n‘Maintenance Act1).\n<\/p>\n
 2. Having disagreed with the
\nview expressed by a single Judge of this Court in C.
\nObuta Konda Reddy v. Pedda Venkala
\nLakshmamma, , that
\nthe ‘Hindu wife’ contemplated by Section 18 of
\nthe Maintenance Act means, a Hindu wife
\nwhose marriage is solemnized, though void under the
\nHindu Marriage Act, she is entitled to claim
\nmaintenance from the husband, our learned brother
\nRamesh Madhav Bapat-i made this reference to
\nlay down the correct position of law to the Division
\nBench\/Full Bench\/Larger Bench. This is how this
\nappeal has come up before this Full Bench.\n<\/p>\n
 3. In the reference order, our
\nlearned brother has narrated the facts leading to
\nfiling of this appeal and briefly stated, they are as
\nunder :\n<\/p>\n
  The appellant herein is the
\ndefendant and the respondent herein is the plaintiff in
\nO.S. No.131 of 1987 on the file of the
\nPrincipal Subordinate Judge, Chittoor. The
\nrespondent-plaintiff filed the said suit informa
\npauperis claiming maintenance from the appellant at
\nthe rate of Rs.1,000\/- per month and
\nRs.13,000\/- towards the cost of gold
\nchain and other ornaments gifted to her by her
\nfather at the time of her marriage with the appellant
\nherein, and also to create a charge over the
\n‘B’ schedule property for the amount that may be
\ndecreed against the appellant-defendant. The case of
\nthe respondent-plaintiff is that the appellant married
\nher according to Hindu rites and customs on 1-7-
\n1984 in Kasi Vishwanada Svvami
\nDevasthanam, Palamaner, that the marriage
\nwas also registered before the Sub-Registrar,
\nPalamaner on 7-11-1984, that after
\nconsummation of the marriage in the plaintiffs
\nparents’ house, she was taken by the appellant to
\nhis village and there she came to know that the
\nappellant was already married to one
\nParvathamma who begot two daughters
\nthrough him and the said two daughters were
\nalready married and that the first wife
\nParvathamma was residing in the appellant’s house
\nin the village. It was also her case that during the
\nnegotiations for her marriage, the appellant did not
\ninform the respondent and her parents that he was
\nalready married and his first wife was living and
\nthat the plaintiff was made to believe as if it
\nwas his first marriage. It was also the case of
\nthe plaintiff that she reconciled herself on the advice
\nof the elders and lived with him
\ndischarging her conjugal responsibilities till the
\nmiddle of 1985 and that differences arose
\nbetween the plaintiff and the defendant’s first wife
\nParvathamma and on the instigation of the
\nfirst wife, the appellant began to ill-treat her and
\nneglected to maintain her and beat her on two or
\nthree occasions and drove her out of the house on
\n30-12-1985 after snatching away gold chain
\nworth Rs. 13,0007- which was presented to her
\nat the time of her marriage by her father, and that the
\nplaintiff returned to her parents and since then she is
\nresiding with them. It is also the case of the
\nplaintiff that she would not have agreed to
\nmarry the appellant if he had divulged the fact that he
\nwas a married man having his first wife living.
\nThe plaintiff filed the said suit for the reliefs stated
\nsupra. The plaintiff also contended that the appellant
\ngets an annual income of Rs.20,000\/- from
\nhis agricultural lands, that he has money lending
\nbusiness and that the plaintiff does not have separate
\nproperty or any independent source of income and
\nthat the plaintiff is entitled to get maintenance from
\nthe defendant who is her husband.\n<\/p>\n
 4. The appellant-defendant resisted the
\nclaim of the respondent-plaintiff. He
\ncategorically disputed the allegation that he married
\nthe plaintiff. He also pleaded that his first wife
\nwas living and that he has got two married daughters
\nand that he has no reason to marry the plaintiff. He
\nalso denied the income as alleged in the plaint. The
\ndefendant also pleaded that the plaintiff is living in
\nadultery and that she is not entitled to claim
\nmaintenance.\n<\/p>\n
 5. The trial Court settled the necessary
\nissues and allowed the parties to lead the
\nevidence. The respondent-plaintiff examined
\nPWs.l to 5 and marked Exs. A-l A-2, A-
\n2(a) and A-2(b). The appellant-defendant
\nexamined DWs.l to 3, but no documents were
\nmarked on his behalf. The first wife of the
\ndefendant was examined as DW-2 and she
\ndeposed with regard to her marriage with
\ndefendant and begetting two daughters through
\nhim. She also denied the marriage of the plaintiff
\nwith the defendant. The trial Judge on a
\nconsideration of the oral and documentary
\nevidence placed before him, held that the
\nsolemnization of the marriage of the plaintiff with the
\ndefendant has been established, and as such, she is
\nthe legally wedded wife of the defendant and that
\nthe defendant neglected to maintain her without any
\nreason and that the defendant snatched away the
\ngold chain, and other ornaments of the plaintiff. The
\nlearned trial Judge relying on the decision in , held that the plaintiff is
\nentitled to claim maintenance under Section
\n18(2) of Maintenance Act. Hence, the plaintiff’s
\nsuit has been decreed as prayed for, but without
\ncosts. Aggrieved of that judgment and
\ndecree, the defendant has preferred the
\nappeal.\n<\/p>\n
 6. It may be stated here, as a fact, that
\nthe plaintiff examined as PW-1 stated in her cross-
\nexamination thus:\n<\/p>\n
  “It is true that I became
\npregnant about one and half years after
\nI filed this suit. The defendant used to visit
\nmy house. It is not true to suggest that I
\ndid not (sic) become pregnant through
\nsomebody else.”\n<\/p>\n
 The father of the plaintiff examined as PW2
\nstated in his cross-examination thus:
\n  “The defendant used to
\nvisit our house for about 6 months now
\nand then after he drove away PW1. He
