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Bhausaheb @ Sandu S/O Raghuji … vs Leelabai W/O Bhausaheb Magar on 7 July, 2003

Bombay High Court Bhausaheb @ Sandu S/O Raghuji … vs Leelabai W/O Bhausaheb Magar on 7 July, 2003Equivalent citations: AIR 2004 Bom 283, II (2004) DMC 321, 2003 (4) MhLj 1019 Author: N V Dabholkar Bench: N Dabholkar, A Naik, N Patil


N. V. Dabholkar, J.

1. While considering Family Court Appeal No. 12/2003, Bhausaheb v. Leelabai, a Division Bench of this High Court (Coram : B. H. Marlapalle and V. G. Munshi, JJ), felt satisfied that issue raised by the appellant – husband requires consideration by a larger bench of this Court. Hence, after passing an elaborate order on 17-2-2003, the Division Bench directed the Additional Registrar (Judicial) to place the matter before the Hon’ble the Chief Justice for appropriate orders, under Rule 7 of Chapter I of the Bombay High Court Appellate Side Rules, 1960, for a reference to a larger bench. The Hon’ble the Chief Justice, on the matter being placed before his Lordship, was pleased to constitute a full bench and that is how the present reference was heard and is being disposed of by this full bench.

2. Brief factual matrix of the litigation should be stated herein so as to appreciate how the point of controversy under reference arose and was referred.

Petition No. C-39/2001 was filed by Leelabai against appellant Bhausaheb for maintenance under section 25 of Hindu Marriage Act, 1955 (Hereinafter referred as HM Act for the sake of brevity). The same was decided on 30-11-2002 by Principal Judge, Family Court, Aurangabad, who was pleased to allow the petition and award maintenance @ Rs. 1,000/- p.m. in favour of Leelabai from the date of petition. Appellant – Bhausaheb has taken a stand before Family Court of total denial of solemnization of marriage on 16-12-1997 and in the alternative, he also claimed that he was already having a spouse living on 16-12-1997 and therefore, alleged marriage with Leelabai on that day, cannot be said to be a valid marriage. Thus, contending that marriage, if any, between him and Leelabai, was void marriage in the light of section 5(i) read with section 11 of HM Act and therefore, she was not entitled for maintenance under section 25 of the said Act.

3. Eventually, this was not the first round of litigation of the parties. Earlier, Leelabai had approached Family Court by filing Petition No. A-165/1996 against one Narayan Ahire for dissolution of marriage and obtained an ex-parte decree on 6-1-1997. The marriage between Leelabai and Narayan Ahire (presumably, her first husband) stood dissolved by the said decision. Leelabai married appellant Bhausaheb thereafter on 16-12-1997. After some days since this marriage, she had filed prosecution against Bhausaheb under sections 498A, 323, 504, 506 of IP Code. Simultaneously, she had filed an application under section 125 of Criminal Procedure Code, 1973 before the Family Court, registered as Petition No. E-331/1999 for maintenance. The said petition was dismissed on 25-3-2000 by the Family Court observing that she was not legally wedded wife of Bhausaheb.

In the meanwhile, Leelabai had also filed Petition No. B-7/2000 before the Family Court, seeking a declaration that marriage between herself and Bhausaheb is valid marriage and Madhuri is their legitimate daughter. Along with that petition, she had filed Petition No. E-525/2000, seeking maintenance for daughter. These two petitions were decided on 29-11-2001. Petition, seeking declaration regarding validity of the marriage, was dismissed, again by observing that Leelabai was not a legally wedded wife of Bhausaheb. The child, Madhuri. however, was granted maintenance @Rs. 500/- p.m.

On the backdrop of the above legal battles, Leelabai filed Petition No. C-39/2001 under section 25 of HM Act for permanent alimony which is allowed by the Family Court, as narrated hereinabove and hence, the First Appeal by Bhausaheb.

4. The Division Bench of this Court, while considering the Family Court Appeal for admission, has taken a note that learned Judge of the Family Court has placed reliance upon decisions of this High Court in the matters of Shantaram Patil v. Dagubai (DB), 1987 Mh.L.J. 179 and Krishnakant Vyas v. Reena (SJ) , and the argument of learned counsel for Bhausaheb based upon a decision of full bench of Andhra Pradesh High Court in the matter of Abbayolla M. Subba Reddy v. Padmamma AIR 1999 AP 19, was rejected by the trial Court. Although reliance was also placed on the decision of Chand Dhavan v. Jawaharlal, , the Division Bench was of the view that decision of the Apex Court in this matter has not specifically dealt with abovesaid issue i.e. conflict of views taken by Bombay High Court in the judgments relied upon by Family Court while awarding maintenance in favour of Leelabai and the view taken by full bench of Andhra Pradesh High Court that section 25 should not be construed in such a manner as to hold that notwithstanding the nullity of the marriage, wife retains her status for the purpose of applying for alimony or maintenance.

