Master Dharmesh Nankani Alais … vs Smt. Savitri Devi And Others on 4 July, 2017

IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL

First Appeal No. 128 of 2014
Master Dharmesh Nankani @ Suraj (Minor)
……Appellant
Versus
Smt. Savitri Devi and others …… Respondents.

Present:
Mr. Dharmendra Barthwal, Advocate for the appellant.
Mr. Piyush Garg, Advocate for the respondents.

JUDGMENT

Coram: Hon’ble Rajiv Sharma, J.

Hon’ble Sharad Kumar Sharma, J.

Dated: 4th July, 2017

Per Hon’ble Sharad Kumar Sharma, J.

An interesting question has been raised in the instant
appeal. The case originated from an application submitted
by the minor son said to have been born from the alleged
wedlock between Neha Nankani and late Sri Arjun
Nankani. According to the application, as submitted under
Section 18 of the Hindu Adoption and Maintenance Act,
1956 (hereinafter referred to as “Act”) on 27th October, 2007,
the minor children of late Arjun Nankani, namely, Master
Dharmesh Nankani, who was represented through his
natural mother and guardian Neha Nankani, had claimed
the benefit of maintenance under Section 18 of the Act.

Before venturing into the intricacies of the issues
involved in the case, an interpretation of Section 18 (1) and
(2) is necessary Section 18 of the Act reads as under :-

“Section 18 – Maintenance of wife

(1) Subject to the provisions of this section, a Hindu
wife, whether married before or after the commencement of
this Act, shall be entitled to be maintained by her husband
during her life time.

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(2) A Hindu wife shall be entitled to live separately
from her husband without forfeiting her claim to
maintenance-

(a) if he is guilty of desertion, that is to say, of
abandoning her without reasonable cause and
without her consent or against her wish, or willfully
neglecting her;

(b) if he has treated her with such cruelty as to
cause a reasonable apprehension in her mind that it
will be harmful or injurious to live with her husband;

(c) if he is suffering from a virulent form of
leprosy;

(d) if he has any other wife living;

(e) if he keeps a concubine in the same house in
which his wife is living or habitually resides with a
concubine elsewhere;

(f) if he has ceased to be a Hindu by conversion to
another religion;

(g) if there is any other cause justifying her living
separately.”

Section 38 of the Specific Relief Act deals with the
grant of mandatory injunction against the party concerned.

The concept of grant of mandatory injunction would be a
concept to refrain a party from doing a particular act or to do
an act as directed by the Court. Since, the Act of 1956 is self
contained social legislation intended for the welfare of the
claimants under it, Section 38 of the Specific Relief Act
would not be applicable. The said analogy could be settled
on the scrutiny of Section 38 itself which is quoted
hereunder:

“38 – Perpetual injunction when granted. – (1)
Subject to the other provisions contained in or referred to by
this Chapter, a perpetual injunction may be granted to the
plaintiff to prevent the breach of an obligation existing in
his favour, whether expressly or by implication.

(2) When any such obligation arises from contract,
the court shall be guided by the rules and provisions
contained in Chapter II.

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(3) When the defendant invades or threatens to
invade the plaintiff’s right to, or enjoyment of, property, the
court may grant a perpetual injunction in the following
cases, namely:–

(a) where the defendant is trustee of the property for the
plaintiff;

(b) where there exists no standard for ascertaining the
actual damage caused, or likely to be caused, by the
invasion;

(c) where the invasion is such that compensation in
money would not afford adequate relief;

(d) where the injunction is necessary to prevent a
multiplicity of judicial proceedings.”

The application has been submitted by a minor son of
the deceased father though her mother and natural guardian
as revealed for the cause title of the application, it would be
deemed that it was an application filed by the minor and not
by the wife for the claim under Section 18 of the Act. Section
18 in itself only deals with the maintenance to be provided to
a wife only. No maintenance to a son is contemplated under
the said Section, hence, also the application is not tenable. To
bring the claim within the ambit of Section 18 of the Act, the
basic ingredients required are:-

1. Claimant has to be a Hindu wife.

2. Has to be married.

The term ‘marriage’ has not been defined under the
Act. The Judicial precedence lay down that the term
marriage would be a connotation which is being used in a
common parlance. In a society, marriage is a relation, the
basis of its acceptance of the normal customs and usages,
recognizing the relationship between a male and female.

