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PETITIONER: SMT. YAMUNABAI ANANTRAo ADHAV A

       Vs.

RESPONDENT: RANANTRAo SHIVRAM ADHAV AND ANOTHER

DATE OF JUDGMENT27/01/1988

BENCH: SHARMA, L.M. (J) BENCH: 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.

HEADNOTE: %      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

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    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]

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    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.

JUDGMENT:      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

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              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:

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              " 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

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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

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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. 818