Naturally, by virtue of reference, we are required to resolve the controversy and record a finding as to which, out of two view points, is the correct legal position.

5. Heard Advocate Shri R. K. Barlota representing the appellant -Bhausaheb and Advocate Shri S. L. Jondhale, representing respondent in Family Court Appeal No. 12/2003.

6. In fact, view taken by Bombay High Court, in the recent judgment of Krishnakant v. Reena (supra) and prior to that in the matter of Shantaram v. Dagubai (supra), which was relied upon by the learned Judge of the Family Court, was not the view recorded for the first time. It appears that Bombay High Court has been consistently taking such a view right from the matter of Govindrao v. Anandibai, 1997 Mh.LJ. 144, which was a decision in Appeal No. 93/1976, decided on 24-3-1976. In that matter, Anandibai had married Govindrao on 24-5-1959 when respondent No. 2 (first wife of Govindrao) was still alive and marriage between Govindrao and respondent No. 2 was still subsisting. It was claimed that in March, 1963, appellant and respondent No. 2 drove away Anandibai. On 11-12-1972, Anandibai filed a petition in the Court of CJSD, Kolhapur for a declaration that marriage between herself and Govindrao was null and void and also praying for maintenance @ Rs. 150/- p.m. The learned Civil Judge held marriage to be null and void as contravening the provision of section 5(i) of HM Act and while granting a decree for declaration of nullity of the marriage, allowed permanent alimony @ Rs. 125/- in favour of Anandibai. The Appeal before the District Court, by Govindrao was also dismissed and therefore, Govindrao had approached this Court.

It was contended on behalf of appellant that the words “wife” and “husband”, used in Sub-section (1) of section 25 of HM Act, must be construed in their strict dictionary sense and so construed would mean only a legally wedded Hindu wife and legally wedded Hindu husband. It was, thus, submitted that ceremony of marriage gone through between appellant and respondent No. 1 was null and void ab initio, which never created relationship of ‘husband’ and ‘wife’ in the legal sense and therefore, provision of section 25 cannot be invoked. While rejecting the arguments, it was observed by the Court (Coram : M. H. Kania, J., as His Lordship then was):– “At the first blush, this submission, undoubtedly, appears little attractive. But a closer analysis of the provisions of sub-section (1) of section 25 shows the fallacy thereof. In the first place, the opening part of this subsection shows that the discretion given to the Court of awarding maintenance at the time of passing any decree and one of the decrees which the Court can pass under the said Act is a decree of nullity under section 11 thereof. Hence, if the strict interpretation propounded by Mr. Pendse were to be given to the words “Wife” and “Husband”, the scope of the expression on “any decree” used in this sub-section would have to be artificially cut down so as to exclude from its scope a decree for nullity passed under section 11 of the Act.”

It was further observed :–

“Secondly, it must be remembered that Hindu Marriage Act, 1955, is a

piece of social welfare legislation. One of the admitted aims of this

legislation was to better the lot of women in Hindu society, which it was

felt by legislature needed amelioration. It was with this end in view that

certain rights were conferred on Hindu Women by the Hindu Marriage

Act as well as certain other measures, like the Act of 1956.”

Hence, it was expressed that while construing such a piece of legislation, it

would not be right to adopt a narrow approach, but a liberal and progressive

approach, keeping in mind that it was the liberal and progressive approach of the

legislature which lead to the enactment being passed. It was further observed that

it could not have been the intention of the legislature that even in a case where a

Hindu woman has been duped into contracting a bigamous marriage with a

Hindu male without knowing that there was already a subsisting marriage to

which he was a party, even then, she should be deprived of her right to claim maintenance on obtaining decree for nullity.

In the light, of these observations, Anandibai, who had cohabited with Govindrao along with his first wife for a period of six years until she was driven out, was held not disentitled for permanent alimony.