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This relationship of wife or husband has to be in accordance with
the customs and usages, which is continuously and uniformly
observed for a considerable long period of time, in society.

The judicial precedence and statutes are silent so far it
relates to defining the term ‘marriage’. The reason behind it,
because the institution of marriage which dates back to the
century old when the law had barely come into existence, was
flowed by precedents.

It could be said that it is the law which should follow the
institution of marriage and not the other way around.

The definition which is normally being used in United
States – “its a joining of male and female in matrimony by a
person qualified by law to perform the ceremony.”

In accordance with Black’s Law Dictionary, the marriage
has been defined as – The legal union of a couple as husband and
wife. The essentials of a valid marriage are (1) parties legally
capable of contracting to marry, (2) mutual consent or agreement,
and (3) an actual contracting in the form prescribed by law.
Marriage has important consequences in may areas of law, such
as torts, criminal law, evidence, debtor-creditor relations,
property , and contracts.

Under the common law, the theory of marriage is usually
when a man and woman live together and they hold themselves
out to friends, family and the community as being married.

In the Webster Legal Dictionary, the marriage means “a
state of being united as spouses in consensual and contractual
relationship recognized by the Law.”

Farlex Legal Dictionary defines marriage “as to be
relationship with man and woman who have the capacity to enter
into such agreement, and they promise to live together in
relationship as husband and wife in Law.” With the concept of
marriage, it changes the legal status of both the parties to the
marriage giving husband and wife new rights and obligations.

In legal analogy, the word ‘marriage’ used under Section 18
of the Act has to be read as a marriage in relation to which
public is deeply interested and subject to proper
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regulation. Under the Hindu Law, marriage is a
sacrament of which there is a control by the State or its
sovereignty under the prevailing laws. This concept is
prevalent in almost all the countries.

Any marriage in confinement without the information
or knowledge of the public and furthermore concealment of
the fact that marriage being brought to the note of the public
at large cannot be treated as public marriage. If it so the
either of the spouse under the social term cannot be treated
as to be a married wife or married husband.

Marriage that rests merely on agreement and wishes of
the parties, such marriage entered into a secret way, as the
one soleminized by and with a notorious person without all
the required formalities has been termed to be “clandestine
marriage”. Has got no legal sanction in the eyes of the law.
It is, thereby, it has been held that right of wife for
maintenance is a incidence of her social status or the estates
she has to occupy as a consequence of matrimony and as a
Hindu under legal obligation to maintain a legal wife.

The Orrisa High Court in its judgment reported in AIR
2011 Orissa 98 para 13, Lakhan Murmu Vs. Smt. Gurubari
Murmu and another as well as the Bombay High Court in its
judgment reported in AIR Bombay 2010 page 690 has used
the expression “Hindu wife used under Section 18 means
legally wedded wife and no less.”

The Chhattisgarh High Court in the judgment reported
in AIR 2010 Chhattisgarh p/25 has held the expression
Hindu wife used under Section 18 does not include any wife
of second marriage during subsistence of first marriage. The
Court has held as under :-

“9. In the instant case, the appellant and other
witnesses including Kaushilya Devi Satnami (NAW 2) have
categorically stated that Kaushilya is wife of the appellant,
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she is alive and during the subsistence of her marriage, the
respondent has claimed that she has married the appellant
and she has claimed for maintenance. Respondent
Bhagwantin Bai has not admitted in specific terms that she
had earlier married with Keshav Sahu, but in her cross-
examination she has admitted that she was living with
Keshav Sahu, she conceived through Keshav Sahu and gave
birth to Mamta, Keshav Sahu has not divorced her, however,
customary divorce has been effected. She has proved and
admitted the documents Ikrarnama/consent and affidavits
executed by the respondent. Exhs. A-l to A-4 clearly show
that both the parties were having spouses at the time of
alleged marriage and with the consent of first wife of the
appellant the respondent has married the appellant. These
documents and the statements of the witnesses are sufficient
to establish the fact that at the time of alleged marriage of the
respondent with the appellant, both the parties, i.e., the
appellant and the respondent were having spouses and their
marriage was not dissolved by a decree of divorce or by any
recognized custom and during the subsistence of their
marriage they have married with each other. Such marriage
is in violation of Section 5(i) of the Act, 1955 and such
marriage is a void marriage under Section 11 of the Act,
1955. Therefore, the respondent is not the legally wedded
wife or lawful wife of the appellant. Only the lawful wife or
legally wedded wife is entitled for maintenance under
Section 18 of the Act, 1956.”

