Bombay High Court Prabhubhai Ranchhodbhai Tailor-vs-Mrs. Bhartiben Prabhubhai Tailor on 28 February, 2003
Equivalent citations:2004 (3) MhLj 487
Author: J Devadhar
Bench: S Radhakrishnan, J Devadhar
J.P. Devadhar, J.
1. In this Family Court Appeal, the Appellant (husband) challenges the Judgment and order dated 9th July, 2000 passed by the learned Judge of the Family Court at Bandra wherein permanent alimony of Rs. 5,000/- was granted to the Respondent (wife) on a petition filed by her under Section 18 of the Hindu Adoption and Maintenance Act, 1956.
2. Although, the Appellant had raised several contentions in the memo of Appeal, at the final hearing, the arguments were restricted to two points. Firstly, it was contended that though the appellant and the respondent have lived together for nearly 18 years as husband and wife and have two children from the said wedlock, the Respondent is not the legally wedded wife of the appellant as the marriage between the two was not solemnised in accordance with law and secondly, even assuming that the marriage was solemnised in accordance with law, in view of the admission of the wife that on the date of her marriage, the husband had a living spouse, renders the marriage of the wife null and void and consequently, in law, she is not entitled for maintenance. In other words, the submission is that during the subsistence of the first marriage, if the second marriage is solemnised then in law, the second marriage is null and void and the second wife is not entitled to maintenance. The husband strongly relies upon various decisions, including the decisions of the Apex Court to justify his above claim. The husband with a view to be magnanimous towards the wife, submitted that in law, she has no status and although he has not rebutted her allegations that he is a womanizer and living an adulterous life and has been ill-treating her, however, he is willing to allow her to stay with him. Thus, in substance, according to the husband the legislative enactments prevailing in our country as well as the judicial pronouncements heavily support his conduct and the Respondent being his second wife, married during the subsistence of his first marriage, has no status, no security whatsoever in life and she must be either at his mercy or suffer silently, even if she is a victim of his evil designs.
3. The facts set out by the wife in her permanent alimony petition No. C-96/96 filed in the Family Court, Bandra, Mumbai under Section 18(b) and (g) of the Hindu Adoption and Maintenance Act, 1956 (‘Maintenance Act’ for short) is as follows :–
The Appellant and the Respondent, got married on 2nd June, 1978 according to Hindu Vedic Rites at Vile Parle (East) Mumbai. At the time of the marriage, she was a spinster and the Appellant represented to be a Bachelor residing at Surat. The Appellant is a Mechanical Engineer and is a Professor in an Engineering College at Surat. From their marriage, son Bharat was born on 6-8-1979 and another son Piyush was born on 12-9-1980. Within 2/3 years of her marriage, the wife realised that the husband was a womaniser and was liquor addict. That the husband was having illicit and adulterous relations with his brother’s wife Chanchalben. That, day by day, the husband started ill-treating the wife and began to demand dowry in the form of gold, cash, etc. That, day by day the womanizing activities of the husband increased and several times he was caught red-handed and when objected to by the wife, she was mercilessly beaten. That, when the physical and mental torture became unbearable, she left the matrimonial house in the year 1983 with her two children and went to her parents’ house at Mumbai. On the intervention of family members, the husband apologised and executed a document in writing expressing that in future, he would not repeat such behaviour. Believing the statement of the husband, she went back to the matrimonial home. However, the apology and the assurances of good behaviour were short lived and the husband was back to his old immoral and illegal activities in no time. That the husband continued to torture the wife physically and mentally without any justification. On 18th August, 1995 when the wife was preparing tea in the afternoon, the husband deliberately pushed her on a burning stove. However, luckily she was saved. In view of the risk to her life, on 19th August, 1995, the wife called her brother and went to Umra police station at Surat and lodged a complaint against the husband and the said Chanchalben for the cruelty meted out to her for dowry and also their adulterous relations. Both, the husband and the said Chanchalben were arrested and later released on bail. As there was no safety to her life, was forced to leave the matrimonial home and live with her brother at Mumbai. Since both the sons were studying, they continued to stay with the husband at Surat.
4. The wife in her petition has also stated that sometime in August, 1995 while cleaning the house, she came across a bunch of papers from an old box. From the said papers, she came to know for the first time that at the time of her marriage in 1978 the Appellant was already married and his marriage with the first wife was subsisting and it was only after 2 years of their marriage, husband had obtained divorce from his first wife. The wife has filed a criminal case under Section 498A of the Indian Penal Code against the husband and has also initiated proceedings against his concubine under Sections 406, 497 and 506(ii) of the Indian Penal Code. Since the wife was forced to leave the matrimonial home on account of the adulterous life of the husband and the ill-treatment meted out to her, she filed a petition under Section 18(a) and (g) of the Maintenance Act on 3-6-1996 seeking monthly maintenance of Rs. 7,500/- as permanent alimony and sought injunction restraining the husband from disposing of his property, as more particularly set out therein.