7. In case of Rajeshbai v. Shantabai, , Shantabai had filed a suit seeking relief of injunction against defendants (brothers of Sadashiv) restraining them from disturbing her possession and enjoyment of the properties and alternatively also seeking possession of the properties which would be found to be not in her possession. The reliefs were so claimed on the basis that plaintiff Shantabai was the lawfully married wife of deceased Sadashiv and upon his death was entitled to inherit all his properties. Defendant Nos. 1 and 2 – Dagdu and Mahadu were brothers of Sadashiv. It was common defence of the appellants that as per the caste custom applicable to the parties, the plaintiff was divorced by Sadashiv during his lifetime and thereafter, Sadashiv had taken Rajeshbai, appellant No. 1, as his wife, who was till his death residing with him as his lawful wife. Shantabai, being therefore divorced wife, was not entitled to any share of properties of Sadashiv.

After trying the contentious question, trial Court held that custom of divorce was not established, there was no divorce given by Sadashiv to Shantabai and therefore, though Rajeshbai went through form of Hindu marriage, her marriage was void and as a result of this, it was plaintiff Shantabai who was the legally married wife and after death of Sadashiv, being his widow, was entitled to succeed to the interest and all properties of Sadashiv. The trial Court, finding that properties were in possession of defendants, decreed the suit in favour of Shantabai.

During the course of hearing of the appeal, Civil Application was filed by the appellants counsel raising alternative plea. In defence as far as Rajeshbai was concerned, to the effect that though in any case upon the finding that Rajeshbai having gone through the form of marriage and her marriage because of law being declared null and void and for no fault, on her part, she would be entitled to relief of maintenance against the estate of her husband Sadashiv. Naturally, in the appeal, an additional issue was raised whether upon the finding that the marriage between Sadashiv and Rajeshbai was void, as the earlier marriage between Sadashiv and Shantabai, was subsisting, Rajeshbai would or would not be entitled to the maintenance from the estate of Sadashiv. Relying upon the judgment in the matter of Govindrao (supra), decree for possession of the properties in favour of Shantabai was confirmed, subject to condition that upon deposit of Rs. 20,000/- to be paid in lump sum in full and final settlement of claim of Rajeshbai, the plaintiff would be entitled to recover possession of the properties. It was observed in para 41 :– “Relying upon pari materia provisions of section 25 of the Hindu Marriage Act and relying on the inherent powers of the Court to make orders so as to meet the ends of justice, I think, an appropriate order for maintenance in favour of Rajeshbai can be made, though it has to be concluded that in her appeal on other aspects, she cannot but fail.”

It may be noted here that Shantabai had come out with an offer to pay Rs. 20,000/- exclusively in full and final settlement of claims for maintenance of Rajeshbai.

While following the decision in the case of Govindrao (supra) with approval, as authority for the proposition that the term “wife” is a juridical term, so also, the term “widow”, it was observed in para No. 30 :– “In the context of the given law, the meaning thereof has to be gathered keeping the object of law in view. Primarily, therefore, it would not be permissible to include in the term “wife” or “widow”, that relationship which is not recognized by law. However, it is implicit in the judgment of this Court in Govindrao’s case (supra) that there can be class of persons who, as I propose to call, are “illegitimate wives or widows” who can be the subject of benefaction of law of maintenance, notwithstanding that eventually their legal status is annulled. Undoubtedly, a female spouse united by marriage enters upon a status and is conferred with immediate as well as inchoate rights attached to such status by virtue of her marriage and that is because of the gift and conferment of law. When that status is shaken and found to have no sanction, it does not follow that even the inchoate rights of such person are totally eclipsed. As distinct from succession or inheritance, the right of maintenance can be treated to be a separate one, the first, two arising upon the natural or civil death of the husband, while the latter always available during the lifetime and even depending upon the contingent conditions after the death of the husband. Maintenance thus is a personal right. In its character it can be treated to be a secular right recognized by almost all the systems of personal laws in various degrees and under varying conditions. Though, therefore, for the purpose of the Succession Act and the Maintenance Act the terms “wife and widow” would have a restricted articulate legal meaning, that by itself would not be the position when the matter arises for the purpose of providing the measures of sustenance on considerations of justice and fair play involved and basic to all human and social relations.”

8. In the matter of Shantaram v. Dagubai, 1987 Mh.LJ. 179, a Division Bench of this High Court relied upon the view taken by Single Judges in the earlier matters of Rajeshbai v. Shantabai as also Govindrao v. Anandibai with approval and held that section 25 of Hindu Marriage Act confers upon a woman whose marriage is void or is declared to be void, a right of maintenance against her husband.

