Smt. Yamunabai
Anantra Adhav Vs. Ranantra Shivram Adhav & Anr [1988] INSC 24 (27 January 1988)
Sharma,
L.M. (J) Sharma, L.M. (J) Misra Rangnath
CITATION:
1988 AIR 644 1988 SCR (2) 809 1988 SCC (1) 530 JT 1988 (1) 193 1988 SCALE
(1)184
ACT:
Criminal
Procedure Code, 1973: Section 125-Hindu woman marrying a Hindu man having a
lawfully wedded wife -Whether entitled to maintenance-Personal law of the
party-Whether can be excluded-Expression 'wife'-Meaning of.
Hindu
Marriage Act, 1955: Sections 4, 5(i), 11, 12, 14, 1 Hindu woman marrying a
Hindu man having a lawfully wedded wife Whether such marriage valid-Effect of
such marriage- Whether such woman entitled to maintenance under s. 125 Cr. P.
C. . 1973.
Words
and Phrases: Expression 'wife'-Meaning of.
HEAD NOTE:
% The
appellant was married to the first respondent by observance of rites under
Hindu Law in June, 1974, while the first respondent's earlier marriage was
subsisting and the wife was alive. After living with the first respondent for a
week, she left the house alleging ill-treatment. She filed an application for
maintenance in 1976, which was dismissed by the trial Court. Her appeal to the
High Court was dismissed by a Full Bench.
In the
appeal to this Court it was urged on behalf of the appellant that a marriage
should not be treated as void because such a marriage was earlier recognised in
law and custom and in any event, the marriage would be voidable under s. 12 of
the Hindu Marriage Act, 1955, that the term "wife" in s. 125 of the
Cr. P.C., 1973 should be given a wider and extended meaning so as to include
therein not only a lawfully wedded wife but also a woman married, in fact, by
performance of necessary rites or following the procedure laid down under the
law, that the personal law of the parties to a proceeding under s. 125 of the
Cr. P.C. should be excluded from consideration, and since a divorcee has been
held to be entitled to the benefits of the section, a woman in the same
position as the appellant should also be brought within the sweep of the
section, and since the appellant was not informed about the respondent's
earlier marriage, when she married him, who treated her as his wife, her prayer
for maintenance should be allowed.
810 It
was contended on behalf of the respondent that the term "wife" used
in Section 125 of the Cr. P.C. meant only a legally wedded wife, and as the
marriage of the appellant must be held to be null and void by reason of the
provisions of the Hindu Marriage, Act, 1955 the appellant was not entitled to
any relief under the section.
Dismissing
the appeal, ^
HELD:
l. The marriage of a woman in accordance with the Hindu rites with a man having
legal spouse, after coming into force of the Hindu Marriage Act, 1955 is a
complete nullity in the eye of law and she is not entitled to the benefit of
Sec. 125 of the Criminal Procedure Code, 1973. [813D]
2.1
Clause (1)(i) of s. 5 of the Hindu Marriage Act, lays down, for a lawful
marriage, the necessary condition that neither party should have a spouse
living at the time of the marriage, and therefore a marriage in contravention
of this condition is null and void, under section 11 of the Act. [813G]
2.2 By
reason of the overriding effect of the Act, as mentioned in s. 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 provisions of the Act. Section 12 is confined to other
categories of marriages, and is not applicable to one solemnized in violation
of s. 5(1)(i) of the Act. Cases covered under section 12 are not void ab initio.
[813H; 814A-B]
2.3
The marriage covered by s. 11 are void-ipso-jure, that is, void from the very
inception, and have to be ignored as not existing in law at all if and when
such a question arises. Although the section permits a formal declaration to be
made on the presentation of a petition, it is not essential to obtain in
advance such a formal declaration from a court in a proceeding specifically
commenced for the purpose. [814B-C] The marriage of the appellant must,
therefore, be treated as null and void from its verv inception. [815C]
3.1
Section 125 has been enacted in the interest of a wife, and one who intends to
take benefit under sub-section (l)(a) has to establish the necessary condition,
namely, that she is the wife of the person concerned. This issue can be decided
only by a reference to the law applicable to the parties. [815E] 811
3.2 It
is only where an applicant establishes her status or 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. [816D-E]
3.3
For the purpose of extending the benefit of the section to a divorced woman,
and an illegitimate child, the Parliament considered it necessary to include in
the section specific provisions to that effect but has not done so with respect
to women not lawfully married. [816F]
3.4
The word "wife" is not defined in the Cr. P.C. except indicating in
the Explanation to s. 125 its inclusive character 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). A divorcee is included in the section on account of cl. (b) of
the Explanation. [815D-E]
3.5
Principle of estoppel cannot be relied upon to defeat the provisions of the
Act. So far as the first respondent treating her as wife is concerned, it is of
no avail, as the issue has to be settled under the law. It is the intention of
the legislature, which is relevant, and not the attitude of the parties. The
prayer of the appellant for maintenance cannot, therefore, be allowed even if
the appellant was not informed, at the time of her marriage to the respondent,
about his earlier marriage. [816G-H] Mohd. Ahmed Khan v. Skah Bano Beghum,
[1985] 3 SCR 844, distinguished.
