HC Judgements FamilyMatters 1st regional

For Private Circulation : Educational Purpose Only

AA vk uks Hkæk% Øroks ;Urq fo’or% AA

“Let noble thoughts come to us from every side.”

RIG VEDA

COMPILATION OF

LANDMARK JUDGMENTS

HIGH COURTS OF INDIA

FAMILY MATTERS

When centuries old obstructions are removed, age old shackles are either burnt or lost their force, the chains get rusted, and the human endowments and virtues are not indifferently treated and emphasis is laid on “free identity” and not on “annexed identity”, and the women of today can gracefully and boldly assert their legal rights and refuse to be tied down to the obscurant conservatism, and further determined to ostracize the “principle of commodity”, and the “barter system” to devoutly engage themselves in learning, criticizing and professing certain principles with committed sensibility and participating in all pertinent and concerned issues, there is no warrant or justication or need to pave the innovative multi-avenues which the law does not countenance or give its stamp of approval. Chivalry, a perverse sense of human egotism, and clutching of feudal megalomaniac ideas or for that matter, any kind of condescending attitude have no room. ey are bound to be sent to the ancient woods, and in the new horizon people should proclaim their own ideas and authority. ey should be able to say that they are the persons of modern age and they have the ideas of today’s “Bharat”. Any other idea oated or any song sung in the invocation of male chauvinism is the proposition of an alien, a total stranger – an outsider. at is the truth in essentiality.

Hon’ble Mr. Justice Dipak Misra

Shamima Farooqui V. Shahid Khan, (2015) 5 Supreme Court Cases 705

Compiled by

JHARKHAND STATE LEGAL SERVICES AUTHORITY

Nyaya Sadan, Near A.G. Office, Doranda, Ranchi

Phone : 0651-2481520, 2482392, Fax : 0651-2482397

Email : jhalsaranchi@gmail.com, Website : www.jhalsa.org

This Book is also available on official website of JHALSA “www.jhalsa.org”

For Private Circulation : Educational Purpose Only

COMPILATION OF

LANDMARK JUDGMENTS

HIGH COURTS OF INDIA

FAMILY MATTERS

Year of Publication : 2016

Compiled By

Jharkhand State Legal Services Authority

Nyaya Sadan, Near AG Office, Doranda, Ranchi – 834002

Ph No. 0651-2482392, 2481520, 2482397 (F)

E-mail :jhalsaranchi@gmail.com, Website : www.jhalsa.org

This is booklet is also available on Official Website of JHALSA “www.jhalsa.org”

PREFACE

JUSTICE D.N. PATEL Judge, High Court of Jharkhand &

Executive Chairman, Jharkhand State Legal Services Authority

Family is one of oldest institution that has played an important Role in stability and prosperity of civilization. The amazing persistence of Indian Culture is a consequence of the permanent position accorded to the family, for civilization is directly dependent on the effective functioning of the family; and in India the Family attained a social importance, even a religious significance.

Almost everything of lasting value in civilization has its roots in the family. The family was the first successful peace group, the man and woman learning how to adjust their antagonisms while at the same time teaching the pursuits of peace to their children. Family harmony provides a sense of belonging and a feeling of security unlike many other types of relationships. When conflict arises, it threatens that security. Whether the disharmony initiates from within the family unit or from external sources, individual family members and the family as a whole can experience a range of negative emotions and consequences. Unresolved conflict may irreparably damage a marriage and the entire family if family members do not seek help.

Further, the urbanization, Industrialization and less dependence on agriculture has given rise to nuclear family and many unforeseen problems. Ego and disproportionate emotional outburst has opened floodgates of litigation between spouses. Family matters are to be viewed from different perspective. The Family Courts Act, 1984 also seeks to promote conciliation in Family matters.

His Lordship Hon’ble Mr. Justice Dipak Misra, Judge, Supreme Court of India has said about the role and responsibilities of Family Court’s Judge in Bhuwan Mohan Singh Vs. Meena {(2015) 6 SCC 353} and I quote- “The Family Judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not mean that the Family Courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about dealing with a situation. A family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It

not only gives rise to more Family Problems but also gradually builds unthinkable and everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow. We hope and trust that the Family Court Judges shall remain alert to this and decide the matters as expeditiously as possible keeping in view the objects and reasons of the Act and the Scheme of various provisions pertaining to grant of maintenance, divorce, custody of child, property disputes etc.”

His Lordship’s aforementioned golden words leaves no doubt that family matters needs due sensitivity from all stakeholders. This work of JHALSA is an attempt to collect landmark judgments of the High Courts on the topics- Alimony and Maintenance, Divorce, Custody of Children & Visitation Rights, Adoption and Duty of Family Court at one place.

Our attempt is to prepare a handbook which may be useful to Judges, Lawyers, Social Workers and the common Litigant.

It is important to note here that My Lord Justice Dipak Misra’s deliberations in the State Level Seminar on the Role of Principal Judges in Family Court Matters & Victim Emancipation through Compensation on 20/02/16 at Nyaya Sadan, Ranchi has brought about positive sea change in all the stakeholders. Under His Lordship’s able leadership and guidance, we shall definitely be able to achieve our objectives. I assure His Lordship that no stone shall be left unturned in fulfilling Your Lordship’s dreams.

(JUSTICE D.N. PATEL)

INDEX

ALIMONY & MAINTENANCE

1. Sidharth vs Smt. Kanta Bai……………………………………………………………………………………… 3 AIR 2007 MP 59

2. Patel Dharamshi Premji vs Bai Sakar Kanji…………………………………………………………….. 14 AIR 1968 GUJ 150

3. Sanjay Kumar vs Bhateri ………………………………………………………………………………………. 22 2013 SUPREME (P & H) 339

4. Vijay Kumar vs State Of Punjab And Others…………………………………………………………… 26 2013 SUPREME (P & H) 303

5. Smt. Yamunabai Anantrao Adhav vs.

Anantrao Shivram Adhav And Others……………………………………………………………………. 29 1983 CRLJ 259; 1982 MHLJ 871; 1982 SUPREME (MAH) 136;

6. Bhausaheb @ Sandu S/O Raghuji vs.

Leelabai W/O Bhausaheb Magar ……………………………………………………………………………. 41 2004 AIR (BOM) 283; 2003 4 MHLJ 1019; 2003 SUPREME (MAH) 729;

7. Kadia Harilal Purshottam vs. Kadia Lilavati Gokaldas…………………………………………….. 54 AIR 2004 BOM 283, 2003 (4) MHLJ 1019

8. Bajirao Raghoba Tambre vs Tolanbai (Miss) D/O Bhagwan Toge ……………………………… 63

DIVORCE

9. Kasubai w/o Bhagwan Wanjari vs. Bhagwan Bhagaji Wanjari …………………………………… 75 1955 SCC ONLINE MP 8 : AIR 1955 NAG 210

10. Dagdu S/o Chotu Pathan, Latur vs Rahimbi Dagdu Pathan, Ashabi ………………………….. 94 2003 (1) BOMCR 740

11. Smt. Bhavna Adwani vs Manohar Adwani ……………………………………………………………. 122 1992 AIR(MP) 105; 1991 SUPREME(MP) 248;

12. Nirmala Devi vs Ved Prakash ………………………………………………………………………………. 128 1993 AIR(HP) 1; 1992 SUPREME(HP) 3;

13. Usha Ratilal Dave vs. Arun B. Dave………………………………………………………………………. 134 FIRST APPEAL NO. 1484 OF 1981

CUSTODY OF CHILDREN & VISITATION RIGHTS

14. Mr. Tushar Vishnu Ubale vs Mrs. Archana Tushar Ubale ……………………………………….. 153 2016 SCC ONLINE BOM 22 (2016) 2 AIR BOM R 2006

15. Kamla Devi vs State of Himachal Pradesh and Ors. ……………………………………………….. 161 1986 3 CRIMES (HC) 151

16. Francis Joseph S/O Thottapallil Joseph vs.

Shobha Francis Joseph ………………………………………………………………………………………… 170 2014 SCC ONLINE GUJ 14853

17. Aarti Rana vs. Gaurav Rana and others ………………………………………………………………… 174 AIR 2016 HP 11 J1

18. Girish Chandra Tiwari vs. State of Uttarakhand & Ors…………………………………………… 184 2011 (2) UAD 76

19. Rajan Jairath vs. Mrs. Monita Mehta…………………………………………………………………….. 186 CIVIL REVISION NO. 2192 OF 2011 (O&M)

20. Rajeshbhai Govindbhai Putanwadia vs.

Anitaben Rajeshbhai Patanwadia…………………………………………………………………………. 188 CRIMINAL REVISION APPLICATION NO. 650 OF 2008

21. Yogesh Kumar Gupta vs. M.K. Agarwal & Anr. ……………………………………………………… 191 2009 (1) UAD 276

ADOPTION

22. Mr. Masooud Hadjiahmad & Anr. vs.

State of Uttarakhand & Anr. ………………………………………………………………………………… 197 2009 (1) UAD 465

23. Karam Singh & Others vs. Jagsir Singh & Others…………………………………………………… 200 R.S.A. NO. 2623 OF 1988

24. Varsha Sanjay Shinde & Anr vs.

The Society of Friends, Sassoon Hospitals and Others……………………………………………. 204 2014 5 AIIMR 297; 2013 SUPREME (MAH) 2118;

ROLE AND DUTIES OF FAMILY COURT

25. Arwa Taha Saifuddin vs Taha Mufaddal Saifuddin ………………………………………………… 221 2015 SCC ONLINE BOM 6259

26. Wazid Ali vs Smt. Rubina Bano And Ors. ……………………………………………………………… 233 2008 AIR (RAJ) 49; 2007 SUPREME (RAJ) 1422

LANDMARK JUDGMENTS ON

ALIMONY & MAINTENANCE

SIDHARTH VS SMT. KANTA BAI

SIDHARTH VS SMT. KANTA BAI

Madhya Pradesh High Court

AIR 2007 MP 59

Date of Judgment : 14th November, 2006

Equivalent citations: AIR 2007 MP 59

Sidharth

Smt. Kanta Bai

Bench: Hon’ble Mr. Justice Dipak Misra, Hon’ble Mr. Justice S Sinho

Hindu Marriage Act 1955 sec 23,24 – The maintenance and the entitlement under section 24 of the Act can be made available even in a proceeding pertaining to setting aside of an ex-parte decree and restoration of the main suit. — ‘any relief that has been used in Section 23 (2) would not cover an incidental and ancillary relief during the proceeding as that has to be construed in broader canvass and would include only substantive relief and further if there is non-compliance of the same, it would amount to an irregularity and not an illegality and such irregularity is rectifiable at the appellate stage and would not render the judgment or an order a nullity.

ORDER

Dipak Misra, J.

1. Invoking the extra-ordinary and inherent jurisdiction of this Court under Article 227 of the Constitution of India the petitioner has called in question the defensibility and tenability of the orders dated 24-1-2004 and 13-8-2006 passed by the learned IInd Additional District Judge, Chhindwara in Civil Suit No. 81-A/04, Annexure P-5, and prayed for issue of writ of certiorari for quashment of the same. The writ petition was placed before the learned Single Judge for grant of necessitous relief on the substratum that the learned IInd Additional District Judge, Chhindwara has erroneously directed the petitioner-husband to pay a sum of Rs. 1,000/- by way of interim maintenance from the date of their order and Rs. 1000/- towards litigation expenses and to pay expenses of each hearing day on the basis of application preferred under Section 24 of the Hindu Marriage Act, 1955 (for brevity, ‘the Act’). It is worth mentioning that the second order dated 13-8-2005, was an application for review of the original order, which had faced rejection.

2. Before the learned Single Judge, it was contended by the husband-petitioner that the Court below has fallen into grave error by allowing interim maintenance and litigation expenses without making any endeavour for reconciliation at the first instance as contemplated under Section 23(2) of the Act which is mandatory in nature and hence, the order passed by him is nothing less than a sanctuary of errors. To bolster the aforesaid submission, reliance was placed on the decision rendered by a learned Single Judge of this Court in the case of Kesavrao v. Tihalibai 2003(1) M.P.H.T. 5 (NOC), wherein it had been held that the provisions enshrined

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

under Section 23(2) of the Act are mandatory. Learned Single Judge hearing the writ petition was prima facie of the view that Section 23(2) would not get attracted for grant of maintenance pendente lite and expenses of proceedings and an order passed under Section 24 of the Act does not tantamount to grant of any relief to either of the spouses inasmuch as such a grant fundamentally is an arrangement. Being of this view, learned Single Judge recommended for reconsideration of the view expressed in the decision rendered in the case of Kesav Rao (supra). That is how the matter has been placed before us.

3. At the very outset, it is seemly to state that prior to the law laid down in the case of Kesav Rao (supra), another learned Single Judge in the case of Jagdish Chandra Kulshrcstha v. Pramod Kumari 1993 MFJR 455 had expressed the opinion that the language employed in Section 23(2) makes it mandatory and order granting interim maintenance passed without first making an effort of reconciliation is unsustainable. A Division Bench of this Court had the occasion to consider the provision contained in Sections 23(2) and 24 in the case of Dharmendra Kumar Ramswaroop Sharma v. Pushpadevi w/o Dharmendra Kumar 1995 MPLJ 555, whereby the Division Bench overruled the decision rendered in the case of Jagdish Chandra Kulshrestha (supra), and came to hold that the Court is not disabled from attempting reconciliation before passing an order under Section 24 if it appears to the Court that the position of the parties is such that it would be appropriate to attempt reconciliation at that stage, but, the failure of the Court to make an attempt to bring about the reconciliation of the parties before passing an order underSection 24 of the Act does not make the order illegal. The Division Bench further expressed the opinion that the failure to observe the said requirement is an irregularity and not an illegality, for the provision engrafted under Section 23(2) is neither mandatory nor absolute.

4. Mr. P.K. Asati, learned Counsel for the petitioner has submitted that the decision rendered in the case of Dharmendra Kumar (supra), requires reconsideration by Larger Bench inasmuch as the Division Bench while expressing the opinion that the order would not be illegal but an irregular one, has really not appreciated the language employed in the statute and the manner of enjoinment inherent therein has placed an artificial meaning by taking recourse to interpretative method which is impermissible. Learned Counsel has submitted that the marriage has its own sacrosanctity and if reconciliation is not tried to be achieved and an application under Section 24of the Act is entertained, the possibility of reconciliation would be marginalized, and in fact, it would frustrate the object of the provision engrafted under Section 23(2) of the Act. It is urged by Mr. Asati that the terms ‘any’ and ‘first instance’ employed in Section 23(2) have to be strictly construed and there is no room to escape from the interpretation in ‘stricto sensu’. It is his further submission that if an application under Section 24 of the Act is entertain and allowed the beneficiary, either of the spouses, would indulge in subterfuges to procrastinate the proceeding which is contrary to the spirit of the enactment. Learned Counsel contended that a Judge who decides matrimonial issues has a different role than the authority who has been empowered to bring in conciliation under the Industrial Disputes Act, 1947, for the first enactment deals with a sensitive human problem, a concern of a sensitized collective whereas the second statute basically deals with the industrial disputes. Therefore, submitted Mr. Asati, primary steps with regard to the reconciliation have to be given paramountacy prior to determination of maintenance and litigation expenses. It is his further submission that the Parliament in its wisdom has used the word ‘shall’ and there being no ambiguity, it has to be treated mandatory for all purposes. It is propounded by him that it will be an anathema to the concept of term ‘relief as used in Section

SIDHARTH VS SMT. KANTA BAI

23(2) if it is treated or regarded as an arrangement as that can never be the intention of the Legislature.

5. Mr. Alok Aradhe, learned amicus curiae, assisting the Court submitted that if the anatomy of the Act is scanned in proper perspective, it would be luminescent that two categories of reliefs are permissible, namely, substantive reliefs and incidental or ancillary reliefs. The reliefs which are envisaged under Sections 9, 10, 11 and 13 are substantive or primary reliefs and the relief granted under Section 24 would fall in the second category. Submission of learned friend of the Court is that Sections 23(2) and 24 have to be read harmoniously keeping in view the purpose of legislation, the text and the context, and unless such harmonious and purposive construction is placed on both the provisions it would defeat the object of the statute. Mr. Aradhe further contended that the terms used in the provision ‘shall’ and ‘any’, per se, would not make the provision mandatory in the absence of any concomitant consequences prescribed therein. It is proponed by him that the word ‘any’ in all circumstances does not include all and can be read in restricted manner depending on the context, the subject-matter of the statute and the purpose behind the legislation. Learned Counsel further submitted that Section 24 has its own purpose and it is an enabling provision to empower either of the spouses to survive and contest the litigation and unless there is conferral of benefit of economic ability to contest, is deserving, there would be mockery of justice and a proceeding under the Act seeking substantial relief would be an apology for real adjudication and the conception of fairness of adjudication especially in the backdrop nature of the Us involved shall pale into insignificance and reach an abysmal state. It is urged by him that purposive construction and harmonious reading of both the provisions should be the warrant to subserve the cause of justice and achieve the intent of the Legislature. Learned friend of the Court has invited our attention to many citations to which we shall refer to them at the appropriate stage.

6. Section 23 deals with the decree in proceedings. Section 23(2) reads as under:

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties:

Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in Clause (ii), Clause (iii), Clause (iv), Clause (v), Clause (vi) or Clause (vii), of Sub-section (1) of Section 13.

7. Section 24 deals with the maintenance pendente lite and expenses of proceedings. We reproduce the said provision:

24. Maintenance pendente lite and expenses of proceeding. – Where in any proceeding under this Act, it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, or the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable:

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.

8. On a reading of Section 24, it is manifest that the Court has a duty to scrutinize if any of the spouses has no independent income sufficient for her or his support and the necessary expenses of the proceedings, on being satisfied it may direct payment of expenses of the proceedings, and such monthly sum during the proceeding, regard being had to the own income of the parties as it may seem reasonable to do.

9. Submission of Mr. Aradhe is that though the words used are ‘any relief which may apparently include a relief under Section 24, yet it should not be so understood, for the purposes are different and in any case both the provisions must be allowed to harmoniously co-exist to serve the purpose. In this regard, he has commended us to the decisions rendered in the cases of Raj Krushna Bose v. Binod Kanungo and Ors. , Anwar Hasan Khan v. Mohd. Shaft and Ors. , Commissioner of Income Tax v. Hindustan Bulk Carriers , Calcutta Gujrali Education Society and Anr. v. Calcutta Municipal Corporation. and Ors. .

10. In the case of Raj Krushna Bose (supra), S.R. Das, J. (as his lordship then was) speaking for the Constitution Bench expressed the view that when there is head on clash between the two provisions in a statute, it is the duty of the Court to construe provisions which appear to be in conflict to avoid the conflict.

11. In the case of Anwar Hasan (supra), their fordships have held as under:

8. It is settled that for interpreting a particular provision of an Act, the import and effect of the meaning of the words and phrase used in the statute have to be gathered from the text, the nature of the subject-matter and the purpose and intention of the statute. It is a cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding a conflict and adopting a harmonious construction. The statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved. The well known principle of harmonious construction is that effect should be given to all the provisions and a construction that reduces one of the provisions to a “dead letter” is not harmonious construction. With respect to law relating to interpretation of statutes this Court in Union of India v. Filip Tiaga De Gama of Vedem Vasco De Gama, held : SCC p. 284, Para 16

16. The paramount object in statutory interpretation is to discover what the legislature intended. This intention is primarily to be ascertained from the text of enactment in question. That does not mean the text is to be construed merely as a piece of prose, without reference to its nature or purpose. A statute is neither a literary text nor a divine revelation. ‘Words are certainly not crystals, transparent and unchanged’ as Mr. Justice Holmes has wisely and properly warned. (Towne v. Eisner) learned Hand, J., was equally emphatic when he said : Statutes should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them. Lenigh Valley Coal Co. v. Yensavage

12. In the case of Hindustan Bulk Carriers (supra), Arijit Pasayat, J., speaking for the Bench has expressed the opinion as under:

SIDHARTH VS SMT. KANTA BAI

14. A construction which reduces the statute to a futility has to be avoided. A statute or any enacting provision therein must be so construed as to make it effective and operative on the principle expressed in the maxim ut res magis valeat quam pereat, i.e., a liberal construction should be put upon written instruments, so as to uphold them, if possible, and carry into effect the intention of the parties. [Sec : Broom’s Legal Maxims (10th Edn.), p. 361, Craies on Statutes (7th Edn.), p. 95 and Maxwell on Statutes (11th Edn.), p. 22.]

