Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga  Insc 752
(13 December 2004)
D. M. Dharmadhikari & H. K. Sema Dharmadhikari J. These two cross appeals arise from matrimonial proceedings.
The wife is aggrieved by the impugned reversing judgment of the High Court
declaring her marriage as null and void under Section 11 read with Section 5(i)
of the Hindu Marriage Act 1955 (hereinafter referred to as 'the Act' for
short). The husband is aggrieved by the part of the impugned judgment of the
High Court whereby it maintained the amount of maintenance fixed per month for
the wife under Section 25 of the Act.
The facts of this case tell the tragic tale of an Indian woman, who having
gone through two marriages with a child born to her apprehends destitution as
both marriages have broken down.
The husband is an Income Tax Practitioner in the town of Ratlam in the State
of Madhya Pradesh. His first marriage was solemnized with late Smt. Usha in the
year 1963 and from her he has two sons and one daughter. The marriage of the
present wife, it is alleged, was arranged with one Girdhari Lal Lakhotia on
15.5.1979. According to the wife, the customary rituals of marriage were not
completed as in the marriage ceremony family members quarrelled over dowry. She
had filed a Divorce Petition No.76/78 in Matrimonial Court at Amravati but it
was not prosecuted and no decree of divorce was passed. It is the case of the
wife that in accordance with the prevalent custom in Maheshwari community a
Chhor Chithhi or a document of dissolution of marriage was executed between the
wife and her previous husband on 15.5.1979 and it was later got registered.
After the death of his previous wife, the present husband remarried the
present wife on 11.7.1981. According to the version of the wife the document of
registered Chhor Chithhi was shown and given to the present husband before his
accepting the second matrimony with the present wife. A daughter, who is named
Puja, was born from the second marriage on 14.7.1983.
The wife alleges that the husband started ill-treating her due to
non-fulfulment of his demands by her father. She was driven out of the house in
the year 1989. She thereafter filed proceedings in the Family Court, Bombay for
grant of a decree of judicial separation and maintenance of Rupees three
thousand per month for herself and for her daughter.
The husband filed a counter-petition seeking declaration of his second
marriage with the present wife, as nullity on the ground that on the date of
second marriage, her marriage with the previous husband Girdhari Lal Lakhotia,
had not been dissolved by any court in accordance with the provisions of the
Act. The husband not only disputed validity of the second marriage but also
parentage of daughter Puja.
The Family Court, Bombay allowed the petition of the wife and granted in her
favour, a decree of judicial separation. It also granted maintenance in the sum
Rupees one thousand per month to the wife and Rupees two thousand per month to
the child. The Family Court dismissed the counter petition filed by the husband
seeking declaration of his marriage with the present wife as null and void.
The husband went in appeal to the High Court and the wife preferred a cross
objection. By the impugned judgment the High Court held that the first marriage
of the present wife with her previous husband having not been dissolved by any
decree of the Court, her second marriage is in contravention of Section 5(i) of
the Act and has to be declared as nullity under Section 11 of the Act. The High
Court, on the above finding, granted a decree of declaration of marriage as
nullity in favour of the husband. Consequently, the High Court set aside the
decree of judicial separation granted to the wife.
Even though the High Court dismissed the wife's petition for decree of
judicial separation and granted declaration of the second marriage as null and
void in favour of the husband, it maintained the decree granting maintenance to
the wife and her daughter. Aggrieved by the order of the High Court, both the
parties are before this Court in these two cross appeals.
Learned counsel appearing for the husband took us in great detail in the
evidence of the parties led before the Family Court. He advanced lengthy
arguments in support of his contention that where a marriage is declared to be
null and void by grant of a decree, no order awarding permanent alimony or
maintenance could be made in favour of the unsuccessful party under Section 25
of the Act. Reliance is placed on Nazir Ahmad vs. Emperor [AIR 1936 PC 253];
Ikram Hussain vs. State of UP [AIR 1964 SC 1625]; Yamunabai Anantrao Adhav
vs. Anantrao Shivram Adhav [1988 (1) SCC 530]; Raj Kumar Karwal vs. UOI [AIR
1991 SC 47]; K. Vimla vs.
K.Veeraswamy[ JT 1991 (2) SC 182] and Abbayolla M.Subba Reddy vs.
Padmamma[AIR 1999 AP 19].
Learned counsel Shri SC Birla appearing on the other side for the wife also
took us through the relevant evidence of the husband and wife recorded before
the Family Court and tried to persuade us to set aside the decree of nullity of
marriage granted by the High Court and refusing grant of decree of judicial
separation to the wife.
So far as the appeal preferred by the wife is concerned, on reconsideration
of the evidence on record, we find no ground to take a view different from the
one taken by the High Court and upset the conclusion that the second marriage
was null and void. The wife did not deny the fact that her marriage was
arranged with Girdhari Lal Lakhotia in the year 1973 and after marriage she
lived with the members of the family of her previous husband. It is also an
admitted fact that she instituted proceedings for obtaining decree of divorce
being Divorce Petition No.76/78 in the Family Court at Amravati. It is also not
denied that no decree of divorce was obtained from the Court and she only
obtained a registered document of Chhor Chithhi from her previous husband on
15.5.1979. Existence of such customary divorce in Vaish community of
Maheshwaris has not been established.