\nwas coming even for one year after he
\ndrove away PW1.”\n<\/p>\n
 This evidence of PWs.1 and 2 is also
\nrelevant in the light of the plea taken by the
\ndefendant that the plaintiff is living in
\nadultery. The trial Judge has not considered this
\naspect.\n<\/p>\n
 7. The learned Counsel Sri S.\n<\/p>\n
Ramamitrthy Reddy appearing for the
\nappellant-defendant raised the sole contention that
\nthe alleged marriage of the appellant with the
\nrespondent even if it is admitted to have been
\nsolemnized, is null and void in view of the
\nprovisions of Section 5 read with Section 11 of
\nthe Hindu Marriage Act and such a marriage,
\ntherefore, cannot confer status of a wife on the
\nrespondent-plaintiff which would entitle her
\nto make a claim for maintenance under
\nSection 18 of the Maintenance Act. He further
\nelaborates that in order that a woman is
\nentitled to claim maintenance under the said
\nprovision, she must satisfy the Court that she is
\nthe ‘legally wedded wife’ and a woman whose
\nmarriage contravenes the provisions of Section 5
\nread with Section II of the Hindu Marriage
\nAct cannot claim the status of a ‘wife’ and
\nthe mere fact that necessary ceremonies
\nof a marriage under the customary Hindu Law
\nhave been gone into, cannot confer on her the status
\nof a “legally wedded wife” which is a condition
\nprecedent for claiming maintenance under
\nSection 18 of the Maintenance Act. The
\nlearned Counsel further submitted that a
\nmarriage if void ab initio does not alter or
\naffect the status of parties and does not
\ncreate between them any rights and obligations
\nwhich must normally arise from a valid
\nmarriage.\n<\/p>\n
 8. On the other hand, Sri C.\n<\/p>\n
Pattahhi Rama Rao, appearing for the
\nrespondent-wife raised the following
\ncontentions:\n<\/p>\n
 (i) The Maintenance Act does
\nnot define “Hindu Wife” and sub-\n<\/p>\n
section (1) of Section 18 says that a
\n“Hindu Wife” married either before or
\nafter the commencement of the Act
\nshall be maintained by her husband and
\nsubsection (2)(d) of Section 18 says
\nthat a “Hindu wife” shall be entitled to
\nlive separately from her husband
\nwithout forfeiting her claim for
\nmaintenance if he has any other wife living
\nand reading of the two subsections
\ntogether, a “Hindu wife” whether
\nmarried cither before or after the
\ncommencement of the Act is entitled to live
\nseparately from her husband without
\nforfeiting her claim for maintenance if
\nhe has any other wife living and as the
\nfirst wife of the appellant-defendant
\nis living, the respondent-plaintiff is entitled
\nto live separately and claim maintenance
\nfrom her husband, the appellant herein.\n<\/p>\n
 (ii) Section 18 of the Maintenance
\nAct confers a statutory right of maintenance
\non every wife irrespective of her
\nmarriage being legal or void and there is no
\nvalid reason to restrict the application of such right
\nonly to a legally wedded wife.\n<\/p>\n
 (iii) All that a wife has to establish in such a case is that
\nher marriage was performed after going through
\nthe necessary ceremonies as per the customary
\nHindu Law and once that is established, it would not
\nmake any difference whether her marriage with
\nthe appellant contravenes Sections 5 and 11 of
\nthe Hindu Marriage Act.\n<\/p>\n
 (iv) The marriage of the respondent with the
\nappellant is a voidable marriage under Section
\n12 of the Marriage Act as the appellant suppressed
\nthe feet that he was already married and his first
\nwife is living and suppression amounts to playing fraud on the
\nrespondent and her father and if that feet had been
\ndivulged by the appellant to the respondent, the
\nlatter would not have agreed to marry him and
\ntherefore, the marriage is voidable under Section 12
\nof the Act and as no steps were taken either by the
\nappellant or respondent to annul that voidable marriage, it
\nremains valid and continues to subsist for all
\npurposes unless a decree is passed by a Court annulling the
\nsame. Hence, the marriage of the respondent with the
\nappellant is subsisting and by virtue of her status as wife
\nof the appellant, she is entitled for maintenance.\n<\/p>\n
 (v) The Maintenance Act is a piece of beneficial
\nand social legislation, it must be liberally construed in the
\ncontext of present social changes and the intention of the
\nLegislature to confer additional rights on women
\nand children. Therefore, even if the marriage is void ab
\ninitio, the respondent is entitled for maintenance
\nas she continued to lead conjugal life with the
\nappellant as a married wife.\n<\/p>\n
 (vi) Section 25 of die Hindu Marriage Act confers
\njurisdiction on the Court to grant permanent alimony
\nand maintenance to a wife or a husband
\nwhile passing any decree for restitution of
\nconjugal rights, judicial separation, dissolution of
\nthe marriage by divorce, etc. and that even
\na woman, whose marriage is declared, to be
\nnull and void under Section 11 of that
\nAct, is entitled to get alimony and
\nmaintenance and therefore, it has to be
\ninferred that Legislature intended to confer
\nstatutory right for maintenance and
\nalimony even in cases where her
\nmarriage contravenes the conditions
\nprescribed under Section 5 and is declared to
\nbe null and void under Section 11 of that
\nAct.\n<\/p>\n
 9. It is not in dispute that the parties to
\nthe proceedings arc Hindus and they are being
\ngoverned by their personal laws. The Hindu
\nMarriage Act, 1955, The Hindu Adoption and
\nMaintenance Act, 1956. The Hindu Minority and
\nGuardianship Act, 1956 and the The Hindu
\nSuccession Act, 1956 are package of enactments
\nbeing part of socio-legal scheme applicable to
\nHindus. In view of the divergent schools
\ngoverning the personal laws of the Hindus,
\nthe Parliament codified the personal law relating
\nto the Hindus and enacted the said four Acts.
