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Whether Hindu lady marrying a Hindu male carrying a rightly married mother entitled to maintenance?

Supreme Court of India

PETITIONER:SMT. YAMUNABAI ANANTRAo ADHAV

Vs.

RESPONDENT: RANANTRAO SHIVRAM ADHAV AND ANOTHER

DATE OF JUDGMENT27/01/1988

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 lady marrying a Hindu masculine carrying a rightly married mom -Whether entitled to maintenance-Personal law of a party-Whether can be excluded-Expression ‘wife’-Meaning of. Hindu Marriage Act, 1955: Sections 4, 5(i), 11, 12, 14, 1 Hindu lady marrying a Hindu masculine carrying a rightly married mom Whether such matrimony valid-Effect of such marriage- Whether such lady entitled to upkeep underneath s. 125 Cr.P. C. . 1973. Words and Phrases: Expression ‘wife’-Meaning of.

HEADNOTE:

The appellant was married to a initial respondent by tact of rites underneath Hindu Law in June, 1974, while a initial respondent’s progressing matrimony was subsisting and a mom was alive. After vital with a initial respondent for a week, she left a residence alleging ill-treatment. She filed an focus for upkeep in 1976, that was discharged by a hearing Court. Her seductiveness to a High Court was discharged by a Full Bench.

In a seductiveness to this Court it was urged on seductiveness of a appellant that a matrimony should not be treated as blank given such a matrimony was progressing recognized in law and tradition and in any event, a matrimony would be voidable underneath s. 12 of a Hindu Marriage Act, 1955, that a tenure “wife” in s. 125 of a Cr. P.C., 1973 should be given a wider and extended definition so as to embody therein not usually a rightly married mom though also a lady married, in fact, by opening of required rites or following a procession laid down underneath a law, that a personal law of a parties to a move underneath s. 125 of a Cr. P.C. should be released from consideration, and given a divorcee has been reason to be entitled to a advantages of a section, a lady in a same position as a appellant should also be brought within a brush of a section, and given a appellant was not sensitive about a respondent’s progressing marriage, when she married him, who treated her as his wife, her request for upkeep should be allowed.

It was contended on seductiveness of a respondent that a tenure “wife” used in Section 125 of a Cr. P.C. meant usually a legally married wife, and as a matrimony of a appellant contingency be reason to be nothing and blank by reason of a supplies of a Hindu Marriage, Act, 1955 a appellant was not entitled to any service underneath a section. Dismissing a appeal,

HELD:

l. The matrimony of a lady in suitability with a Hindu rites with a masculine carrying authorised spouse, after entrance into force of a Hindu Marriage Act, 1955 is a finish zip in a eye of law and she is not entitled to a advantage of Sec. 125 of a Criminal Procedure Code, 1973.

2.1 Clause (1)(i) of s. 5 of a Hindu Marriage Act, lays down, for a official marriage, a required condition that conjunction celebration should have a associate vital during a time of a marriage, and therefore a matrimony in transgression of this condition is nothing and void, underneath territory 11 of a Act.

2.2 By reason of a major outcome of a Act, as mentioned in s. 4, no assist can be taken of a progressing Hindu law or any tradition or use as a partial of that law, unsuitable with any supplies of a Act. Section 12 is cramped to other categories of marriages, and is not germane to one solemnized in defilement of s. 5(1)(i) of a Act. Cases lonesome underneath territory 12 are not blank ab initio.

2.3 The matrimony lonesome by s. 11 are void-ipso-jure, that is, blank from a really inception, and have to be abandoned as not existent in law during all if and when such a doubt arises. Although a territory permits a grave stipulation to be finished on a display of a petition, it is not essential to obtain in allege such a grave stipulation from a justice in a move privately commenced for a purpose.

The matrimony of a appellant must, therefore, be treated as nothing and blank from a verv inception.

3.1 Section 125 has been enacted in a seductiveness of a wife, and one who intends to take advantage underneath sub-section (l)(a) has to settle a required condition, namely, that she is a mom of a chairman concerned. This emanate can be motionless usually by a anxiety to a law germane to a parties.