Special Civil Suit No. 30/1979, that was contested before Civil Judge (S.D.), Dhule, in the reported matter, was a suit filed by Dagubai for herself and her three children begotten from Tukaram against Leelabai and Shantaram, second wife of Tukaram and son born to them, for a declaration that defendants were not L.Rs. of Tukaram and that they had no right, title or interest in the properties of Tukaram. Since defendants were in possession of the properties, decree for possession was also prayed for. Defendants contested the suit contending that Dagubai, was divorced by Tukaram as per custom in the community before marrying second time with Leelabai and, therefore, marriage between Tukaram and Leelabai was a valid marriage. Trial Judge held that there was no divorce between Tukaram and Dagubai, Tukaram’s marriage with Leelabai was void under the provisions of section 11 read with section 5(i) of Hindu Marriage Act.

9. Krishnakant Vyas v. Mrs. Reena Vyas, (by Single Judge) is a recent decision of Bombay High Court wherein the view taken and ratio laid down in all above three matters referred earlier was followed, even in preference to view taken in the matter of Yamunabai v. Anantrao, . In this matter, wife had filed Petition No. A-2082/1996 in the Family Court at Bombay under section 11 of Hindu Marriage Act for declaration that marriage between her and petitioner before High Court (Krishnakant) was void on the ground that petitioner was already married and his first wife was living at the time of second marriage and hence second marriage was a nullity. She also filed maintenance petition under section 18 of Hindu Adoption and Maintenance Act, 1956, claiming maintenance for herself and minor daughter. In addition, she took out interim motion claiming interim maintenance at Rs. 25,000/- and Rs. 10,000/- respectively for herself and daughter. This application was resisted by Krishnakant mainly on the ground that even according to respondent herself, marriage was nullity and, therefore, she was not entitled to claim interim maintenance. In fact, he had also denied factum of marriage, although accepted paternity of the daughter. Family Court had awarded interim maintenance of Rs. 5,000/- and Rs. 2500/- per month to Mrs. Reena and the daughter.

While confirming the award of interim maintenance by following the view taken by Bombay High Court in earlier matters of similar nature i.e. in the cases of Govindrao, Rajeshbai and Shantaram (supra), Single Judge expressed agreement with the law laid down in those matters. It was observed : ‘The Court has also power in such proceedings to make an order of permanent alimony or maintenance under Section 25 of the Act. The Act confers wide powers on the matrimonial Court so as to regulate matrimonial relationship between the parties and such powers are to be exercised by the Court even in a case of alleged or proved bigamous marriage. In enacting Section 24 a special provision is made for ordering interim maintenance and the expenses of litigation to be provided for the contesting husband or wife if he or she had no independent sufficient income. /, therefore, see no reason why the words “wife” or “husband” used in Section 24 should not be interpreted so as to include a man and woman who have gone through a ceremony of a Hindu marriage which would have been valid but for the provisions of Section 11 read with clause (i) of Section 5 of the Hindu Marriage Act. These words have been used as convenient term to refer the parties who have gone through a ceremony of marriage whether or not that marriage is valid or subsisting, just as the word “marriage” has been used in the Act to include a purported marriage which is void ab initio.”

As observed in para 15 of the judgment, so far as the ratio laid down in the matter of Yamunabai v. Anantrao, brother Judge was of the view that only point involved in that case was whether a Hindu woman, who is married after coming into force of the Hindu Marriage Act to Hindu male having a living lawfully wedded wife, can maintain an application for maintenance under section 125 of the Code of Criminal Procedure, 1973. It was also observed that the Supreme Court decision mainly turns on interpretation of section 125 of the Code of Criminal Procedure and is not of any assistance in deciding the question as to the right of the second wife to claim interim alimony under Hindu Marriage Act or Hindu Adoption and Maintenance Act.

10. Contra view taken by a Full Bench of Andhra Pradesh High Court in the matter of Abbayolla M. Subba Reddy v. Padmamma reported at AIR 1999 A. P. 19 was relied upon by the lawyer of the husband before the Family Court, as also while making his submissions before us. The decision was upon a reference by a Single Judge of Andhra Pradesh High Court to a Larger Bench after having disagreed with the view expressed earlier by another Single Judge of the said High Court that Hindu “wife” contemplated by section 18 of the Maintenance Act means a Hindu wife whose marriage is solemnized, though void under the Hindu Marriage Act, she is entitled to claim maintenance from the husband.