\nHindu Marriage Act codifies the law relating to
\nmarriages, and the Hindu Adoption and
\nMaintenance Act, 1956 codifies the law of
\nmaintenance applicable to Hindus.\n<\/p>\n
 10. In the instant case, it is not disputed
\nthat the appellant had a legally wedded wife living
\nwith him at the time when he married the
\nrespondent on 01-07-1984 as per the Hindu
\nrites and customs. Though the appellant had disputed
\nthe said marriage of the respondent with him, the
\ntrial Court, on an appreciation of the oral and
\ndocumentary evidence on record, has rightly
\nheld that the marriage of the respondent with
\nthe appellant had taken place on 01-07-1984
\nas per Hindu customs and the said marriage
\nwas also registered on 11-7-1984 as seen
\nfrom Ex.A2. i.e. the Register of
\nMarriages maintained in the office of the Sub-
\nRegistrar, Palamaner and there is an entry with
\nregard to the marriage of the appellant with the
\nrespondent in that Register and the same has been
\nmarked as Ex.A2(a) and the signature of PW4 in
\nthe said Register has also been marked as
\nEx.A2(b). PWs.3 and 5 have proved the said
\ndocuments. Thus, the respondent has, factually,
\nestablished her marriage with the appellant. It is also
\nthe case of the respondent-plaintiff that the appellant
\nhad a living wife DW2 at the time of her
\nmarriage. The respondent-plaintiff, both in her plaint
\nas well as in her evidence as PW1 admitted that
\nwhen she was taken to the house of the
\nappellant, she found, to her surprise, that he
\nhad already married one Parvathamma (DW2)
\nand he got two daughters through her. She has also
\nnot disputed the validity of the marriage of the
\nappellant with his first wife Patvathamma.
\nTherefore, the next aspect to be considered is
\nwhat is the status of the respondent vis-a-
\nvis her marriage with the appellant and
\nwhether she could get the status of a legally
\nwedded wife of the appellant.\n<\/p>\n
 11. For appreciating the status of a
\nHindu woman marrying a Hindu male having
\na spouse living, some of the provisions of the Hindu
\nMarriage Act, 1955 have to be examined.
\nSection 5 of the Act lays down conditions for
\na Hindu Marriage solemnized after the
\ncommencement of the Act. Clause (I) of that
\nSection lays down the necessary condition
\nthat “neither party has a spouse living at the time of
\nthe marriage”. Section 11 of the Act declares such
\na marriage solemnized in contravention of clause (i)
\nas null and void in the following terms:\n<\/p>\n
 “Section 11.\n<\/p>\n
Voidmarriages :-Anymaniage solemnized after
\nthe commencement of this Act shall be null and
\nvoid and may, on a petition presented by either
\nparty thereto against the other party be so
\ndeclared by a decree of nullity if it
\ncontravenes any of the conditions specified in
\nclauses (i), (iv) and (v)of Sections.”\n<\/p>\n
 “Section 17 reads thus:\n<\/p>\n
 Section 17. Punishment
\nof bigamy .–Any marriage between two
\nHindus solemnized after the commencement of
\nthis Act is void if at the date of such marriage
\neither party had a husband or wife living;
\nand the provisions of Sections 494 and
\n495 of Indian Penal Code, 1860 (45
\nof 1860), shall appiy accordingly,”\n<\/p>\n
 Thus, Section 17 not only, declares
\nsuch a marriage as void, but the parties to
\nthat marriage are also liable for bigamy. Section 12
\nof the Act relates to voidable marriages and it reads
\nas follows:\n<\/p>\n
 “Sec. 12, Voidable
\nmarriages :–(1) Any Marriage solemnized,
\nwhether before or after the commencement of
\nthis Act, shall be voidable and may be
\nannulled by a decree- of nullity on any of the
\nfollowing grounds, namely:\n<\/p>\n
 (a) that the marriage
\nhas not been consummated owing to the
\nimpotence of the respondent; or   <\/p>\n
 (b) that the marriage is in contravention of the
\ncondition specified in clause (ii) of Section 5;
\nor  <\/p>\n
 (c) that the consent of the petitioner,
\nor where the consent of the guardian
\nin marriage of the petitioner (was required
\nunder Section 5 as it stood immediately
\nbefore the commencement of the Child
\nMarriage Restraint (Amendment)
\nAct, 1978) the consent of such guardian
\nwas obtained by force (or by fraud as to the
\nnature of the ceremony or as to any
\nmaterial fact or circumstance
\nconcerning the respondent); or   <\/p>\n
 (d) that the respondent was at the time of the
\nmarriage pregnant by some person other
\nthen the petitioner.\n<\/p>\n
 (2) Notwithstanding anything contained in
\nsub-section (1) no petition for annulling a
\nmarriage <\/p>\n
 (a) on the ground specified in
\nclause (c) of sub-section (1) shall be entertained if<\/p>\n
 (i) the petition is
\npresented more than one year after the
\nforce had ceased to operate or, as the case
\nmay be,  the fraud  had been discovered;
\nor  <\/p>\n
 (ii) the petitioner has, with his or her
\nfull consent, lived with the other party to
\nthe marriage as husband or wife after the
\nforce had ceased to operate or, as the case
\nmay be, the fraud had been discovered;\n<\/p>\n
 (b) on the ground specified in clause (b) of
\nsub-section (1) shall be entertained unless the
\nCourt is satisfied;–\n<\/p>\n
 (i) that the petitioner was at the time
\nof the marriage ignorant of the facts
\nalleged;\n<\/p>\n
 (ii) that proceedings have been instituted in the case
\nof a marriage solemnized before the
\ncommencement of this Act within one
\nyear of such commencement within one year
\nfrom the date of the marriage; and  <\/p>\n
 (iii) that marital intercourse with the
\nconsent of the petitioner has not taken
\nplace since the discovery by the petitioner of
\nthe existence of the said ground.”\n<\/p>\n
 Provisions under Section 18 of the Hindu
\nAdoptions and Maintenance Act, 1956 may also
\nbe extracted as the respondent herein is claiming
\nmaintenance under the said Act. It reads thus :\n<\/p>\n
 “Section 18-\n<\/p>\n
Maintenance of wife ;-(1) Subject to the
\nprovisions of this Section, a Hindu Wife,
\nwhether married before or after the
\ncommencement of this Act, shall be entitled to be
\nmaintained by her husband during her life-
\ntime.\n<\/p>\n
 (2) A Hindu wife shall be entitled to live
\nseparately from her husband without
\nforfeiting her claim to maintenance <\/p>\n
 (a) (b) (c) not relevant.\n<\/p>\n
 (d) if he has any other wife living;\n<\/p>\n
 (3) A Hindu wife shall not be entitled to
\nseparate residence and maintenance from her
\nhusband if she is unchaste or ceases to be a Hindu by
\nconversion to other religion.”.\n<\/p>\n
  (c), (f), (g) not relevant.\n<\/p>\n
 12. Section 5(i) of the Hindu Marriage
\nAct which lays down that the marriage will be solemnized between
\nany two Hindus if neither party has a spouse living at the
\ntime of the marriage, introduces monogamy in the Hindu Law.