In the case, in hand, the petition under Section 18 read
with Section 38 of the Specific Relief Act, the appellant had
claimed himself to be the son of late Arjun Nankani who was
represented through natural guardian and mother claims for
maintenance under Section 18 of the Act. According to the
plaint allegations, the mother of the plaintiff claimed that she
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was a married wife, whose marriage was solemnized in
accordance with the Hindu customs and rituals. Out of the
marriage between them, the appellant was born on 5th
November, 2002. In the application under Section 18 read
with Section 38 of the Specific Relief Act. The following
relief was sought :

“d ;g fd ;g ?kks’k.kk dh tkos fd oknh] e`rd vtqZu
uudkuh iq Jh eU”kkjke uudkuh fuoklh vtwZu gksVy] tLlkjke
jksM] gfj}kj dk ,dek iq#’k lUrku gS rFkk ,dek okfjl gS
rFkk e`rd vtqZu uudkuh dh leLr py o vpy lEifRr dks
izkIr djus dk vf/kdkjh gSA
[k ;g fd izfroknhx.kksa dks vkKkRed O;kns”k }kjk
vknsf”kr fd;k tkos fd og oknh dks okn i dh frfFk ls
U;k;ky; dh vkxkeh vkns”kksa rd vadu 1]00]000@ s
izfrekg Hkj.k iks’k.k dh /kujkf”k esa ns vkSj bldk dkj.k cusaA ,slk
u fd;s tkus ij e`rd vtZqu uudkuh dh leLr py o vpy
lEifRr ij fjlhoj fu;qDr dj fn;k tkos vkSj fjlhoj dks vkns”k
fn;k tkos fd og vadu 1]00]000@ s dh /kujkf”k Hkj.k
iks’k.k esa oknh dks nsaA
x ;g fd vU; dksbZ izfrdkj fd tks oknh dks
izfroknhx.kksa ls feyuk lEHko gks oknhx.kksa dks fnyok;k tkosA
?k ;g fd leLr okn O;; oknh dks izfroknhx.kksa ls
fnyok;k tkosA”

Either under Section 18 of the Act or under Section 38
of Specific Relief Act, no such relief of declaration could be
sought for.

Hindu Adoption and Maintenance Act, 1956, is a social
welfare legislation which will have a predominance over the
general law i.e. Specific Relief Act as the special provision
contemplating a grant of special right and relief will prevail
over the general.

Since, there was a certain dispute between Neha
Nankani and late father of the appellant Arjun Nankani,
there have been various sets of proceedings including that of
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proceedings under Section 125 of the Cr.P.C. for
maintenance. The basis of the proceedings under Section 125
Cr.P.C. was a cruelty said to have been exercised by late
Arjun Nankani. In the proceedings under Section 125
Cr.P.C., according to the plaint allegation itself, it was
accepted by the parties that the relationship between late
Arjun Nankani and Neha Nankani was friendly relationship
without any socially recognized marriage rituals, however,
late Arjun Nankani denied that the plaintiff being the son
born out of the relationship with Neha Nankani. To support
the aforesaid purpose, a DNA test was conducted but,
during the intervening period, late Arjun Nankani was met
with the sad demise on 3rd September, 2007.

The mother of the appellant Neha Nankani requested
the Family Court to preserve some part of the body so that
the DNA itself may be conducted to show that the appellant
was the son of late Arjun Nankani. That controversy
pertaining to establishment of relationship between father
and son, i.e. Arjun Nankani and the appellant should not
hold us long because that is the controversy not to be settled
by this case.