5. In his written statement the husband has contended that the Respondent is not his legally wedded wife as no marriage ceremony i.e. homa, saptapadi before the sacred fire took place and hence, the Respondent being not a legally wedded wife, the petition under Section 18 of the Hindu Adoption and Maintenance Act, 1956 is not maintainable and the Court had no jurisdiction to entertain the petition. It was contended that the admission of the wife that the Appellant was already a married man at the time of her marriage renders the marriage between the Appellant and the Respondent null and void under Section 5(i) read with Section 11 of the Hindu Marriage Act, 1955 and in the light of decision of the Apex Court in the case of Yamunabai Adhav v. Anantrao Adhav and various other decisions, the
wife is not entitled for maintenance. Thus, it was contended that the marriage between the Appellant and the Respondent was never solemnised and even assuming that their marriage was solemnised, it being null and void, the wife had no right to claim maintenance from the husband. It was contended that mere fact that the parties lived together as husband and wife would not confer the status of “wife” to such woman and she has no right to seek maintenance.
6. It was further contended by the husband that there was no relationship of husband and wife existing between the Appellant and Respondent in the eye of law. Relying upon various judgments of the Apex Court, it was contended that the marriage without essential ceremonies is invalid and mere fact that they lived as husband and wife does not ultimately give them the status of husband and wife. Accordingly, it was contended that no maintenance could be granted to the wife.
7. On completion of the pleadings, issues were framed and evidence was led. On behalf of the wife, she deposed herself and two witnesses viz. Mr. P. D. Chavan who performed the marriage between the parties and the brother of the wife deposed on behalf of the wife. The husband in person cross-examined the wife and her two witnesses, but chose not to lead any evidence on his behalf.
8. The Family Court after recording the evidence and after hearing the parties passed an order on 9th July, 2001 directing the husband to pay Rs. 5,000/-per month by way of permanent maintenance to the wife. Challenging the said order, the present Appeal is filed by the husband. When the matter was taken up for final hearing, with a view to bring an amicable settlement, we called the parties in chamber and separately interviewed them. However, as all our efforts to bring an amicable settlement failed, we had no option but to place the matter on board for final hearing.
9. When the matter was taken up for final hearing, Mr. Desai, learned counsel appearing on behalf of the husband submitted that although the husband has not entered the witness box and led any evidence to rebut the allegations made by the wife, the husband is bound to succeed in the Appeal on the basis of the evidence led by the wife. According to the Counsel for the husband, although the evidence led by the wife regarding the solemnization of the marriage between the two parties hereto as well as the testimony of the wife that the husband was a womanizer, drunkard and treated the wife with cruelty has remained uncontroverted, the husband is still entitled to succeed in the Appeal because, as per the law of the land, if the first marriage of the husband was valid and subsisting on the date of the second marriage, then the second marriage is null and void and the second wife is not entitled for maintenance. Accordingly, it was submitted that the learned Judge of the Family Court was in error in granting maintenance to the wife.
10. Mr. Desai, learned Counsel for the husband strongly relied upon paras 5 and 8 of the judgment of the Apex Court in the case of Yamunabai Adhav (supra), relevant portion of which reads as under :–
Paragraph 5 :
“……..Unfortunately for the appellant no corresponding provision was brought in so as to apply to her. The legislature decided to bestow the benefit of the section even on an illegitimate child by express words but none are found to apply to a de facto wife where the marriage is void ab initio”.
Paragraph 8 :
“….. We, therefore, hold that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of Section 125 of the Code.”
11. Counsel for the husband further relied upon the decision of the Apex Court in the case of Nanakchand v. Chandra Kishore Agarwal and Bhagwan Dutt v. Kamla Devi and submitted that there is no inconsistency between the provisions of the Maintenance Act and provisions of Criminal Procedure Code and, therefore, the decision of the Apex Court in the case of Yamunabai Adhav (supra) rendered in the context of Section 125 of the Criminal Procedure Code would be squarely applicable in the present case. The learned counsel further relied upon the judgment of the Apex Court in the case of Bhaurao Lokhande v. State of Maharashtra , and submitted that merely
going through certain ceremonies with intention to marry will not mean complying with the ceremonies prescribed by law and in the absence of any evidence to establish that all the ceremonies required for a marriage are performed, the claim of the wife that she is legally wedded, cannot be accepted.
