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2009 DIGILAW 1377 (PNJ)

Gurmit Kaur v. Buta Singh

2009-08-11

VINOD K.SHARMA

body2009
JudgmentJudgment Vinod K.Sharma, J. 1. This application under Section 24 of the Hindu Marriage Act has been moved by the applicant-appellant, for grant of maintenance pendente lite and litigation expenses. 2. It has been averred in the application, that the respondent-husband is earning a sum of Rs.12,000/- (Rupees twelve thousand only) per month, and in addition has sufficient bank balance from which he is earning interest, therefore, his monthly income is more than Rs.15,000/- (Rupees fifteen thousand only) per month. 3. Reply to the application has been filed, wherein preliminary objection has been taken, that the present application, under Section 24 of the Hindu Marriage Act is not maintainable, as at the time of marriage, the applicant-appellant had a living spouse, therefore, the marriage between the parties was null and void, therefore, the applicant appellant could not be treated to be a wife to be entitled to maintenance under Section 24. It is also pleaded in the reply, that the respondent husband stands retired on 31.12.2004, and is getting a monthly pension of Rs.5,500/- (Rupees five thousand five hundred only). It has also been pleaded, that he has to look after big family, which consists of his five children and one widow sister. However, the factum that the respondent is getting income by interest from the bank, has not been denied. The stand taken in the reply is, that the applicant-appellant is getting pension of Rs.4,000/- (Rupees four thousand only) per month from the Army Authorities being widow of Surjit Singh and further that her son is major, who is earning Rs.8,000/- (Rupees eight thousand only) per month. On merit it is contended that the applicant-appellant is not entitled to any maintenance, as she has independent source of income. 4. Mr. Gurcharan Dass, learned counsel for the applicant-appellant has placed reliance on the judgment of the Honble Supreme Court in Ramesh Chandra Rampratapji Daga v. Rameshwari Ramesh Chandra Daga, 2005(1) Apex Court Judgments 396 to contend, that even in case where the marriage is declared as null and void under Section 11 read with Section 5(i) of the Hindu Marriage Act, the party is entitled to maintenance. The Honble Supreme Court in Ramesh Chandra Rampratapji Daga v. Rameshwari Ramesh Chandra Daga (supra) has been pleased to lay down as under:- "17. The Honble Supreme Court in Ramesh Chandra Rampratapji Daga v. Rameshwari Ramesh Chandra Daga (supra) has been pleased to lay down as under:- "17. In interpreting the provision of Section 25 in the case of Chand Dhawan (supra) the Supreme Court categorically held that the expression at the passing (sic. time) of passing any decree, as has been used in Section 25, includes a decree of nullity of marriage. The relevant observations read thus:- "On the other hand, under Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated (sic) on the pendency of a litigation of the kind envisaged under Sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour of (sic. or) against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being seisin of the matter, invokes its ancillary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfill this incidental or ancillary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to change or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit (sic gamut) of a diseased or a broken marriage. And in order to avoid conflict of perceptions the legislature which codifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under Section 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary or incidental to such affection or disruption. In other words without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary or incidental to such affection or disruption. The wifes claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955 , though part of the same socio-legal scheme revolutionizing the law applicable to Hindus. We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affectation or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. 18. In the present case, on the husbands petition, a decree declaring the second marriage as null and void has been granted. The learned counsel has argued that where the marriage is found to be null and void -meaning nonexistent in eye of law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance. We have critically examined the provisions of Section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in Chand Dhawan s case (supra), the expression used in the opening part of Section 25 enabling the Court exercising jurisdiction under the Act at the time of passing any decree or at any time subsequent thereto to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as at the time of passing of any decree, it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13." Learned counsel for the applicant-appellant also contended, that even in case of null and void marriage if declaration is required to be obtained and proceedings in this regard are commenced, the appellant gets entitled to maintenance pendente lite. 5. Mr. G.S.Bhatia, learned counsel appearing on behalf of the respondent, on