In the application, itself, filed under Section 18 of the
Act, the appellant claimed to be the only male child and
successor of the estates of late Arjun Nankani. In relief No.

(b), the claim was for the payment of Rs. 1 lac p.m. and, in
the event of failure, the same may be recovered from the
estates of Arjun Nankani by appointing receiver.

The respondent No. 1 who happens to be the legally
wedded wife of Arjun Nankani filed her pleadings before the
Court below by way of written statement on 22nd August,
2008 and denied the claim as raised by the appellant in the
application under Section 18 of the Act. In the objection,
specific plea was taken that the claim of marriage by Neha
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Nankani with Arjun Nankani was a fallacy, because they
were never married in accordance with recognized Hindu
rites and rituals and alleged theory of marriage, is fictitious
and is developed for the purpose of the case. To support her
case further she stated that no such deed of marriage has
been pleaded by Neha Nankani, or ever proved by her.

At this place, the entitlement of Neha Nankani for
maintenance under the Act of 1956, would be only when she
is legally married wife. Yet again under the Act or laws
relating to the Hindu the definition of “wife” has not been
provided. Under common law, wife means a woman who
was party to a “common-law marriage.” As above defined is
one who, having lived with a man in a relation of
concubinage during his life, asserts a claim, after his death,
to have been his wife according to the requirements of the
common law. Even, if a lady is residing with a man in a
concubinage than to that has to be according to the
requirement of common law. Here in the instant case, the
guardian of the applicant, i.e. Neha Nankani was not in
concubinage because concubinage is not permitted under the
Hindu society.

According to the Oxford Dictionary, word concupine
has been defined as under :

“Concubine – Chiefly historical (in polygamous
societies) a woman who lives with a man but has lower
status than his wife or wives or mistress.”

On the reading of this definition too a lady who is not
legally wedded does not ever acquire the status of wife.
Hence the appellant would not be covered under the
definition of wife and would not be entitled for any
maintenance under the Act of 1956.

Wife in Hinduism – In Indo-Aryan languages, a wife is
known as Patni, which means a woman who shares
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everything in this world with her husband and he does the
same, including their identity. Decisions are ideally made in
mutual consent. A wife usually takes care of anything inside
her household, including the family’s health, the children’s
education, a parent’s needs.

It has also come on record that Neha Nankani was
already married to one Mr. Manjeet Singh Kukerja on 16th
April, 1999. The said marriage was dissolved on 22nd April,
2002. Hence, any relationship which Neha Nankani had
with late Arjun Nankani, prior to 22nd April, 2002, when
marriage of Neha Nankani with Mr. Manjeet Singh Khukreja
was not dissolved would be an illegal marriage. Hence the
marriage was invalid, non existent in the eyes of law.

On exchange of pleadings, the learned Family Court,
by the impugned judgment dated 24th November, 2014,
rejected the application for grant of maintenance under
Sections 18 and 20 of the Act. The defendant No. 1, in
written statement asserted in his para 4 that Arjun Dass
Nankani was murdered on 3rd September, 2007 and denied
the plaintiff to be the valid son of Arjun Nankani. She
contended that she happens to be the legally wedded first
wife and other defendants are the children of late Arjun
Nankani. Thus, they were entitled for all the assets movable
and immovable left by late Arjun Nankani. On the basis of
the last registered Will dated 3rd October, 2006, executed by
Arjun Nankani in favour of the defendants with the present
suit. On exchange of pleadings, the Court framed the
following issues :-