3.2 It is usually where an applicant establishes her standing or attribute with anxiety to a Personal Law that an focus for upkeep can be maintained. Once a right underneath a territory is determined by explanation of required conditions mentioned therein, it can't be degraded by serve anxiety to a Personal Law.

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3.3 For a purpose of fluctuating a advantage of a territory to a divorced woman, and an deceptive child, a Parliament deliberate it required to embody in a territory specific supplies to that outcome though has not finished so with honour to women not rightly married.

3.4 The word “wife” is not tangible in a Cr. P.C. solely indicating in a Explanation to s. 125 a thorough impression so as to cover a divorcee. A lady can't be a divorcee, unless there was a matrimony in a eye of law preceding that status. The countenance must, therefore, be given a definition in that it is accepted in law germane to a parties, theme to a Explanation (b). A divorcee is enclosed in a territory on comment of cl. (b) of a Explanation.

3.5 Principle of estoppel can't be relied on to better a supplies of a Act. So distant as a initial respondent treating her as mom is concerned, it is of no avail, as a emanate has to be staid underneath a law. It is a goal of a legislature, that is relevant, and not a opinion of a parties. The request of a appellant for upkeep cannot, therefore, be authorised even if a appellant was not informed, during a time of her matrimony to a respondent, about his progressing 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 a Judgment and sequence antiquated 21/22-4-1982 of a Bombay High Court in Crl. Appln. No. 478 of 1980.

A.K. Sanghi for a Appellant.

A.M. Khanwilkar for a Respondents.

The Judgment of a Court was delivered by SHARMA, J. The indicate endangered in this seductiveness is possibly a Hindu lady who is married after entrance into force of a Hindu Marriage Act, 1955 to a Hindu masculine carrying a vital rightly married mom can say an focus for upkeep underneath territory 125 of a Code of Criminal Procedure, 1973 (hereinafter referred to as a Code). The appellant Smt. Yamunabai was factually married to respondent no. 1 Anantrao Shivram Adhav by tact of rites underneath Hindu Law in June, 1974. Anantrao had progressing married one Smt. Lilabai who was alive and a matrimony was subsisting in 1974. The appellant lived with a respondent no. 1 for a week and there after left a residence alleging ill-treatment. She finished an focus for upkeep in 1976 that was dismissed. The matter was taken to a Bombay High Court, where a box was listened by a Full Bench, and was motionless opposite a appellant by a impugned judgment.

2. Section 125 of a Code by sub-section (1) that reads as follows garments a “wife” with a right to accept upkeep is a n outline move underneath a Code:

125(1). If any chairman carrying sufficient means neglects or refuses to maintain-
(a) his wife, incompetent to say herself, or
(b) his legitimate or deceptive teenager child, possibly married or not, incompetent to say itself, or
(c) his legitimate or deceptive child (not being a married daughter) who has achieved majority, where such child is, by reason of any earthy or mental monstrosity or damage incompetent to say itself, or
(d) his father or mother, incompetent to say himself or herself, a Magistrate of a initial category may, on explanation of such slight or refusal, sequence such chairman to make a monthly stipend for a upkeep of his mom or such child, father or mother, during such monthly rate not surpassing 5 hundred rupees in a whole, as such Magistrate thinks fit, and to compensate a same to such chairman as a Magistrate might from time to time direct:
Provided that a Magistrate might sequence a father of a teenager womanlike child referred to in proviso (b) to make such allowance, until she attains her majority, if a Magistrate is confident that a father of such teenager womanlike child if married is not hexed of sufficient means.
Explanation. For a functions of this chapter:
(a) “minor” means a chairman who, underneath a supplies of a Indian Majority Act, 1875 (9 of 1875), is deemed not to have achieved his majority;
(b) “wife” includes a lady who has been divorced by, or has performed a divorce from, her father and has not remarried. ”
According to a respondent a tenure ‘wife’ used in a territory means usually a legally married wife, and as a matrimony of a appellant contingency be reason to be nothing and blank by reason of a supplies of a Hindu Marriage Act, 1955, she is not entitled to any service underneath a section.