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 475 of 1983.
From
the Judgment and order dated 21/22-4-1982 of the Bombay High Court in Crl. Appln.
No.478 of 1980.
A.K. Sanghi
for the Appellant.
A.M. Khanwilkar
for the Respondents.
The
Judgment of the Court was delivered by 812 SHARMA, J. The point involved in
this appeal is 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 of the Code
of Criminal Procedure, 1973 (hereinafter referred to as the Code). The
appellant Smt. Yamunabai was factually married to respondent no. 1 Anantrao Shivram
Adhav by observance of rites under Hindu Law in June, 1974. Anantrao had
earlier married one Smt. Lilabai who was alive and the marriage was subsisting
in 1974. The appellant lived with the respondent no. 1 for a week and there
after left the house alleging ill-treatment.
She
made an application for maintenance in 1976 which was dismissed. The matter was
taken to the Bombay High Court, where the case was heard by a Full Bench, and
was decided against the appellant by the impugned judgment.
2.
Section 125 of the Code by sub-section (1) which reads as follows clothes the
"wife" with the right to receive maintenance is a n summary
proceeding under the Code:
125(1).
If any person having sufficient means neglects or refuses to maintain-
(a) his
wife, unable to maintain herself, or
(b) his
legitimate or illegitimate minor child, whether married or not, unable to
maintain itself, or
(c)
his legitimate or illegitimate child (not being a married daughter) who has
attained majority, where such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself, or
(d)
his father or mother, unable to maintain himself or herself, a Magistrate of
the first class may, upon proof of such neglect or refusal, order such person
to make a monthly allowance for the maintenance of his wife or such child,
father or mother, at such monthly rate not exceeding five hundred rupees in the
whole, as such Magistrate thinks fit, and to pay the same to such person as the
Magistrate may from time to time direct:
813
Provided that the Magistrate may order the father of a minor female child
referred to in clause (b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the husband of such minor female
child if married is not possessed of sufficient means.
Explanation.
For the purposes of this chapter:
(a)
"minor" means a person who, under the provisions of the Indian
Majority Act, 1875 (9 of 1875), is deemed not to have attained his majority;
(b)
"wife" includes a woman who has been divorced by, or has obtained a
divorce from, her husband and has not remarried. " According to the
respondent the term 'wife' used in the section means only a legally wedded
wife, and as the marriage of the appellant must be held to be null and void by
reason of the provisions of the Hindu Marriage Act, 1955, she is not entitled
to any relief under the section.
3. For
appreciating the status of a Hindu woman marrying a Hindu male with a living
spouse some of the provisions of the Hindu Marriage Act, 1955 (hereinafter
referred to as the Act) have to be examined. Section 11 of the Act declares
such a marriage as null and void in the following terms:
"
11. Void marriages-Any marriage 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 one of the conditions specified in clauses (i), (iv) and (v) of
Section 5. " Clause (1)(i) of s. 5 lays down, for a lawful marriage, the
necessary condition 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. It was urged on behalf of the appellant that a marriage should
not be treated as void because such a marriage was earlier recognised in law
and custom. A reference was made to s. 12 of the Act and it was said that in
any event the marriage would be voidable. There is no merit in this contention.
By reason of the overriding effect of the Act as mentioned in s. 4, no aid can
be taken of the earlier 814 Hindu Law or any custom or usage as a part of that
Law inconsistent with any provision of the Act. So far as s. 12 is concerned,
it is confined to other categories of marriage and is not applicable to one solemnised
in violation of s.
S(1)(i)
of the Act. Sub-section (2) of s. 12 puts further restrictions on such a right.
The cases covered by this section are not void ab initio, and unless all the
conditions mentioned therein are fulfilled and the aggrieved party exercises the
right to avoid it, the same continues to be effective. The marriages covered by
s. 11 are void-ipso- jure, that is, void from the very inception, and have to
be ignored as not existing in law at all if and when such a question arises.
Although the section permits a formal declaration to be made on the
presentation of a petition, it is not essential to obtain in advance such a
formal declaration from a court in a proceeding specifically commenced for the
purpose. The provisions of s. 16, which is quoted below, also throw light on
this aspect:
"
16. Legitimacy of children of void and voidable marriages.-(1) Notwithstanding
that a marriage is null and void under Section 11, any child of such marriage
who would have been legitimate if the marriage had been valid, shall be
legitimate, whether such child is born before or after the commencement of the
Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree
of nullity is granted in respect of that marriage under this Act and whether or
not the marriage is held to be void otherwise than on a petition under this
Act.