15. A statute is designed to be workable and the interpretation thereof by a Court should be a secure that object unless crucial omission or clear direction makes that end unattainable. (See : Whitney v. IRC, AC at p. 52 referred to in CIT v. S. Teja Singh and Gursahai Saigal v. CIT.)

16. The Courts will have to reject that construction which will defeat the plain intention of the legislation even though there may be some inexactitude in the language used. (See Salmon v. Duncombe, AC at p. 364, Curtis v. Stovin, referred to in S. Teja Singh case).

17. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility, and should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result. (See Nokes v. Dancaster Amalgamated Collieries referred to in pye v. Minister for Lands for NSW). The principles indicated in the said cases were reiterated by this Court in Mohan Kumar Singhania v. Union of India.

13. In the case of Calcutta Gujarati Education Society (supra), their Lordships while dealing with the concept of rule of reading down a provision of law observed that it is a rule of harmonious construction in a different name. It is resorted to smoothen crudities and ironing out the creases found in a statute to make it workable. It is further ruled therein that the said principle is to be used keeping in view the scheme of the statute and to fulfill its purposes.

14. Submission of Mr. Aradhe is that both the provisions have to harmonised to avoid a head on clash and also to achieve the purposive effect of the legislation. Incrementing the aforesaid submission, learned Counsel has submitted that the language employed in both the provisions are not such which ostracize harmonization. It is urged by him that the word, ‘any’ should not be allowed to govern and cover all spectrums or kinds of reliefs. Learned Counsel has also submitted that Section 23 deals with decree in proceedings and the relief granted under Section 24 is not a decree.

15. First we shall refer to the use of term ‘any’ and how the Apex Court has dealt with such a term. In the case of Shri Balganeshan Metals v. Shanmugham Chetty , while interpreting the term ‘any’ the Apex Court in Paragraph 18 has stated thus:

18. In construing Section 10(3)(c) it is pertinent to note that the words used are “any tenant” and not “a tenant” who can be called upon to vacate the portion in his occupation. The word “any” has the following meaning:

some : one of many; an indefinite number. One indiscriminately of whatever kind or quantity.

Word “any” has a diversity of meaning and may be employed to indicate “all” or “every” as well as “some” or “one” and its meaning in a given statute depends upon the context and the subject matter of the statute.

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

It is often synonymous with “either”, “every” or “all”. Its generality may be restricted by the context; (Black’s Law Dictionary; 5th Edn.) From the aforesaid it is clear as day that the meaning of ‘any’ would depend upon context.

16. The term ‘shall’ submitted by Mr. Asati has to be regarded as the command of the statute. It needs no special emphasis to state that the word ‘shall’ does not always mean ‘shall’ or imperative. It may at time convey the sense of ‘may’. In this regard, we may fruitfully refer to the decision rendered in the case of Administrator, Municipal Committee Charkhi Dadri and Anr. v. Ramji Bagla and Ors. , wherein it has been held that the absence of provisions for consequence in case of non-compliance with the requirements would indicate directory nature despite the use of word ‘shall’. Mr. Aradhe has invited our attention to a three Judge decision of the Apex Court in the case of Owners and Parties Interested in M.V. “Vali Pero” v. Fernandeo Lopez and Ors. , wherein, it has been held as under:

21. It would suffice to refer only to the decision in Ganesh Prasad Sah Kesari v. Lakhsmi Narayan Gupta . The word ‘shall’ was used therein in connection with the Court’s power to strike off the defence against ejectment in a suit for eviction of tenant in case of default in payment of rent. This Court construed the word “shall” in that context as directory and not mandatory since such a construction would advance the purpose of enactment and prevent miscarriage of justice. In taking this view, this Court was impressed by the fact that the default attracting the drastic consequence of striking out defence may be only formal or technical and unless the provisions was treated as directory, it would render the Court powerless even where striking out the defence may result in miscarriage of justice. We may refer to a passage from Crawford on ‘Statutory Construction ‘ which was quoted with approval in Govindlal Chagganlal Patel v. Agricultural Produce Market Committee, Godhra, and relied on its decision. The quotation is as under (at p. 267 of AIR):

The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern and these are to be ascertained, not only from the phraseology of the provisions, but also while considering its nature, its design and the consequences which would follow from construing it the one way or the other.

17. In the case of Salem Advocate Bar Association, T.N. v. Union of India , in Paragraph 20, it has been ruled thus:

20. The use of the word “shall” in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word “shall” is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.

SIDHARTH VS SMT. KANTA BAI

18. In this regard, we may profitably refer to the decision rendered in the case Kailash v. Nanhku and Ors. , wherein their fordships have laid down the dictum that merely because a provision of law is couched in negative language implying a mandatory character, the same is not without exceptions. The Courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted hold the same to be directory though worded in the negative form.

19. In view of the aforesaid pronouncement of law it is to be seen whether Section 23(2) can ever be regarded as mandatory in absolute terms. In this regard, it would be apposite to notice certain decisions which relate to the concept of maintenance pendente lite and expenses under Section 24 of the Act. This Court in W.P. No. 2480 of 2005, decided on 22-6-2005 Smt. Janki Bai v. Prem Narayan Kushwaha has expressed the view as under:

13. In the case of Amarjeet Kaur v. Harbhajan Singh and Anr. , their fordships while dealing with the order of the High Court where a condition was imposed while granting maintenance and litigation expenses directed the Court below to order for conducting the DNA test of the male child which is in custody of the petitioner with the further rider that if the test goes against, the petitioner therein, should not be entitled to get any maintenance pendente lite for herself, but would get maintenance for the girl child which was fixed at Rs. 1,000/- per month. In that context, it was contended before the Apex Court that in the matter of grant of maintenance, there is no impediment for the Court to impose a condition of the nature and no exception could be taken to the course adopted by the High Court. Their fordships in Paragraph 8 held as under:

8. Section 24 of the Hindu Marriage Act, 1955 empowers the Court in any proceeding under the Act, if it appears to the Court that either the wile or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of any one of them order the of her party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the petitioner and the respondent. Once the High Court, in this case, has come to the conclusion that the appellant wife herein has to be provided with the litigation expenses and monthly maintenance, it is beyond comprehension as to how, de horn the criterian laid down in the statutory provision itself, the Court could have thought of imposing an extraneous condition, with a default clause which is likely to defeat the very claim which has been sustained by the Court itself. Considerations as to the ultimate outcome of the main proceeding after regular trial would be wholly alien to assess the need or necessity for awarding interim maintenance, as long as the marriage, the dissolution of which has been sought, cannot be disputed, and the marital relationship of husband and wife subsisted. As noticed earlier, the relevant statutory consideration being only that either of the parties, who was the petitioner in the application under Section 24 of the Act, has no independent income sufficient for her or his support for the grant of interim maintenance, the same has to be granted and the discretion thereafter left with the Court. In our view, is only with reference to reasonableness of the amount that could be awarded and not to impose any condition, which has self-defeating consequence. Therefore, we are unable to approve of the course adopted by the learned Single Judge, in this case.

From the aforesaid pronouncement, it is evincible that their Lordships while scanning the basic requirement of Section 24 of the Act have laid down that the relevant statutory consideration

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

being only that either of the parties who was the petitioner in the application under Section 24 of the Act has no independent income sufficient for her or his support for grant of interim maintenance, the same has to be granted and the discretion therefore left with the Court is only with reference to the reasonableness of the amount that would be awarded and not to impose any condition which has sell-defeating consequence. It is worth noting here that in Paragraph 9 of the said judgment their Lordships dealt with the condition imposed, i.e., conducting a DNA test and expressed no opinion on the legality and propriety of the Court undertaking consideration at the appropriate stage. Their Lordships only confined to the limited aspect to the stage of awarding interim maintenance. It may look that imposition of a condition while granting maintenance allowance can affect the provision thereof distinguishing but a pregnance one, which their Lordships have categorically and unequivocally expressed the opinion with regard to the requirement of statutory conditions. Their Lordships have used the words “the relevant statutory conditions being only” and in view of the aforesaid, I am disposed to think that no of her condition can be read into the provision to be added as a futuristic conditional one or a conviction. Their Lordships have restricted the discretion to quantum, not to entitlement if the conditions precedent are proved. The submission made by the learned Counsel for the respondent that the conduct is a relevant fact and has to be taken into consideration is de hors the provision, as Section 25 has been couched in a different language than Section 24. Scction’ 25 uses the phraseology”… conduct of the parties and of her circumstances of the case”. Such wordings are absent in the provision and in the absence of the same, it would be encroaching in the field of legislation to add the said concepts to it on the basis that the Court has a discretion, more so, when the Apex Court has expressed the view with regard to the limited discretion the Court has. In view of the constricted and restricted discretion on, the broader expanse that has been built up and the edifice that is sought to be pyramided by the learned Counsel for the respondent have no legs to stand upon and bound to collapse.

20. This Court in the case of Dr. Suresh Kumar Verma v. Smt. Hemalata Verma 2001(1) M.P.H.T. 384, after placing reliance on the decisions rendered in the cases of Dawaraka Prasad v. Krishna Devi 1986 JLJ 179, Yogini Tiwari (Smt.) v. Basant Kumar Tiwari 1996(1) MPWN 155, Smt. Dipli Ghosh v. Swapan Kumar Ghosh and Madan Lal v. Meena , expressed the view in Paragraph 6 as under:

6. After bestowing my anxious consideration to the submissions raised by Mr. J.L. Mishra, I am of the considered view that the language used in Section 24 of the Act has to be construed in a purposive manner so that, the purpose of the Legislature is achieved. It cannot be said that the Legislature while using the words any proceeding under this Act’ intended to confine it only to the substantive proceedings. The. purpose of the aforesaid provision is to provide financial assistance to the indigent spouses during their indigency. There is nothing under Section 24 of the Act to suggest that there is prohibition against matrimonial Courts from granting maintenance allowance when the main petition is not pending. If such an interpretation is allowed it will only affect the interest of the spouse who is not in a position to maintain himself or herself. A narrower interpretation would frustrate the purpose of the provision.

21. Be it noted, in the aforesaid case, the cavil was that after the husband obtained an ex parts decree, non-applicant-wife filed an application under Order 9 Rule 13 of the Code for setting aside the ex parte decree for divorce along with the application under Section 5 of the Limitation Act. While the proceeding was pending, an application under Section 24 of the Act was filed

SIDHARTH VS SMT. KANTA BAI

for grant of maintenance allowance and litigation expenses, the same was entertained by the learned Trial Judge and this Court refused to decline to interfere in the civil revision.

22. Mr. Aradhe has invited our attention to the decision in Bhuvaneshwar Prasad Shanna v. Dropta Bai 1963 MPLJ 346, wherein the learned Chief Justice expressed the opinion that the object of Section 24 is clearly to enable the indigent spouse, who has no independent income sufficient for her or his support and for meeting the necessary expenses of the proceeding, to conduct her or his defence in the proceeding. The basis of an order under Section 24 is that the spouse applying under Section 24 is without means. Thus, the emphasis was laid on the enabling facet of provision.

23. Mr. Aradhe has also submitted that certain High Courts have held the provision not to be mandatory. It is worth noting them. In the case of Leelawati v. Ram Sewak , it has been held as under:

The provisions of Section 23(ii) are not absolute. While imposing a duty on the Court to make every endeavour to bring about reconciliation between the parties, a discretion is left to the Court. The duty of the Court is qualified and conditional by the phrase “in every case…with the nature and circumstances of the case”. A decree for restitution of conjugal rights is a command issued by the Court which imposes an obligation on the respondent spouse to the case in which the decree is passed, to go and live with the of her spouse and perform marital obligation and when a party bound by such a decree chooses not to perform his or her part of the obligation, it gives either party a right to apply for dissolution of marriage. In a situation like this it would be a rare case where any reconciliation between the parties can be brought about by the Court where a petition for divorce is pending.

24. In the case of Raj Rani v. Harbans Singh Chhabra , a Division Bench has expressed the view that even when no attempt has been made to bring about a reconciliation between the parties under Section 23(2) of the Act, a decree of judicial separation passed by the Court below would not become invalid inasmuch as endeavour can be made by the Appellate Court. Be it noted, Their Lordships accepted the view expressed in the case of Jivubai v. Ningappa Adriashappa Yadwad AIR 1963 Mysore 3.

25. Submission of Mr. Asati is that the wife can procrastinate the proceeding after obtaining interim maintenance and litigation expenses. Mr. Aradhe, learned friend of the Court would submit that such a facet cannot be taken aid of to interpret the statutory provision. The purpose of Section 24 as has been held by many Courts submits Mr. Aradhe, is to enable either of the spouses to put forth a defence. In the case of Dharmendra Kumar (supra), the Division Bench after referring to the various provisions in Paragraphs 7 to 9 expressed the view as under:

7. The scheme and the provisions of the Act would indicate that the dominant legislation purpose underlying the Act is to bring about certain desirable reforms in the Hindu Law relating to marriage. The provisions reflect the concern of the legislature to promote and preserve the institution of marriage and at the same time liberalise the scope for securing matrimonial reliefs. The legislature while providing for matrimonial reliefs, has taken care to ensure that the marital tie is not impulsive or indiscriminately severed. The Matrimonial Court has been invested with manifold powers, duties and functions which are necessary to effectuate the legislative purpose. The legislature has also shown concern to ensure that the forensic fight should be between equals since any fight between unequals is likely to lead to a distorted or unfair verdict. This is sought to be achieved by Section 24 providing for maintenance pendente lite and expenses of litigation.

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

8. The order which the Court passes under Section 24 is not an order granting relief in the matrimonial cause. It is an order incidental to the matrimonial cause. The order for permanent alimony and maintenance under Section 25, order for custody under Section 26, and for disposal under Section 27 are also not substantive orders in the matrimonial cause; they are incidental orders in the cause.

9. The right of a party which is effectuated by the Court under Section 24 cannot, except for serious and cogent reasons, be allowed to be frustrated. A proceeding under Section 24 is of a summary nature and the scope of the enquiry is limited. The end sought to be achieved is the removal of the disability of the party without sufficient income. The purpose of Section 24 will be frustrated by any unreasonable postponement of the decision party dragging on the reconciliation attempt. If the spouses are unequal in the economic sense, the inequality may itself stand in the way of reconciliation. Reconciliation shall also be based on mutuality, mutual respect and dignity. The party who has no adequate means may feel compelled to agree to a reconciliation which may not be based on mutual respect and dignity. The legislative purpose is not to compel the spouses to come together at any cost. Even to achieve such reconciliation, certain degree of balance between the parties at least in the economic sense is necessary.

26. Thus, the view expressed by the Division Bench deals with the basic facet of Section 24. Be it placed on record, the Division Bench has concurred with the view expressed by the Mysore, Allahabad and Madras High Courts.

27. Dwelling upon various aspects, we proceed to slate our conclusions as follows:

(i) Section 24 of the Act fundamentally deals with an ancillary or incidentally relief and is an enabling provision to empower cither of the spouses to put forth the defenses in the main proceeding.

(ii) Section 23(2) and Section 24 co-exist in harmony and in fact if the context and subject matter are appreciated in proper perspective, there is no anomaly in between the two provisions. (iii) Section 23(2) is not mandatory and does not operate in absolute terms. (iv) Any order passed without compliance under Section 23(2) as has been held in the case of Dharmendra Kumar (supra) would be an irregular and not in illegality.

(v) An order under Section 24 can always to be passed without taking steps for bringing out reconciliation under Section 23(2) of the Act for the timing to make efforts for reconciliation is in the discretion of the Court.

(vi) Grant of pendente lite maintenance under Section 24 of the Act is not to be construed in a narrow compass as the Court has jurisdiction to pass the order arises at the stage of institution of proceedings and continues till the proceeding is concluded.

(vii) The maintenance and the entitlement under Section 24 of the Act can be made available even in a proceeding pertaining to setting aside of an ex parte decree and restoration of the main suit.

(viii) The judgment delivered in the case of Kesav Rao (supra) does not lay down the correct law and any judgment following the said decision should be deemed not to have lay down the law correctly.

(ix) ‘Any relief ’ that has been used in Section 23(2) would not cover an incidental and ancillary relief during the proceeding as that has to be construed in broader canvass and would

SIDHARTH VS SMT. KANTA BAI

include only substantive relief and further if there is non compliance of the same, it would amount to an irregularity and not an illegality and such irregularity is rectifiable at the appellate stage and would not render the judgment or an order a nullity.

(x) As we have concurred with the view rendered in the case of Dharmendra Kumar (supra), there is no need to refer the matter to a Larger Bench.

27. Before we part with the case, we must record our unreserved appreciation for the assistance rendered by Mr. Alok Aradhe, learned amicus curiae.

28. Let the matter be placed before the learned Single Judge for disposal of the writ petition in accordance with law.

❑❑❑

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

PATEL DHARAMSHI PREMJI VS BAI SAKAR KANJI

Gujarat High Court

AIR 1968 Guj 150

Date of Judgment : 13th April, 1967

Equivalent citations: AIR 1968 Guj 150, (1967) GLR 888

Patel Dharamshi Premji

Bai Sakar Kanji

Bench: Hon’ble Mr. Justice P Bhagwati, Hon’ble Mr. Justice A Nakshi

Sec. 25 of the Hindu Marriage Act 1955 – The question is whether a husband or wife can apply to the Court for permanent alimony under sec. 25 after the passing of a decree for divorce. — in fixing the amount of permanent alimony the lower appellate Court was not entitled to take into consideration the amount of maintenance which would be necessary for the purpose of meeting the needs and requirements of the son and in doing so the lower appellate Court clearly took into account an extraneous or irrelevant factor. This is not to say that the respondent would not be entitled to claim maintenance for the minor son from the appellant but the needs and requirements of the son could not be taken into account in determining what should be the amount of permanent alimony to be awarded to the respondent.

JUDGMENT

Bhagwati, J.

(1) This appeal raises a short but interesting question of construction of Section 25 of the Hindu Marriage Act, 1955. The question is whether a husband or wife can apply to the Court for permanent alimony under Section 25 after the passing of a decree for divorce. There is a decision of Raju J in Gunvantray v. Bai Prabha, AIR 1963 Guj 242 where the view has been taken that such an application cannot be made as the decree for divorce puts an end to the relationship of husband and wife and thereafter an application made to the Court cannot be said to be an application by the husband or the wife as required by Section 25. The validity of this view is questioned in the present Second Appeal. The question raised is a pure question of law depending on the construction of Section 25, but it is necessary to state briefly a few facts giving rise to the appeals as they are relevant to the alternative contention urged on behalf of the appellant.

(2) The appellant and the respondent were married according to Hindu writs and one son was born of this marriage. The appellant and the respondent, however, soon fell out and the respondent left the appellant and went away to her father’s house. The appellant thereupon filed a petition against the respondent under Section 9 for restitution of conjugal rights. The respondents resisted the petition on the ground that she was treated with cruelty when she was living with the appellant and she was, therefore, entitled to stay away from the appellant. The respondent, failed to establish cruelty by cogent evidence and a decree for restitution of conjugal rights was, therefore, passed against her by the Court on 28th February 1958. The respondent did not comply with the

PATEL DHARAMSHI PREMJI VS BAI SAKAR KANJI

decree for a period of two years and the result was a petition for divorce by the appellant against the respondent. There was little defence to this petition and a decree for divorce was ultimately passed in the petition on 23rd February 1961 dissolving the marriage between the appellant and the respondent. The respondent thereafter preferred Civil Miscellaneous Application No. 26 of 1961 under Section 25 claiming permanent alimony at the rate of Rs. 75 per month from the appellant. The application was opposed by the appellant and one of the grounds of opposition was that the application was not tenable as the respondent was the erring spouse and it was by reason of the refusal of the respondent to carry out the decree for restitution of conjugal rights that a decree for divorce had to be obtained against her. The trial Court in view of the express language of Section 25 rejected this ground and after considering all the facts and circumstances of the case awarded a sum of Rs. 20 per month as and by way of permanent alimony to the respondent. There were two appeals against this order, one by the appellant and the other by the respondent. The lower appellate Court dismissed the appeal, of the appellant and allowed the appeal of the respondent in part by increasing the amount of permanent alimony to Rs. 28 per month. The appellant thereupon preferred the present Second Appeal in this Court.