\nThe word ‘spouse” used in this Section means, a
\n“lawfully married husband or wife”. Therefore, before a valid
\nmarriage can be solemnized after the commencement of the Act,
\nit must be shown that the parties to the marriage must be either
\nsingle or divorcee or a widow or widower and then only,
\nthey are competent to enter into a valid marriage. If at the
\nperformance of the marriage rites and ceremonies, one
\nor other had a spouse living and the earlier marriage
\nhad not already been set aside, the later marriage is no
\nmarriage at all and being in contravention of the condition laid
\ndown in Section 5(i) of the said Act, it is void ab initio.
\nSection 11 of the Act as quoted earlier, lays down that any
\nmarriage solemnized after the commencement of this Act
\nis null and void if it contravenes conditions specified under
\nSection 5(i) and may, on a petition presented by either
\nparty thereto, so be declared by a decree of nullity. It has been
\nconsistently held by this Court and various other High
\nCourts and Supreme Court that under the provisions of
\nthe Hindu Marriage Act, a second marriage contracted while the first
\nmarriage is subsisting, is void.\n<\/p>\n
 13. The learned Counsel appearing for
\nthe respondent submitted that the marriage of the
\nrespondent with the appellant, in the instant case, comes
\nunder “voidable” marriage described under Section 12 of
\nthe Act as the respondent was not informed about the
\nappellant’s earlier marriage when she was married
\nto him and thus, the appellant obtained her
\nconsent by playing fraud on her, and that till the
\nmarriage is annulled, that marriage is a valid
\none and the respondent gets all the rights as
\na wife under a valid marriage. We are
\nunable to accept this contention of the
\nlearned Counsel for the respondent.\n<\/p>\n
 14. Sections 11 and 12 of the
\nAct as quoted earlier, deal with cases where a
\nmarriage is void and cases where a marriage is
\nvoidable at the option of either of the party to
\nthe marriage respectively. In Section 11,
\nthe expression used is “null and void” while the word
\n“voidable” is used in Section 12. This indicates the
\nintention of the Parliament that they wanted to make
\na distinction between a void marriage and a voidable
\nmarriage. The distinction is further indicated by
\nSection 17 which makes the parties to void
\nmarriage criminally liable, while there is no such
\npenalty for the parties to a voidable marriage.
\nOf course, both Sections 11 and 12 speak
\nof a decree of nullity; but Section 11
\nspeaks of only declaration of the marriage as null
\nand void by such a decree, while Section 12 speaks
\nof the annulment of a voidable marriage by a decree.
\nAs a void marriage is non-existent in the eye of law,
\nonly a declaration is sufficient, but an annulment
\nof a voidable marriage is necessary because
\nsuch a marriage shall be deemed to be valid
\nuntil it is annulled by a decree of nullity. Further,
\nthe marriage which is null and void for contravening
\nthe provisions of Section 5(i) ofthe said Act cannot
\nbe treated as voidable under Section 12. We get
\nsupport for this view from the decision of
\nSupreme Court in Smt. Yamunabai Anant Rao
\nAdhav v. Ananta Rao Shivram Adhav and<\/a>
\nanother, . It is also held in
\nthe same decision that the fact that the wife
\nwas not informed about the husband’s earlier
\nmarriage when she married him would be of no
\navail and the wife cannot rely on the principle
\nof estoppel so as to defeat the provisions of the Act.
\nThus, there can be no doubt that the words
\n“void” and “voidable” have been used in the Act in
\ntwo distinct senses. The argument that after
\nsolemnisation of marriage, the appellant treated
\nher as his wife is again of no avail as the issue
\nlias to be settled under the provisions of the Act,
\nIt is the intention of the Legislature as could be seen
\nfrom the provisions of the Act which is relevant and
\nnot the attitude of the party.\n<\/p>\n
 15. A Hindu is under an
\nobligation to maintain his wife, his minor
\nsons, unmarried daughters and aged Parents. The
\nobligation is personal. It arises from the very
\nnature of the relationship and exists whether he
\npossesses any property or not. The Maintenance
\nAct gives statutory form to that obligation. The right
\nof a Hindu wife for maintenance is an incident of
\nthe status of matrimony. Subsection (1) of
\nSection 18 of the Act substantially
\nreiterates that right and lays down the
\ngeneral rule that a Hindu wife whether
\nmarried either before or after the
\ncommencement of the Act is entitled to be
\nmaintained by her husband during her life time. The
\nrule laid down in this Section is subject to the
\nexceptions stated in sub-section (3) which lays
\ndown that she cannot claim separate
\nresidence and maintenance if she is unchaste or
\nceases to be a Hindu by conversion to
\nanother religion. Under sub-section (2) of
\nSection 18 wife is entitled to live separately from
\nher husband without forfeiting her claim for
\nmaintenance, in the circumstances stated in clauses\n<\/p>\n
(a) to (g) mentioned in that subsection.