1- D;k oknh e`rd vtZqu uudkuh dk ,d ek iq:’k larku gS
vkSj leLr py o vpy laifRr dk Lokeh gS
2- D;k oknh dks vius v/;;u ds fy, o Hkj.kiks’k.k ds fy,
e`rd vtqZu uudkuh ds bLVsV ls ,d yk[k : izfrekg ikus
dk vf/kdkjh gS
3- D;k oknh dks dksbZ okndkj.k izkIr ugha gS tSlk fd
izfrokni dh pj.k la[;k 13 esa vfHkdfFkr gS
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4- D;k okn dk ewY;kdu de fd;k x;k gS vkSj U;k;”kqYd Hkh
de vnk fd;k x;k gS] tSlk fd izfrokni dh pj.k la[;k
14 esa vfHkdfFkr fd;k x;k gS
5- D;k oknh dk okn /kkjk 34 ijUrqd fof”k’V vuqrks’k
vf/kfu;e ds izko/kku ls ckf/kr gS] tSlk fd izfrokni ds
pj.k la[;k 21 esa vfHkdfFkr gS
6- D;k oknh eakxk x;k vuqrks’k ikus dk vf/kdkjh gS
7- D;k oknh dh ekrk Jherh usgk uudkuh dk fookg Jh vtqZu
uudkuh ds lkFk fgUnq jhfr fjokt ds vuqlkj nsgjknwu esa
laiUu gqvk Fkk o og fookg oS/k Fkk ;fn gka rks izHkkoA

The controversy which is now being centered around
would primarily depend upon the findings on issue No. 7 as
to whether Neha Nankani was married with Arjun Nankani
in accordance with the Hindu rites and rituals and whether it
was a valid marriage.

Before the Court below Issue no. 1 was framed to the
effect as to where appellant happens to be the only male
child of late Arjun Nankani who is entitled for all the
movable and immovable assets. The Trial Court by
recording the finding on issued No. 1, held that since
according to the statement of PW1 Neha Nankani, in her
cross examination, she has stated in relation to the Will that
if a person who can speak lie for the purpose of getting
married, why would he disclose the fact of Will executed in
favour of the defendants. She contended that when she
learnt about the death of Arjun Nankani who was murdered
on 3rd September, 2007, then only she applies to the
Municipal Board to get a certified copy of the will.

The plaintiff, thus, had the knowledge of the will
executed by Arjun Nankani which was a registered will and
its validity will be presumed, but the same was not
challenged in the application under Section 18 of the Act
read with 38 of the Specific Relief Act and no such pleadings
pertaining to the will and its validity has been agitated.

The Court, while dealing with issue No. 7, as to
whether Neha Nankani was legally wedded wife, the Court
has held that in her cross examination she has stated that her
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marriage was solemnized with Arjun Nankani in accordance
with Hindu rites and rituals which was done in the presence
of Pandit. She admits the fact that marriage was not
registered. To support the case that she was married, she
stated that one Usha and Mr. Praveen Gupta had attended
the marriage and they are the witnesses of the same. But
they were not produced in witness box before Court below
to establish the solemnization of marriage of Arjun Nankani
with Neha Nankani, hence their non production adverse
inference to be drawn
There has been no evidence lead by the plaintiff to
establish the existence of marriage. Name of whosoever
have been expressed by Neha Nankani in her statement as
PW1, were not produced as witness nor was cross examined
and, thus, the Court held that in the absence of there been
any evidence on record, and since Neha Nankani has not
produced any witnesses, whom she alleges to have
participated in the marriage, the factum of marriage with
Neha Nankani with late Sri Arjun Nankani is not proved
and, thus, the application was rejected.

We have heard Mr. Dharmendra Barthwal, learned
counsel for the appellant and Mr. Piyush Garg, the learned
counsel for the respondents.

On perusal of Section 18 of the Act, for wife to be
entitled to receive maintenance, it is essentially that she has
to be a “Hindu Marriage Wife”. The words “Marriage and
wife” has not been defined under the Act. Under Black’s
Dictionary, the word ‘wife’ means “a married woman who
has a lawful husband living”. On reading the definition of
wife, it means that she has to be a spouse who is legally and
socially recognized as a partner to the other. Admittedly, in
the instant case, the status of wife was not proved by Neha
nor her marriage has been proved. If this be so, she renders
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herself ousted from the benefit of Section 18 of the Act in the
absence of she being a legally wedded wife.

She contends that the marriage was soleminised
according to the Hindu rites and rituals. According to the
dictionary meaning, “marriage means a legal union of couple
as husband and wife”, which means an essentiality of valid
marriage that the parties are legally capable of contracting to
marry. In the present case, the period in which Neha claims
herself to be married with Arjun Nankani, he was already
having respondent No. 1 as his legally wedded wife. In the
absence of establishing the fact that there was a legal
marriage solemnized between late Arjun Nankani and Neha
she will not be falling under definition of Section 18 of the
Act and, thus, would not be entitled for maintenance.