(3) Before we proceed to examined the merits of the appeal, it will be convenient to first dispose of the cross-objections filed on behalf of the respondent against the order of the lower appellate Court. The respondent claims by the cross-objections that a larger amount should have been allowed to her by way of permanent alimony. But, it is now well settled by a decision of this Court in Umiyaben v. Ambalal, (1965) 6 Guj LR 714 : (AIR 1966 Guj 139) that the right of second appeal conferred by Section 28 is limited to the grounds set out in section 100 of the Code of Civil Procedure and can, therefore, be exercised only on questions of law and not on questions of fact. What should be the quantum of the amount of permanent alimony on a consideration of the factors set out in Section 25 is essentially a question of fact and no Second Appeal can lie to challenge the determination of the amount of permanent alimony made by the lower appellate Court unless the complaint be that the lower appellate Court has failed to take into account any factors set out in Section 25 or taken into account any extraneous or irrelevant factors. The cross-objections do not allege any such defect in the determination of the lower appellate Court and they must, therefore, be rejected as incompetent.

(4) Turning to the appeal there were two contentions urged by Mr. Vakharia on behalf of the appellant in support of the appeal. Of the two contentions the first was a more serious one, supported as it was by the decision of Raju J. In AIR 1963 Guj 242 (supra). The contention was that the application for permanent alimony made by the respondent was not maintainable underSection 25 as it was made after the passing of the decree for divorce so that at the date of the application the respondent was not the wife. The contention proceeded on the assumption that the Court can make an order for permanent alimony under Section 25 only on the application of a person who is a husband and wife at the date of the application and since the relationship of husband and wife is severed by a decree for divorce, no application for permanent alimony can be made under Section 25 after passing of a decree for divorce. This assumption is wholly unwarranted it is based on a misconstruction of Section 25. Section 25 as its marginal note indicates alimony and maintenance by one spouse to the other and it says:

“25. (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, while the applicant remains

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

unmarried, 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 and the conduct of the parties, 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 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 remarried or, if such party is the wife, that she has not remained chaste or, if such party is the husband, that he had sexual intercourse with any woman outside wedlock, it shall rescind the order”

The order contemplated by the Section can be made by any Court exercising jurisdiction under the Act either “at the time of passing any decree or at any time subsequent thereto.” It is now settled by the decision of this Court in Harilal v. Lilavati, AIR 1961 Guj 202 that the words “ any decree” are sufficiently wide to include any decree passed by the Court under any of the earlier provisions of the Act and that every comprehend “any decree for restitution of conjugal rights, judicial separation, dissolution marriage by divorce or annulment of marriage on the ground that it was void or voidable.” In the course of the arguments in this case an attempt was made to limit the applicability of Section 25 to cases where a decree for divorce or annulment of marriage is passed by the Court by relying on the words “while the applicant remains unmarried”, but the Division Bench held that these words did not have the effect of limiting the applicability of Section. The Section, according to the Division Bench, applied in all cases whenever a decree was passed under any of the earlier provisions of the Act, the operation of the words “while the applicant remains unmarried” being confined only in those cases where a party was in a position to contract a marriage by reason of the marriage bond being dissolved or declared null and void by the Court. The words “any decree” therefore, clearly and indubitably apply to a decree for divorce passed by the Court in the exercise of jurisdiction under the Act. Now as the exercising jurisdiction under the Act can make an order under Section 25 at the time of passing any decree or at any time subsequent thereto and, therefore, it would seem that the Court exercising jurisdiction in relation to a petition for divorce can make an order under the Section either at the time of passing the decree for divorce or at anytime subsequent to the passing of the decree for divorce. The plain indisputable effect of the words “at the time of passing any decree or at any time subsequent thereto” is that even after the passing of the decree or divorce, the Court can make an order under Section 25. But, contended Mr. Vakharia, this effect is to obliterated by the following words, namely, “on application made to it for the purpose by either the wife or the husband.” These words, according to Mr. Vakharia, impose a limitation o the power of the Court to make an order for permanent alimony by providing that such an order can be made only on an application made by the husband or the wife. The application by the husband or the wife, said Mr. Vakharia, is a condition precedent to the exercise of the jurisdiction of the Court to make an order for permanent alimony and the party making the application must, therefore, be the husband or the wife at the date of the application in former to invest the Court with jurisdiction to make the order. Where an application is made after the passing of a decree divorce, the party making the application, contended Mr. Vakharia, would no longer be a husband or wife and, therefore, no application for permanent alimony can be maintained under Section 25 after the

PATEL DHARAMSHI PREMJI VS BAI SAKAR KANJI

passing of decree for divorce. This contention derives support from the decision of Raju J. In AIR 1963 Guj 242 (supra), but we do not think this contention is well-founded. It rests on too literal an emphasis on the words “wife” and “husband” and ignores the context in which these words are used and the object and purpose of the enactment of the section. If the Section is read as a whole keeping in mind the reason for the enactment of the provision and the object and purpose intended to be effectuated, the conclusion in our view, is inescapable that an application for permanent alimony can be made even after the passing of a decree for divorce. The section does not required that the party making the application must be husband or wife at the date of the application. The words “wife” and “husband” are used to denote the parties in the main proceeding in which the decree is passed by the Court. Our reasons for saying so are as follows.

(5) Though Section 25 does not use the expression “permanent alimony” in any part of the enactment, the marginal note to the section clearly shows that the Section is intended to deal with permanent alimony. The concept of “permanent alimony” is not an indigenous concept grown on our soil as we did not have any law of divorce amongst Hindu in this country. But when the Act was enacted providing inter alia for divorce amongst Hindus, the concept of “permanent alimony” was borrowed by the draftsmen of the Act from England. The history of the development of the law relating to permanent alimony in England so far as it is necessary for the purpose of deciding the present question may be found in the following passage in the book of Sir Dinshah Mulla on Hindu Law. Thirteenth Edition at page 735:

“Permanent alimony is the expression used under English law in the context of provision ordered to be made by the Court for a wife on her petition for judicial separation being granted. Behind the relevant statutory enactments in England is a historic development of law. Before the first divorce Act in England a wife could only obtain from the Ecclesiastical Court divorce a monsa at thiro (judicial separation) and the allowance allotted to her was named permanent alimony which was as a general rule one-third of the husband’s Income. The operation of the rule was extended and the same principle was applied in cases decided under the successive Divorce acts in England when relief by way of dissolution of marriage by divorce was granted to the wife. At one stage the view was taken that the wife who claimed maintenance after a decree of divorce in her favour would have pecuniary interest in seeking such relief and that would not accord with the policy of law. That view was discountenanced and it was ruled that the principles on which the Ecclesiastical Courts awarded permanent alimony in case of judicial separation should be applicable to cases where relief by way of divorce or nullity of marriage was granted although in cases under the latter category she ceased to be the wife or was declared not to have been the wife of the other party and relinquished her character as wife and the name of the husband.”

In England a wife is entitled to a permanent alimony from the husband where a decree is passed granting relief by way of judicial separation, divorce or nullity of marriage. Such a decree may be passed in favour of the husband or the wife. That is not material to the question of permanent alimony, whether the decree be passed in favour of the husband or the wife the wife can ask for permanent alimony from the husband. The reason for awarding permanent alimony to the wife seems to be that if the marriage bond which was at one time regarded as indissoluble is to be allowed to be sere in the larger interests of society, the same considerations of public interest and social welfare also required that the wife should not be thrown on the street but should be provided for in order that she may not be compelled to adopt a disreputable way of life. The provision for permanent alimony is, therefore, really incidental to the granting of a decree

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

or judicial separation, divorce or annulment of marriage and that also appears to be clearly the position if we look at the language of Section 25. Section 25 contemplates the making of a provision for permanent alimony at the time of passing the decree or at anytime subsequent thereto and it is, therefore, evident that the provision for permanent alimony is something which follows upon the decree granting substantive relief and is incidental to it. It was also so observed by a S. T. Desai C J., as he then was and my brother Bakshi J. In a decision given on 28th November 1960 in First Appeal No. 178 of 1960 (Guj) where it was said:

“We are of the opinion that the rule laid down in Section 25 relates only to ancillary relief which is incidental to substantive relief that ma be granted by the Court, though of course the incidental relief may be given to either party”.

The last words of these observations point out what is peculiar feature introduced in the law of divorce by Section 25. In England, as pointed out above, the right to claim permanent alimony is conferred only on the wife but under Section 25 either spouse is entitled to claim permanent alimony from the other. But that apart, what is significant to note is that the relief of permanent alimony is a relief incidental to the granting of the substantive relief by the Court in the main proceeding. It is an incidental relief claimed in the main proceeding, though an application is necessary for claiming it. The application is an application, in the main proceeding for claiming an incidental relief consequent upon the granting of the substantive relief by the Court. This is abundantly clear on principle but there is also authority in support of it. Dealing with a case under S. 37 of the Divorce Act which contains a provision for making of an order for permanent alimony, Sir John Beaumont observed in J. G. Khambatta v. M.C. Khambatta, AIR 1941 Bombay 17;

“Under Section 37, Divorce Act, the Court can make an order for permanent alimony on making the decree absolute, although usually the order is made after the date. But if the circumstances justify it, the Court can make the order at once on making the decree absolute, and it is quite wrong to suppose that a petition presented afterwards is not a petition in the suit.”

If the question of construction of Section 25 is approached in the context of this background, much of the difficulty which appears to beset the path of construction would disappear. Where the Court is exercising jurisdiction under the Act in relation to a proceeding before it one party would be the husband and the other party would be the wife and either the husband or wife would be claiming substantive relief against the other spouse. When, therefore, the Legislature provided in Section 25 for the making of an application for the incidental relief of permanent alimony, the Legislature spoke of such application as an application to be made by the wife or the husband. The words “wife” and “husband” were used by the Legislature for he purpose of describing the parties in the main proceeding. It was by reference to the position occupied by the parties in the main proceeding that the Legislature described them as “wife” and “husband”. The nomenclature which described them in the main proceeding was used by the Legislature when providing for making an application for interim relief in the main proceeding. It is not possible to believe that the Legislature could have ever intended that the relationship of husband and wife should be subsisting between the parties at the date when the application for permanent alimony is made. That would be putting a too narrow and constricted interpretation on the words used by the Legislature. The legislative intent is sufficiently clear from the language used in Section 25sub-section (1) but even if there were any doubt about it, it is completely laid at rest by the language of the provision enacted in Section 25 sub-section (3). That sub-section lays down the

PATEL DHARAMSHI PREMJI VS BAI SAKAR KANJI

circumstances in which an order for permanent alimony already made can be rescinded and says that if the Court is satisfied that the party in whose favour an order has been made under Section 25 has remarried 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 shall rescind the order. The words “if such party is the wife” and similarly the words “if such party is the husband” when amplified would read ‘if the party in whose favour the order is made is the husband.” These words, in the context of the statutory provision enacted in sub-section clearly show that the words ‘wife” and “husband” are used as descriptive of the parties in the main proceeding and they are not intended to convey that the party in whose favour the order is made must be the wife or the husband at the date when the condition for rescission of the order is fulfilled for at any rate when the order is made. Such a construction would be absurd and the entire Section would be rendered meaningless on such a construction. There is, therefore, no doubt in our minds that when Section 25 sub-section (1) talks of an application by the wife or the husband, it does not mean that the party making the application must be the wife or the husband at the date of the making of the application. All that the sub-section requires is that an application must be made by the wife or the husband who is a party to the main proceeding if she or he wants the incidental relief of permanent alimony and such an application may be made in the main proceeding either before or at the time of passing the decree granting substantive relief or at any time subsequent to the passing of such decree.

(6) It is said that the consequences of a suggested construction do not alter the meaning of the statute but they certainly held to fix its meaning and let us, therefore, contemplate the consequences of the construction suggested on behalf of the appellant. If that construction were correct, the result would be that the Court would have power to grant permanent alimony if the husband or the wife makes an application a few minutes prior to the passing of the decree of divorce or annulment of marriage and such an order would grant permanent alimony to the husband or the wife which would continue right from the date of the decree upto the date the husband or the wife dies or remarries but if the husband or the wife makes an application a few minutes after the passing of the decree, the Court would have no power to make an order for permanent alimony. It is difficult to imagine as to why Legislature should have considered it a matter of such importance that an application for permanent alimony should be made prior to the passing of the decree for divorce or annulment of the marriage so that an application should not be maintainable after the passing of the decree. The relief of permanent alimony being an incidental relief, it should not be a matter of any consequence whether the application for it is made prior to the passing of the decree or subsequent to it. As a matter of fact the relief of permanent alimony being a relief incidental to the granting of substantive relief, it would be more consonant with reason that in application or such incidental relief should be maintainable after the passing of a decree granting the substantive relief. In England it has always been the law that an application for permanent alimony can be made after the passing of a decree for divorce or annulment of marriage. Section 19 of the Matrimonial Causes Act, 1950, contains an express provision saying that an order granting permanent alimony may be made by the Court “on pronouncing a decree nisi for divorce or nullity of marriage or at any time thereafter, whether before or after the decree has been made absolute.” These words which we have quoted here were not in the corresponding Section 190 (1) of the Judicature (Consolidation ) Act, 1925, which was the previous law on the subject but even so the Courts had consistently taken the view that an application for permanent alimony can be made by a party subsequent to the passing of the

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

decree for divorce or annulment of the marriage and on such application the Court can make an order granting permanent alimony. When the Legislature imported the concept of permanent alimony from England and actually extended the scope and ambit of the provision relating to permanent alimony be providing, unlike England, that even a husband should be eligible for receiving, permanent alimony, it would be extremely difficult for us to believe that the Legislature intended to take away the right to apply for permanent alimony after the passing of the decree for divorce or annulment of marriage which the wife possessed under the English law. As a matter of fact when we turn to Section 37 of the Special Marriage Act, 1954, we find that even that Section contemplates making of an application by the husband or the wife after the passing of the decree for divorce or annulment of marriage. There is therefore, no reason why we should place a narrow and limited construction on the words used in Section 25 by emphasising unduly and without reference to the context the words “husband” and “wife” used in the Section. We are, therefore, of the view that the application by the respondent for permanent alimony under Section 25 was maintainable notwithstanding the fact that it was made after the passing of the decree for divorce.

(7) That takes us to me next contention urged by Mr. Vakharia on behalf of the appellant. That contention is directed against the merits of the order pased by the lower appellate Court fixing the amount of permanent alimony at Rs. 28 per month. There were two limbs of the contention: one was that the lower appellate Court ought not to have awarded any permanent alimony to the respondent since the respondent was the erring spouse and it was by reason of the refusal of the respondent to comply with the decree for restitution of conjugal rights that the appellant was constrained to obtain a decree for divorce against her and the second was that in even the lower appellate Court was in error in increasing the amount of permanent alimony from Rs. 20/- per month to Rs. 28 per month by taking into account the needs and requirements of the son. The first limb of the contention is clearly unsustainable since it is now well-settled that even an erring spouse can be awarded permanent alimony when a decree for judicial separation or divorce is passed against her. There is no rule which says that there a decree for judicial separation or divorce is passed against a wife on the ground that she is guilty of a matrimonial offence. She should not be entitled to receive any permanent alimony from the husband. In England in Sydenham v. Sydenham and Illingworth, (1949) 2 All ER 196, speaking of the English statute, Denning, L. J. said sufficiently clearly so as to leave no scope for doubt:–

“There is nothing in the statute to say that a wife against whom a decree has been made cannot be awarded maintenance, and there is nothing it about discretion being exercised in favour of one side for the other or about a compassionate allowance. All it says it that on a decree of divorce the Court may award maintenance to the wife. This includes a guilty wife as well as an innocent one, but in awarding maintenance the Court must have regard of course, to the conduct of the parties. . . . . . . … ‘ These observation of Denning, L. J. Were quoted with approval by Hidson, L. J. In Clear v. Clear, (1958) 2 All ER 353, and after quoting them, the learned Lord Justice said:-

“As it stands now, the record of the court shows that the wife has committed adultery. It shows that the she has by that action at any rate forfeited her common Law right to be maintained, becuase her adultery was not condoned or connived at, and that she could not get any maintenance in a court of summary jurisdiction. It is only by virtue of divorce legislation that she is enabled to get maintenance at all, and in such cases the court will consider whether she ought to have maintenance.”

PATEL DHARAMSHI PREMJI VS BAI SAKAR KANJI

What has been said in these passages in regard to the English statute applies with equal force of our Act. On a parity of reasoning we hold that under Section 25 permanent alimony can be granted even to an erring spouse and the mere fact that the respondent did not comply with the decree for restitution of conjugal rights and that was the cause for passing of a decree against her cannot by itself disentitle her to claim permanent alimony under the Section. The fact that the she was the guilty spouse, guilty in the sense that she did not comply with the decree for restitution of conjugal rights would certainly be a relevant factor to be taken into account in assessing the conduct of the parties but that, we find from the judgment of the lower appellate Court, has been taken into account in determining the amount of permanent alimony. The lower appellate Court, however, seems to have committed an error in taking into account the needs and requirements of the son in determining the amount of permanent alimony to be awarded to the respondent. We do not think that in fixing the amount of permanent alimony the lower appellate Court was entitled to take into consideration the amount of maintenance which would be necessary for the purpose of meeting the needs and requirements of the son and in doing so, the lower appellate Court clearly took into account an extraneous or irrelevant factor. This is not to say that the respondent would not be entitled to claim maintenance for the minor son from the appellant but the needs and requirements of the son could not be taken into account of permanent alimony to be awarded to the respondent. The order of the lower appellate Court increasing the amount of permanent alimony from Rs. 20 to Rs. 28 per month was, therefore, vitiated by an error of law. The order of the lower appellate Court would consequently have to be set aside and the order of the trial Court restored.

(8) We, therefore, allow the appeal in part and modify the order of the lower appellate Court by directing that permanent alimony be awarded to the respondent at the rate of Rupees 20 per month instead of Rs. 28 per month. The appellant will pay the costs of the appeal to the respondent. The Cross-objections will be dismissed. There will be no order as to costs of the cross-objections.

(9) Appeal partly allowed; cross-objection dismissed.

❑❑❑

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

SANJAY KUMAR VS BHATERI

Punjab-Haryana High Court

2013 Supreme (P & H) 339

Date of Judgment : 3rd April, 2013

FAO No. M- 187 of 2012

Sanjay Kumar —Appellant

versus

Bhateri —Respondent

Bench: Hon’ble Mr. Justice Rajive Bhalla, Hon’ble Mrs. Justice Rekha Mittal

Hindu Marriage Act, 1955, Ss.24 & 9—Maintenance—Decree of Restitution of conjugal rights— Mere grant of a decree for restitution of conjugal rights in favour of a husband and disobedience by wife cannot create a legal bar to claim maintenance by a destitute wife who has no income to maintain herself.

Disobedience of a decree for restitution of conjugal rights is not a ground in terms of Section 24 of the HMA to deny a claim for maintenance to a party who otherwise satisfy the ingredients of the said provision.

Present: Mr. A.S.Syan, Advocate for the appellant

Mr. Ashish Yadav, Advocate, for the respondent.

JUDGMENT

REKHA MITTAL, J.

The present appeal lays challenge to the judgment and decree dated 11.2.2012 passed by the Additional District Judge, Narnaul, whereby the petition filed by respondent-wife, Bhateri for dissolution of marriage of the parties under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the HMA”) has been allowed and the marriage of the parties is dissolved by a decree of divorce.

The facts relevant for disposal of the present appeal are that the parties entered into wedlock on 1.5.2001. As per averments of the petitioner-wife (respondent herein), she stayed in her matrimonial home for two days after marriage but the marriage was not consummated. She was maltreated by her husband and he never shared bed with her. She came back to her parental house and narrated her story. She was sent back to the matrimonial home after persuasion that the things may improve. During her stay in the matrimonial house, the respondent (appellant herein) never treated her as a wife. The appellant had not been coming to the house for many nights and if he came back to the house at night time, he came in a drunken condition and abused her. All efforts made by the respondent to make him understand, proved futile as he proclaimed that he had many girls in his life and in case the respondent wanted, she would be sent to his friends for sexual relationship. The respondent, on enquiry learnt that the appellant is a man of loose character and indulges in bad habits of drinking alcohol, consuming intoxicants and roams around here and there. She was given beatings by the appellant after consuming alcohol. She stayed in the matrimonial home for more than four years but the appellant did not mend

SANJAY KUMAR VS BHATERI

his ways or cohabit with the respondent. She was turned out of the matrimonial home in June 2005 and since then she is living at her parental place.

The appellant filed reply, controverting the allegations of the petition and in turn, raised the plea that the respondent was given proper treatment during her stay with him. She told the appellant that she did not want to stay in the village and they should shift to a city. As he was unemployed and did not have any experience of city life, he could not accede to the illegal demand of the respondent. The respondent left the matrimonial home without any valid reason and took away jewellry and other articles of her Istridhan. She refused to come back to the matrimonial home despite his best efforts. He filed a petition under Section 9 of the HMA for restitution of conjugal rights which was decided in his favour without any contest by the respondent-wife but she did not return. All other material averments of the petition have been denied with a prayer for dismissal of the petition with costs.