A Hindu marriage can be dissolved only in accordance with the provisions of
the Act by obtaining a decree of divorce from the Court.
In the absence of any decree of dissolution of marriage from the court, it
has to be held that in law the first marriage of the wife subsisted when she
went through the second marriage on 11.7.1981 with the present husband. The
appeal preferred by the wife, therefore, against grant of decree of declaration
of her second marriage as void, has to be rejected whatever may be the
circumstances which existed and the hardships that the wife had to undergo, as
alleged, at the hands of her second husband.
So far as the husband's appeal against grant of maintenance under Section 25
of the Act to the wife is concerned, this Court has granted him leave to appeal
confined to the question as to 'whether the wife is entitled to maintenance
after the Court held that the marriage was nullity.' Section 25 of the Hindu Marriage Act
confers jurisdiction on the Matrimonial Court to grant permanent alimony and
maintenance to either of the spouses ' at the time of passing of any decree' or
'at any time subsequent thereto.' Section 25 which arises for interpretation in
the husband's appeal reads as under:
"25.Permanent alimony and maintenance (1) Any Court exercising
jurisdiction under this Act may, at the time of passing any decree or at any
time subsequent thereto, on application made to it for the purpose by 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 or
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 either 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 this 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." [Emphasis supplied] Learned counsel appearing for
the respondents took us through the Full Bench decision of the Andhra Pradesh
High Court (supra) and earlier decisions of this Court to persuade us to take a
view that where the marriage is found to be null and void under Section 11,
question of grant of permanent alimony or maintenance can never arise in favour
of either of the spouses.
The decisions of this Court and High Courts which have been relied, in our
opinion, are distinguishable and are not directly on the point of law before
us. We find that taking into consideration the divergent views of various High
Courts, this Court in the case of Chand Dhawan vs. Jawaharlal Dhawan [1993 (3)
SCC 406] has dealt with the point on the interpretation of Section 25 read with
Sections 9 to 13 read with Section 5 of the Act. The decision in Chand Dhawan
(supra) squarely covers the point against the husband. It is true that Chand
Dhawan's case (supra) arose from different facts but the statement of law on
the interpretation placed on Section 25 answers the question raised by the
husband against him on the competence of the court to grant maintenance under
Section 25. In the case of Chand Dhawan (supra) a joint petition filed by the
spouses for grant of a decree of divorce by mutual consent failed as they
withdrew their consent during the statutory waiting period. Thereafter the wife
moved a petition for grant of maintenance under Section 25 of the Act. This
Court held that Section 25 can be invoked by either of the spouses where a
decree of any kind governed by Sections 9 to 13 has been passed and the
marriage-tie is broken, disrupted or adversely affected by such a decree of the
Court. The view expressed is that where the marriage is not dissolved by any
decree of the Court, resort to Section 25 of the Act is not allowed as any of
the spouses whose marriage continues can resort to other provisions for seeking
maintenance, like Section 125 of the Criminal Procedure Code or provisions of
Hindu Adoption and Maintenance Act.
In interpreting the provision of Section 25 in the case of Chand Dhawan
(supra) the Supreme Court categorically held that the expression 'at the
passing of passing any decree,' as has been used in Section 25, includes a
decree of nullity of marriage. The relevant observations read thus:- "On
the other hand, under the Hindu Marriage Act,
in contrast, her claim for maintenance pendente lite is durated (sic) on the
pendency of a litigation of the kind envisaged under sections 9 to 14 of the Hindu Marriage Act,
and her claim to permanent maintenance or alimony is based on the supposition
that either her marital status has been strained or affected by passing a
decree for restitution of conjugal rights or judicial separation in favour or
against her, or her marriage stands dissolved by a decree of nullity or
divorce, with or without her consent. Thus when her marital status is to be
affected or disrupted the court does so by passing a decree for or against her.
On or at the time of the happening of that event, the court being seisin of the
matter, invokes its ancillary or incidental power to grant permanent alimony.
Not only that, the court retains the jurisdiction at subsequent stages to fulfill
this incidental or ancillary obligation when moved by an application on that
behalf by a party entitled to relief. 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 gammit (sic gamut) of a diseased or a broken marriage.
And in order to avoid conflict of perceptions the legislature while codifying
Marriage Act preserved the right of permanent maintenance in favour of the
husband or the wife, as the case may be, dependent on the court passing a
decree of the kind as envisaged under sections 9 to 14 of the Act. In other
words without the marital status being affected or disrupted by the matrimonial
court under the Hindu
Marriage Act the claim of permanent alimony was not to be valid as
ancillary or incidental to such affectation or disruption. The wife's claim to
maintenance necessarily has then to be agitated under the Hindu Adoptions
and Maintenance Act, 1956 which is a legislative measure later in point of
time than the Hindu Marriage Act,
1955, though part of the same socio-legal scheme revolutionizing the law
applicable to Hindus.
