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Sukhbir Kaur vs Sukhdev Singh on 6 May, 2019

FAO-M No. 35 of 2016 (OM) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

FAO-M No. 35 of 2016 (OM)
Date of Decision: 6.5.2019

Sukhbir Kaur …….Appellant

Vs.

Sukhdev Singh …….Respondent

CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN
HON’BLE MR. JUSTICE HARNARESH SINGH GILL

Present: Mr. Anil Chawla, Advocate
for the appellant.

Mr. Veneet Sharma, Advocate
for the respondent.
*****

RAKESH KUMAR JAIN, J. (ORAL)

This appeal has arisen from the judgment and decree dated

4.9.2015 by which the respondent-husband has been granted decree of

divorce under Section 11 of the Hindu Marriage Act, 1955 (‘Act’ for short).

Learned counsel for the appellant has submitted that the

appellant is entitled to permanent alimony in terms of Section 25 of the Act

but learned counsel for the respondent has submitted that once the marriage

of the appellant with the respondent has been held to be null and void, after

decree has been passed under Section 11 of the Act, the question of award

of permanent alimony does not arise at all.

In view of the aforesaid contentions raised by learned counsel

for the parties, the question that would arise for adjudication in the appeal

before this Court is as to whether the appellant-wife would be entitled to

permanent alimony even if a decree has been passed against her under

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Section 11 of the Act ?

Learned counsel for the appellant has relied upon the decisions

of the Supreme Court rendered in the case of Ramesh Chandra

Rampratapji Daga versus Rameshwari Ramesh Chandra Daga 2005 (1)

R.C.R. (Civil) 615, Chand Dhawan versus Jawaharlal Dhawan 1993(2)

HLR 203.

As against, learned counsel appearing on behalf of the

respondent has relied upon the following decisions :-

1. Yamunabai Anantrao Adhav versus Anantrao Shivram
Adhav 1988 (1) HLR 375.

2. Savitaben Somabhai Bhatiya versus State of Gujarat
and others 2005 (2) R.C.R. (Criminal) 190.

3. Abbayolla M. Subba Reddy versus Padmamma 1998
(4) R.C.R. (Civil) 314 (Full Bench of Andhra Pradesh
High Court).

4. Navdeep Kaur versus Dilraj Singh 2003 (1) R.C.R.
(Civil) 365 (Single Bench of this Court).

5. Bhausaheb @ Sandu versus Lellabai 2004(2) R.C.R.
(Civil) 268 (Full Bench of Bombay High Court).

We have heard the learned counsel for the parties on the issue

involved and perused the record with their able assistance. Before we

proceed to decide the question of law, it would be relevant to refer to some

facts of the case, extracted from the decision of the trial Court.

The marriage of the parties was solemnized on 11.6.2012 at

Gurudwara Singh Sabha, Majitha Road, Amritsar as per Hindu Sikh Rites

and rituals. No child was born out of the said wedlock. Insofar as the status

of the parties are concerned, the respondent-husband was a widower

whereas the appellant wife who had claimed herself to be a spinster, was

already married. The present petition was filed by the respondent-husband

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under Section 11 of the Act for annulment of marriage on the ground of

violation of Section 5 (i) of the Act wherein it has been alleged by the

appellant that the factum of earlier marriage was not disclosed to him at the

time when their marriage was solemnized on 11.6.2012.

On the pleadings of the parties, as many as four issues were

framed by the learned trial Court and after both the parties had led their oral

and documentary evidence, the learned trial Court came to a conclusion that

the panchayti talaknama is not sustainable in the eyes of law and, therefore,

at the time of marriage by the appellant with the respondent, she was

already having a spouse and, therefore, a decree under Section 11 of the Act

was passed against her declaring her marriage null and void.

Although the appellant did not file any application for seeking

permanent alimony before the Court below who had passed the decree but

had chosen to file the present appeal in which the only prayer made by her is

for grant of permanent alimony and not for setting aside the judgment and

decree of the learned trial Court.

In view of the aforesaid background, the issue which has been

framed by us in the beginning of this order would be the main issue for

adjudication. Before we deal with the issue raised by both the parties it

would be relevant to refer to Section 25 of the Act which is reproduced as

under:-

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 the respondent
shall pay to the applicant for her or his maintenance and
support such gross sum or such monthly or periodical sum for

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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.

(2) If the court is satisfied that there is a change in the
circumstances of either party at any time after it has made an
order under sub-section (1), it may at the instance of either
party, vary, modify or rescind any such order in such manner
as the court may deem just.

(3) If the court is satisfied that the party in whose favour an
order has been made under this section has re-married or, if
such party is the wife, that she has not remained chaste, or, if
such party is the husband, that he has had sexual intercourse
with any woman outside wedlock, [it may at the instance of the
other party vary, modify or rescind any such order in such
manner as the court may deem just].