12. Mr. Pathak, learned counsel appearing on behalf of the wife, on the other hand submitted, that since the Appellant has failed to rebut the evidence led by the wife, the Family Court was justified in rejecting the contention of the husband and grant maintenance to the wife. He submitted that the wife had adduced evidence to establish that her marriage with the Appellant was solemnised as per Hindu Vedic Rites and the same has not been rebutted. Therefore, it was proved beyond doubt that the marriage between the husband and wife was solemnised according to Hindu Vedic Rites. As regards the first marriage of the husband is concerned, it was submitted that the deposition of the wife, based on the xerox copy of the alleged divorce deed did not in any way establish that the first marriage of the husband was valid and subsisting. In her deposition, the wife had categorically stated that she is not aware as to whether the first marriage of the husband was valid or not. It was submitted that in the absence of any positive evidence led by the husband, it could not be said that the first marriage of the husband was valid and subsisting and on that basis deny maintenance to the wife.
13. Having heard the counsel on both sides and also Appellant in person, we are of the opinion that there is no merit in the Appeal and the same is liable to be dismissed. The first contention of the husband that his marriage with the wife was not solemnised is totally devoid of any merit and is falsified by the marriage invitation card (Exhibit 20), marriage reception photo album (Exhibit-21) and also the evidence of the priest who solemnised their marriage. The wife and her brother have led corroborative evidence narrating the solemnisation of the marriage in accordance with the Hindu Vedic Rites and even by cross-examining these witnesses the husband has not been able to establish or create any doubt about the solemnisation of the marriage on 2nd June, 1978. The evidence on record adduced by the wife which have not been rebutted by the husband by leading evidence to the contrary, conclusively establish that the marriage between the husband and wife was solemnised according to Hindu Vedic Rites.
14. The alternate and the vehement submission of the husband is that even assuming that his marriage with the wife is held to be solemnised according to Hindu Vedic Rites, in the present the wife is not entitled for maintenance. He relies on Section 5(i) read with Section 11 of the Hindu Marriage Act, 1955 which provides that if either party to the marriage had a spouse living at the time of the marriage, then such a marriage is null and void. There is no protection given to a woman whose marriage is null and void. In other words under Section 125 of the Criminal Procedure Code as well as under Section 18 of the Maintenance Act, right to receive maintenance is conferred only on a wife whose marriage is in accordance with law and not in contravention of it. Under Hindu religion, marriage is a sacred institution aimed at guaranteeing the future of mankind and a Dharmic protection for the society. Marriage represents not mere physical relationship between man and woman for reproduction but it represents living in harmony, caring and sharing the pleasure and pain of life equally, throughout life which is the hallmark of a civilized society. Therefore, if a woman marries a man during the subsistence of his earlier marriage, then, no protection is available to such woman. Laws enacted in our Country are in furtherance of maintaining the sanctity of this sacred institution of marriage.
15. The Apex Court in the case of Yamunabai (supra) held that the wife’s right to maintenance depends upon the continuance of her married status and if her marriage is null and void because of the husband having a spouse living at the time of marriage, then the wife is not entitled for maintenance. The Apex Court further held that the contention of the wife that at the time of her marriage she was not aware of husband’s subsisting marriage is of consequence. The Apex Court also held that even if the husband had treated her as a wife will not come to her rescue because it is the intention of the legislature which is relevant and not the attitude of the party. The husband strongly relies upon the above decision of the Apex Court and several other decisions and submits that when the wife herself admits that at the time of her marriage, the husband had a spouse living, the wife’s marriage being null and void, she is not entitled for maintenance. It is pertinent to note that the husband has not entered the witness box to rebut the allegation of the wife that he is a womanizer, living an adulterous life and has treated her cruelly. Thus, in the present case the submission of the husband is that, he may be a womanizer, he may be living an immoral and adulterous life, he may be treating the wife cruelly, so what, since he had a spouse living at the time of his second marriage, in law, the second wife has no legal status of a wife and hence no right to claim maintenance.