The learned counsel for the appellant has placed
reliance on the judgment rendered by the High Court of
Bombay in Review Petition No. 19 of 2016 in First Appeal
No. 577 of 2015, Indubai Jaydeo Pawar and Another Vs.
Draupada @ Draupadi Jaydeo Pawar and others. In the said
judgment rendered by the Single Bench it was a case where
two wives claimed pensionary benefits of late Jaidev
Panwar after his death. They also simultaneously claimed
the property. While the case was pending, the Appeal of
Draupada was allowed after substitution of her heirs and
also that the first wife is alive and the second wife has no
right to receive the family pension. Thus, it is established by
the said judgment itself that it was held that the second wife
who was not legally married would not be entitled for any
pensionary benefits. Paragraph 19 of the said judgment is
extracted hereunder :-

“19. Neither the word ‘wife’ nor ‘marriage’ are
defined in Hindu Marriage Act or Hindu Succession Act or
also under section 125 of the Code of Criminal Procedure.
The word ‘solemnisation’ is also not defined but it
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recognises and means “a performance” according to the
respective customary and religious rites and rituals. The
age old institution of marriage in India has many shades
depending on the different colours of religion, caste and
custom. Since beginning of civilisation, a union of a male
and a female is celebrated after performing customary
rituals resulting in social and legal sanctity. In Hindu
Dharma Shastra, Rakshasa Vivaha and Gandharva Vivaha
were also included in eight forms of marriages. If we refer to
Black’s Law Dictionary to understand the word “marriage,
we get different meanings and interpretation and forms of
the word hidden in multiple social layers. For example, a
clandestine marriage, consensual marriage, cross marriage,
green card marriage, a runaway marriage, limited purpose
marriage, marriage of convenience, marriage of conscience,
morganatic marriage, putative marriage, scotch marriage,
etc. Thus, if we study the social history of mankind, then,
we realise that marriage has no exact or static form.
Marriage and family institution is a cream of the
civilisation and backbone of the culture of any nation or
community and, therefore, to regulate the social order,
restrictive meaning is given under the law. The word
‘marriage’ is required to be understood in common parlance
on the backdrop of requirements under law. Though the
marriage is not defined under Hindu Marriage Act, void or
voidable marriage is defined under sections 5, 11 and 12 of
the Hindu Marriage Act. Thus, broadly, either customary
solemnization of marriage is required or performance of
legal formality is a condition precedent to label that
relationship as a marriage. For example, a one night
consensual affair cannot be called a marriage. Merely
having a physical relationship between man and a woman
also cannot be called as a marriage. Any physical
intimacy/sexual intercourse which took place by choice or
by chance or by accident is not a marriage. Thus, though
physical relationship is a vital part of the marriage, it is still
something more than that. Basically what is required to call
such relationship as a marriage is firstly the intention and
desire of the parties to marry and to give status to each
other as a husband and wife. The manifestation of such
desire is through performance of certain religious rites or
legal formalities. There is legal, social or customary
requirement of solemnization between the parties. The
duration of marital status also is one of the determining
factors to render them a status of a married couple.”

The counsel for the appellant, after argument was
concluded sought a prayer to submit written argument. In
place thereof he has submitted compilation of the judgments.

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The counsel for the appellant places reliance on the
judgment reported in (2011) 11 SCC 1, Revanasiddappa and
Another Vs. Mallikarjun and Others. The said judgment
will not be applicable in the instant case for the reason in the
judgement referred thereto the Hon’ble Apex Court was
ceased to interpretation of beneficial legislation so far it
related to Section 16 (3) of the Hindu Marriage Act which
was pertaining to issue of legitimacy of a child of void and
voidable marriage. Whereas, in the instant case, the grant of
maintenance under Section 18 (2) to the wife which is being
claimed by the appellant is depending upon the status of the
marriage. With all humility, the impact of change status of
society while interpreting the beneficial legislation as laid
down by the said judgement since was ceased with the
impact of the provision of Hindu Marriage Act only, the
same would not be applied.

