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

JUDGMENT

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