Learned counsel for the appellant has basically relied upon the

decision of the Supreme Court in the case of Ramesh Chandra

Rampratapji Daga versus Rameshwari Ramesh Chandra Daga (for short

‘Ramesh Chandra’) (supra). It is contended by the counsel for the appellant

that the facts were same in the said case as the appellant-husband was an

Income Tax Practitioner in the town of Ratlam in the State of Madhya

Pradesh. His first marriage was solemnized with Usha in the year 1963

from whom, he had two sons and one daughter. The marriage of the said

appellant with the respondent thereafter was performed. The case of the

respondent was that though she was earlier married but as per the custom of

Maheshwari community a Chhor Chithi or a document of dissolution of

marriage was executed with her previous husband on 15.5.1979 and it was

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later on got registered and, therefore, her marriage with the appellant in the

said case was not a nullity. The matter reached to the Supreme Court and

the question before the Supreme Court was as to whether the appellant-

husband is still liable to pay the maintenance fixed per month to the

appellant wife under Section 25 of the Act ?

It is submitted by the learned counsel for the appellant that in

the said case, the Supreme Court has taken into consideration the decision

in the case of Yamunabai Anantrao Adhav (supra) (Supreme Court) and

Abbayolla M.Subba Reddy (supra) (Full Bench of Andhra Pradesh High

Court) and also the decision in the case of Chand Dhawan (supra) and

finally decided as under:-

“We have critically examined the provisions of Section 25 in
the light of conflicting decisions of the High Court cited before
us. In our considered opinion, as has been held by this Court
in Chand Dhawan’s case (supra), the expression used in the
opening part of Section 25 enabling the ‘Court exercising
jurisdiction under the Act’ ‘at the time of passing any decree or
at any time subsequent thereto’ to grant alimony or
maintenance cannot be restricted only to, as contended, decree
of judicial separation under Section 10 or divorce under
Section 13. When the legislature has used such wide
expression as ‘at the time of passing of any decree,’ it
encompasses within the expression all kinds of decrees such as
restitution of conjugal rights under Section 9, judicial
separation under Section 10, declaring marriage as null and
void under Section 11, annulment of marriage as voidable
under Section 12 and Divorce under Section 13.’
It is further contended that it was also held by the Supreme

Court that the marriage of the person already having a spouse may be illegal

being in contravention of the provisions of the Act but cannot be stated to

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be immoral so as to deny the right of alimony or maintenance. In order to

buttress the arguments, learned counsel for the appellant has also referred to

the decision in the case of Chand Dhawan (supra).

On the other hand, learned counsel for the respondent-husband

has pressed the decision in the case of Yamunabai Anantrao Adhav (supra)

to contend that though in the said case, the husband had contracted second

marriage when the first wife was alive and the second marriage is null and

void, therefore, no decree of Court is required for the purpose and the

second wife is not entitled to any maintenance in term of Section 25 of the

Act. He has also referred to the judgment of the Supreme Court in the case

of Savitaben Somabhai Bhatiya (supra) to contend that in the said case

though, the dispute was in regard to the award of maintenance under Section

125 of the Code of Criminal Procedure, 1973 (‘SectionCr.P.C.’ for short) but it has

been held by the Supreme Court that marriage of a woman in accordance

with the Hindu rites with a man having a living spouse is a complete nullity

in the eyes of law and she is therefore not entitled to the benefit of Section

125 of the Code or the SectionHindu Marriage Act. Learned counsel for the

respondent has also pressed the decision of the Full Bench of Andhra

Pradesh High Court in Abbayolla M. Subba Reddy (supra) in which the

Court was dealing with a case under Section 11 of the Act, decision of the

Bombay High Court in the case of Bhausaheb @ Sandu (supra) in which

again the Court was dealing with the case under Section 11 of the Act and

also a decision of this Court in Navdeep Kaur’s case (supra) in which

similar issue was involved.

In this regard, learned counsel for the appellant has submitted

that all the judgments, relied upon by the learned counsel for the respondent

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are prior in time than the decision of the Supreme Court in the case of

Ramesh Chandra (supra) as it was decided on 13.12.2004. Mr. Veneet

Sharma, Advocate appearing on behalf of the respondent has pointed out

that the decision in the case of Savitaben Somabhai Bhatiya (supra) was of

10.3.2005. The strength of both the benches deciding the case of Ramesh

Chandra (supra) and Savita Ben Somabhai Bhatiya (supra) is the same,

therefore, the decision taken on 10.3.2015 is later in law and has to prevail.