The controversy between the parties led to framing of following issues by the learned trial Court:-

1. Whether the petitioner is entitled to get dissolved her marriage by way of a decree of divorce under Section 13 (1) A of Hindu Marriage Act on the grounds as mentioned in the petition? OPP.

2. Whether the petition is not maintainable? OPR

3. Whether the petitioner has no cause of action and locus standi to file and maintain the present petition? OPR

4. Relief The petitioner herself appeared in the witness box and examined Ramchander PW-2 and Raghubir Singh Lambardar PW-3.

The appellant-husband did not lead any evidence as his defence was struck off for want of payment of interim maintenance allowed to the respondent-wife under Section 24 of the HMA.

Counsel for the appellant submits that the respondent-wife has raised vague and general allegations which do not constitute cruelty of the kind and severity as to become basis for grant of divorce. It is further argued that the appellant wanted to live with the respondent but she left the matrimonial home as she could not adjust there being well educated and found it difficult to stay in a village. It is further argued that the appellant filed a petition for restitution of conjugal rights which was allowed by the Court but even thereafter the respondent did not resume conjugal rights. The respondent herself is a guilty spouse for depriving the appellant of his conjugal rights, therefore, the respondent cannot be allowed to take advantage of her own wrong. The last submission made by counsel is that as the respondent did not resume cohabitation after the decree of conjugal rights, she is not entitled to get any maintenance during her stay away from the matrimonial home and the order passed by the trial Court granting maintenance allowance and striking off defence for failure to pay maintenance, are illegal and liable to be set aside and the matter needs adjudication afresh after providing an opportunity to the appellant, to lead evidence.

Counsel for the respondent submits that the appellant has not challenged the version of the respondent wife, reiterated in her affidavit filed by way of examination-in-chief, which amounts to an admission by the appellant. It is further argued that the appellant husband is guilty of causing mental cruelty to the respondent-wife who, failed to consummate the marriage and to permit the respondent-wife to enjoy conjugal rights. It is further argued that the learned trial Court, on a correct and detailed appreciation of the pleadings and evidence adduced has rightly held in favour of the respondent thus, the judgment and decree passed by the trial Court is liable to be affirmed.

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

We have heard counsel for the parties and perused the records of the trial Court.

Before we proceed to appreciate the merits of the case, it is necessary to recapitulate the legal position in respect of, what type of cruelty can form the basis for dissolution of marriage. Cruelty and the degree of cruelty necessary to constitute a matrimonial offence has not been defined under the HMA, may be for the reason that no comprehensive definition may cover all cases. However, there is no quarrel with the settled position of law that cruelty includes both physical and mental. Equally true is that unlike in the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is a matter of inference to be drawn from the cumulative effect of facts and circumstances of each case and not from an isolated instance. However, it can be said as a principle of law that cruelty contemplated is conduct of such type that the aggrieved spouse cannot reasonably be expected to live with the other spouse. Cruelty may consist of a single act or conduct of the guilty spouse or it may consist of a series of acts. The existence of cruelty depends not on the magnitude of acts or conduct but on consequence they produce on the other party. Theharm apprehended may be mental suffering for pain of mind may be more severe than bodily pain.

On an analysis of the pleadings, the respondent staked her claim for seeking divorce inter alia alleging, (i) the appellant-husband did not develop/maintain physical relationship and the marriage was not consummated, (ii) she was subject to maltreatment and beatings as and when the husband came back to the house at night in a drunken condition.

The respondent, in her statement on oath, asserted her plea set out in the petition by way of an affidavit tendered in chief examination. She was subject to cross examination by opposite counsel. However, during her cross examination, there is no challenge to her testimony to the effect that there was no sexual relationship between the parties and their marriage remained unconsummated during her stay in the matrimonial home for a period of about four years. The inability and failure of the appellant to assail her version in this regard is deemed to be an admission of the appellant.

A normal and healthy sexual relation is one of the basic ingredients of a happy and harmonious marriage. Willful or intentional denial of sexual relation by a spouse, in our considered opinion, amounts to mental cruelty, particularly when parties are young and newly married. As the appellant husband did not allow the respondent- wife to enjoy her conjugal rights and satisfy her biological need, the respondent-wife has suffered mental trauma which constitutes mental cruelty and can form the basis for divorce.

It has been proved on record that two sisters of the respondent, younger to her, namely Kiran and Saroj are married to real brothers of the appellant and they are leading a happy married life. It is difficult to believe that had the respondent been happy, there could be any reason for her to complain much less to seek divorce knowing fully well that her other sisters are enjoying their matrimony.

The appellant-husband neither could challenge the correctness of the averments brought forth by the respondent-wife nor lead any evidence in affirmative to controvert the allegations of the petition or testimony of the respondent. The defence of the appellant was struck off by the trial Court as he failed to pay maintenance allowance in compliance with an order passed under Section 24 of the HMA. There is no material on record which can create even a slightest doubt in the version set out by the respondent or to impeach her credibility and veracity. The duly sworn testimony of the respondent remains altogether unchallenged and unrebutted. Her statement finds corroboration from the witnesses examined by her and even their testimony, on material points, has not been challenged during cross examination. The learned trial Court has rightly relied upon the evidence adduced by the

SANJAY KUMAR VS BHATERI

respondent to record a finding that the appellant is a guilty spouse for subjecting his wife to mental cruelty which can validly constitute a ground for divorce.

To be fair, counsel for the appellant has made a faint attempt to argue that as the appellant-husband obtained a decree of restitution of conjugal rights and the respondent-wife did not resume cohabitation after the decree, she was not entitled to get any maintenance allowance, therefore, the order with regard to payment of maintenance is null and void and the order striking off defence of the appellant on account of his failure to pay maintenance allowance, is liable to be set aside and thereafter the case is liable to be remanded to the trial Court for adjudication afresh after providing an opportunity to lead evidence by the appellant.

The respondent during her examination has admitted that the appellant-husband filed a petition seeking restitution of conjugal rights and the same was allowed ex parte on 28.4.2011. A photo copy of order dated 28.4.2011 is mark “A”. There is neither any plea nor any evidence on record to prove that the appellant ever informed his wife of the ex parte decree much less called upon her to resume cohabitation. This apart, the appellant-husband, did not challenge the order, allowing the application of the respondent granting her maintenance pendente lite. As the husband did not challenge the order of maintenance allowed to his wife, he cannot be heard to say that either he was not liable to pay maintenance or his defence was wrongly struck off. The appellant-husband also did not challenge the order striking off his defence. Even otherwise, the mere grant of a decree for restitution of conjugal rights in favour of a husband cannot create a legal bar to claim maintenance by a destitute wife who has no income to maintain herself. We would hasten to add that disobedience of a decree for restitution of conjugal rights is not a ground in terms of Section 24 of the HMA to deny a claim for maintenance to a party who otherwise satisfy the ingredients of the said provision. Reference in this context can be made to a judgment of this Court in Shyama vs. Sanjay Chopra 2000(1) RCR (Civil) 126. In this view of the matter, the contention of counsel is untenable. We find no reason to interfere in the judgment and decree passed by the trial Court.

In view of what has been discussed hereinabove, finding no merit in this appeal, the same is accordingly dismissed. No order as to costs.

( REKHA MITTAL) JUDGE ( RAJIVE BHALLA) JUDGE

April 3rd, 2013 PARAMJIT

❑❑❑

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

VIJAY KUMAR VS STATE OF PUNJAB AND OTHERS

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 2013 Supreme (P & H) 303

LPA No.2149 of 2011 (O&M)

Decided on 22 March, 2013

Vijay Kumar …Appellant

Versus

State of Punjab and others …Respondents

Bench: Hon’ble Mr. Justice A.K.Sikri, Chief Justice & Hon’ble Mr. Justice Rakesh Kumar Jain

Hindu Marriage Act, 1955, S.24–Maintenance–Criminal Procedure Code, 1973, S.125.– Benevolent order passsed in the spirit for the welfere of wife and children cannot be quashed on the ground of absence of express rule. Employer of the husband, (Director General of Police) passed an order that 50% of the salary of the employee would be deducted and would be given to his destitute wife and two children–Contention that there are no rules to pass such an order, not relied on. Held; Having regard to spirit behind such provisions, there is hardly any ground to quash such a benevolent order–Husband has to take care only of his father where as wife has to take of herself and her two children–Order upheld.

Present: Mr. Manu K. Bhandari, Advocate, for the appellant.

Mr. P.S.Bajwa, Addl. A.G., Punjab.

Mr. Ramandeep Partap Singh, Advocate, for respondent No.5.

JUDGMENT

A.K.Sikri, C.J. (Oral) The destitute wife of the appellant herein, who is taking care of 2 minor school going children as well, made a request to the respondents authorities, where the appellant is employed, to direct the appellant to pay maintenance from the salary drawn by the appellant. The Director General of Police, Punjab, passed an order directing payment of 50% salary of the appellant directly to his wife and two minor school going children. The appellant challenged this order by filing writ petition which is disposed of by the learned Single Judge, with the following observations:-

“[3] The social security concept envisaged by the Legislature through Sections 24 of the Hindu Marriage Act, 1955 or 125 of the Code of Criminal Procedure, are LPA No.2149 of 2011 (O&M) [2] ***** not only for the sustenance of a victim-spouse but also to boost the morale of such victim with enough strength to fight the unequal legal battle waged by the dominating spouse. These provisions are like ‘life-saving drug(s)’ for providing urgent and timely assistance and the legislative intentment behind these provisions cannot be derailed by giving them effect as a ‘posthumous’ award on the victim. [4] It would be useful at this stage to reproduce a part of the complaint made by respondent No.5 (wife) against the petitioner which reads as follows:-

“….I again appeared before the SSP Bhullar Sahab on 26th and I told sir that he had asked PPS Varinder Pal Singh, who had further deputed the SHO Kharar to take action but the position has remained

VIJAY KUMAR VS STATE OF PUNJAB AND OTHERS

same. In the month of May, I again appeared before SSP Sahab. Sir, I and my children have not been given justice and we are penniless. I am taking ration from my neighbours in order to survive. Sir, I am an diabetic and on every day, two injections are given to me….”

(emphasis applied) [5] The petitioner has made selective disclosures and has not averred as to whether or not there exists an order of a Court of competent jurisdiction granting interim or final maintenance to his wife and children or did he ever pay even a penny to them? It appears that when the petitioner brought his wife and children virtually to the brink of starvation to compel her to come to terms like grant of divorce and the subordinate courts as well did not come to her rescue that the hapless wife and children knocked at the doors of the State Authorities. The real question to be determined in these proceedings is: was it not the duty of a welfare State and its authorities to resort to the remedial means to help the victims.

[6] Having regard to all the attending facts and LPA No.2149 of 2011 (O&M) [3] ***** circumstances, I am of the considered view that wherever an alleged victimizer ex-facie holds a dominating position and the justice delivery system fails to provide timely assistance, the State authorities are equally obligated in deference to their commitment contained in Chapter IV-A of the Constitution to provide adhoc or interim measures of sustenance to the victim(s) subject to the approval of such action by the Court of Competent jurisdiction. [7] The survival of the petitioner’s wife and minor children, therefore, could not have been put to stake on the hyper technical plea that they must get an ‘order of maintenance’ from the Court of law. The petitioner’s wife and their minor children are entitled to be maintained well even if allegations of ‘cruelty’ or ‘desertion’ are proved and a decree of divorce is passed in petitioner’s favour. The school going minor children need not await a judicial verdict in this regard. The impugned order dated 4.6.2010 being an interim measure to provide social security to the petitioner’s wife and their minor children, thus, calls for no interference and that too in exercise of discriminatory jurisdiction under Article 226 of the Constitution.

[8] There is no compulsion for a writ Court to set aside every illegal action unless it is found to be palpably violative of the Constitutional provisions. A writ Court can, in the light of the peculiar facts and circumstances of a case, can appropriately mould the relief. The impugned order though lacks procedural modalities yet has the back up of substantive law. It is also rescued by the expanded meaning given to Article 21 of the Constitution. It holds the pitch on equitable considerations as well. Why then a writ Court guided by equitable considerations set aside the same? The writ petition is accordingly dismissed. [9] Invoking the extra-ordinary jurisdiction, the Additional District Judge, SAS Nagar Mohali, before whom the divorce petition is pending, is directed to suo-moto LPA No.2149 of 2011 (O&M) [4] ***** and/or on an application by the petitioner’s wife to determine the interim alimony which shall not be less than the aid given to her under the impugned order. The learned Court, in that event, is further directed to adjust the amount deducted in terms of the order dated 4.6.2010 passed by the Director General of Police, Punjab towards interim maintenance determined under Section 24 of the Hindu Marriage Act, till the decision of the divorce petition. This, however, shall not preclude the learned Additional District Judge to enhance the interim maintenance if the petitioner’s wife and their minor children are entitled to so. Similarly, after the decision of the divorce petition, the order dated 4.6.2010 passed by the Director General of Police, Punjab, shall be treated as a part of the order passed by the Judicial Magistrate under Section 125 of the Code of Criminal Procedure or of the District judge under Section 25 of the Hindu Marriage Act, 1955. [10] Disposed of accordingly.”

The counsel for the appellant had argued before the learned Single Judge, which is the submission before us as well, that there are no Rules authorizing the Director General of Police to pass such an

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

order. This contention is brushed aside by the learned Single Judge observing that the social security concept envisaged by the Legislature through Sections 24 of the Hindu Marriage Act, 1955 or 125 of the Code of Criminal Procedure, are not only for the sustenance of a victim-spouse but also to boost the morale of such victim with enough strength to fight the unequal legal battle waged by the dominating spouse.

Having regard to the spirit behind the aforesaid provisions, once such an order is passed by the Director General of Police providing immediate sustenance to the destitute wife and the 2 minor children, the LPA No.2149 of 2011 (O&M) [5] ***** learned Single Judge rightly refused to interfere with the same. The remedy under Article 226 of the Constitution of India is discretionary in nature. There is hardly any ground to exercise that discretion in favour of the appellant and quash such a benevolent order which was passed by the Director General of Police in order to do substantial justice in the matter.

It is also a matter of record that the other member in the family of the appellant is his father who is residing with the appellant and is being maintained by him. As against two persons, namely, the appellant and his father, the maintenance sought by the wife is for herself and two minor children, i.e. for 3 persons. These two minor children are school going children as well and, therefore, wife has to incur expenditure on the education of these children as well. Taking into account the totality of circumstances, direction of making 50% payment of the salary to the appellant’s wife and two minor school going children is perfectly justified. On the basis of aforesaid admitted position appearing on record, this is a matter which hardly needs adjudication to find out the quantum of maintenance which is to be provided to the appellant’s wife and two minor school going children.

At this stage, learned counsel for the appellant also submits that the deduction of 50% payment, which is made from the appellant’s salary for payment of amount to the appellant’s wife and his two minor school going children, is 50% of the gross salary drawn by the appellant and not 50% of the net salary.

In order to find out the impact thereof, we had directed the official respondents to place on record the salary sheet of the appellant.

The official respondents has produced the same. As per the pay slip of the appellant for the month of January 2012, the total gross salary of the appellant is `34,375/-. Out of this, certain statutory deductions are made. The appellant is also contributing a sum of `2,000/- towards GPF which amount will ultimately go to the appellant. However, from the salary, income tax is also being deducted. That amount should be adjusted while calculating 50% of the amount payable to the appellant’s wife.

We, thus, direct the official respondents to deduct amount of income tax paid by the appellant from the total salary drawn and the figure which would arrive at after deducting the income tax, 50% thereof shall be paid to the appellant’s wife and his two minor school going children.

Subject to this clarification, this appeal is dismissed.

(A.K.Sikri) Chief Justice

(Rakesh Kumar Jain) Judge

March 22, 2013

❑❑❑

SMT. YAMUNABAI ANANTRAO ADHAV VS ANANTRAO SHIVRAM ADHAV AND OTHERS

SMT. YAMUNABAI ANANTRAO ADHAV VERSUS

ANANTRAO SHIVRAM ADHAV AND OTHERS

Bombay High Court

1983 CrLJ 259; 1982 MhLJ 871; 1982 Supreme (Mah) 136;

Equivalent citations: (1982) 84 BOMLR 298

Decided on 22 April, 1982

Bench: Hon’ble Mr. Justice B Gadgil, Hon’ble Mr. Justice D Rege,

Hon’ble Mr. Justice M Chandurkar

Criminal Procedure Code (2 of 1974), S. 125 and Hindu Marriage Act (22 of 1955), Ss. 5(1)(i) and 11 — Woman entering into a form of marriage with person who already has a wife living — Such woman by entering into a form of marriage which is void is not a wife contemplated by section 125 — Consequently maintenance cannot be claimed by her under section 125.

JUDGMENT

Rege, J.

1. This Criminal Revision Application has come up before this Full Bench on a Reference by the Division Bench (Dharmadhikari and Puranik, JJ.) since on the question involved in this application, it disagreed with the view taken by this Court in its decision by earlier Division Bench (Shah and Kanade, JJ.) in the case of Bajirao v. Tolanbai (1979 Mah LJ 693) : (1980 Cri LJ 473) and thought the same required reconsideration.

2. The question involved, shortly, 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 the said marriage, was entitled to claim maintenance under section 125 of Code of Criminal Procedure from such a person on the basis that she was his wife.

3. Few basic facts, not in dispute are :- The marriage of the petitioner – Yamunabai – with the respondent No. 1 was performed on 16-6-1974 after undergoing necessary rites under the Hindu law, which was the personal law of the parties. The said marriage was also registered as required under the Hindu Marriage Act, 1955. However, at the time when the said marriage was performed, respondent’s first wife Lilabai was alive and the said marriage between them was subsisting. The petitioner stayed with the respondent No. 1 for a week and thereafter stayed at 1st respondent’s house at his village with his first wife Lilabai and her mother. She alleged ill-treatment and left the respondent’s house. She then made an application to the Magistrate undersection 125 of the Code of Criminal Procedure (hereinafter for the sake of brevity referred to as ‘the Code’) for maintenance being application No. 157 of 1976. The Magistrate dismissed the said application on the ground that she was not a wife of the respondent as her marriage with the respondent was null and void under section 11 read with Section 5(i) of the Hindu Marriage Act. A revision application to the Sessions Court against the said order of the Metropolitan Magistrate was also dismissed by the learned Additional Sessions Judge relying on the aforementioned decision of

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

this Court in Bajirao’s case (1980 Cri LJ 437). Against the said order of the Additional Sessions Judge, the present Revision Application has been filed.

4. Initially this application came before Padhye, J. who in view of the said decision in Bajirao’s case referred it to the Division Bench. The Division Bench (Dharmadhikari and Puranik JJ.), by its referring order has referred the matter to this Full Bench as it disagreed with the view taken by this Court earlier in Bajirao’s case (1980 Cri LJ 473).

5. As mentioned above, a Division Bench of this Court in its decision in the case of Bajirao v. Tolanbai, (1979 Mah LJ 693) : (1980 Cri LJ 473) on almost similar facts had taken the view that in such circumstances a Hindu woman was not a legally wedded wife, as her marriage with the respondent was null and void and therefore, cannot claim maintenance under section 125 of the Cr.P. Code on the basis that she was a ‘wife’.

6. The reference order shows that the said Division Bench disagreed with the above view earlier taken by the Court in Bajirao’s case (1980 Cri LJ 473) because of the object of the Section 125 of the Code, as mentioned by the Supreme Court in its decision in the case of Bhagwan Dutt v. Kamala Devi and in the case of Bai Tahira v. Ali Hussain F. Chothia and certain observations of the Supreme Court in the case of Zohra Khatoon v. Md. Ibrahim to the effect that.

“While enacting Section 125 of Code there was distinct departure from the old Code and the present Code had widened the definition of the term ‘wife’ and to some extent overruled the present law of the parties so far as proceedings for maintenance under section 125 of the Code were concerned.”

The said Division Bench, therefore, appears to have felt that the term ‘wife’ as appearing inSection 125 of the Code should be broadly construed and not merely restricted to a ‘legally wedded wife’ and for purpose of claiming maintenance, it should be treated as sufficient if she proves that her marriage was solemnised after following the ceremonies prescribed under the personal law and she has been treated as a wife by the person from whom maintenance was claimed and they were living as husband and wife and were being treated by the public as such.