\nUnder clause (d), wife is entitled for separate
\nresidence without forfeiting her claim for
\nmaintenance if her husband has any other wife
\nliving. The claim for maintenance is
\nmaintainable under this Section irrespective of the
\nfact that the marriage had taken place after
\nor before the marriage of the applicant wife, provided
\nthe other wife is living. The ground laid down in this
\nSection can, obviously exist only in case of any
\nmarriage solemnized before the Hindu
\nMarriage Act came into operation. It is
\nobviously for the reason that the Hindu Marriage
\nAct, 1955 laid down monogamy as a rule of
\nlaw and Hindu husband cannot marry another
\nwife after the commencement of that Act.
\nA bigamous marriage contracted after the coming
\ninto force of that Act, would be null and void
\nand no question of having another wife can
\narise. Therefore, the word “Hindu wife” in
\nSection 18(1) connotes only a legally wedded
\nwife of Hindu and such wife alone is entitled
\nto claim maintenance from her husband under this
\nSection. If her marriage is void ab initio, she is not
\nentitled to claim maintenance under this Section.
\n“Hindu wife” in this Section, we reiterate,
\nonly means a wife whose marriage is valid
\nunder the provisions of the Hindu Marriage Act,
\n1955. The wife whose marriage has been
\nsolemnized, but is void on the ground that the
\nfirst wife of the husband is living at the time of the
\nmarriage is not entitled to claim maintenance under
\nthis provision.\n<\/p>\n
 16. The expression ” any other wife” in
\nSection 18(2)(d) of the Act came up for
\nconsideration before Karnataka High Court in
\nSubbe Gowda v. Hanamma, , and it is held by that Court
\nthat:\n<\/p>\n
  ‘The expression ‘any other
\nwife .’ in Section 18(2)(d) means, any
\nother legally wedded wife. Therefore, even
\nif the husband is living with another
\nwoman treating her as his wife, it
\ncannot be said that he has any other wife
\nliving within the meaning of Section 18(2)\n<\/p>\n
(d).”\n<\/p>\n
 While the personal law governing the parties
\nprohibits bigamous marriage, on a parity of
\nreasoning, it. can also be stated that the
\nexpression ‘Hindu wife’ in Section 18 means
\nonly a legally wedded wife and not a wife
\nwhose marriage is void under the provisions of the
\nHindu Marriage Act. The second
\nmarriage\/bigamous marriage being void cannot
\ncreate a legal statute of “husband” and “wife”
\nbetween the parties. That marriage is void ab initio
\nand the woman cannot get the status of a wife nor
\nthe male gets the status of husband to her.
\nTherefore, she cannot get a right to claim
\nmaintenance under Section 18 of the
\nAct.\n<\/p>\n
 17. It is also significant to note
\nthat no attempt was made to amend or
\nmake provision in the Act to include the case of a
\nwoman whose marriage is void by reason of
\nprovision of Section 5(i) of the Hindu
\nMarriage Act, for claiming maintenance against a
\nperson with., whom she underwent illegal marriage.
\nEven though the Parliament in its anxiety to protect
\nthe legitimacy of the paternity of the child born
\nout of that void marriage made a provision in
\nSection 16 of Marriage Laws (Amendment)
\nAct, 1976, it has not extended similar
\nprotection in respect of the mother of that child.
\nFurther, in our considered opinion it does not appear
\nto be the intention of the Act while such
\nmarriage is rendered void, nevertheless, the
\nbigamous relationship should be recognised for
\npurpose of maintenance.\n<\/p>\n
 18. It is no doubt true that
\nMaintenance Act is a piece of beneficial
\nlegislation conferring additional rights on
\nwomen and children. But, it cannot be
\nconstrued as conferring maintenance rights
\non a woman whose marriage is void under Hindu
\nMarriage Act. While a legislative enactment may be
\nliberally construed, the liberality cannot overstep the
\nlegislative limits of interpretation, putting to the
\nlegislation something which is not there. If it is
\nfelt that a particular enactment causes
\nhardship or inconvenience, it is for the
\nLegislature to redress it, but, it is not open
\nto the Court to ignore the legislative
\ninjunction.\n<\/p>\n
 19. Now, we will refer to some
\nof the decided cases on the point. In Bami
\nDharjha v. Chabbi Chalterji, AIR 1967
\nPat. 217, Division Bench of Patna High
\nCourt white dealing with the claim of a
\nwoman for maintenance under Section
\n125 Cr.PC and such a woman being
\nmarried to a married man whose wife was living
\nat the time of her marriage, held that if the petitioner
\non the date of marriage with the claimant-
\nwoman had already wedded wife, his
\nmarriage with the claimant woman is void under
\nSection 11 of the Hindu Marriage Act and a
\nmarriage void ab initio does not alter or affect the
\nstatus of parties nor docs it create between
\nthem any rights   and obligations which must
\nnormally arise from valid marriage and a void
\nmarriage  is non-existent in the eye of law.\n<\/p>\n
 20. In Pothula Manika Reddy
\nand Another v. Govt of A.P,<\/a> rep. by
\nthe Special Tahsildhar, l&nd Reforms,
\nRanga Reddy, 1978 (1) APLJ 360.\n<\/p>\n
a learned single Judge of our High Court, while
\nconsidering the status of a second wife who was
\nmarried to a person while his first wife was
\nliving, held that a woman who is married to
\na party who has already living spouse cannot be
\ntreated as his spouse in the legal sense and such
\na second marriage is null and void and it docs not
\ncreate any rights and obligations.\n<\/p>\n
 21. While considering the scope
\nof Section 11 of the Hindu Marriage Act,
\nthe Division Bench of Patna High Court in AIR
\n1967 Patna 277 (supra) held thus:
\n  “A marriage which
\ncontravenes the conditions referred to in
\nSection 5 is in law no marriage at all being void
\nipsojure and it is open to the party to the