the other hand, has vehemently contended that the applicant-appellant is not entitled to any maintenance, as the marriage between the parties was null and void from the very incepion, therefore, the status of the applicant-appellant is not that of wife, to attract the provisions of Section 24 of the Hindu Marriage Act. In support of this contention, the earned counsel for the respondent has placed reliance on the judgment of this Court in Navdeep Kaur v. Dilraj Singh, (2002-3)132 P.L.R. 708, wherein this Court has laid lown as under:- "Hindu Marriage Act (25 of 1955), Ss 5(i), 11, 12, 1.4, 16 - Marriage with person having living spouse - Is null and void - cannot be treated as voidable under S. 12 Criminal P.C. (2) of 1974), S. 125 - Maintenance - Expression "Wife" - Means legally wedded wife - Marriage of woman with man already having living spouse as per Hindu Rites is complete nullity. She is not entitled to maintenance. It is further held in this citation as under. The expression "Wife" in S. 125 of the Code should be interpreted to mean only a legally wedded wife. The word "Wife" is not defined in the code except indicating in the Explanation to S. 125 its inclusive character so as to cover a divorce. 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. 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. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is, therefore, not entitled to the benefit of S. 125 of the Code. I have gone through these citations. These citations fully apply in the present case. The learned counsel for the petitioner cited 1991(1), All India Hindu Law Reporter Madhya Pradesh, Page 56 in which it is held as under:- Hindu Marriage Act, 1955 , Section 5, 9, 11, 24 and 25 - Petition for conjugal rights by wife - During the pendency of the petition prayer for interim maintenance was made - Wife was not dis-entitled from claiming maintenance pendente lite under Section 24 of the Act on a prima facie case having been found in favour of the husband that her marriage was bigamous and liable to be declared void under Section 11 read with Section 5(i) of the Act. I have gone through this citation. In view of the law laid down by the Honble Supreme Court in A.I.R. 1988 Supreme Court Page 644 as discussed above, the citation cited by learned counsel for the petitioner will not apply. Therefore, from the above discussion, I find that the litigation expenses and maintenance cannot be granted to the petitioner. Finding no merit in the petition the same is dismissed." 6 Learned counsel for the respondent also placed reliance on the judgment of the Honble Supreme Court in Savitaben Somabhai Bhatiya v. State of Gujrat and others, A.I.R. 2005 Supreme Court 1809, wherein the Honble Supreme Court has been pleased to lay down, that the scope of Section 125 Cr.P.C. cannot be enlarged to include woman not lawfully married. The Honble Supreme Court was pleased to lay down as under: - "The legislature considered it necessary to include within the scope of S. 125 an illegitimate child but it has not done so with respect to woman not lawfully married. The Honble Supreme Court was pleased to lay down as under: - "The legislature considered it necessary to include within the scope of S. 125 an illegitimate child but it has not done so with respect to woman not lawfully married. As such, however, desirable it may be, to take note of the plight of the unfortunate woman, who unwittingly enters into wedlock with a married man the legislative intent being clearly reflected in S. 125 of the Code, there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression wife. This may be an inadequacy in law, which only the legislature can undo." 7. On consideration, I find force in the contentions raised by the learned counsel for the applicant-appellant. The proceedings in appeal are in continuation of proceedings, the decree passed declaring the marriage to be null and void is sub-judice before this Court. The Honble Supreme Court in Ramesh Chandra Rampratapji Daga v. Rameshwari Ramesh Chandra Daga (supra) has been pleased to lay down that the maintenance is payable even to the wife in a proceeding under Section 11 of the Hindu Marriage Act. The Honble Supreme Court has further gone to hold, that the wife, whose marriage is declared to be null and void, is entitled to permanent alimony, under Section 25 of the Hindu Marriage Act, at the time of passing of the decree. In view of the authoritative pronouncement of the Honble Supreme Court, the reliance on the judgment of this Court can be of no help to the respondent-husband. 8. The Honble Supreme Court has further held, that necessity to pass that judgment arose because there were conflicting judgments of different High Courts, as to whether the wife, whose marriage has been declared to be null and void, is entitled to maintenance or not. 9. In view of what has been stated above, this application is allowed. The applicant- appellant is held entitled to maintenance pendente lite @ Rs.1,500/- (Rupees one thousand five hundred only) per month. In addition, she is also held entitled to litigation expenses of Rs. 11,000/- (Rupees eleven thousand only). The maintenance shall be payable from the date of application. Application allowed.