7. The basic question before us, therefore, is whether the term ‘wife’ used in Section 125 of the Code was to mean only a legally wedded wife, as held by this Court earlier in Bajirao’s case or whether it was to be given an extended meaning, as suggested in the Referring Order ?

8. In fact, the only contention of the learned Counsel for the petitioner before us was that looking to the object of Section 125 of the Code, which was to prevent vagrancy, the term ‘wife’ in Section 125 of the Code should be given a wider or extended meaning so as to include therein not only a ‘de jure’ or legally wedded wife, but also a ‘de facto’ wife such as in this case where all the marriage rites prescribed under Hindu Law, by which the parties were governed, were performed, the marriage was registered and the parties had lived as husband and wife, though for one week only after the marriage. The very same contention which was also raised before the Division Bench in Bajirao’s case (1980 Cri LJ 473) was negatived by the court.

9. Before dealing with the said contention, the position in law, as arising under Section 125 of the Code and certain provisions of Hindu Marriage Act, which was the personal law governing the parties in this case, be stated :

10. Section 125 of the Code, 1973, in relation to which the present question arises, empowers the Magistrates in certain circumstances stated therein to order maintenance, not exceeding Rs.

SMT. YAMUNABAI ANANTRAO ADHAV VS ANANTRAO SHIVRAM ADHAV AND OTHERS

500/- p.m., to wives, legitimate or illegitimate children or parents, who are unable to maintain themselves. The said provisions of Section 125 are couched in the same language as Section 488of the old Code of 1898 with a difference of substance only in two matters. They are :-

(1) Section 125, apart from making provision for wives and children, created a new category of persons viz. parents as being entitled to maintenance under the Code, which was not there undersection 488 of the old Code, and;

(2) Under explanation Clause (b) to Section 125(1) ‘a divorced woman’ on certain conditions was specifically included in the term ‘wife’ while under Sec. 488 of the old Code a ‘divorced woman’ was not entitled to maintenance.”

11. The object of the provisions of Section 488 of the old Code, corresponding to Section 125 of the present Code was well stated by the Supreme Court in its decision in the case of Bhagwan Dutt v. Smt. Kamladevi as under :-

“Sections 488, 489 and 490 constitute a family. They have been grouped together under Chapter XXXVI of the Code of 1898 under the caption ‘of the maintenance of wives and children’. This Chapter in the words of Sir James Fitzstephen provides a mode of preventing vagrancy or at least, preventing its consequences. These provisions are intended to fulfil a social purpose. Their object is to compel a man to perform the moral obligation which he owes to the society in respect of his wife and children by providing a simple, speedy, but limited relief. They week to ensure that neglected wife and children are not left beggered and destituted on scrap heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus Section 488is not intended to provide for a full and final determination of status and personal rights of the parties. The jurisdiction conferred by the section on the Magistrate is more in the nature of a preventive rather than a remedial jurisdiction. It is certainly not punitive. As pointed out in Thompson’s case 6 N.W.P. 205, the scope of Chapter XXXVI is limited and the Magistrate cannot, except as thereunder provided, usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts Sub-section (2) of S. 489 expressly makes the orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a Civil Court between the parties regarding their status and Civil rights.”

Above observations restrict the object of Section 488 to the protection of only wives and children.

12. While dealing with the scope of Section 488 the Supreme Court in its decision in the case of Mst. Zohra Khatoon v. Md. Ibrahim with which we will have an occasion to deal later, has in terms pointed out :-

“A perusal of Section 488 would clearly reveal that it carves out an independent sphere of its own and is a general law providing a summary machinery for determining the maintenance to be awarded by the Magistrate under the circumstances mentioned in the Section. The provisions may not be inconsistent with other parallel Acts in so far as maintenance is concerned, but the Section undoubtedly excludes to some extent the application of any other Act. At the same time, it cannot be said that the personal law of the parties is completely excluded for all purposes. For instance, where the validity of marriage or mode of divorce or cessation of marriage under the personal law of the parties is concerned that would have to be determined according to the said personal law. Thus, the exclusion by Section 488 extends only to the quantum of maintenance and the circumstances under which it could be granted.”

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

13. The object of Section 125 of the present Code, which corresponds to Section 488 of the old Code, equally remains the same and the said observations of the Supreme Court, though relating to the provisions for maintenance, inter alia, of wives under section 488 of the old Code would apply with equal force to the provisions for maintenance of wives under S. 125.

14. With that, we may at this stage also refer to certain relevant provisions of Hindu Law relating to marriages, which in this case is the personal law of marriages governing the parties. Till the coming into force of Hindu Marriage Act, 1955, the Hindu Law of Marriages was not codified and in respect of marriages, as in other cases, Hindus were governed by their personal law as to be found in Shastras and customs. However, whatever might have been the personal law of Hindus in respect of marriages prior to codification of such law under the Hindu Marriage Act, 1955, on and from coming into force of the said Act on 18-5-1955, the provisions of the said Act only and no other law constituted their personal law relating to marriages and any question regarding the personal law of Hindus, relating to marriages was to be determined only with reference to the provisions of the said Act and no other.

15. The said Act provides conditions for the solemnization of marriage (S. 5). The ceremonies for the solemnization of marriage (Sec. 6) and the registration thereof. It also provides for circumstances under which the parties to the marriages could obtain decree for judicial separation (S. 10) and divorce (S. 13) and cases in which marriage is null and void (S. 11) which may be so declared by a decree of nullity and cases in which it was voidable (S. 12) where it was required to be annulled also by a decree of nullity. It also, inter alia, under section 25 provides for the grant of permanent alimony or maintenance on application to a husband or wife, as the case may be, at the time of passing any decree or subsequent thereto.

16. In this case, we are particularly concerned with Section 5(i) providing for one of the conditions of marriage and Section 11 providing for the consequences of the contravention of the condition.

17. Section 5(i) provides :-

“A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled:-

(i) neither party has a spouse living at the time of marriage :

Section 11 of the Act provides, inter alia, that any marriage after the commencement of the Act shall be null and void if it contravened inter alia the said condition under section 5(i) “.

18. In this case, there is no dispute that the marriage solemnized between the petitioner and the respondent No. 1 had contravened the provisions of Section 5(i), for at the time of the said marriage the first respondent had a wife Lilabai living and the said marriage between them was subsisting. The result, therefore, was that by reason of Section 11 of the said Act marriage between the petitioner and the 1st respondent was null and void. The consequences of such a marriage being null and void or ‘voidipso jure’ was that although the marriage was solemnized by performing necessary ceremonies and was registered the same was in law rendered nugatory as if not having taken place at all and consequently the parties to the same did not get a legal status of husband and wife. Accordingly, in such a case the woman cannot be considered to be a legally wedded wife of the man. The fact that Section 11 provides for filing of a petition by either party to have the marriage declared null and void by a decree of nullity did not make the marriage valid till the decree was passed as was the case in voidable marriages under S. 12 of

SMT. YAMUNABAI ANANTRAO ADHAV VS ANANTRAO SHIVRAM ADHAV AND OTHERS

the Act as in such a case obtaining of a decree of nullity was not a condition precedent for the marriage being null and void.

19. The said position is also clear from the provisions of Sections 16 and 17 of the Act. Section 16seeks to protect children of the marriage which was null and void under section 11 of the Act, though illegitimate, as if they were legitimate, by giving them a limited right of inheritance only to their parents’ property. While Section 17 of the Act provides that such a marriage in contravention of Section 5(i) of the Act was void and the provisions of Sections 494 and 495 of Indian Penal Code relating to an offence of bigamy were to apply. In view of the said provisions of the Hindu Marriage Act, it is quite clear that in this case the petitioner’s marriage to the first respondent, being admittedly in contravention of S. 5(i) of the Act, was null and void undersection 11 of the Act and, therefore, the petitioner could not be considered to be a legally wedded wife, of the respondent.

20. The only controversy, therefore, that survived was as regards the import of the term ‘wife’ inSection 125(1) of the Code.

21. As mentioned above, a Division Bench of the Court has earlier in its decision in Bajirao’s case (1979 Mah LJ 693) : (1980 Cri LJ 473) held that the term ‘wife’ in Section 125 only meant a legally wedded wife. In doing so the Court observed :-

“A woman whose marriage is invalid, cannot get the status of a wife and, therefore, if the marriage of the parties is void by reason of contravention of Section 5(i), (iv) and (v) of the Hindu Marriage Act, the woman is not competent to apply for maintenance under section 125, Criminal Procedure Code, which merely speaks of a ‘wife’. The second wife whose marriage is void in view of Section 5(i) of the Hindu Marriage Act, cannot thus apply for maintenance under section 125 of the Code. The meaning of ‘wife’ cannot be extended to the case of a void marriage. In the absence of a clear intention in the provisions itself and having regard to the background in which the provisions of Section 125 Cr.P.C. 1973, were enacted, a woman cannot claim maintenance under the section unless she proves that she is the legally wedded wife of defendant against whom she brings the action.”

22. It is the correctness of this view that is challenged before us both under the Referring Order and by the learned counsel for the petitioner.

23. It may be pointed out at this stage that the same view of the term ‘wife’ as appearing inSection 488 of the old Code has been taken by other High Courts viz., by Mysore High Court in the case of Smt. Savithriamma v. V. N. Ramnarasimhaiah (1963) 1 Cri LJ 131 by Patna High Court in Bansidhar Jha v. Chhabi Chatterjee , by the Allahabad High Court in Naurang Singh Chuni Singh v. Sapla Devi and by Gujarat High Court in Bai Bhanbai Mavji v. Kanbi K. Devraj even when the provisions of Hindu Marriage Act, 1955 were in force. A similar view on this aspect was also taken by this court (Masodkar J.) in the case of Smt. Rajeshbai v. Smt Shantabai though we are not concerned in this case with the correctness of the other findings of the Court therein.

24. Under the provisions of Section 488 of the old Code, corresponding to S. 125 of the new Code a Magistrate can make an order of maintenance only in favour of wives, legitimate or illegitimate children or parent and no other. Therefore, before determining the application made to him on the basis that the applicant was ‘wife’ of the respondent, the Magistrate was required first to ascertain whether the applicant was a wife of the respondent and in case of dispute, record

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

a finding. A plain dictionary meaning of the term ‘wife’ was either ‘a married woman’ or a ‘a woman who is tied to a man in wedlock’. No woman could give herself a status of a ‘wife’ of another unless she was legally and validly married to the other.

25. As pointed out by the Supreme Court in aforecited decision in Zohra Khatoon’s case in application under S. 488 of the old Code or Section 125 of the new Code consideration of the personal law of the parties as to the validity of marriage was not excluded and, therefore, the Magistrate exercising powers under S. 125 will have to determine whether the marriage of the woman-applicant to the respondent was valid in accordance with her personal law to give her a status of a wife.

26. In this case the personal law of the parties regarding marriages was as laid down in Hindu Marriage Act, 1955 Since, admittedly, at the time of marriage between the parties one of the conditions for the validity of the marriages, as contained in Section 5(i) of the Act was contravened or not complied with, the said marriage was, under section 11 of the Act, null and void, as if it had not taken place. In the absence of such a legal and valid marriage, a mere fact that the parties had lived together, as husband and wife to the knowledge of the public or otherwise, as contended by the learned counsel for the petitioner and suggested in the Referring Order, could not confer on such a woman a status of a ‘wife’, however, otherwise one may term such a woman. The fact of the parties having lived together as husband and wife for a long time would be relevant to raise only a presumption in law of they being husband and wife. However, even such presumption itself was rebuttable on proof of marriage being invalid. That question, however, would not arise in this case. On the facts, therefore, the petitioner could not be considered to be the ‘wife’ of the respondent to claim maintenance under section 125.

27. This position in law was supported also by the other provisions in the section itself. Firstly, while specifically providing for both legitimate and illegitimate children it restricts the Magistrate’s power to make order for maintenance in favour of a ‘wife’ only and does not extend it in favour of any other woman though not legally and validly married to the respondent. Secondly, explanation (b) to Section 125(1) expressly, includes in the terms ‘wife’ appearing in the section, also a divorced woman. A divorced woman cannot exist unless initially she was legally wedded wife, for under the provisions of Hindu Marriage Act by which the parties in this case are governed or under any other personal law a question of divorce either by a decree or otherwise would not arise unless initially the marriage was legal and valid. The question of a divorced woman would never arise in cases where the decree of nullity is passed for either the marriage being null and void or voidable. This specific inclusion of a divorced woman in the term ‘wife’ which was not there before, would clearly show that the term ‘wife’ would only mean legally wedded wife.

28. On the plain reading of Section 125 of the Code, therefore, in this case the petitioner’s marriage with the respondent No. 1 being admittedly null and void under section 11 of the Hindu Marriage Act, 1955, who was not his legally wedded wife, with the result that the petitioner cannot be termed as a ‘wife’ of the respondent No. 1 to entitle her to an order of maintenance under said Section 125.

29. In spite of this position in law, the learned counsel for the petitioner has contended that the term ‘wife’ appearing in Section 125(1) of the Code should be given a wider import and should be read to include not only a legally wedded wife, but also a de facto wife i.e. a woman who had

SMT. YAMUNABAI ANANTRAO ADHAV VS ANANTRAO SHIVRAM ADHAV AND OTHERS

undergone the necessary ceremonies of marriage as required under the personal law governing the parties, was treated by the husband as such and had lived together as such husband and wife to the knowledge of the public.

30. This contention he has sought to support on two counts. Firstly, he has relied on the provisions of Section 25 of the Hindu Marriage Act, 1955, which according to him provides for maintenance even to a party to the marriage which was null and void on a decree of nullity, declaring the marriage as null and void being passed only on the basis that they were husband and wife.

31. This Court in Bajirao’s case (1980 Cri LJ 473) while negativing the said contention, had observed provisions as follows :-

“While construing provisions of Section 125 of Criminal Procedure Code, it is not proper to introduce the concept arising out of provisions of Section 15(1), Hindu Marriage Act. WhileSection 25(1) is intended for parties who are Hindus, Section 125 Criminal Procedure Code is secular in character and applies to persons belonging to all religions. The jurisdiction contemplated by Section 25(1) Hindu Marriage Act and of Section 125, Criminal Procedure Codeare distinct and specified. It is not possible to assign different meaning to the word ‘wife’ for persons belonging to different religion or governed by different personal laws. An extended meaning cannot, therefore, be given to the word ‘wife’ in Section 125, Criminal Procedure, Code, on the basis of Section 25(1) Hindu Marriage Act.”

32. To support his contention that a woman under a null and void marriage was entitled to maintenance, the learned counsel for the petitioner has relied on the decision of this Court, (Kania J.) in the case of Govindrao Ramji v. Anandibai Govindrao where it was held that Section 25(1) conferred a right of maintenance and the term ‘wife and husband’ used in the section would include within their scope a woman and a man professing Hindu faith who have gone through a ceremony of marriage which would in law have conferred the status of husband and wife but for the provisions of Section 11 read with Section 5(i) making the marriage null and void. The learned counsel for the respondent has pointed out that the Division Bench of the Madras High Court in its decision in the case of A. P. K. Narayanswami Reddiar v. Padmanabhan had taken a contrary view and the decision of our Court in Govindrai’s case would require reconsideration. We do not think it necessary to consider that question in this case and would proceed on the footing that the position on law under section 25(1) of the Hindu Marriage Act was as stated in that decision.

33. However, even the decision as it is cannot help the appellant-petitioner. The said decision firstly shows that the conclusion of the court that even a party to a null and void marriage undersection 11 of the Hindu Marriage Act 1955 was entitled to maintenance under section 25 of the said Act was mainly based on the wording of the section which in its 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 S. 11. The Court there thought of giving liberal construction to the words ‘husband and wife’ appearing therein as it found that the said words were used in a loose sense and the wording of the section was not happy as even in other cases where decree for divorce or annullment of marriage in the case of voidable marriage was passed, after such decree was passed the parties could not be termed as ‘husband and wife’. However, it was evident from the following observations of the Court at page 27 of the report that while

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

holding so the Court was aware that the parties to such a null and void marriage did not have a lawful status of husband and wife. The observations were :-

“In other words, in my view, the word ‘wife’ and ‘husband’ in sub-section (1) of Section 25 of the Act would include within their scope a woman and man professing the Hindu faith who have gone through a ceremony of marriage which would in law have conferred the status of wife or husband on them but for the provisions of Section 11 read with Clauses (i), (iv) and (v) of Section 5 of the Act.”

34. But even otherwise, it is clear that the provisions of Section 125 of the Code being of a secular nature applicable to persons of all communities in India independently of the civil liability of the husband under his personal law to maintain his wife, it interpretation cannot be based or controlled by importing therein the concept of maintenance under the personal law as applicable to a particular community only. The Supreme Court in the aforecited case of Bhagwan Dutt v. Kamala Devi while dealing with the provisions of Section 488 vis-a-vis Section 23 of the Hindu Adoptions and Maintenance Act, 1956, had observed at page 87 (of AIR) :-

“The scope of the two laws is different Section 488 provides for a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal laws of the parties.”

35. The Supreme Court in Zohra Khatoon’s case had also pointed out that Section 488 carved out an independent sphere of its own and is a general law providing a summary machinery in determining maintenance to be awarded and although the said provisions may not be inconsistent with the other parallel Acts providing for maintenance, the section excludes to some extent application of other Acts in the matter of quantum and circumstances under which it could be granted.

36. Even, if therefore, the provisions of Section 25(1) of the Act which was a personal law applicable to Hindus only were to create a right of maintenance also in favour of a woman who was a party to a null and void marriage, such right of her, if any, shall have to be restricted to the provisions under the said Act only. The Magistrate dealing with the application for maintenance by a woman under S. 125 of the Code on the basis of she being a wife of the respondent, was not required to ascertain whether she was otherwise entitled to maintenance under any other Act. There was also nothing in that section to hold that the law conferred on such a woman a status of a ‘wife’. Further, as pointed out by the Supreme Court in the aforecited decisions, the scope ofSection 488 of the old Code or S. 125 of the present Code, which were of a secular nature, providing maintenance for wives, being quite different from that of any other Act, which would include Section 25 of the Hindu Marriage Act, the said provisions would exclude the application of any other Act and cannot be interpreted with reference to Section 25 of the Hindu Marriage Act which was only a personal law of Hindus.

37. The learned counsel for the petitioner has further sought to support his said contention by relying on three decision of the Supreme Court, viz :-

1. Bai Tahira v. Ali Hussain Chathia .

2. Fuzlunbi v. K. Khader Vali .

3. Zohra Khatoon v. Md. Ibrahim .

SMT. YAMUNABAI ANANTRAO ADHAV VS ANANTRAO SHIVRAM ADHAV AND OTHERS

In fact, the first two decisions viz. in Rai Tahira’s case and in Bai Fuzlunbi’s case, have no relevance whatsoever to the point at issue. The only question at issue in both the said decisions was as to the interpretation of the provisions of sub-section (2) and sub-section 3(b) of Section 127 of the Cr.P.C. empowering the Magistrate to cancel the order of maintenance already made under section 125 in favour of a woman who was divorced, particularly when, as mentioned in sub

section 3(b) she had either before or after the order received the whole of the sum which under any customary or personal law applicable to the parties was payable on such a divorce.

38. No question as to the meaning to be given to the term ‘wife’ in S. 125(1) arose for determination in those decisions. The Court held that the said provisions of S. 127(3)(b) must be so interpreted that the amount received by a woman on or before divorce under personal law under section 127(3) (b) must be such as to amount to reasonable substitute for the amount payable as maintenance under section 125 of the Code. The purpose of payment under customary or personal law must be to obviate destitution and the scheme of Section 127(3)(b) was to recognise such substitution. It, therefore, observed :-

“The proposition, therefore, is that no husband can claim under section 127(3)(b) absolution from his obligation under section 125 towards a divorced wife except on proof of payment of the sum stipulated by customary or personal law whose quantum in more or less sufficient to do duty for maintenance allowance.”

39. Since no question as to the meaning to be given to the term ‘wife’ in Section 125(1) arose for determination in those decision, it is, not necessary to deal with the said two decisions any further.

40. The third decision in Zohra Khatoon’s case , observations wherein are relied upon, both by the learned counsel for the appellant as well as in the Referring Order in support of the contention that the term ‘wife’ in Section 125 of the Code should be given a broad meaning may be dealt with in some detail.

41. In that case, where the parties were Muslims, the question was as regards the interpretation of Clause (b) of explanation to sub-section (1) of Section 125 of the Code which read as follows :-

Explanation :-

“For the purpose of this Chapter. –

(a) x x x

(b) ‘wife’ includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried.”