\nmarriage even without recourse to the Court to
\ntreat it as a nullity. Neither party is under
\nany obligation to seek the declaration of nullity
\nunder this Section though such a declaration
\nmay be asked for the purpose of pre-caution or
\nrecord.”\n<\/p>\n
 22. At page 687 of Mulla’s Hindu
\nLaw 14th Edition a passage reads thus:
\n  “The person, an innocent
\nparty to a bigamous marriage, may go to a
\nCourt for declaration that a bigamous
\nmarriage is null and void. That would
\nbe for the purpose of precaution or record or
\nevidence. That the bigamous marriage is
\na nonexistent and simply because there
\nis no recourse to the Court, it cannot be
\nsaid that it exists unless and until a
\ndecree is passed declaring it to be null and
\nvoid.”\n<\/p>\n
 Therefore, the mere fact that the parties
\nhad not approached the Court for
\ndeclaration as contemplated under Section
\n11 does not in any way alter the conditions
\nand thereby, it cannot be said that the marriage is
\na valid and subsisting one.\n<\/p>\n
 23. In Baji Rao Gagoba
\nThambra v. Ms. Tholan Bhai and
\nanother, 1980 Crl. LJ 473, a Division
\nBench of Bombay High Court white considering the
\nclaim of a woman whose marriage was void,
\nfor maintenance tinder Section 125 Cr.PC
\nheld thus.\n<\/p>\n
  “A woman whose
\nmarriage was void cannot get the legal
\nstatus of a wife and therefore, if the
\nmarriage is void by reason of contravention
\nof Section 5 read with Section 11 of
\nHindu Marriage Act, she is not competent to
\nmake an application under Section 125 of the
\nCr.P.C That provision merely speaks of a”
\nWife” and its meaning cannot be extended
\nto a case of a void marriage.”\n<\/p>\n
 24. In Smt. Yetmtnabai Anantha
\nRao Adhav v. Anantha Rao Shivram
\nAdhav and<\/a> another, (supra) while
\nconsidering the question whether a Hindu
\nwoman who is married after coming into force of
\nthe Hindu Marriage Act, 1955, to a Hindu male
\nhaving a living lawfully wedded wife, can maintain
\nan application for maintenance under Section
\n125 Cr.P.C. the Supreme Court held
\nthus:\n<\/p>\n
  “Section 5(i) of Hindu Marriage
\nAct lays down, for a lawful marriage, the
\nnecessary condition is that neither party should
\nhave a spouse living at the time of the marriage.
\nA marriage in contravention of this
\ncondition therefore, is null and void. The plea that
\nthe marriage should not be treated as void
\nbecause such a marriage was earlier recognised
\nin law and customs cannot be accepted. By
\nreason of the over-riding effect of the Act as
\nmentioned in Section 4 no aid can be taken
\nof the earlier Hindu Law or any custom
\nor usage as a part of that Law inconsistent
\nwith any provision of the Act, such a marriage
\nalso cannot be said to be voidable by
\nreference to Section 12. So far as
\nSection 12 is concerned, it is confined to
\nother categories of marriages, and it is not
\napplicable to one solemnized in violation of
\nSection 5 (i) of the Act.”\n<\/p>\n
 It is further observed by the Supreme Court
\nthus:\n<\/p>\n
  “It is also to be seen
\nthat while the Legislature has considered it
\nadvisable to uphold the legitimacy of the paternity
\nof a child born out of a void marriage, it
\nhas not extended a similar protection in respect
\nof the mother of the child” <\/p>\n
 The Court further observed thus:
\n  “For the purpose of extending the
\nbenefit of the Section to a divorced woman and
\nto an illegitimate child, the Parliament
\nconsidered it necessary to include in the
\nSection specific provisions to that effect, but it
\nhas not done so with respect to woman
\nnot lawfully married.”\n<\/p>\n
 The above decision of the Supreme Court will
\napply in all tours to the case on hand arising under the
\nHindu Marriage Act.\n<\/p>\n
 In Sayatma v. Lakshmi Bhai Alias
\nHanuma Bhai and another, , this Court while relying on the
\ndecision of the Supreme Court in  (supra) observed:
\n  “When the Legislature itself
\nincorporated in the Hindu Marriage Act that a
\nsecond marriage contracted while the first
\nmarriage is subsisting is void, it cannot be
\ncomprehended how the second wife is
\nentitled for maintenance.”\n<\/p>\n
 25. Thus, the Supreme Court and
\nvarious High Courts including Andhra Pradesh High
\nCourt had taken the view that a woman whose
\nmarriage is valid under the provisions of the Hindu
\nMarriage Act alone is entitled to claim maintenance
\nfrom her husband and the woman whose marriage
\nis void ab initio cannot make any claim for
\nmaintenance; as such a marriage cannot create a
\nlegal status of husband and wife between the
\nparties. We are also of the firm view that the
\nwords “Hindu Wife” appearing in Section 18 of
\nHindu Adoption and Maintenance Act has to be
\ninterpreted as a wife whose marriage is valid
\naccording to the provisions of the Hindu
\nMarriage Act. We do not agree with the
\nobservations of the learned single Judge in “” (supra) that the provisions of
\nHindu Adoption and Maintenance Act do not
\nwarrant interpretation of such a Hindu wife and
\nsuch an interpretation renders the provisions
\nof Section 18 of Maintenance Actotiose.- In our
\nview such an interpretation stands to reason when
\nwe take into consideration all these four Acts
\nwhich were passed as a package of
\nenactments being part of one Socio-legal
\nscheme applicable to Hindus and codifying the
\nvarious laws prevailing in various parts of the
\ncountry before that codification. By
\ncodifying the personal laws prevailing and
\napplicable to Hindus, the Parliament intended to
\nhave monogamy among the Hindus and
\ntherefore, Hindu Marriage Act was passed to
\nprevent bigamous marriages and for that
\npurpose, it is enacted that a bigamous marriage is
\nvoid and also constituted such a marriage as a
\ncrime for which punishment has been
\nprovided. Therefore, it does not appear to be the