Padmamma had filed O. S. No. 139/1987 before Principal Subordinate Judge, Chittor in forma pauperis claiming maintenance at the rate of Rs. 1,000,/-per month as also cost of gold chain and other ornaments gifted to her by her father at the time of marriage. It was contended that she was married according to Hindu rites and customs on 1-7-1984, the marriage was also registered before the Sub Registrar, Palamaner, on 7-11-1984 and after consummation of the marriage in the plaintiff’s parents’ house, she was taken by the appellant to his village where she came to know that appellant was already married to one Parvathamma, who begot two daughters through him and the said two daughters were already married and Parvathamma was residing in the appellant’s house in the village. It was also her case that during negotiations for her marriage, the appellant did not inform the respondent and her parents that he was already married and his first wife was living and that she was made to believe as if it was his (appellants) first marriage. Full Bench of Andhra Pradesh High Court found itself in agreement with the view taken by Bombay High Court in the matter of Bajirao v. Tolanbai (D. B.), 1979 Mh.LJ. 693 and it was of the view that decision of the Supreme Court in the matter of Yamunabai v. Anantrao, applied with full force to the case at hands arising under the Hindu Marriage Act. While saying so, following observations of the Supreme Court were quoted and followed by the Full Bench of Andhra Pradesh High Court. “Section 5(i) of Hindu Marriage Act lays down, for a lawful marriage, the necessary condition is 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. The plea that the marriage should not be treated as void because such a marriage was earlier recognized in law and customs cannot be accepted. By reason of the overriding effect of the Act as mentioned in section 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 provision of the Act, such a marriage also cannot be said to be voidable by reference to section 12. So far as section 12 is concerned, it is confined to other categories of marriage, and it is not applicable to one solemnized in violation of section 5(i) of the Act.”

Further observations by the Supreme Court in para 3 were as under :–

“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.”

Ultimately in para 6, Supreme Court concluded as follows:

“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 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. 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.”

In reply to the argument that Yamunabai was not informed about

respondent’s marriage with Leelabai when she married the respondent and who

treated her as his wife and, therefore, her prayer for maintenance should be allowed, it was observed that appellant cannot rely upon the principle of estoppel

so as to defeat the provisions of the Act. It was the intention of the legislature,

which was relevant and not the attitude of the parties.

11. It may usefully be referred here that decision of the Supreme Court in the matter of Yamunabai confirmed the decision of a Full Bench of Bombay High Court in the same matter, which was considered by the Full Bench on a reference by a Division Bench, which disagreed with the view taken in the matter of Bajirao v. Tolanbai, 1979 Mh.LJ. 693 and the question involved was:– “Whether a Hindu woman whose marriage was null and void under

section 11 of the Hindu Marriage Act, 1955, by reason of contravention

of section 5(i) of the said Act, viz. the person with whom she had

undergone a marriage had a wife living at the time of said marriage, was

entitled to claim maintenance under section 125 of the Code of Criminal

Procedure from such a person on the basis that she was his wife?”

In the case of Yamunabai, her marriage with Anantrao was solemnized on

16-6-1974 after undergoing necessary rites under Hindu Law. The said marriage was registered as required under the Act. However, at the time the said marriage was performed, Anantrao’s first wife Leelabai was alive and the said marriage between them was still subsisting. Yamunabai stayed with Anantrao for a week and thereafter stayed at his house at his village with the first wife Leelabai and her mother. She alleged ill-treatment and left respondents house and then filed application under section 125, Criminal Procedure Code for maintenance. The Magistrate dismissed the application on the ground that she was not wife of the respondent as her marriage with respondent was null and void under section 11 read with 5(i) of Hindu Marriage Act. A revision application against the said decision of Metropolitan Magistrate was also dismissed by Additional Sessions Judge, relying upon the case of Bajirao v. Tolanbai. Matter, which initially came up before Single Judge, was referred to a Division Bench and the Division Bench in turn, by its referring order, had referred it to Full Bench having disagreed with the view taken by earlier Division Bench in Bajirao’s case.

Cases of Rajeshbai v. Shantabai as also Govindrao v. Anandibai were referred by the Full Bench.

While dealing with the case of Govindrao, Full Bench was of the view that it was not necessary to consider that question in the case before the Full Bench and it was desirable to proceed on the footing that the position in law under section 25(1) of the Hindu Marriage Act was as stated in the decision of Govindrao. As observed by the Full Bench, decision in the matter of Govindrao concluding that even a party to a null and void marriage under section 11 of Hindu Marriage Act, 1955, was entitled to maintenance under section 25 of the said Act, was mainly based on the wording of that section, which in its first part gave discretion to the Court to award maintenance at the time of passing any decree, which would also include a decree of nullity declaring marriage null and void under section 11.