16. We do not find any merit in the submissions made on behalf of the husband. In all the cases including the case of Yamunabai (supra) cited before us the issue before the Court was whether a woman married to a man having a living spouse, is entitled for maintenance? In the facts of each case where the first wife of the husband was living and her status as ‘wife’ was not severed, it was held that the second marriage was null and void and the second wife is not entitled for maintenance. In the present case, the facts are altogether different. The evidence adduced by the wife shows that although on the date of her marriage with the husband on 2-6-1978 the first marriage of the husband was subsisting, the first marriage of the husband had come to an end with the execution of Deed of Divorce dated 7-4-1980. It was contended on behalf of the wife that since the husband has not led any evidence to establish the subsistence of his first marriage, her testimony as well as her tendering xerox copy of the divorce deed does neither conclusively establish the validity of the first marriage of the husband nor its dissolution. Before the Family Court, no such issue was framed and there is no finding to that effect. Moreover, the husband instead of rebutting the above contentions, has in fact chosen to make capital out of it. Therefore, we proceed on the footing that the first marriage of the husband was subsisting on 2-6-1978. If the first marriage of the husband was subsisting on the date of the second marriage, then as per law and as per the judicial decisions of the Apex Court the second marriage is null and void. But the question in the present case is, if the first marriage has come to an end by a Divorce deed dated 7-4-1980 and both the parties to the second marriage continue to live together as husband and wife after the dissolution of the first marriage, whether the second wife can be deprived of the status of a wife? In our opinion, even though the second marriage of the husband during the subsistence of the first marriage was null and void, on the dissolution of the first marriage, if the parties to the second marriage continued to live together as husband and wife, then there is no impediment in conferring the status of ‘wife’ to the second wife. In other words, even if the second marriage was null and void when solemnised on account of the subsistence of the first marriage of the husband, if the parties to the second marriage continue to live as husband and wife even after the divorce of the first marriage then the second wife would be entitled to the status of a wife and consequently has a right to claim maintenance. Thus, the decisions of the Apex Court relied upon by the husband are distinguishable on facts, inasmuch as, in all those cases, the issue was relating to grant of maintenance to the second wife during the subsistence of the first marriage; whereas, in the present case, the issue is relating to grant of maintenance to the second wife after the divorce of the first marriage.
17. Having held that in the present case the wife is entitled to claim maintenance from the husband, the next question to be considered is whether the facts of this case justify grant of maintenance to the wife? In the present case, the wife has deposed that both the parties to the second marriage have cohabited for about 18 years and two children are born from the said wedlock. She has alleged that during these 18 years the husband has treated her with cruelty and has indulged in womanising and led an adulterous life. When the sufferings became unbearable and there was danger to her life, she was forced to leave the matrimonial home. The husband who is having a Ph.D. degree in Mechanical Engineering is an intelligent man and instead of utilising his intelligence for constructive purposes, he has utilised it for destructive purposes. Very shrewdly, he has refrained himself from entering the witness box to rebut the allegation of the wife that he is indulging in an immoral and adulterous activities and that he has treated the wife cruelly. By entering the witness box, if he was to admit that at the time of his second marriage, his first marriage was subsisting, it would have made him liable for criminal action. Thus, by not entering the witness box, on the one hand he has tried to save himself from the criminal action and on the other hand, he is trying to avoid Civil liability by stating that in view of the admission of the wife that his first marriage was subsisting on the date of the second marriage, she is not entitled for maintenance. Either, with a view to deprive the wife from obtaining maintenance, the husband has chosen not to enter the witness box and rebut the allegation of the wife that he is a womanizer, living adulterous life and treated the wife with cruelty or he has accepted the allegations of the wife as true and correct. The privy council in the case of Gurbaksh Singh v. Gurdial Singh, 29 BLR 1392 held that it is the bounden duty of a party, personally knowing the whole circumstance or the case, to give evidence on his own behalf and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case.
Similarly, this Court in the case of Pirgonda v. Vishwanath, held as follows :–
“Normally, a party to the suit is expected to step into the witness box in support of his own case and if a party does not appear in the witness box it would be open to the trial Court to draw an inference against him. If a party fails to appear in the witness box, it should normally not open to his opponent to compel his presence by the issue of a witness summons.”
Under the circumstances, in view of unrebutted evidence led in the matter we are of the opinion that the wife was forced to leave the matrimonial home on account of cruelty and the immoral and unethical behaviour of the husband and, therefore, she is entitled for maintenance and we see no reason to interfere with the order passed by the learned Judge of the Family Court.
18. Before parting, we would like to record that with the ever increasing matrimonial offences, time has come for the Parliament to have a fresh look and see whether the existing laws strike a balance in the matter of rights and obligations cast upon the husband and wife in preserving the sanctity of the sacred institution of marriage. Luckily in the present case, the first marriage of the husband ended in a divorce, as a result whereof maintenance could be granted to the wife. But in a given case, if the wife is an innocent victim and it is only after the marriage, she realises that the husband has cheated her by not disclosing the existence of a living spouse, should the wife be at the mercy of the husband and stay with him as a concubine? Should there be no legislation granting some protection for her to live independently in a dignified way by seeking maintenance from the husband? In a society where the marriage between a man and woman is considered to be sacred and supposed to last beyond the existence of the physical body and extend for generations, whether the existing legislations strike a balance in the matter of matrimonial offences committed by a man or a woman? It is for the legislature to consider and take appropriate measures.
19. For all the aforesaid reasons, the appeal filed by the husband stands dismissed with costs.
20. Parties to act on a true copy of this order duly authenticated by the Court Associate.