\nintention of the Parliament that while such a
\nbigamous marriage is rendered void, the
\nbigamous relationship should be recognised for
\npurpose of maintenance. Further, as
\nobserved earlier, the Parliament while passing
\nMarriage Laws Amendment Act, 1976 (68\/\n<\/p>\n
76) has considered it advisable to uphold
\nthe legitimacy of the paternity of children
\nborn out of a void marriage; it has not
\nextended a similar protection in respect of
\nthe mother of such children. Further, if the
\nbigamous relationship should be recognised for the
\npurpose of maintenance of a woman, the very
\npurpose of introducing the provisions in the
\nHindu Marriage Act while introducing
\nmonogamy among the Hindus will be
\ndefeated.\n<\/p>\n
 26.    The  learned  Counsel   for
\nthe respondent submitted that under Section 25 of
\nthe Hindu Marriage Act, a wife whose marriage is
\nvoid would be entitled, as of right, of relief of
\npermanent maintenance once her marriage is
\nannulled by a decree of nullity under Section
\n11 or passing a decree of a kind envisaged
\nunder Sections 9 to 14 of the Hindu Marriage Act,
\nand therefore, it allows that the Hindu Marriage
\nAct, 1955 recognizes notwithstanding the fact
\nthat the marriage is null and void, that the wife
\nhas the status atleast for limited purpose of
\napplying for alimony and maintenance. This
\nstatutory intention, according to the learned
\nCounsel for the respondent, has to be borne in
\nmind in considering the claim of the respondent in
\nthis case to maintenance. The support of this
\ncontention the learned Counsel relied on the decision
\nof a learned single Judge of Bombay High Court in
\nSmt. Rajesh Bai and others v. Shantha Bai, AIR
\n1982 Bom. 331. In that case, the first wife of
\nthe deceased filed a suit for partition against the
\nbrothers of her deceased husband and the
\n2nd wife of her husband by name Rajesh Bai.
\nThe defendants in that suit took the plea that
\nthe plaintiff was divorced by her husband as
\nper the caste custom and after divorce, he
\nmarried 2nd wife Rajesh Bai. The learned
\nsingle Judge while holding that the marriage
\nof Rajesh Bai is void in view of the
\nsubsisting first marriage of the deceased with
\nShantha Bai, granted maintenance to 2nd wife
\nRajesh Bai relying on the part materia provisions
\nof Section 25 of the Hindu Marriage Act
\nand also relying on the inherent powers of the Court
\nunder Section 151 C.P.C. to meet the ends
\nof justice. The learned single Judge
\nobserved thus:\n<\/p>\n
  “The rights recognised by
\nSection 25 of the Hindu Marriage Act
\ncan clearly be worked out in any civil
\nproceedings subject to consideration of facts and
\ncircumstances so as to meet the ends of justice
\nby resort to the inherent powers conferred upon
\nthe Courts by Section 151 C.P.C. The
\nstatutory references do not indicate that
\nthere is any prohibition or any specific
\nProvision in this regard. On the other hand, the
\nprinciple is statutorily recognised that upon a decree
\nbeing passed for nullifying the marriage as void de jure,
\nthe Court is possessed with ample power to make order
\nas to alimony and maintenance. What could,
\ntherefore, be available in special proceedings
\ncannot be said to be not available when the same
\nissue is involved collaterally in competent civil
\nproceeding.”\n<\/p>\n
 The learned Judge further observed:
\n  “Ultimately, having based the relief under
\nSection 151 C.P.C. with the aid of inherent powers
\nand drawing upon the principle underlying
\nSection 25 of the Hindu Marriage Act, it is
\nimplicit that before maintenance is granted, the
\nneed to grant such must exist as well as the grantee must
\nfulfil the ordinary conditions like that of chastity,
\nnot being married with any other person and further of not
\nbeing in a position to maintain herself.”\n<\/p>\n
 With due respect, we are not in a position to
\naccept the said reasoning of the learned Judge. Firstly, the
\nassumption that Section 25 recognizes the right of a
\nwoman bigamously married to claim maintenance at
\nthe time when a decree of nullity is passed is not
\ncorrect. Secondly in the absence of a proceeding under
\nSections 9 to 14 such a relief cannot be granted by
\ninvoking Section 151. Section 151 could liave no
\napplication to such a situation.\n<\/p>\n
 27. Section 25 of the Hindu Marriage
\nAct as it now stands after amendment by Act 68\/76 is
\nreproduced hereunder:\n<\/p>\n
 “25. Permanent
\nalimony and maintenance :-\n<\/p>\n
 (1) Any Court exercising
\njurisdiction under this Act may, at the time
\nof passing any decree or any time subsequent
\nthereto, on application made to it for the
\npurpose of either the wife or the husband, as
\nthe case may be, order that the
\nrespondent shall pay to the applicant for
\nher or his maintenance and support such
\ngross sum. of such monthly or periodical
\nsum for a term not exceeding the life of the
\napplicant as, having regard to the respondent’s
\nown income and other property if any,
\nthe income and other property of the applicant
\n(the conduct of the parties and other
\ncircumstances of the case), it may seem to the
\nCourt to be just and any such payment may be
\nsecured, if necessary by a charge on the
\nimmovable property of the respondent.\n<\/p>\n
 (2) If the Court is satisfied that
\nthere is a change in the circumstances of either
\nparty at any time after it has made an
\norder under sub-section (1) it may at the
\ninstance of cither party, vary modify or rescind
\nany such order in such manner as the
\nCourt may deem just.\n<\/p>\n
 (3) If the Court is satisfied that the
\nparty in whose favour an order has been
\nmade under the Section has remarried, or <\/p>\n
 if such party is the wife that she has
\nnot remained chaste, or if such party is
\nthe husband, that he has had sexual
\nintercourse with any woman outside