There the appellant, a Muslim lady, was married to the respondent. On the plea that she was ill-treated by the respondent, she filed an application before a Magistrate under section 125 of the Code, for maintenance for herself and her child. The Magistrate allowed her application and fixed maintenance for her and the child, holding that she was neglected by the respondent

husband without any reasonable or probable cause. The Magistrate negatived the respondent’s contention that since the appellant wife had filed a suit against him for dissolution of marriage which was decreed by the Civil Court and since she was living separately, she had ceased to be his wife and was, therefore, not entitled to maintenance under section 125 or Section 127 of the Code. In the revision application against the said order filed by the respondent-husband, the

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

High Court set aside the order of the Magistrate. The High Court interpreted the said Clause (b) of the Explanation as covering a divorce proceedings from the husband only i.e. if the divorce was given unilaterally by the husband or was obtained by the wife from the husband, and did not cover divorce in the case before the Court since it was obtained at the instance of the wife in a suit filed by her for dissolution of marriage under Dissolution of Muslim Marriage Act, 1939. The High Court, therefore, held that in that case applicant woman did not come under clause (b) of the Explanation and was not entitled to maintenance under Section 125 of the Code. Therefore, in that case the Supreme Court was only concerned with the question of interpretation of clause (b) of the Explanation to Section 125(1) and the correctness of the narrow interpretation put by the High Court on the said explanation. For dealing with the said only question, the Court firstly dealt with the position in law in relation to S. 488 of the said old Code, which has been set out above where the said clause (b) of the Explanation did not exist.

42. The Court further considered whether under the said provisions of S. 488 of the old Code the Magistrate was competent to award maintenance if under the personal law of the Mohmedans the wife had been validly divorced and had completed the period of Iddat ? On review of the decision, the Court found that although the Mohmedan wife had a right to be awarded maintenance by the Magistrate under S. 488 of the Code, the said right ceased to exist if she was divorced by her husband and had observed Iddat, as the right under Section 488, which was a statutory right, so far as it related to wives, contemplated existence of conjugal relation as a condition precedent to an order of maintenance.

43. In the background of the said position in law regarding maintenance of wife under section 488 of the Code, prior to the introduction of the said Explanation (b) of Section 125(1) by including ‘divorced woman’ in the term wife, the only question the court proceeded to consider, was as to how for the Code of 1973 by introducing the said explanation made a departure from the previous Code and from the personal law of the parties i.e. Mohammedan Law, in the position of woman after divorce. The Court was, therefore, only considering the effect of clause (b) of the Explanation on the rights of a woman who was divorced i.e. of a woman who was initially a legally wedded wife but had ceased to be so by reason of divorce. It was not concerned there with the rights of any other woman.

44. Only in that regard that Court, while considering the interpretation of the said clause (b) of the Explanation, observed at page 1248 of the report :-

“Cl. (b) had made distinct departure from the earlier Code, in that it had widened the definition of wife and to some extent overruled the personal law of the parties, so far as the proceedings for maintenance under section 125 are concerned. Under Clause (b) wife continues to be a wife within the meaning of the provisions of the Code even though she has been divorced by her husband or otherwise obtained a divorce and has not remarried.”

45. On the basis of the said observations of the Court, the learned counsel for the petitioner-appellant has contended that it was permissible to give to the term ‘wife’ in Section 125(1) a still wider connotation so as to include therein not only a divorced woman, as specifically mentioned in the Explanation, but also a woman who although not a legally wedded wife under the personal law governing her had undergone marriage ceremony and lived with the man as husband and wife.

46. In our view, the said observations of the Supreme Court cannot be read out of context, as suggested by the learned counsel, as indicating that the term wife could also mean and include

SMT. YAMUNABAI ANANTRAO ADHAV VS ANANTRAO SHIVRAM ADHAV AND OTHERS

even a woman who was not legally wedded and therefore not a wife. The observations were to be read as restricted to the wording of Clause (b) including in the term ‘wife’ a ‘divorced woman’. The Court made the said observations as it found that before the said explanation was introduced neither the Mohammedan Law by which the parties were governed, nor Section 488 permitted maintenance on the cessation of conjugal relations on divorce, and to that extent only explanation made departure from the earlier law. On the other hand, the fact that under Clause (b) of the Explanation a divorced woman was specifically included in the term ‘wife’ to give her a right of maintenance, would show that the term ‘wife’ would mean only a legally wedded wife, but for which there would not exist a divorced woman. In our view, therefore, there was nothing in the above quoted observations of the Supreme Court to support the said contention of the learned counsel for the appellant.

47. It was further contended by the learned counsel for the appellant and suggested in Referring Order that since Explanation (b) contains inclusive definition of wife, there was no reason why it should not be extended to other cases. Firstly, the said explanation does not seek to give any definition of the term ‘wife’. It seeks to include specifically in the term ‘wife’ a divorced woman, who, but for the said mention could not have been entitled to maintenance under section 125 of the Code. As pointed out by the Supreme Court in the Bhagwan Dutt’s case (AIR 1975 SC 85) the object of the section is to provide a summary remedy for the protection of wives, children and parents. The jurisdiction of the Magistrate under the said provisions extends to making an order of maintenance in favour of only those persons mentioned in the section viz. wives, children legitimate and illegitimate and parents, and no other persons falling outside the said categories.

48. The learned counsel for the appellant has further relied on a decision of the Gauhati High Court in the case of Boli Narayan Pawye v. Sidheswari Morang (1981 Cri LJ 764) which appears to take a similar view as propounded by the appellant. The Court there relying only on the aforecited two decision of the Supreme Court in Bai Tahira’s case and in Fuzlunbi’s case and on the basis that a void marriage was one which required declaration of the Court to be so and did not disentitle a woman to get maintenance in the absence of final declaration to the effect from a competent Court, observed at page 676 (of Cri LJ) :-

“A woman who comes in the life of a man gives herself to the man, takes the family life of the man and the man uses her as such, recognises her as his wife, must come within the fold of the term wife, absence of ceremonial marriage notwithstanding. Acceptance of a woman as a wife, declaration of the status directly or indirectly and acceptance of status by the woman are enough to bring her within the provisions of S. 125.”

49. Firstly, the said observation of the Court are obiter and were not relevant as on the facts the Court had held that the marriage between the parties though performed in a customary manner, was valid. If the marriage was once held to be valid in law, the woman could get a status of a wife and on the other things existing would be entitled to claim maintenance under S. 125. Secondly, as we have pointed out above, two decisions of the Supreme Court in Bai Tahira’s case and in Fuzlunbi’s case relying on which the Court had made the said observations do not anywhere deal with the question of extended meaning to be given to the term ‘wife’, as suggested by the Gauhati High Court. However, at the same time the Court does not appear to have considered the decision of the Supreme Court in Zohra Khatoon’s case cited above. Thirdly, the view of the Court appears to have been based more on a rebuttable presumption that may arise by reason

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

of a long and continuous cohabitation between the parties as husband and wife, that they were presumed to be husband and wife. But even that presumption was rebuttable, by the proof that in law the marriage solemnized between the parties was illegal or void. Further according to us the said observations are based on misconception of law that void marriage like voidable marriage was valid till it was so declared by a competent Court. For all these reasons, with respect, we are unable to agree with the view taken by the single Judge of the Gauhati High Court in the aforesaid decision.

50. In our view, therefore, contention of the learned counsel for the appellant cannot be accepted. The view taken by this Court in Bajirao’s case (1979 MLJ 693) : (180 Cri LJ 473) appears to be correct. The term ‘wife’ appearing in Section 125(1) of the Code means only a legally wedded wife. In the result, the appeal stands dismissed. The orders of the lower courts are confirmed. However, under the circumstances of the case respondent No. 1 is directed to pay to the petitioner costs of proceedings fixed at Rs. 1000/-.

51. Appeal dismissed.

❑❑❑

BHAUSAHEB @ SANDU S/O RAGHUJI … VS LEELABAI W/O BHAUSAHEB MAGAR

BHAUSAHEB @ SANDU S/O RAGHUJI VERSUS

LEELABAI W/O BHAUSAHEB MAGAR

Bombay High Court

Equivalent citations: AIR 2004 Bom 283, II (2004) DMC 321, 2003 (4) MhLj 1019 2004 AIR (Bom) 283; 2003 4 MhLJ 1019; 2003 Supreme (Mah) 729;

Bhausaheb @ Sandu S/o Raghuji

vs.

Leelabai W/o Bhausaheb Magar

Bench: Hon’ble Mr. Justice N Dabholkar, Hon’ble Mr. Justice A Naik, Hon’ble Mr. Justice N Patil Decided on 7 July, 2003

Civil Procedure Code, 1908 – Section 113 – Maintenance to wife. – Hindu Marriage Act, 1955- Section 25 – Maintenance – Claimed by “illegitimate wife” – Can- not be granted – Claim not maintainable – An illegitimate wife has no right for permanent alimony – In absence of recognition of her status in Act, she cannot be entertained for grant of relief – – 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.

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 undersection 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

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

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

BHAUSAHEB @ SANDU S/O RAGHUJI … VS LEELABAI W/O BHAUSAHEB MAGAR

Bombay High Court has been consistently taking such a view right from the matter ofGovindrao 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.

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

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

BHAUSAHEB @ SANDU S/O RAGHUJI … VS LEELABAI W/O BHAUSAHEB MAGAR

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 11of 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

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

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) ofSection 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

BHAUSAHEB @ SANDU S/O RAGHUJI … VS LEELABAI W/O BHAUSAHEB MAGAR

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

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

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 undersection 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 125Criminal 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

BHAUSAHEB @ SANDU S/O RAGHUJI … VS LEELABAI W/O BHAUSAHEB MAGAR

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 insection 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) ofsection 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”.

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

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 undersection 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 thatsection 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

BHAUSAHEB @ SANDU S/O RAGHUJI … VS LEELABAI W/O BHAUSAHEB MAGAR

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 tosection 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

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

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.

BHAUSAHEB @ SANDU S/O RAGHUJI … VS LEELABAI W/O BHAUSAHEB MAGAR

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 undersection 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.

❑❑❑

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

KADIA HARILAL PURSHOTTAM VERSUS KADIA LILAVATI GOKALDAS

Bombay High Court

Equivalent citations: AIR 1961 Guj 202, (1961) GLR 536

AIR 2004 Bom 283, 2003 (4) MhLJ 1019

Kadia Harilal Purshottam

Kadia Lilavati Gokaldas

Decided on 1 February, 1961

Bench: Hon’ble Mr. Justice K Desai, Hon’ble Mr. Justice V Raju

Hindu Marriage Act -sec 25- any order for permanent alimony under sec. 25 after dismissing the appellants petition for restitution of conjugal rights is not sustained. The section is only applicable where a Court has passed a substantive decree granting any of the reliefs provided for in secs. 9 10, 11, 12, 13 and 14 and that it is applicable where the Court has dismissed a petition seeking any one of the aforesaid reliefs. The Court before it can exercise the powers granted under sec. 25 must pass a decree that the section vests the court with wide discretion in the matter of making orders for the maintenance and support of one spouse by the other where it passes any decree for restitution of conjugal rights, judicial separation, dissolution of marriage by divorce or annulment of the marriage on the ground that it was void or voidable.

JUDGMENT

Desai, C.J.

1. This appeal raises important questions relating to the construction of some of the provisions of the Hindu Marriage Act, 1955, a piece of legislation, which is not noted for artistic or accurate draftsmanship. The appellant in this case fiied a petition in the Court of the District Judge, Halar, for restitution of conjugal rights against the respondent. On 3lst January, 1957, the said petition was dismissed. From the order of dismissal, an appeal was filed in the High Court. That appeal was dismissed. On 11th April, 1957, the respondent made an application purporting to do so under the provisions contained in Section 25 of the Hindu Marriage Act, 1955, for permanent alimony. That application was heard by the learned District Judge, Halar, who passed an order awarding a sum of Rs. 40/- per month as and by way of permanent alimony to the respondent from the date of the application, The appellant has filed this appeal from that order.

2. Mr. Chhaya, the learned advocate for the respondent, has raised a preliminary objection as regards the maintainability of this appeal. He contends that no appeal lies against the order made as ‘aforesaid on the application of the respondent. The provisions relating to appeals are to be found in Section 28 of the Hindu Marriage Act, 1955. That section runs as under:

“All decrees and orders made by the court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the court made in the exercise of its original civil Jurisdiction are enforced, and may be appealed from under any law for the time being in force.”

KADIA HARILAL PURSHOTTAM VS KADIA LILAVATI GOKALDAS

Mr. Chhaya contends that the order granting Rs. 40/- per month by way of permanent alimony is an order within the meaning of this section. He urges that an appeal can lie from such order only if such appeal is provided under any law for the time being in force. According to his submission, the law referred to in this connection is the Code of Civil Procedure, 1908. He says that the provisions of the Code relating to appeals are to be found in Sections 96 and 101 and Order 43 Rule 1- Section 96 provides for appeals from original decrees. Section 104 and Order 43, Rule 1 provide for appeals from orders, He argues that the provisions of Section 104 and Order 43 Rule 1 are inapplicable to the order in question passed by the District Judge, Halar. Section 104 in terms provides that an appeal shall lie from the orders therein mentioned and that save as otherwise expressly provided in the body of the Code or by any law for the time being in force, from no other orders. An order granting permanent alimony is not one of the orders specified in Section 104. Order 43 Rule 1, provides for an appeal from the orders therein mentioned. An order awarding permanent allmony is not one of the orders mentioned in Order 43. He relied upon the definition of the term “decree” given in the Civil Procedure Code in order to show that the Order in question does not amount to a decree. Section 2, Sub-section (2) provides that unless there is anything repugnant in the subject or context, the term “decree’ means the formal express ion of an adjudication which, so far as regards the Court ex-pressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but is not to include any adjudication from which an appeal lies as an appeal from an order, or any order of dismissal for default. The expression “order” has been defined in Section 2, subsection (14) to mean the formal expression of any decision of a Civil Court which is not a decree. He argues that the order passed by the District Judge, Halar, awarding permanent alimony does not amount to a decree within the meaning of Section 2, Sub-section (2) of the Civil Procedure Code.’ He says that this order was passed on an application that was made after the suit for restitution of conjugal rights was disposed of. He submits that the order made is an order within the meaning of Section 2, Sub-section (14), and as no appeal is provided from such an order under the provisions of the Code of Civil Procedure, no appeal lies therefrom and that the appeal that is filed is incompetent in law. He relies upon a decision of a single Judge of the Bombay High Court reported inPrithyirajsinghji Mansinghji v. Bai Shivprabha Kumari, 62 Bom LR 47: (AIR 1960 Bom 315). In that case it was held that the words “may be appealed from under any law for the time being in force” refer to the appeals provided for under the Code of Civil Procedure. It was there held thatSection 28 of the Hindu Marriage Act, 1955, did not provide any appeal against every order made by a Court In proceedings under the Act, ‘but against only Such of them as fall within the definition of the term ‘decree’ as defined in Section 2, Sub-section (2) of the Civil Procedure Code, 1908, or with legard to which an appeal is provided under the Code. In that case, the contention that the words “under any law for the time being in force” were applicable merely to the procedure in cases where an appeal lay, was negatived. He also relied upon a decision of the Andhra High Court reported in B. Saraswalhi v. B. Krishna Murlhy, AIR 1960 Andh Pra 30. In that case, a Division Bench of that Court held that Section 28 by itself did not confer any right of appeal and that the words “may be appealed from under any law for the time being in force” conveyed the idea that an appeal could be filed against decrees and orders if there was provision therefor under any law and that one had to fall back on the Civil Procedure Code in this connection. In that case the Court was dealing with an appeal from an

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

order refusing to grant interim maintenance under Section 24 of the Hindu Marriage Act. The Court held that such an order under Section 24 did not fall within the ambit either of Section 104 or Order 43 and that no appeal lay therefrom.

3. The argument advanced before us by Mr. Chhaya proceeds on the footing that the expression “decrees” and “orders” appearing in Section 28 mean decrees and orders as defined in the Civil Procedure Code, 1908, Section 2(2) of the Code of Civil Procedure, 1908, in express terms lays down that the expression “decree” when used in the said Code means “the formal expression of an adjudication which as far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final”.

Order 4 Rule 1 of the Code of Civil Procedure provides that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. In Sir Dinshah Mulla’s Code of Civil Procedure, 12th Edition, at page 6 under the head “In the Suit” are set Out various proceedings which arc not instituted by presenting a plaint with the result that the orders made therein do not constitute decrees within, the meaning of the Code. No proceeding under the Act has to be instituted by presenting a plaint and the expression ‘decree* as defined in Section 2, Sub-section (2) of the Code will not cover an adjudication in proceedings instituted under theHindu Marriage Act, 1955. The expressions “decrees” and “orders” appearing in Sec 28 of theHindu Marriage Act, 1955, have to be read and understood in the light of the other provisions of the Act itself. Section 28 follows upon Sections 9, 10, 11, 12, 13 and 14 which refer respectively to a decree for restitution of conjugal rights, a decree for judicial separation, a decree of nullity of marriage for contravention of the provisions of Clauses (i), (iv) and (v) of Section 5, a decree of nullity of marriage on the grounds set out in Section 12, and a decree of divorce. Sections 24, 25and 26 provide for orders. Under Section 24, provision is made for orders for maintenance pendente lite and for expenses of the proceedings. Section 25 deals with orders for permanent maintenance. Section 26 deals with orders in connection with the custody, maintenance and education of minor children. When Section 28 refers to appeals from decrees and orders, it refers to decrees mentioned in the sections referred to hy me above and the orders mentioned in the sections referred to above. The right of appeal is a statutory right. In order that a party may have a right of appeal, that right has to be conferred by legislation. If the words used in Section 28″may be appealed from under any law for the time being in force” mean that an appeal would only lie in these cases where some other law lays down that such appeal can be preferred, then the result would be that we would have to look to the provisions of the Civil Procedure Code in order to consider whether any appeal is provided under the Code in respect of decrees and orders passed under the Hindu Marriage Act, 1955. No other, law is pointed out which confers any right of appeal. As we have already indicated above, the Civil Procedure Code provides for appeals from decrees as defined in Section 2, Sub-section (2) of the Code of Civil Procedure. The decrees passed under Sections 9, 10, 11, 12, 13 and 14 of the Hindu Marriage Act, 1955, do not come within the definition of “decrees” under the Code of Civil Procedure. The orders passed underSections 24, 25 and 26 of the Hindu Marriage Act are not orders falling within Section 104 and Order 43 Rule 1 of the Code of Civil Procedure. If this interpretation is accepted, the result would be that there would not be any decree or any order under any of the aforesaid sections which would be appealable. This could not possibly be the intention of the legislature. The section is intended to deal inter alia with the subject of appeals from decrees and

KADIA HARILAL PURSHOTTAM VS KADIA LILAVATI GOKALDAS

orders passed under the Act. If there was no law under which an appeal would lie from any decree or Order passed under the Act, the provision in that connection would be futile and devoid of meaning. By this Act the legislature has conferred special rights and has provided special remedies. The Courts before which such proceedings could be taken and the way in which such proceedings may be initiated have been laid down in the Act. It would be reasonable to assume that when the legislature was considering the question of appeals from decrees and orders passed under the Act it would provide by the Act itself for such appeals. In the absence of any other legislation providing for appeals from both decrees and orders passed under the Act, there would be greater reason for the legislature to provide for it by the Act itself. In our view, on a true construction of Section 28 the right of appeal from all decrees and orders is conferred by Section 28 itself. No doubt, the language of the section is not very happy. The words “may be appealed from under any law for the time being in force” are capable of bearing the meaning which Mr. Chhaya desires us to give. If we give such a meaning to those words, the provisions relating to appeal are liable to be rendered nugatory. That could not possibly be the intention of the legislature. It could not be the intention of the legislature to confer a right of appeal against decrees and orders passed under the Hindu Marriage Act, 1955 by reference to the provisions of the Code of Civil Procedure. There is in fact no provision in the Code or in any other law under which any appeal could be filed from any orders passed under the Hindu Marriage Act, 1955. It seems to us that the legislature intendent to confer a right of appeal by the provisions of Section 28 itself by using the words “All decrees and orders made by the Court in any proceeding under this Act….. may be appealed from…..”, and that the intention of the legislature was not to refer parties to any other enactment for the purpose of ascertaining whether the decrees or orders passed under the Act were appealable or not- Having regard to the language used by the legislature which, we are painfully conscious is not very apt, some meaning has to be given to the words “under any law for the time being in force”. Those words, on a true construction of the Act, are intended to provide for the forum before which the appeal is to be preferred. They may well relate to the procedure in connection with the appeals which may be filed under Section 28. We are supported in this conclusion by a decision of the Calcutta High Court reported in the case of Sobhana v. Amar Kanta, AIR 1959 Cal 455. A Division Bench of the Calcutta High Court in that case has held that the Act has made definite provisions in Section 28 for appeals. In that case they had to choose between two rival constructions that could be placed upon the provisions of Section 28. One was that by – that section the legislature had provided that an appeal would lie against all decrees and orders made by the Court in any proceeding under the Act and that the forum and other matters in connection with the hearing of the appeal would be decided in accordance with the laws that may be in force for the time being. The other construction was that this section did not say anything positive itself as regards appealability of the decrees and orders but merely said that if an appeal lay against decrees and orders made in any proceeding under the Act under some Jaw that may be in force at the time, then an appeal would lie and not otherwise. They preterred to adopt the first construction. We are in respectful agreement with that conclusion. If the Code of Civil Procedure in fact provided for appeals against decrees and orders passed under the Act, then there was no necessity for the legislature to once again provide that appeals from decrees and orders would lie under such law. The fact that decrees and orders passed by a Court under the Hindu Marriage Act, 1955, cannot be regarded as decrees and orders passed by the Court in the exercise of its original civil jurisdiction is evident from the very language used in Section 28. It says that all decrees and orders made by the Court in any

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

proceeding under the Act shall be enforced in the like manner as the decrees and orders of the Court made in the exercise of the original civil jurisdiction are enforced. The Calcutta High Court has observed that the words “under any law for the time being in force” in connection with appeals deal with the manner in which appeals have to be filed and deal with the forum before which the appeals may be instituted. A similar view has been taken by the High Court of Madhya Pradesh in a decision reported in Rukhmenibai v. Kishanlal Ramlal, AIR 1959 Madhya Pra 187. Justice Shrivastava in that case observes thatSection 28 has been enacted with the intention of giving a right of appeal. He further observes that if the right of appeal was to be inferred from the provisions of any other law, the section so far as it relates to appeal would be meaningless and some of the words in the section would be superfluous. He adds that it cannot be expected that a right of appeal from orders which are passed under the specific provisions of the Act should be provided for in any other law. He took the view that looking to the language or the section, the intention was to give a right of appeal in the case of every order passed under the Act and to leave the forum and procedure of the appeal to be determined by the relevant law for the time being in force.