12. Decision in the matter of Bajirao v. Tolanbai, 1979 MH.L.J. 693 was also a case under section 125 of Criminal Procedure Code, 1973, and the Division Bench refused to go into the question of construction of section 25(1) of Hindu Marriage Act.

13. Decisions of Bombay High Court in the four matters being the matters under section 25 of Hindu Marriage Act, as also the decision of Full Bench of Andhra Pradesh High Court, and the contra view of the Bombay High Court in the matters of Bajirao v. Tolanbai, as also Yamunabai v. Anantrao, as confirmed by the Supreme Court being the view in the matter under section 125 Criminal Procedure Code, question that is required to be considered is : “Whether section 25 of Hindu Marriage is required to be construed liberally so as to include “illegitimate wife” for grant of permanent alimony under the said provision or it would entitle only wife, who establishes to be “legally wedded wife” for maintenance?”

In brief, we are required to define “wife” as used in section 25 of Hindu Marriage Act.

14. Section 25(1) of Hindu Marriage Act reads as follows, which is quoted in analyzed form for convenient consideration :

“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 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.”

It was because of use of the expression “any decree” and in the view of the matter that the provision is social welfare legislation, Kania, J. was inclined to take a view that section 25 of Hindu Marriage Act was required to be considered liberally so as to cover within its sweep even ‘illegitimate wife’.

Upon taking into consideration the scheme of the Act and the categories of decrees that can be passed by Civil Courts, while dealing with the applications under Hindu Marriage Act, it can be visualized as to why the expression “any decree” might have been used by the legislature in section 25 of the Act.

Section 9 empowers the Court on an application by either spouse : to pass a decree for restitution of conjugal rights against the respondent who, without reasonable excuse, has withdrawn from the society of the applicant spouse. By virtue of section 10, either spouse can seek a decree for judicial separation (in stead of divorce) on any of the grounds specified in sub-section (1) of section 13, which are available as grounds for seeking a decree of divorce. In addition, a wife can seek a decree for judicial separation also on the grounds available under sub-section (2) of section 13. A decree regarding nullity of marriages, which are null and void in view of clauses (i), (iv) and (v) of section 5, can be obtained by either spouse under section 11 of the Act. Even the marriages, which are voidable or not consummated can be annulled by either spouse by presenting an application under section 12 of the Act. Section 13(1) enables either spouse to obtain a decree for divorce on the grounds, prescribed therein. Lastly, section 13(B) enables the parties to a marriage to obtain a decree for divorce by mutual consent by a joint petition to the Court.

Generally speaking, three kinds of decrees can be obtained, namely, restitution of conjugal rights, judicial separation and divorce, and almost all of those can be prayed for by either spouse, except those under section 13(2), which remedy is available to the wife alone and section 13(B), where both the spouses are required to approach the Court together.

Use of phrase “any decree” and even sections 11 and 12 referring to the wedlock as “marriage”, although apparently either void or voidable, were the reasons why it was held that the Court has wide powers to entertain and grant an application for maintenance by a wife, who has gone through all rites of a Hindu marriage, which is otherwise valid but for provision of section 5(i) of the Act. Basically, the use of expression “any decree” must be viewed to have been used, having regard to various kinds of decrees, which could be passed at the behest of either spouse. But, it cannot be stretched to construe section 25(1) in such a manner that expression “any decree” would be read as “every decree”. The section as quoted in analytical form has indications that the wide powers indicated by the expression “any decree” are not so unbridled, as to be considered as “every decree” and the controls over the powers are evident in the opening part as well as the terminal part. Section begins with the phrase “Court may” and not with the phrase “Court shall”. On taking into consideration the terminal part of the section, Court is required to give due thought, not only to the incomes of both parties, but it is also required to take into consideration the conduct of the parties and other circumstances of the case.

15. For example, let us consider application praying for a decree for restitution of conjugal rights. In case, the application is by wife and the Court is satisfied of husband having withdrawn from her society without reasonable cause, while granting a decree for restitution, the Court may also grant a decree for alimony for the period during which the husband had withdrawn himself from the society of wife and till the time he restitutes the conjugal rights. The question to be addressed to ourselves is whether the Court would be justified in granting alimony, if it rejects similar application of the wife by disbelieving her contention that the husband had withdrawn from her society without reasonable cause. To consider an extreme case, if the husband had approached the Court, after believing his contention that the wife has withdrawn from his society without reasonable cause, will the Court be in a position to grant permanent alimony in favour of the wife, who has so withdrawn from the society of the husband without reasonable cause, while granting a decree for restitution of conjugal rights in favour of the husband and who may refuse to obey the decree for restitution? The answer is in the negative. Otherwise, the husband, in spite of having obtained a decree for restitution of conjugal rights, may be deprived of the fruits of the same and simultaneously would be required to pay alimony to the wife, who has withdrawn from his society without reasonable cause.

