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CASE NO.: Appeal (civil)  1774-1775 of 1775

PETITIONER: Rameshchandra Rampratapji Daga

RESPONDENT: Rameshwari Rameshchandra Daga

DATE OF JUDGMENT: 13/12/2004

BENCH: D. M. Dharmadhikari & H. K. Sema

JUDGMENT: J U D G M E N T

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

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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]; Mohd.  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

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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

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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 the  Hindu 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

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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 \026 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 advocate.   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

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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.