The learned counsel for the appellant relied on a
judgment reported the judgment rendered by the Division
Bench of Delhi High Court in the case of ‘W’ Vs. ‘H’ and
another reported in 2016 SCD OnLine Del 4786, wherein,
the wife appellant has assailed an order passed in the
proceedings under the Hindu Marriage Act whereby her
application under Section 151 of the CPC seeking DNA test
of the appellant and minor child was allowed. The judgment
of Delhi High Court, has dealt with the concept of legislative
impact of the DNA test in the light of provision contained
under Section 112 of the Indian Evidence Act to establish the
legitimacy of the child during marriage and held to be
conclusive proof of legitimacy. In the concluding part of the
judgment, the order allowing the DNA test on an application
under Section 151 of the CPC was set aside and the matter
was remitted back with an observation that no expression in
the said judgment would be treated as to be effecting any
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issue on merits. Hence, as a matter of fact the said judgment
was not conclusive and the circumstances under which the
said case emanated since being distinct to the one at hand
will not be applicable.

Another judgment on which the reliance has been
placed by the appellant is that reported in (2011) 4 SCC 80,
Surendra Koli Vs. State of Uttar Pradesh and others which
pertains to the impact of DNA test. This judgement pertains
to the impact of DNA test and has got no relevance as far as
claim under Section 18 of the Hindu Marriage Act is
concerned.

Thus, the Court feels that the appellant has gone astray
by placing reliance on the judgments given in the
compilation which relates to the impact of the DNA test,
oblivions of the fact that DNA test is not on issue in the
appeal. The issue in the appeal is confined to the entitlement
for maintenance under Section 18 of the Act by a lady
illegally married claiming maintenance from respondent No.
1, the first legally wedded wife. Thus all the judgments do
not come to the rescue of the appellant being distinct on the
facts and legal issues.

An identical question came up for consideration before
the Division Bench of Calcutta High Court in the case of Dr.
Ranjit Kumar Bhattacharyya Vs. Savita reported in AIR
1996 Calcutta 301. His Lordships has held as under :

“31. The personal law regarding maintenance has
been thoroughly changed by the Hindu Adoptions and
Maintenance Act, 1956. The Act supersedes the rule of the
Law of Maintenance previously applied to Hindu by virtue
of any text or rule of Hindu Law or by custom or usages
having the force of law, and there is no provision in the said
Act enabling and/or entitling a woman to claim
maintenance from a person with whom she had entered into
a void marriage or of whom she was a concubine or even an
“Avaruddhastri”, as S. 18 of the Hindu Adoptions and
Maintenance Act, 1956, speaks of the maintenance of a
Hindu wife by her husband and according to us the
expression “wife” as used in the said S. 18 obviously means
18

a legally married wife. The expression must, therefore, be
given the meaning in which it is understood in law
applicable to the parties. Moreover a bigamous marriage
contacted after coming into force of the Hindu Marriage Act,
1955 would be void ab initio and/ or void ipso jure. The
marriage of a woman in accordance with the Hindu rites
with a man having a spouse living at the time of marriage
and held after the Hindu Marriage Act, 1955 has come into
force, is a nullity in the eye of law and such woman,
according to us is not entitled to get any maintenance under
the Hindu Adoptions and Maintenance Act, 1956 since she
is not a legally married wife. The reasonings given in the
decisions cited by Mr. Bhatta- charyya, accordingly appear
to be quite sound and logical.

34. Thus we hold that the respondent No. 1 not being
a legally married wife of the appellant for the reasons as
aforesaid, is not entitled to gel any maintenance from the
appellant under the Hindu Adoptions and Maintenance Act,
1956. The judgment and decree of the trial court also cannot
stand for the reasons as aforesaid and, therefore, are set aside
and the appeal is allowed without, however, no order as to
costs.”

The full Bench of Andhra Pradesh High Court in a
judgment reported in AIR 1999 Andhra Pradesh p/19,
Abbayolla M Subba Reddy Vs. Padmamma has held as
under with regards to the entitlement of a wife whose
married is void :-

“15. A Hindu is under an obligation to maintain his
wife, his minor sons, unmarried daughters and aged
Parents. The obligation is personal. It arises from the very
nature of the relationship and exists whether he possesses
any property or not. The Maintenance Act gives statutory
form to that obligation. The right of a Hindu wife for
maintenance is an incident of the status of matrimony.