4. In our view, the order passed by the learned District Judge granting permanent alimony is an order appealable under Section 28, and the preliminary objection taken by Mr. Chhaya must fail.

5. In view of what we have staled above it is not necessary to consider the alternative argument that if the proceeding under the Act could be regarded as a suit, the order in question is liable to be considered as a “decree” within the meaning of Section 2(2) of the Code of Civil Procedure and is appealable as a decree.

6. Mr. Nanavaty who appeals for the appellant contends that the learned District Judge was not entitled to pass any order for permanent alimony under Section 25 after dismissing the appellant’s petition for restitution of conjugal rights. He argues that the section is only applicable where a Court has passed a substantive decree granting any of the reliefs provided for in Sections 9, 10, 11, 12, 13 and 14 and that it is inapplicable where the Court has dismissed a petition seeking any one of the aforesaid reliefs. Section 25 runs as under;

“25(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, while the applicant remains unmarried, 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 and the conduct of the parties, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immoveable 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 remarried 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 shall rescind the order”.

KADIA HARILAL PURSHOTTAM VS KADIA LILAVATI GOKALDAS

It is urged by Mr. Nanavaty that the words “any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto” indicate that the Court, before it can exercise the powers granted under Section 25, must pass a decree. He urges that an order of dismissal of an application under Sections 9, 10, 11, 12, 13 and 14 could in no sense be regarded as the passing of a decree. The aforesaid sections provide for decrees of various kinds giving the reliefs therein provided. In our view, the words “at the time of passing any decree or at any time subsequent thereto” mean at the time of passing any decree of the kind referred to under the afore-j said sections and not at the time of dismissing the, petition for any of the reliefs provided in the said’ sections or any time subsequent thereto. Mr. Chhaya placed some emphasis upon the words “any. decree” and urged that the expression “any decree” would include an order of dismissal. In our view, the passing of an Order of dismissal of a petition could not be regarded as the passing of a decree within the meaning of this section. The word “any’ which precedes the word “decree” has been used having regard to the various kinds of decrees which may be passed under the provisions of the Act. A decree may be a decree for restitution of conjugal rights. It may be a decree for judicial separation.

It may be a decree of nullity of marriage. It may be a decree of divorce. At the time of passing any such decrees or at any time subsequent thereto, orders can be made as provided in the section.

Our attention has been, drawn to a passage appear ing at page 896 in Sir Dinsha Mullah’s well known treatise on the Principles of Hindu Law. It is there stated as under.:

“The words ‘at the time of passing any decree or any time subsequent thereto’ indicate that an order for permanent alimony or maintenance in favour of the wife or the husband can only be made when a decree is passed granting any substantive relief under the Act and not where the main petition itself is dismissed.”

A reference is made in support of this proposition to a decision of the Madras High Court reported in Devasahayam v. Devamony, ILR 46 Mad 133 : (AIR -1823- Mad 211). That was a case which arose under the provisions of section 37 of the Indian Divorce Act; 1869. That section provides as under:

“The High Court may, if it thinks fit, on any decree absolute declaring a marriage to be dissolved; or on any decree of judicial separation obtained by the wife, and the District Judge may, if he thinks fit; on the confirmation of any decree of his declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife, order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, etc.”

The language of section 37 of the Divorce Act, 1869, is materially, different from the language used by legislature in section 25 of the Hindu Marriage Act, .1955, and the decision of the Madras High Court cannot afford any. guidance in construing the language used by the legislature insection 25 of the Hindu Marriage Act, 1955. In our view, toe language used by the legislature insection 25 is such that the”, power thereby conferred could only be exercised “at the time of passing of any of the decrees referred to in the earlier provisions of the Act or any time subsequent thereto. We are supported in this conclusion by an unreported decision of Chief Justice Section T. Desai and Justice Bakshi given on 28th November 1960 in First Appeal No. 178 of 1960 (Cuj). In that case it has been laid down that Section 25 relates only to an ancillary relief which is incidental to the substantive relief that may be granted by the Court, though the incidental relief may be given

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

to other/party. In this view of the matter, the ” learned District Judge of Helar was not entitled to pass any order for permanent alimony in favour of the respondent in view of the fact that the petition made by the appellant for restitution of conjugal rights had been dismissed.

7. There is one more ground which has been urged by Mr. Nanavaty, challenging the validity of the decision given by the learned District Judge.’ He says that the right to make an order underSection 25 is, having regard to the language used in that section, confined only, to those cases where a decree has been passed by the Court dissolving a marriage. He says that, section 25 lays down that the Court may order, that the respondent to an …application for permanent., alimony or maintenance should, while, the, applicant to the application remains un-married pay to the applicant for her or his maintenance and support such monthly or periodical sum for a term not exceeding the life of the applicant. He says that the words “while the applicant remains unmarried” indicate the period during which the amount of alimony or maintenance is required to, be paid and indicate the condition subject to which such alimony and maintenance is required to be paid. He urges that when a Court passes a decree for restitution of conjugal rights, the marriage between the parties remains intact and is not dissolved, and no question of the applicant, under section 25 remaining unmarried could possibly arise. He further urges that where a decree is passed for judicial separation, the marital bond still remains undissolved and the question of the applicant remaining unmarried would not arise, If we were to accept, the contention urged by Mr. Nanavaty the result would be that the powers of the Court conferred under section 25 would be very limited. The Hindu Marriage Act, 1955, is an act intended to amend and codify the law relating to marriage among Hindus. Section 25 is preceded by section 24. It deals with maintenance pendente lite and deals with expenses of proceedings. That section runs as follows:

“24.–Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceedings, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding and monthly during the proceeding such slim as, ‘having regard to’ the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.”

This section is applicable to proceedings not merely for obtaining a decree for the dissolution of marriage or a decree of nullity, of marriage, but is equally applicable to proceedings for obtaining a decree for restitution of conjugal rights and a decree for judicial separation. If the court is empowered under section 24 to grant, interim maintenance during the pendency of such proceedings, it would be somewhat difficult to accept the contention that the legislature intended that section 25 should only be confined to cases where a decree for divorce is passed. Section 25 is followed by section 26. It lays down as under :

“26.–In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree Were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.”

KADIA HARILAL PURSHOTTAM VS KADIA LILAVATI GOKALDAS

This section embraces within its abmit provisions for maintenance of children during the continuation of the proceedings before the Court and after they have ended. If We are to interpretSection 25 in the manner suggested the result would be that there would be a lacuna in the Act. The marginal note to the section speaks of “permanent alimony and maintenance”. In connection with the concept of permanent alimony it is stated in Sir Dinshah Mulla’s book on Hindu Law, 12th Edition, at page 894 as under:

“Permanent alimony is the expression used under English law in the context of provisions ordered to be made by the Court for a wife on her petition for judicial separation being granted. Behind the relevant statutory enactment in England is a historic development of law. Before the first Divorce Act in England a wife could only obtain from the Ecclesiastical Court divorce a mensa it there (judicial separation) and the allowance allotted to her was named permanent alimony which was as a general rule one-third of the husband’s income. The operation of the rule was extended and the same principle was applied in cases decided under the successive Divorce Acts in England when relief by way of dissolution of marriage by divorce was granted to the wife. At one stage the view was taken that the wife who claimed maintenance after a decree of divorce in her favour would have pecuniary interest in seeking such relief & that would not accord with the policy of law. That view was discountenanced and it was ruled that the principles on which the Ecclesiastical Courts awarded permanent alimony in case of judicial separation should be applicable to cases where relief by way of divorce or nullity of marriage was granted although in cases under the latter category she ceased to be the wife or was declared not to have been the wife of the other party and relinquished ber character as wife and the name of the husband.”

In our view, whilst enacting Section 25 the legislature did not intend to restrict the ordinary provisions relating to permanent alimony and maintenance in connection with proceedings for judicial separation, divorce and nullity of marriage, but to extend the same and make the provisions applicable both in favour of the wife as well as the husband. No doubt, the words used by the legislature “while the applicant remains unmarried” suggest the construction sought to be placed by Mr. Nanavnty. We have, however, to consider the paramount intention of the legislature. In Maxwell on Interpretation of Statutes, at page 229 it has been observed as follows:

“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual, meaning to particular words, by altering their collocation, or by rejecting them altogether under the influence, no doubt, of an irresistible conviction that the legislature could not possibly have intended what its words signify, and that the modifications thus, made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not fee reduced to a nullity by the draftman’s unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used.” The Courts have always, been extremely, reluctant to substitute words in a statute or add words to it. A Court would do so where there is a repugnancy to good sense. The Hindu Marriage Act, 1955, cannot be regarded as a work of art. It is not noted for good drafting. It contains several provisions which present difficulties while interpreting the same. The words used in some sections are far from happy and

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

difficulties are experienced in gathering the true meaning of the legislature. There is however one thing clear that the main object and intention of the enactment was to amend and codify the law relating to marriage among Hindus. The intention was not to restrict the powers of the Court in granting permanent alimony and maintenance to an extremely limited class of cases, namely where the Court had passed a decree for divorce or of nullity of marriage. The words used in section are “at the time of passing any decree.” The words “any decree” would not have been used if it was the intention of the legislature to restrict the operation of the section only to cases where a decree for divorce or of nullity of marriage was passed. The power was intended to be exercised at the time of the passing of any of the decrees referred to in the earlier provisions of the Act or at any time subsequent thereto. The legislature however has inserted the words “while the applicant remains unmarried.” The legislature could only have intended to make those words applicable in those cases where a party was in a position to contract a marriage. Those words could not, with any propriety, be used in respect of those cases where the marriage bond remains unsevered. The legislature, in enacting Section 25, has even sought to go beyond the ordinary provisions of law relating to alimony end maintenance as applicable to other communities. It has sought to provide permanent alimony and maintenance even for a husband. When the legislature was seeking to extend the provisions relating to permanent alimony and maintenance so as even to make a husband eligible for receiving permanent alimony and maintenance, it would be extremely difficult for us to hold that the legislature intended to take away from a Court dealing with matrimonial matters the power to provide permanent alimony to a wife when passing a decree for judicial separation in her favour. It is our irresistible conviction that the legislature could not have intended to take away such a right. It would be more correct to hold that these words have appeared in section 25 in the form in which they appear due to unskilfulness in drafting, and that it would not be proper for us to confine the Operation of the section to cases where a decree for divorce or of nullity has been passed. To us it appears that the construction sought to be put by Mr. Nanavaty upon the section, though it is within the language and grammar of it, is repugnant to good sense. We would confine the operation of the words “while the applicant remains unmarried” to those cases where the applicant is in a position to contract a lawful marriage. In such cases the order must be made conditional, its operation being dependent upon the applicant remaining unmarried. We derive support for the conclusion to which we have arrived at from the. Commentaries made on this section in The Principles of Hindu Law, by Shri Dinshah Mulla, 12th Edition at page 893. It is there stated that the section vests the court with wide discretion in the matter of making orders for the maintenance and support of one spouse by the other where it passes any decree for restitution of conjugal rights, judicial separation, dissolution of marriage by divorce or annulment of the marriage on the ground that it was void or voidable.

8. In the result, the appeal succeeds and the order passed by the learned District Judge awarding permanent alimony and costs is set aside. As regards costs, in view of the fact that the respondent is the wife of the appellant and that the appellant has failed in his petition for restitution of conjugal rights and would ordinarily have to maintain his wife, we consider it fair that there should be no order as regards costs throughout.

❑❑❑

BAJIRAO RAGHOBA TAMBRE VS TOLANBAI (MISS) D/O BHAGWAN TOGE

BAJIRAO RAGHOBA TAMBRE VS TOLANBAI (MISS) D/O BHAGWAN TOGE

Equivalent citations: 1980 CriLJ 473

Bajirao Raghoba Tambre

Tolanbai (Miss) D/O Bhagwan Toge

Decided on 1 March, 1979

Bench: Hon’ble Mr. Justice P Shah & Hon’ble Mr. Justice M Kanade

Criminal Procedure Code (2 of 1974), S. 125 and Hindu Marriage Act (22 of 1955), Ss. 5(1)(i) and 11 — “whether the second wife whose marriage is void in view of the provisions of sections 5 and 11 of the Hindu Marriage Act, 1955 (Act No. 25 of 1955) is entitled to apply for maintenance under section 125 of the Code of Criminal Procedure, 1973”. Unless and until the complaint (respondent No. 1 herein) proves that she is the legally wedded wife of the petitioner, the Magistrate will have no jurisdiction to pass an order of maintenance in her favour.

JUDGMENT

P.S. Shah, J.

1. This petition file d by the petitioner husband under Articles 226 and 227 of the Constitution of India and also under section 462 of the Code of Criminal Procedure, 1973, raises a question of some importance. The question that arises for consideration is “whether the second wife whose marriage is void in view of the provisions of sections 5 and 11 of the Hindu Marriage Act, 1955 (Act No. 25 of 1955) is entitled to apply for maintenance under section 125 of the Code of Criminal Procedure, 1973”.

2. The facts which are no longer in dispute before us are in a narrow compass. The petitioner is married to one Dwarkabai on July 4, 1961. During the subsistence of this marriage, the petitioner married the respondent No. 1 Tolanbai on September 5, 1966. On September 1, 1975. Tolanbai filed an application under section 125 of the Code alleging inter alia that the petitioner beat her and drove her out of the house and, therefore, she has been staying with her parents who are poor, and she has no means of livelihood. She claimed an amount of Rs. 500/- per month by way of maintenance. Apart from denying the allegations of the respondent, the petitioner contended in the trial Court that his marriage with the respondent even if proved was null and void and did not confer a status of the wife on her because this marriage was admittedly solemnised when his first wife Dwarkabai was living.

3. The trial Court held that the petitioner’s marriage with Dwarkabai had taken place in the year 1961 while his marriage with the respondent had taken place in the year 1966. It also held that having regard to the fact that the necessary ceremonies for solemnisation of the marriage according to customary Hindu Law having been gone into, she must be deemed to be a legally wedded wife for the purposes of section 125 of the Code. On merits the trial Court accepted the case of the respondent and awarded maintenance at the rate of Rs. 60/- p.m. Aggrieved by this decision, both the petitioner and the respondent filed revision applications in the Sessions Court which came to be dismissed with the result that the order or maintenance passed by the

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

trial Court was maintained. The petitioner has, therefore, preferred this present challenging the order of the courts below.

4. Mr. Sawant, the learned Counsel appearing for the petitioner husband raised only one contention. He submitted that the marriage of the respondent with the petitioner is null and void in view of the provisions of section 5 read with section 11 of the Hindu Marriage Act, and such a marriage, therefore, cannot confer the status of wife on the respondent which would entitle her to make an application for maintenance under section 125 of the Code of Criminal Procedure. He submitted that in order that a woman may be entitled to claim maintenance under the said provisions, she must satisfy the conditions laid down in that section, one of the conditions being that she is the wife of the person against whom maintenance is claimed. According to him, the word “wife” in section 125 must mean, and has all along been construed to mean under section 488 of the old Code of Criminal Procedure, “a legally wedded wife”, and as such a woman whose marriage contravenes the provisions of section 5 read with section 11 of the Hindu Marriage Act being void cannot claim the status of a wife. The mere fact that the necessary ceremonies of a marriage under the customary Hindu Law have been gone into cannot confer on her the status of “a legally wedded wife’ which is a condition precedent for claiming maintenance under section 125 of the Code.

5. On the other hand, Mr. Gavneker, the learned Counsel appearing for the respondent sought to repeal these arguments of Mr. Sawant by contending that the provisions of section 125 should be liberally construed having regard to the social changes as well as the changes in the personal law of the party since independence. He submitted that although under the provisions of section 488of the old Code which is in pari materia with the provisions of section 125 of the new Code, it has been consistently held that in order to be entitled to claim maintenance under section 488, the applicant must establish that she is the legally wedded wife. Such a narrow construction of the provisions will no longer be permissible having regard to the progressive measures to ameliorate the conditions of married women under the Hindu Marriage Act, 1955, and the Hindu Adoption and Maintenance Act, 1956, and the extension of rights of maintenance to additional categories of persons who did not have such a right under the old sections 488 of the Code. He submitted that it must be assumed that the Parliament did taken into consideration the changes in the personal law while enacting the provisions of section 125 of the new Code. According to him, the provisions contained in the Hindu Marriage Act for alimony even to such a wife must be presumed to have been taken note of while enacting section 125 of the Code. He further submitted that section 125of the Code confers a statutory right on every wife irrespective of her marriage being legal or void and there is no valid reason restrict its application only to a legally wedded wife. It was submitted that the provisions of section 125 were a piece of beneficial and social legislation which must be liberally construed in the context of the social changes and the intention of the legislature to confer additional rights on woman and children. The Counsel further submitted that all that the respondent had to establish in this case is whether the marriage was performed by going through the necessary ceremonies as per the customary Hindu Law, and, once that is established, it would not make any difference whether her marriage with the petitioner contravenes the provisions ofsections 5 & 11 of the Hindu Marriage Act. Lastly he submitted that in any event, having regard to the fact of this case, this Court should not exercise its discretionary powers under Article 227 of the Constitution.