We have thus, in this light, no hesitation in coming to the view that when
by court intervention under the Hindu Marriage Act,
affectation or disruption to the marital status has come by, at that juncture,
while passing the decree, it undoubtedly has the power to grant permanent
alimony or maintenance, if that power is invoked at that time. It also retains
the power subsequently to be invoked on application by a party entitled to
relief. And such order, in all events, remains within the jurisdiction of that
court, to be altered or modified as future situations may warrant.
[ Emphasis supplied ] In the present case, on the husband's petition, a
decree declaring the second marriage as null and void has been granted. The
learned counsel has argued that where the marriage is found to be null and void
meaning non-existent in eye of law or non est, the present respondent cannot
lay a claim as wife for grant of permanent alimony or maintenance. We have
critically examined the provisions of Section 25 in the light of conflicting
decisions of the High Court cited before us.
In our considered opinion, as has been held by this Court in Chand Dhawan's
case (supra), the expression used in the opening part of Section 25 enabling
the 'Court exercising jurisdiction under the Act' 'at the time of passing any
decree or at any time subsequent thereto' to grant alimony or maintenance
cannot be restricted only to, as contended, decree of judicial separation under
Section 10 or divorce under Section 13. When the legislature has used such wide
expression as 'at the time of passing of any decree,' it encompasses within the
expression all kinds of decrees such as restitution of conjugal rights under
Section 9, judicial separation under Section 10, declaring marriage as null and
void under Section 11, annulment of marriage as voidable under Section 12 and
Divorce under Section 13.
Learned counsel for the husband has argued that extending the benefit of
Section 25 to even marriages which have been found null and void under Section
11 would be against the very object and purpose of the Act to ban and
discourage bigamous marriages.
It is well known and recognized legal position that customary Hindu Law like
Mohammedan Law permitted bigamous marriages which were prevalent in all Hindu
families and more so in royal Hindu families. It is only after the Hindu Law
was codified by enactments including the present Act that bar against bigamous
marriages was created by Section 5(i) of the Act. Keeping into consideration
the present state of the statutory Hindu Law, a bigamous marriage may be
declared illegal being in contravention of the provisions of the Act but it
cannot be said to be immoral so as to deny even the right of alimony or
maintenance to a spouse financially weak and economically dependant. It is with
the purpose of not rendering a financially dependant spouse destitute that
Section 25 enables the court to award maintenance at the time of passing any
type of decree resulting in breach in marriage relationship.
Section 25 is an enabling provision. It empowers the Court in a matrimonial
case to consider facts and circumstances of the spouse applying and decide
whether or not to grant permanent alimony or maintenance.
The facts of the present case fully justify grant of maintenance both to the
wife and the daughter. The evidence of the wife has been believed by the courts
below and according to us rightly so. From circumstances preceding and
attending the marriage, it can safely be inferred that the present husband must
have made reasonable enquiries about the previous marriage of the present wife.
The wife's version is natural and inspires belief that the document of Chor
Chhithi was shown and given to the husband. It is proved from the photocopy of
the foil of Registration, placed on record. According to the wife, the husband
did receive the document of Chor Chhithi but has not produced it before the
Family Court. It is argued that it is open to the wife, if the document was
registered, to get a copy from the Registration office. Even if that was
possible, we find no ground to disbelieve her version that the fact of her
previous marriage was not concealed from the present husband. The husband is an
His falsehood went to the extent of denying his second marriage and calling
his wife only to be a governess of his children from the first wife. He
unsuccessfully denied even the parentage of daughter Puja, born through him. He
failed to lead any evidence on the illegitimacy of the child. After the second
marriage the parties lived as husband and wife and they had a considerably long
married life of about nine years from 1981 to 1990. In such a situation, the
Family Court and High Court were fully justified in holding that the wife
deserves to be granted maintenance under Section 25 of the Act.
Lastly, it is urged by counsel for the wife that daughter Puja is now of
marriageable age and the maintenance of total Rupees three thousand granted to
them, therefore, deserves to be suitably enhanced to fulfill their present
needs. We say nothing on this prayer at this stage because it is always open to
the wife and the daughter in accordance with sub-section (2) of Section 25, to
approach the Matrimonial Court to suitably enhance the quantum of maintenance
granted to them. If such an application is made to the Matrimonial Court, it
shall be decided after hearing the husband in accordance with law.
We are told that the order of the High Court in so far as it directs the
husband to return ornaments of the wife or its equivalent value in the sum of
Rs.3,25,650/- with 9% per annum, is a subject-matter of a separate appeal. We,
therefore, express no opinion with regard to the same.
In the result, both the appeals preferred by the parties are dismissed and
the impugned judgments of the High Court, to the extent of granting decree of
declaration of marriage as nullity and granting maintenance to the wife and
daughter are maintained. The husband shall pay all the arrears of maintenance
to the wife and daughter. The earlier order made on 2.3.2001 passed in Civil
Appeal No. 1775 of 2000 granting stay of maintenance to the wife is hereby
vacated. In the circumstances, the husband shall bear his own costs and pay
costs to the wife incurred in these proceedings.