Subsection (1) of Section 18 of the Act substantially
reiterates that right and lays down the general rule that a
Hindu wife whether married either before or after the
commencement of the Act is entitled to be maintained by her
husband during her life time. The rule laid down in this
Section is subject to the exceptions stated in sub-section (3)
which lays down that she cannot claim separate residence
and maintenance if she is unchaste or ceases to be a Hindu
by conversion to another religion. Under sub-section (2) of
Section 18 wife is entitled to live separately from her
husband without forfeiting her claim for maintenance, in the
circumstances stated in clauses (a) to (g) mentioned in that
subsection. Under clause (d), wife is entitled for separate
19

residence without forfeiting her claim for maintenance if her
husband has any other wife living. The claim for
maintenance is maintainable under this Section irrespective
of the fact that the marriage had taken place after or before
the marriage of the applicant wife, provided the other wife is
living. The ground laid down in this Section can, obviously
exist only in case of any marriage solemnized before the
Hindu Marriage Act came into operation. It is obviously for
the reason that the Hindu Marriage Act, 1955 laid down
monogamy as a rule of law and Hindu husband cannot
marry another wife after the commencement of that Act. A
bigamous marriage contracted after the coming into force of
that Act, would be null and void and no question of having
another wife can arise. Therefore, the word “Hindu wife” in
Section 18(1) connotes only a legally wedded wife of Hindu
and such wife alone is entitled to claim maintenance from
her husband under this Section. If her marriage is void ab
initio, she is not entitled to claim maintenance under this
Section. “Hindu wife” in this Section, we reiterate, only
means a wife whose marriage is valid under the provisions of
the Hindu Marriage Act, 1955. The wife whose marriage has
been solemnized, but is void on the ground that the first wife
of the husband is living at the time of the marriage is not
entitled to claim maintenance under this provision.

16. The expression “any other wife” in Section
18(2)(d) of the Act came up for consideration before
Karnataka High Court in Subbe Gowda v. Hanamma,
AIR1984Kant41, and it is held by that Court that:

‘The expression ‘any other wife .’ in Section 18(2)(d)
means, any other legally wedded wife. Therefore, even if the
husband is living with another woman treating her as his
wife, it cannot be said that he has any other wife living
within the meaning of Section 18(2)(d).”

While the personal law governing the parties
prohibits bigamous marriage, on a parity of reasoning, it.
can also be stated that the expression ‘Hindu wife’ in
Section 18 means only a legally wedded wife and not a wife
whose marriage is void under the provisions of the Hindu
Marriage Act. The second marriage/bigamous marriage
being void cannot create a legal statute of “husband” and
“wife” between the parties. That marriage is void ab initio
and the woman cannot get the status of a wife nor the male
gets the status of husband to her. Therefore, she cannot get
a right to claim maintenance under Section 18 of the Act.

18. It is no doubt true that Maintenance Act is a piece
of beneficial legislation conferring additional rights on
women and children. But, it cannot be construed as
conferring maintenance rights on a woman whose marriage
20

is void under Hindu Marriage Act. While a legislative
enactment may be liberally construed, the liberality cannot
overstep the legislative limits of interpretation, putting to
the legislation something which is not there. If it is felt that a
particular enactment causes hardship or inconvenience, it is
for the Legislature to redress it, but, it is not open to the
Court to ignore the legislative injunction.

28. We are also of the opinion that even the principles
of justice, equity and good conscience do not come to the
rescue of the respondent as the subject of maintenance is
covered by statute law and there is no scope to invoke those
principles where the legislative enactments on the subject do
not permit the grant of maintenance to a woman who was a
party to a bigamous marriage.”

For the reasons aforesaid, we feel that the judgment
does not suffer from any legal vices or any error apparent on
record. Hence, the appeal fails and the same is dismissed
with cost.

(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
04.07.2017 04.07.2017
Shiv

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