Faced with this argument, learned counsel for the appellant has

submitted that the decision in the case of Savitaben Somabhai Bhatia

(supra) relied upon by the counsel for the respondent, is a passing reference

in the form of obiter dicta by the Hon’ble Supreme Court as it was not

dealing with the case having been filed under Section 5(i) read with Section

11 of the Act. Rather, the Court was dealing with the case where the

maintenance was awarded under Section 125 Cr.P.C. It is also submitted

that the decision in the case of Yamunabai Anantrao Adhav (supra) and

Abbayolla M.Subba Reddy (supra) (Full Bench of Andhra Pradesh High

Court) has been discussed by the Supreme Court in Ramesh Chandra’s case

(supra) and has, thus, referred to a decision of the Supreme Court in the case

of Balwant Rai Saluja and another versus Air India Ltd. and others 2015

AIR (SC) 375 that the binding precedent would be the judgment relied upon

by him in the case of Ramesh Chandra (supra) as in that case the Court is

deciding a similar issue which is involved in the present case. The relevant

portion of the judgment of the said decision referred to by the learned

counsel for the appellant read as under:-

“In our view, the binding nature of a decision would extend to
only observations on points raised and decided by the Court
and neither on aspects which it has not decided nor had

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occasion to express its opinion upon. The observation made in
a prior decision on a legal question which arose in a manner
not requiring any decision and which was to an extent
unnecessary, ought to be considered merely as an obiter
dictum. We are further of the view that a ratio of the judgment
or the principle upon which the question before the Court is
decided must be considered as binding to be applied as an
appropriate precedent. “

Learned counsel for the respondent in order to counter the

judgment relied upon by the counsel for the appellant has referred to a

decision of the Supreme Court in the case of Arun Kumar Aggarwal versus

State of Madhya Pradesh and others Criminal Appeal Nos. 1706-1708 of

2011.

We have heard the learned counsel for the parties on these

judgments and perused the record with their able assistance.

It is to be borne in mind that the Court is dealing with a specific

prayer of the appellant i.e. for the grant of permanent alimony under Section

25 of the Act against whom a decree under Section 11 of the Act has been

passed by the learned trial Court and the said decree has not been

challenged by the appellant. All the judgments of the Supreme Court, relied

upon by the learned counsel for the respondent, are in respect of the

decisions rendered while deciding the matter arising out of Section 125

Cr.P.C. and it has also been decided in the case of Savitaben Somabhai

Bhatiya (supra) that if the decree in which marriage has been declared to be

null and void in the eyes of law, then no benefit would arise under Section

125 Cr.P.C. or the SectionHindu Marriage Act. However, a specific question came

up before the Supreme Court while deciding the matter in the case of

Ramesh Chandra (supra) and in the said case while referring to two earlier

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decisions of Yamunabai Anantrao Adhav (supra) (Supreme Court) and

Abbayolla M.Subba Reddy (supra) (Full Bench of Andhra Pradesh High

Court), the Supreme Court has held that the Court would have the

jurisdiction to award the maintenance under Section 25 of the Act “at the

time of passing of any decree” and then it has been held that all kinds of

decrees would include the decree passed under the Restitution of Conjugal

Rights under Section 9 of the Act, Judicial Separation under Section 10 of

the Act, declaring marriage as null and void under Section 11 of the Act,

annulment of marriage as voidable under Section 12 of the Act and Divorce

under Section 13 of the Act. There was a specific issue raised before the

Supreme Court in the case of Ramesh Chandra (supra) which has been

decided in favour of the respondent-wife therein holding that though the

marriage has been declared as illegal, null and void in terms of decree

passed under Section 12 of the Act but she would be entitled to maintenance

and permanent alimony (lump-sum) in terms of Section 25 of the Act. In

this regard, we would take the help of the decision of the Supreme Court

rendered in the case of Balwant Rai Saluja (supra) because in that case

while deciding the issue as to which precedent has to be followed, the

Hon’ble Supreme Court has held that the binding nature of a decision would

extend to only observation on point raised and decided by the Court. Thus,

in the present case, the judgment in the case of Ramesh Chandra (supra) is

deciding a specific issue as to whether Section 25 of the Act would be

applicable in the decree passed under Section 11 of the Act which was not

the issue before the Supreme Court in the case of Savitaben Somabhai

Bhatiya (supra) in which Section 125 Cr.P.C. was in issue before the

Supreme Court and in that case, the judgment in the case of Ramesh

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Chandra (supra) was not even produced before the Hon’ble Bench for the

purpose of its appraisal and consideration.

Thus, in view of the aforesaid facts and circumstances, we are

of the considered opinion that the present case is governed by the decision

of the Supreme Court in Ramesh Chandra’s case (supra) and thus, the

present appeal is hereby allowed only to the extent that the question of law

which has been framed by us holding that the appellant would be entitled to

permanent alimony under Section 25 of the Act dehors the fact that the

decree has been passed under Section 11 of the Act. Since the decree has

been upheld because it has not been challenged, therefore, in order to

determine as to how much amount has to be received by the appellant from

the respondent, the matter has to be remanded back to the learned trial Court

as it would depend upon the facts and circumstances which will come on

record after the evidence is led by both the parties. Hence, the matter is

remanded back to the learned trial Court who had passed the decree in

favour of the respondent, to decide the application under Section 25 of the

Act, to be filed by the appellant before it for the purpose of seeking

permanent alimony.

Both the parties are directed to appear before the learned trial

Court on 21.5.2019.

The appeal is disposed of.

(RAKESH KUMAR JAIN)
JUDGE

(HARNARESH SINGH GILL)
May 06, 2019 JUDGE
Gurpreet
Whether speaking /reasoned : Yes
Whether Reportable : Yes

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