Hypothetical illustrations can be considered in the matters of other types of decrees. Would it be just on the part of the Court to grant alimony to the Respondent-wife, if the husband secures a decree for judicial separation under section 10, by establishing valid grounds as prescribed under section 13(1) for the purpose? Would it be proper for the Court to grant permanent alimony to the wife, if husband obtains a decree of nullity by establishing the fact that the marriage is voidable at his instance, either because of being in contravention of clause (ii) of section 5, or because Respondent-wife was, at the time of marriage, pregnant by some person other than the petitioner and to the ignorance of the petitioner? It may not be inappropriate to visualize that a decree for divorce is obtained by the husband by establishing the wife to be guilty of any of the ground provided in section 13(1), (1-a) and (1-b), may not accompany with an order for permanent alimony in favour of the wife being divorced.

16. Taking into consideration above illustrations, it can be said that expression “any decree” cannot be construed to read in so much liberal and expanded form that it would interpret “every decree”. The terminal part, which requires the Court to take into consideration the conduct of the parties, as also other circumstances of the case, also controls the discretion conferred upon the Court by the expression “Court may” and “any decree”, and what can be ‘other circumstances’ of the case is indicated by hypothetical illustrations hereinabove.

If in the light of discussion above, there can be cases of denial of maintenance to “legally wedded wife”, it is difficult to accept as correct, liberal construction of section 25 so as to entitle “illegitimate wife” to maintenance.

17. That the provision is a welfare legislation, was also one of the reasons why it was felt that section 25 ought to be construed liberally and in favour of the

wife. It may be taken into consideration that section 25 is not only for the welfare of the wife. In distinction with the provision, such as, section 125 of the Code of Civil Procedure which enables the wife alone to secure maintenance from the husband, section 25 enables also a husband, who does not have sufficient income to secure maintenance from the wife having sufficient resources. Viewed from this angle, the section does not appear to have a distinct tilt in favour of wife so as to enable even “Illegitimate wife”, to claim maintenance as was felt by this High Court, while deciding earlier matters.

18. The decision in the matter of Yamunabai, , although was considering the aspect “wife” for the purpose of section 125 of Code of Criminal Procedure, 1973, which is also a benevolent provision, provides an answer to the approach of Bombay High Court in the earlier matters, by referring to section 16 of Hindu Marriage Act. By virtue of section 16(1)(2), legitimacy of children born out of void or voidable marriages is protected, irrespective of the fact if they are born before or after commencement of the Marriage Laws (Amendment) Act, 1976 and irrespective of whether or not a decree of nullity is granted in respect of the marriage. By virtue of subsection (3), even right of such children to the property of the parents is protected, while divesting them of right in or to the property of any other person.

As observed by Apex Court in paragraph 3, while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of void marriage, it has not extended the same protection to the mother of such child. Such a protection is not extended even to a limited purpose, such as, maintenance to the “illegitimate wife”.

19. The term “wife” is not defined by Hindu Marriage Act. It is neither defined by Hindu Adoption and Maintenance Act, 1956, nor by section 125 of the Code of Criminal Procedure, 1973, although the said section by its explanation includes a divorced woman within the expression “wife”. The General Clauses Act also does not provide definition of “wife”.

In view of absence of definition of the word “wife”, while confirming the decision of” full bench of this High Court in the matter of Yamunabai v. Anantrao , the Hon’ble Apex Court observed in para No. 4 as under: “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.”

Further, in para 6, the Supreme Court has disapproved an attempt to

exclude altogether the personal law applicable to the parties. No doubt, provision

of section 125 of Criminal Procedure Code, 1973, is secular in its nature, in the

sense that the same applies to applicant – wife from all religions and even after

taking into consideration the observations in the matter of Mohd. Ahmed Khan v.

Shah Bano, , the Apex Court was disinclined to exclude

altogether personal law applicable to the parties from consideration for the purpose of definition of “wife”.