(2)
Where a decree of nullity is granted in respect of a voidable marriage under
Section 12, any child begotten or conceived before the decree is made, who
would have been the legitimate child of the parties of the marriage if at the
date of the decree it had been dissolved instead of being annulled, shall be
deemed to be their legitimate child not withstanding the decree of nullity.
(3)
Nothing contained in sub-section (1) or sub section (2) shall be construed as
conferring upon any child of a marriage which is null and void or which is
annulled by a decree of nullity under Section 12, any rights in or to the
property of any person, other than the parents, in any case where, but for the
passing of this Act, such child would have been incapable of possessing or
acquiring any such 815 rights by reason of his not being the legitimate child
of his parents.
(Emphasis
added).
Sub-section
(1), by using the words underlined above clearly, implies that a void marriage
can be held to be so without a prior formal declaration by a court in a
proceeding. While dealing with cases covered by s. 12, sub- section (2) refers
to a decree of nullity as an essential condition and sub-section (3) prominently
brings out the basic difference in the character of void and voidable marriages
as covered respectively by ss. 11 and 12. 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
marriage of the appellant must, therefore, be treated as null and void from its
very inception.
4. The
question, then arises as to whether the expression 'wife used in s. 125 of the
Code should be interpreted to mean only a legally wedded wife not covered by s.
11 of the Act. The word is not defined in the Code except indicating in the
Explanation its inclusive character 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.
5. It
has been contended on behalf of the appellant that the term 'wife' in s. 125 of
the Code should be given a wider and extended meaning so as to include therein
not only a lawfully wedded wife but also a woman married in fact by performance
of necessary rites or following the procedure laid down under the law. Relying
upon the decision of this Court in Mohd. Ahmed Khan v. Shah Bano Beghum, [1985
] 3 SCR 844, it was argued that the personal law of the parties to a proceeding
under s. 125 of the Code should be completely excluded from consideration. The
relationship of husband and wife comes to an end on divorce, but a divorcee has
been held to be entitled to the benefits of the section, it was urged, and
therefore applying this approach a woman in the same position as the present
appellant should be brought within the sweep of the section. We are afraid, the
argument is not well founded. A divorcee is included within the section on
account of clause (b) of the Explanation. The position under the corresponding
s. 488 of the Code of 1898 was different. A divorcee could 816 not avail of the
summary remedy. The wife's right to maintenance depended upon the continuance
of her married status. It was pointed out in Shah Bano's case that since that
right could be defeated by the husband by divorcing her unilaterally under the
Muslim Personal Law or by obtaining a decree of divorce under any other system
of law, it was considered desirable to remove the hardship by extending the
benefit of the provisions of the section to a divorced woman so long as she did
not remarry, and that was achieved by including clause (b) of the Explanation.
Unfortunately for the appellant no corresponding provision was brought in so as
to apply to her. The legislature decided to bestow the benefit of the section
even on an illegitimate child by express words but none are found to apply to a
de facto wife where the marriage is void ab initio.
6. The
attempt to exclude altogether the personal law applicable to the parties from
consideration also has to be repelled. The section has been enacted in the
interest of a wife, and one who intends to take benefit under sub-section
(1)(a) has to establish the necessary condition, namely, that she is the wife of
the person concerned. This issue can be decided only by a reference to the law
applicable to the parties. 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. The issue whether the section is
attracted or not cannot be answered except by the reference to the appropriate
law governing the parties. In our view the judgment in Shah Bano's case does
not help the appellant. It may be observed that for the purpose of extending
the benefit of the section to a divorced woman and an illegitimate child the
Parliament considered it necessary to include in the section specific
provisions to that effect, but has not done so with respect to women not
lawfully married.
7.
Lastly it was urged that the appellant was not informed about the respondent's
marriage with Lilabai when she married the respondent who treated her as his
wife, and, therefore, her prayer for maintenance should be allowed.
There
is no merit in this point either. The appellant cannot rely on the principle of
estoppel so as to defeat the provisions of the Act. So far as the respondent
treating her as his wife is concerned, it is again of no avail as the issue has
to be settled under the law. It is the intention of the legislature which is
relevant and not the attitude of the party.
817
8. We
therefore, hold that the marriage of a woman in accordance with the Hindu rites
with a man having a living spouse is a complete nullity in the eye of law and
she is not entitled to the benefit of s. 125 of the Code. The appeal is
accordingly dismissed. There will be no order as to costs. During the pendency
of the appeal in this Court some money was paid to the appellant in pursuance
of an interim order. The respondent shall not be permitted to claim for its
refund.
N.P.V.
Appeal dismissed.
Back