\nwedlock, it may, at the instance of the
\nother party, vary, modify or rescind any
\nsuch order in such manner as the Court
\nmay deem just.”\n<\/p>\n
 It is clear from this provision that it confers a
\nstatutory right on the wife and the husband
\nand confers jurisdiction on the Court to pass an
\norder of maintenance and alimony in
\nproceedings under Sections 9 to 14 of the
\nHindu Marriage Act. At any time before or after the
\ndecree is passed in such a proceeding, therefore, the
\nwife or husband could make such a claim and the
\nconditions of Section 25(1) will have to be
\nsatisfied. There must be a matrimonial
\npetition filed under the Hindu Marriage Act,
\nthen, on such a petition, a decree must be passed by
\nthe Court concerning the material status of the
\nwife or husband. It is only when such a
\ndecree is passed that the right accrues to the
\nwife or the husband and confers jurisdiction on
\nthe Court to grant alimony. Till then, such a right
\ndoes not take place. Not only that the Court
\nretains the jurisdiction even subsequent to
\npassing of such a decree to grant permanent
\nalimony when moved by an application in
\nthat behalf by a party entitled to, the Court further
\nretains the power to change or alter the order in view
\nof the changed circumstances. Thus, the whole
\nexercise is within the gamut of a broken
\nmarriage. Thus, the Legislature while codifying the
\nHindu Marriage Act, reserved the right of permanent
\nmaintenance in favour of the husband or the wife as
\nthe case may be depending on the Court
\npassing a decree of the kind as envisaged under
\nSection 14 of the Act. Thus, Section 25 should not
\nbe construed in such a manner as to hold that
\nnotwithstanding the nullity of the marriage, the wife
\nretains her status for purposes of applying for
\nalimony and maintenance. In our view, the proper
\nconstruction of Section 25 would be that where a
\nmarriage admittedly is a nullity, this Section will have
\nno application. But, where the question of nullity is in
\nissue and is contentious, the Court has to proceed on
\nthe assumption until the contrary is proved, that the
\napplicant is the wife. It is in that sense
\nSection 25 should be appreciated. Further,
\nin the instant case, there are no proceedings
\nbetween the parties and there is no decree of the
\nkind as envisaged under Section 14 of the Act
\ndisrupting the material status of the respondent with
\nappellant. Hence, the respondent is not entitled
\nto invoke the provisions under Section 25 of the
\nAct. On the other hand, the respondent is
\nseeking maintenance under Section 18 of
\nHindu Adoption and Maintenance Act. When the
\nmarriage of the respondent is void ab initio, she is
\nnot entitled to claim maintenance under the said
\nAct. Hence, it is not open to the Court to
\ngrant relief of maintenance under Section
\n25 of Hindu Marriage Act in the proceedings
\ninitiated under the provisions of Hindu Adoption and
\nMaintenance Act, as held by the Apex Court in Smt.
\nChand Dhawan v. Jawaharlal Dhawan,<\/a> 1993
\n(3) Scale 1. As is evident, both these statutes are
\ncodified laws on the respective subjects and by
\nliberality of interpretation, inter-changeability cannot
\nbe permitted so as to destroy the distinction on the
\nsubject of maintenance.\n<\/p>\n
 28. We are also of the opinion that
\neven the principles of justice, equity and
\ngood conscience do not come to the rescue of the
\nrespondent as the subject of maintenance is covered
\nby statute law and there is no scope to invoke those
\nprinciples where the legislative enactments on the
\nsubject do not permit the grant of maintenance to a
\nwoman who was a party to a bigamous
\nmarriage.\n<\/p>\n
 29. Moreover on the facts of the
\ncase also, the chastity of the respondent is doubtful
\nas she admits in her evidence that she became
\npregnant after she was driven out of the
\nmatrimonial home of her husband, the appellant
\nherein. Thus, viewed from any angle, the
\nrespondent is not entitled to maintenance.\n<\/p>\n
 30. In the light of the foregoing
\ndiscussion, we hold on the point that a Hindu
\nWoman who is married after coming into force of
\nthe Hindu Marriage Act, 1955 to a Hindu male,
\nhaving a lawfully wedded wife cannot maintain a
\nclaim for maintenance under Section 18 of
\nthe Hindu Adoption and Maintenance Act,
\n1956. In view of this decision, the
\ndecision of the learned single Judge of this
\nCourt in  is liable to be
\nover-ruled. Accordingly, the said decision is over-
\nruled.\n<\/p>\n
 31. In view of the above decision
\ntaken by us, the claim of the respondent for
\nmaintenance, whose marriage is void ab initio,
\nagainst the appellant is not maintainable.\n<\/p>\n
Hence, the decree and judgment in O.S. No. 131 <\/span><\/p>\n
of 1987 on the file of the Principal Subordinate
\nJudge, Chiltoor, is liable to be set aside.\n<\/p>\n
 32. In the result the appeal is
\nallowed. The judgment and decree in
\nO.S.No.131 of 1987 on the file of the
\nPrincipal Subordinate Judge, Chittoor, is set
\naside and the suit O.S.No.131 of 1987 is
\ndismissed. In the circumstances of this case,
\nparties are directed to bear their costs through
\nout.<\/p>\n","protected":false},"excerpt":{"rendered":"
Andhra High Court Abbayolla M. Subba Reddy vs Padmamma on 27 July, 1998 Equivalent citations: 1998 (5) ALD 465, 1998 (5) ALT 152, I (2000) DMC 266 Author: A. Hanumanthu Bench: P V Reddi, K S Shrivastav, A Hanumanthu ORDER A. Hanumanthu, J 1. The legal point involved in this appeal is whether a Hindu […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10,8],"tags":[],"class_list":["post-24834","post","type-post","status-publish","format-standard","hentry","category-andhra-high-court","category-high-court"],"yoast_head":"\nAbbayolla M. 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