Since HM Act, as also, Hindu Adoption and Maintenance Act do not define term “wife”, we are unable to find any reason to ignore the provisions contained within HM Act, 1955, which enable the courts to determine whether a particular woman is “wife” of the respondent or not. We are referring to section 5 read with sections 11 and 12 of the said Act. If the Act within its scheme lays down the provisions which take away the character of “wife”, claimed by a woman, in spite of having gone through rites according to Hindu religion for a valid solemnization of the marriage, in the absence of any express provision, protecting the status of “illegitimate wife” and declaring her to be “wife” may be by legal fiction as in the cases of children born out of null and void wedlock, we see no reason to keep these provisions expelled from the consideration while determining the status of the applicant in the petition for permanent alimony.

If we take into consideration section 125 of Criminal Procedure Code, 1973, and section 25(1) of HM Act, it can be seen that : the provisions are similar, if not, congruent : in sum and substance so far as the application of petition of a wife. The Hon’ble Apex Court in Yamunabai’s case, for the purpose of determining entitlement of “wife” to maintenance, while considering the same under a special legislation, did not approve altogether exclusion of personal law applicable to the parties. There is no reason why the personal law or provisions from the personal law contained within it, relating to the marital status, should be excluded for the purpose of application under section 25 of HM Act.

20. It could have been argued that a petition seeking declaration of nullity of marriage is also a petition affecting the marital status and since the petition under section 25 of HM Act can be filed at the time of or any time after the decision of petitions under sections 9 to 13(B) of HM Act, thereby, affecting marital status, Court is competent to pass a decree for permanent alimony even at the time of or any time after the decision regarding nullity of a marriage and therefore, section 25 is required to be construed liberally.

In para 3 of Yamunbai’s case, the Supreme Court observes as follows :– “The marriages covered by Section 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.”

It is evident that a petition challenging the nullity of the marriage by virtue of section 5(1) is, in fact, a petition seeking a declaration regarding nullity of marriage, the same being void ipso jure. It is not a petition affecting the marital status in strict sense and therefore, it is difficult to accept such a possible contention that petition seeking declaration regarding nullity of marriage as void under section 5(i) is also a petition affecting the marital status and therefore, empowering the Court to entertain application under section 25 favourably.

A petition seeking annulment of the marriage, on the ground of same being voidable at the instance of petitioner, may be a petition affecting the marital status, because till the time declaration of nullity is sought by either spouse at whose instance the marriage is voidable, the relationship would be a valid marriage in the eye of law. The Court may be in a position to consider the application for permanent alimony while declaring the nullity of a voidable marriage but not while declaring nullity of marriage void ipso jure.

In the matter of Yamunabai, Hon’ble Apex Court also repelled an attempt to bring marriage which is void under section 5(i) at par with the marriage which is voidable under section 12.

21. For the reasons discussed above, we are of the view that observations of full bench of this High Court in Yamunabai’s case, as confirmed by the Hon’ble Apex Court, although discussed in the matter of section 125 of Criminal Procedure Code, 1973, ought to apply with full force, even to the petition of similar nature under personal law of the parties. We are in respectful disagreement with view of Shah, J. in the matter of Krishnakant (supra) to that extent.

It is fundamental principle of law that in order to claim a relief from the Court of law, there must be a legal right based on a legal status. When the status of a woman as “wife” is not recognized by provisions of the Act, which confers the right for permanent alimony, she cannot be entertained for grant of relief in the absence of recognition of her status by the Act.

22. If the construction of word “wife” is not accepted uniformly, for the purpose of same remedy provided in special legislation (section 125 of Criminal Procedure Code, 1973) and personal law, anomalous position may occur. A woman who has been denied maintenance in a petition under section 125 of Criminal Procedure Code, 1973, for the reason that she is not “legally wedded wife” would successfully pray and obtain permanent alimony in total disregard of earlier judicial pronouncement, as also, provisions regarding legitimacy of marriage as contained in personal law.

23. Even while considering section to be a “welfare legislation”, it cannot be ignored that such a liberal construction, although may benefit the second wives, who are drawn into the form of marriage by keeping them ignorant about illegitimacy of the same, may encourage bigamous marriages with full knowledge and in spite of existence of a legislation in the field, preventing bigamous marriages.

24. For the reasons discussed above, with due respect, it is held that the decisions of the Bombay High Court, upholding right of maintenance to “illegitimate wife” (or “faithful mistress”) by liberal construction of word “wife” as contained in section 25 of HM Act, cannot be said to be a good law and are required to be overruled to that extent.

The reference is answered accordingly.

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