3. For appreciating a standing of a Hindu lady marrying a Hindu masculine with a vital associate some of a supplies of a Hindu Marriage Act, 1955 (hereinafter referred to as a Act) have to be examined. Section 11 of a Act declares such a matrimony as nothing and blank in a following terms:

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” 11. Void marriages-Any matrimony solemnized after a derivation of this Act shall be nothing and blank and may, on a petition presented by possibly celebration thereto opposite a other party, be so announced by a direct of zip if it contravenes any one of a conditions specified in clauses (i), (iv) and (v) of Section 5. ”
Clause (1)(i) of s. 5 lays down, for a official marriage, a required condition that conjunction celebration should have a associate vital during a time of a marriage. A matrimony in transgression of this condition, therefore, is nothing and void. It was urged on seductiveness of a appellant that a matrimony should not be treated as blank given such a matrimony was progressing recognized in law and custom. A anxiety was finished to s. 12 of a Act and it was pronounced that in any eventuality a matrimony would be voidable. There is no consequence in this contention. By reason of a major outcome of a Act as mentioned in s. 4, no assist can be taken of a progressing Hindu Law or any tradition or use as a partial of that Law unsuitable with any sustenance of a Act. So distant as s. 12 is concerned, it is cramped to other categories of matrimony and is not germane to one solemnised in defilement of s. S(1)(i) of a Act. Sub-section (2) of s. 12 puts serve restrictions on such a right. The cases lonesome by this territory are not blank ab initio, and unless all a conditions mentioned therein are over and a depressed celebration exercises a right to equivocate it, a same continues to be effective. The marriages lonesome by s. 11 are void-ipso- jure, that is, blank from a really inception, and have to be abandoned as not existent in law during all if and when such a doubt arises. Although a territory permits a grave stipulation to be finished on a display of a petition, it is not essential to obtain in allege such a grave stipulation from a justice in a move privately commenced for a purpose. The supplies of s. 16, that is quoted below, also chuck light on this aspect:

” 16. Legitimacy of children of blank and voidable marriages.-(1) Notwithstanding that a matrimony is nothing and blank underneath Section 11, any child of such matrimony who would have been legitimate if a matrimony had been valid, shall be legitimate, possibly such child is innate before or after a derivation of a Marriage Laws (Amendment) Act, 1976 (68 of 1976), and possibly or not a direct of zip is postulated in honour of that matrimony underneath this Act and possibly or not a matrimony is reason to be blank differently than on a petition underneath this Act.
(2) Where a direct of zip is postulated in honour of a voidable matrimony underneath Section 12, any child begotten or recognised before a direct is made, who would have been a legitimate child of a parties of a matrimony if during a date of a direct it had been dissolved instead of being annulled, shall be deemed to be their legitimate child not withstanding a direct of nullity.
(3) Nothing contained in sub-section (1) or underling territory (2) shall be construed as consultation on any child of a matrimony that is nothing and blank or that is annulled by a direct of zip underneath Section 12, any rights in or to a skill of any person, other than a parents, in any box where, though for a flitting of this Act, such child would have been unqualified of possessing or appropriation any such rights by reason of his not being a legitimate child of his parents.
(Emphasis added).

Sub-section (1), by regulating a disproportion underlined above clearly, implies that a blank matrimony can be reason to be so though a before grave stipulation by a justice in a proceeding. While traffic with cases lonesome by s. 12, sub- territory (2) refers to a direct of zip as an essential condition and sub-section (3) prominently brings out a simple disproportion in a impression of blank and voidable marriages as lonesome respectively by ss. 11 and 12. It is also to be seen that while a legislature has deliberate it advisable to defend a legitimacy of a paternity of a child innate out of a blank marriage, it has not extended a identical insurance in honour of a mom of a child. The matrimony of a appellant must, therefore, be treated as nothing and blank from a really inception.