BAJIRAO RAGHOBA TAMBRE VS TOLANBAI (MISS) D/O BHAGWAN TOGE

6. It is not disputed before us that the requisite ceremonies for a valid marriage under the personal law of the parties have been gone into in this case, although the marriage is null and void by reason of the provisions of sections 5 and 11 of the Hindu Marriage Act, 1955. This Actwas passed with the object of amending and modifying the law relating to marriages among Hindus. Under the customary law, there was no restriction for a male Hindu to marry more than one women. This right of the Hindu husband under the customary Hindu Law was curtailed for the first time in the then Bombay Province by enacting the Bombay Prevention of Hindu Bigamous Marriage Act, 1946, provisions whereof declared bigamy to be illegal. Under the provisions of the said Act and other similar laws enacted by other Provincial Legislatures, a second marriage by a Hindu person during the life time of the spouse was declared illegal and going through such a marriage was made penal. Consistent with the object of codifying the marriage laws amongst Hindus, all these State laws were repealed by the Hindu Marriage Act, 1955. Section 5 of the Hindu Marriage Act provides for the conditions for solemnisation of marriage between any two Hindus. Section 11 declares that a marriage solemnised after the commencement of the Act shall be null and void if it contravenes any of conditions specified in Clause (i), (iv) and (v) of section 5. One of the conditions for a marriage as required by section 5 is that neither party has a spouse living at the time of the marriage, and this is condition No. (i) insection 5. Section 11 also gives a remedy to either party to the marriage to file a petition for a declaration by a decree of nullity of marriage on any one of the said three conditions of section 5being shown to the have been contravened. Obviously, the second marriage in such circumstances being void, it cannot create a legal status of husband and wife between the parties. It is true thatsection 11 also gives a right to the parties to the marriage to file a petition for a declaration of nullity by a decree of the Court , but the filing of the petition or passing the decree is not a condition precedent for putting an end to the marriage. What ultimately is declared on such a petition is nothing but the status of the party as on the date of the marriage, and therefore, the marriage does not continue to remain valid until a decree is passed. What is null and void cannot be deemed to be in existence for any purposes whatsoever. Under the circumstances, if a marriage is solemnised in contravention of any of the said three conditions referred to in section 5(i), the woman cannot get the status of the wife nor the male gets the status of a husband qua her. The second marriage does not continue to be valid till the passing of the decree for a nullity. The position is also clear from the fact that bigamy is made penal by section 17 of the Hindu Marriage Act which provides that any marriage between two Hindu solemnised after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living and the provisions of sections 494 and 495 of the Indian Penal Code shall apply accordingly. The position is made further clear from the anxiety of the legislature to protect children of such a marriage by providing in section 16 that not withstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. However, the rights of such a child are somewhat curtailed in the matter of inheritance to the property, because sub-section (3) ofsection 16 says that a child of such a marriage would not be entitled to any rights in or to the property of any person other than the parents. Having regard to all these provisions, the marriage of the petitioner with the respondent was void ab initio and the respondent could not get the status of a legally wedded wife inspite of the solemnisation of

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

the marriage under the Hindu Law having gone into. Indeed, Mr. Gavnekar did not dispute this legal position. He, however, contended that the provisions of section 25 of the Hindu Marriage Act conferred a right of maintenance on the second wife and the word “wife” in section 125 of the Code of Criminal Procedure will have to be given a wider meaning as including a Hindu wife whose marriage may be otherwise void.

7. Before adverting to the consideration of section 125 of the new Code it would be of relevance to consider the legal position as it obtained prior to the enactment of the new code of 1973. Section 488 of the old Criminal Procedure Code inter alia provided that if any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the Magistrate could make an order against such a person to make monthly allowance for the maintenance of his wife or such child. Thus a right was conferred on the wife or a legitimate or illegitimate child to claim maintenance, and the husband or the father as the case may be could be directed to pay an amount of maintenance not exceeding a particular limit as mentioned is the section. The object of the provisions of section 488 had been aptly described as a provision for preventing vagrancy or at least of preventing its consequences. The object of maintenance proceedings was not treated as a mode of punishing husband or parent for his past neglect but to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves. The provisions of section 125 are also intended to achieve the same object. In short, the provisions of section 488 or of section 125 of the new Code have been enacted with the object of enabling the discarded wives, helpless and desisted children to secure some relief for their maintenance and livelihood. While section 488 restricted its operation to wives and children whether legitimate of illegitimate section 125 has brought into its fold the parents who are unable to maintain themselves. It has been the consistent view taken as seen from the catena of decisions under section 488 so far as claim for maintenance by a wife against her husband is concerned that it must be shown that the complainant is the wife of the defendant. Only a legally married woman was held to be entitled to maintenance. It was held that merely because a woman has lived with a man as his wife for 12 years or more and has also borne him a chile she was held not entitled to claim maintenance under section 488. Section 488 applied only to the abandoned wife and not to the abandoned mistress, however faithful she may have been to her paramour, and however badly she may have been treated by him. In other words, the condition precedent for claiming a right of maintenance under that section was the proof of relationship of husband and wife and there could be no such relationship unless it is shown that the complainant is a legally wedded wife of the defendant. Conversely, it was also held that once it is established that the complainant is the legally wedded wife, the fact that the personal law did not provide for such a maintenance was no bar to pass an order for maintenance under this section. For instance, a mutta wife was held entitled to maintenance under this section though she may be entitled under the Mohammedan Law. As long back as in the year 1891, this Court held in (In Re: Gulabdas Bhaidas), 16 Bom. 269, that before a Magistrate makes an order undersection 488 of the Code of Criminal Procedure, be must find that the complainant is the wife of the person from whom she claims maintenance, and that he has either neglected or refused to maintain her. A similar interpretation was also made by the Madras High Court in (A.T. Lakshmi Ambalam s. Andiammal) A.I.R. 1938 Madras 66. The Court held that only legally wedded women were entitled to maintenance under section 488; and in case of a dispute, the Magistrate must record a definite finding that the complainant is the wife of the person ordered to pay the maintenance, because the provisions were that only wives were entitled to

BAJIRAO RAGHOBA TAMBRE VS TOLANBAI (MISS) D/O BHAGWAN TOGE

maintenance. Same interpretation was put on the word “ wife” in section 488 in the case of Pwa Me v. San Hla, 16 Cri.L.J. 39. It was held that under section 488, a woman cannot be granted maintenance order against a man unless she proves herself to be his legal wife according to his personal law.

8. Section 488 remained on the statute book till the enactment of the new Code of 1973. It was in the year 1955 that a Union Legislation was enacted prohibiting bigamy and rendering a marriage null and void if such a marriage takes place when a spouse is living at the time of the marriage. It would be significant that in spite of the Hindu Marriage Act coming into force in the year 1956, no attempt was made to amend the provisions of section 488 to include the case of a woman whose marriage is void by reason of the provisions of sections 5 and 11 of the Hindu Marriage Act. The question as to whether a woman who has entered into a Marriage Act. The question as to whether a woman who has entered into a marriage with a person in contravention of the provisions ofsections 5 and 11 can apply for maintenance under section 488 arose for consideration of different High Courts.

9. In Savithramma v. Ramanarasimhalah, 1963(1) Cri.L.J. 131 the Court held that the complainant who was not a legally wedded wife or a lawful wife was not entitled to claim maintenance under section 488. The Court observed in para 5 as under,—

“The scope of section 488 of the Criminal Procedure Code is rather restricted. Its object is to prevent vagrancy of wife or of the legitimate or illegitimate children. It affords speedy remedy for the aggrieved party. But it does not determine the legal rights as a Civil Court does. Otherwise, it would usurp the jurisdiction of Matrimonial Court. What the section provides for is the maintenance to wife or her legitimate or illegitimate children. If the intention of the legislature was that provision is to be made for even the illegitimate wife just as in the case of children where the expression “legitimate” or “illegitimate” is used, similar expression would have been employed. That has not been done thereby indicating that the term “wife” includes only the legitimate wife and excludes any illegitimate one.”

10. Even after the enactment of the Prevention of Bigamous Marriages Act and the Hindu Marriage Act of 1955, where the second wife (so called, because her marriage was null and void had applied for maintenance under section 488, it has been consistently held that she could not claim the status of a wife and was, therefore, not entitled to make an application for maintenance. Such a view on the interpretation of section 488 has been taken in (1) A.P.K. Narayanaswami Reddiar v. Padmanabhan, ; (2) Banshidhar Jha v. Chhabi Chatterjee, and Baj Bhanbal Mavji v. Kanbi Karshan Devraj, . It would, therefore, be clear that it has been consistently held, notwithstanding the enactment of the Hindu Marriage Act of 1955, that it is only a legally wedded wife who can maintain an action under section 488 of the old Code. If the marriage is not proved to be a valid marriage, whether under the personal law or being in contravention of the provisions of the Hindu Marriage Act, or such other laws, no application under section 488 by such an ‘illegitimate’ wife shall be held to be maintainable. It is significant to note that in spite of this consistent and long standing judicial interpretation of the word “wife” in section 488, the Legislature in its wisdom did not think it necessary to widen the scope of the provisions of section 488 while enacting the provisions of section 125 in the new Code. Undoubtedly, some more categories of persons have been specifically added in section 125, but as for as the wife is concerned, the only addition is that of a divorced wife. The case of divorced wife is obviously different, because till divorce, she continues to be a legally wedded wife. A woman whose marriage is void cannot get the legal

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

status of a wife and, therefore, if the marriage is void by reason of contravention of section 5 read with section 11 of the Hindu Marriage Act, she is not competent to make an application under section 125 of the Code. That provision merely speak of a “ wife “and its meaning cannot be extended to the case of a void marriage.

11. It is well settled principle of construction of a statutory provision that if an Act of Parliament uses the same language which was used in a former Act of Parliament referring to the same subject, and passed with the same purpose, and for the same object, the safe and well known rule of construction is to assume that the legislature when using well-known words upon which there have been well-known decisions use those words in the sense which the decisions have attached to them. (See Maxwell on the Interpretation of statutes, Twelfth Edition, Page 71). It is true that this principle is not “a canon of construction of absolute obligation.”, but merely “a presumption that Parliament intended that the language used by it in the subsequent statute should be given the meaning which in the meantime has been judicially attributed to it.” There is nothing in the provisions of section 125 which would indicate that the Legislature intended to depart from the scope of the earlier section 488 so far as the rights of the wife to claim maintenance is concerned. There is no reason for us to assume that the Legislature intended to enlarge the scope of the original provisions so far as a wife is concerned, particularly when the courts even after the enactment of the Hindu Marriage Act without any exception took the view that it is only a legally wedded wife that can avail of the remedy under section 488. In this context, we may usefully refer to the observations of the Supreme Court in the Commissioner of Sales Tax, U.P. v. Person Tools & Plants, Kanpur, . The Court observed in para 12 as under :

“If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a causes omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation by analogy or implication, something what it thinks to be a general principle of justice and equity. ‘To do so’ at p. 65 in Prem Nath L. Ganesh v. Prem Nath, , per Tekchand J.) ‘ would be entrenching upon the preserves of Legislature”, the primary function of a Court of law being jus dicere and not jus dare. “

12. According to the Concise Oxford Dictionary, “wife” means married woman esp. in relation to her husband”. It is not possible to hold that even if the marriage is null and void and prohibited by law, she should still be considered as the wife. If such an interpretation of the word “wife” were to be accepted, it could as well be extended to cases where the necessary ceremonies under the personal law are not gone into, and what is pressed into service is a long co-habitation as husband and wife. Even a concubine or any woman living with the paramour and treating herself to be his wife could claim to be his wife for the purposes of section 125. For a valid marriage which alone can confer the state of a wife not only the ceremonies under the personal law must be gone into, but also must conform to the statutory requirements such as section 5 and 11 of the Hindu Marriage Act. Just as under the personal law, the ceremonies is a condition precedent for a valid marriage, similarly, the marriage should not contravene any of the conditions under the statutory provisions. In the absence of any clear indication in the provisions itself and having regard to the background in which the said provisions of section 125 were enacted, we do not think that a woman can claim maintenance unless she proves that she is a legally wedded wife of the defendant against whom she maintains an action.

BAJIRAO RAGHOBA TAMBRE VS TOLANBAI (MISS) D/O BHAGWAN TOGE

13. Strong reliance was placed by Mr. Ganvekar on the provisions of section 25 of the Hindu Marriage Act, which according to him, must be borne in mind while interpreting the provisions ofsection 125 of the Code. Section 25 of the Hindu Marriage Act confers jurisdiction on the Court to grant permanent alimony and maintenance to a wife or a husband, and this jurisdiction could be exercised by the Court either at the time of passing the decree or at any time subsequent thereto. It was, therefore, contended that even a woman whose marriage is declared to be null and void under section 11 of that Act is entitled to get alimony and maintenance. This provision of law, according to the Counsel, clearly indicates that there was a clear departure from the personal law as it stood prior to the Hindu Marriage Act and the legislature intended to confer a statutory right of maintenance and alimony even in cases where the marriage contravenes the conditions prescribed in section 5 and is declared to be null and void under section 11. Reliance was placed on a decision of a Single Judge of this Court in Govindrao Ranoji v. Anandibai Govindrao, 79 Bom.L.R. 73. The Court held that section 25(1) not only provides for a remedy but it also confers a right; and the words “ wife” and “ husband” used in section 25(1) of the Hindu Marriage Act include within their scope a woman and man professing the Hindu faith who have gone through a ceremony of marriage which would, in law, have conferred the status of a wife or husband on them but for the provisions of section 11 read with Clauses (i), (iv) and (v) of section 5 of the Act. On this decision, it was urged by the Counsel that there is no reason why the same meaning should not be given to the word “ wife” in section 125 of the Code as has been given to the same word in section 25(1), of the Act of 1955. The Counsel also pointed out that a similar view on the interpretation of the word “ wife” in section 25(1) has been expressed Dayal Singh v. Bhajan Kaur, ; and Arya Kumar v. Ila, . However, it appears that a contrary view has been taken by a Division Bench of the Madras High Court in A.P.K. Narayanaswami Reddiar v. Padmanabhan, . The Madras High Court has held that section 25 cannot be construed in such a manner as to hold that notwithstanding the nullity of the marriage, the wife retains her status for purposes of applying for alimony and maintenance; and the proper construction of section 25 would be that where a Marriage is admittedly a nullity, the section will have no application. They, however, held that where the question of nullity is in issue and is contentious, the Court has to proceed on the assumption until the contrary is proved, that the applicant is the wife. Mr. Sawant submitted that the view taken by Kania, J. in 79 Bom.L.R. 73, requires reconsideration. We do not, however, think it necessary to go into that question because in our view, even if we were to accept the correctness of the view taken by Kania, J. on the true construction of section 25(1), it will not have any hearing on the interpretation of the word “ wife” in section 125 of the Code. We would therefore, proceed on the basis that the woman whose marriage is void by reason of section 5 read with section 11 of the Act is entitled to claim alimony in view of the provisions of section 25. In the first place, section 25(1) confers a statutory right on the wife and the husband and confers a jurisdiction on the Court to pass an order of maintenance or alimony in proceedings contemplated under the Act at any time after the decree is passed in such a proceeding. In order, therefore, that the wife or the husband could claim such a right, the conditions of section 25(1)will have to be satisfied. There must be a matrimonial petition filed under the Act; then in such a petition, a decree must be passed by the Court. It is only when a decree is passed that a right accrues to the wife or the husband or confers a jurisdiction on the Court to grant alimony, Till then, such a right does not take place. It is, therefore, difficult to accept the contention that the personal law regarding the maintenance of a woman who is not legally wedded wife stands changed by the provisions of section 25(1). In any case, the jurisdiction

LANDMARK JUDGMENTS ON ALIMONY & MAINTENANCE

contemplated undersection 25(1). In any case, the jurisdiction contemplated under section 25(1) under the Hindu Marriage Act and section 125 of the new Code are distinct and specific. While section 25(1) is intended for parties who are Hindus, section 125 is secular in character in the sense that it applies to persons belonging to all religions. It would, therefore, be not proper to introduce a concept arising out of the provisions of section 25(1) of the Hindu Marriage Act while construing the provisions of section 125 of the Code. The condition precedent for the applicability of section 125(1) is that the complainant must be the wife of the person against whom the maintenance is claimed. A wife, as we have mentioned above, must mean a legally wedded wife. A wife whose marriage is in contravention of sections 5 and 11 cannot under any circumstances be treated as a legally wedded wife. The provisions of sections 5 and 11 are explicit and admit of no ambiguity. The marriage in contravention of conditions laid down in sections 5 and 11 is no marriage at all in the eye of law, because section 11 clearly states that it is null and void. Merely because section 11permits the presentation of a petition for a decree of nullity on grounds of breach of conditions laid down in section 5, it cannot mean that till such a declaration is made by the Court and a decree is passed to that effect, she continues to be the legally wedded wife. That the legislature has made a clear distinction between void and voidable marriages is seen from the various proceedings contemplated by the Hindu Marriage Act. While section 11 in terms says that the any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of section 5.Section 12 postulates that certain marriages voidable. Under sub-section (1) of section 12, any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the grounds, viz. (a) that the marriage has not been consummated owing to the importance of the respondent; or (b) that the marriage is in contravention of the condition specified in Clause (ii) of section 5; (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required undersection 5, the consent of such guardian was obtained by force, or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. It would, therefore, be clear that till the annulment by a decree, the marriage continues to be valid. Being a voidable marriage, a party to the marriage must exercise its option to get it annulled by a decree. Section 11, however, stands on a different footing. The marriage is ipso facto null and void although a petition can be filed by either party to the marriage. The decree passed in proceedings under section 11 is a declaration of nullity while a decree contemplated under section 12 is a decree of annulment which means that the marriage continues to be valid till it is annulled or nullified by a decree. Same is the position with regard to the provisions of section 13 relating to proceedings for divorce. It is only on a decree of divorce that the marriage is dissolved. Till then the parties to the marriage continue to be locked in a legal marital relationship. Section 125 has taken note of such provisions regarding divorce in Hindu Marriage Act which applies to the case of Hindus and other enactment and personal laws relating to divorce and has provided for granting maintenance even to a divorced wife. Provisions of section 125 are not restricted to Hindus alone but apply to persons belonging to all communities and religions. It is not possible to assign different meaning to the word “ wife” for persons belonging to different communities or religions or governed by different personal laws. To construe the word “wife” as including a woman whose marriage is void and illegal would lead to anomalous

BAJIRAO RAGHOBA TAMBRE VS TOLANBAI (MISS) D/O BHAGWAN TOGE

results, because the same extended meaning will have to be given to the word in the case of woman of all religions and communities. This does not seem to be the intention of the Legislature because it could have expressed such an intention clearly particularly having regard to the long standing judicial interpretation of the word “wife” in section 488 of the old Code. We do not think that the interpretation of section 25(1) of the Hindu Marriage Act can be of assistance in construingsection 125 of the Code. We have no hesitation in concluding that the marriage of the respondent with the petitioner which admittedly contravenes conditions in Clause (i), of section 5 is null and void in its inception and it does not confer the status of a legally wedded wife to enable her to make an application under section 125.

14. It would be useful to refer to the observations of the Supreme Court regarding the scope ofsection 488 in relation to section 23 of the Hindu Adoptions and Maintenance Act. In Bhagwan Dutt v. Kamala Devi, , the Supreme Court observed—

“The question there resolves itself into the issue whether there is anything in sections 488 which is consistent with section 23 or any other provisions of the Act ? This matter is no longer res integra. In Nanak Chand v. Chandra Kishore Agarwal, this Court held that there is no inconsistency between Act 78 of 1956 and section 488, Criminal Procedure Code. Both could stand together. The Act of 1956 is an Act to amend and codify the law relating to adoption and maintenance among Hindus. The law substantially similar before when it was never, suggested that there was any inconsistency with section 488, Criminal P.C. The scope of the laws is different. Section 488, provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties.”

The above observations would indicate that it would not be proper to give an extend meaning to the word “wife” in section 125 on the basis of the provisions of section 25 of the Hindu Marriage Act.

15. It was urged by Mr. Gavnekar that the narrow construction put on the word “wife” in section 125 would injustice and grave hardship and led to manifest contradictions particularly in view of the attempts of the Legislature to improve the lot of discarded married women and the well known fact most such women are helpless do not have any source of income. He contended that it would be permissible to modify the meaning given to the word “wife” by judicial decisions, while interpreting the provisions of section 488 of the old Code. In support of his contention, he relied on the following passage on page 218 of Maxwell on the Interpretation of Statues :—

“Where the language of a Statue, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structures of the sentence.”

We do not think that the principle can be of any assistance in this case, particularly having regard to the secular character of the provisions and the plain grammatical meaning of the word coupled with the long standing judicial interpretation put by the courts on the word “wife” in section 488. On the other hand, if the wider meaning as suggested by the learned Counsel is given, it is likely to lead to manifest contradictions and absurdities, because the same extended meaning will have to be given in the case of parties governed by other religions and personal laws.

What's Hot

India Crime Report: 147 Murder & Crime Cases Reported June 2025

Turning Shield into Weapon – A Data Analysis

International Journal of Advance and Innovative Research

HC Judgements FamilyMatters 1st regional

Our Picks

India Crime Report: 147 Murder & Crime Cases Reported June 2025

Turning Shield into Weapon – A Data Analysis

International Journal of Advance and Innovative Research

Most Popular

Atul Subhash Foundation: A Beacon of Justice Against False Allegations

Turning Shield into Weapon – A Data Analysis

Interest of Child

Subscribe to Updates

What's Hot

HC Judgements FamilyMatters 1st regional