4. The question, afterwards arises as to possibly a countenance ‘wife used in s. 125 of a Code should be interpreted to meant usually a legally married mom not lonesome by s. 11 of a Act. The word is not tangible in a Code solely indicating in a Explanation a thorough impression so as to cover a divorcee. A lady can't be a divorcee unless there was a matrimony in a eye of law preceding that status. The countenance must, therefore, be given a definition in that it is accepted in law germane to a parties, theme to a Explanation (b), that is not germane in a benefaction context.

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5. It has been contended on seductiveness of a appellant that a tenure ‘wife’ in s. 125 of a Code should be given a wider and extended definition so as to embody therein not usually a rightly married mom though also a lady married in fact by opening of required rites or following a procession laid down underneath a law. Relying on a preference of this Court in Mohd. Ahmed Khan v. Shah Bano Beghum, [1985 ] 3 SCR 844, it was argued that a personal law of a parties to a move underneath s. 125 of a Code should be totally released from consideration. The attribute of father and mom comes to an finish on divorce, though a divorcee has been reason to be entitled to a advantages of a section, it was urged, and therefore requesting this proceed a lady in a same position as a benefaction appellant should be brought within a brush of a section. We are afraid, a evidence is not good founded. A divorcee is enclosed within a territory on comment of proviso (b) of a Explanation. The position underneath a analogous s. 488 of a Code of 1898 was different. A divorcee could not service of a outline remedy. The wife’s right to upkeep depended on a continuation of her married status. It was forked out in Shah Bano’s box that given that right could be degraded by a father by divorcing her unilaterally underneath a Muslim Personal Law or by receiving a direct of divorce underneath any other complement of law, it was deliberate fascinating to mislay a hardship by fluctuating a advantage of a supplies of a territory to a divorced lady so prolonged as she did not remarry, and that was achieved by including proviso (b) of a Explanation. Unfortunately for a appellant no analogous sustenance was brought in so as to request to her. The legislature motionless to show a advantage of a territory even on an deceptive child by demonstrate disproportion though nothing are found to request to a de facto mom where a matrimony is blank ab initio.

6. The try to bar altogether a personal law germane to a parties from care also has to be repelled. The territory has been enacted in a seductiveness of a wife, and one who intends to take advantage underneath sub-section (1)(a) has to settle a required condition, namely, that she is a mom of a chairman concerned. This emanate can be motionless usually by a anxiety to a law germane to a parties. It is usually where an applicant establishes her standing on attribute with anxiety to a personal law that an focus for upkeep can be maintained. Once a right underneath a territory is determined by explanation of required conditions mentioned therein, it can't be degraded by serve anxiety to a personal law. The emanate possibly a territory is captivated or not can't be answered solely by a anxiety to a suitable law ruling a parties. In a perspective a visualisation in Shah Bano’s box does not assistance a appellant. It might be celebrated that for a purpose of fluctuating a advantage of a territory to a divorced lady and an deceptive child a Parliament deliberate it required to embody in a territory specific supplies to that effect, though has not finished so with honour to women not rightly married.

7. Lastly it was urged that a appellant was not sensitive about a respondent’s matrimony with Lilabai when she married a respondent who treated her as his wife, and, therefore, her request for upkeep should be allowed. There is no consequence in this indicate either. The appellant can't rest on a element of estoppel so as to better a supplies of a Act. So distant as a respondent treating her as his mom is concerned, it is again of no service as a emanate has to be staid underneath a law. It is a goal of a legislature that is germane and not a opinion of a party.

8. We therefore, reason that a matrimony of a lady in suitability with a Hindu rites with a masculine carrying a vital associate is a finish zip in a eye of law and she is not entitled to a advantage of s. 125 of a Code. The seductiveness is accordingly dismissed. There will be no sequence as to costs. During a pendency of a seductiveness in this Court some income was paid to a appellant in pursuit of an halt order. The respondent shall not be available to explain for a refund.

N.P.V. Appeal dismissed.

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