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2013 DIGILAW 937 (BOM)

Shaila Balasaheb Kadam v. Balasaheb Hindurao Kadam

2013-05-03

F.M.REIS

body2013
JUDGMENT : F.M. Reis, J. 1. Heard learned Counsel appearing for the respective parties. The issue that falls for consideration in the above appeal is whether the lower Appellate Court was justified in refusing the maintenance to the appellant herein on the basis that she is the second wife of respondent No. 1 herein. The learned Counsel appearing for the appellant has strongly argued that the provision of section 18(2) of the Hindu Adoption and Maintenance Act, 1956, clearly provides that even a second wife is entitled for maintenance. The learned Counsel for the appellant further pointed out that the respondent has cheated the appellant in not disclosing about the first marriage and as such the appellant is being deprived of maintenance on account of such fraud committed by the respondent. The learned Counsel further pointed out that the Division Bench of the Delhi High Court in its judgment in the case of (Smt. Narinder Pal Kaur Chawla Vs. Manjeet Singh Chawla), reported in A.I.R. 2008 Del. 7, has clearly held that a second wife is entitled to claim maintenance. The learned Counsel has taken me through the said judgment and pointed out that Delhi High Court has essentially come to such conclusion upon interpretation of the provisions of section 18(2) of the Hindu Adoption and Maintenance Act, 1956. The learned Counsel as such submits that there are substantial questions of law which arise in the present appeal which require consideration by this Court. 2. On the other hand the learned Counsel appearing for the respondents has supported the impugned judgment. The learned Counsel pointed out that the learned trial Judge has erroneously come to the conclusion that the appellant is entitled for maintenance despite of the fact that she is the second wife of the respondent. The learned Counsel further pointed out that the lower Appellate Court has rightly set aside the judgment passed by the learned trial Judge, holding that the second wife is not entitled to claim maintenance. The learned Counsel for the respondent further pointed out the reference in section 18(2)of the Hindu Adoption and Maintenance Act, 1956 is with regard to the second marriages which was performed prior to 1956 when such second marriages were permissible. The learned Counsel further points out that the Division Bench of this Court in its judgment in the case of (Mangala Bhivaji Lad Vs. The learned Counsel further points out that the Division Bench of this Court in its judgment in the case of (Mangala Bhivaji Lad Vs. Dhondiba Rambhau Aher), reported in 2010 (3) Bom. C.R. 827, has clearly held that second wife has no right to claim such maintenance. The learned Counsel as such submits that there are no substantial questions of law which arise in the present appeal which requires consideration by this Court. The learned Counsel appearing for the appellant in reply to the submissions of the learned Counsel appearing for the respondents has pointed out that in case an interpretation as sought to be given by the learned Counsel for the respondents is accepted the provisions of section 18(2) of the Hindu Adoption and Maintenance Act, 1956, would be redundant. 3. I have carefully considered the submissions of the learned Counsel appearing for the respective parties. I have also gone through the records and the judgments passed by the courts below. There is no dispute that after the Hindu Marriage Act, 1955 came into force the second marriage during the subsistence of the earlier marriage was not permissible. In order to claim maintenance within the provisions of section 18 of the Hindu Adoption and Maintenance Act, 1956, the wife claiming such maintenance has to be a legally wedded wife. In the present case, the marriage of the appellant was performed during the substance of the earlier marriage and as such the appellant cannot be said to be a legally wedded wife of the respondent herein. The Division Bench of this Court in the case of Mangala Bhiavaji Lad (supra), has after review of the relevant provisions of law observed in para 28 thus: "28. We therefore fully agree with the view expressed by the Andhra Pradesh High Court that the expression "Hindu wife" used in section18 of the Hindu Adoption and Maintenance Act, means legally wedded Hindu wife and no less. The appellant not being the legally wedded wife of the respondent cannot resort to section 18 of the Hindu Adoption and Maintenance Act to claim maintenance. We may also mention here that it has been the observation of the Family Court in the impugned judgment and order that the appellant has sufficient source of livelihood consisting of service pension, the retirement dues as also her income from playing roles in T.V. Serials. We may also mention here that it has been the observation of the Family Court in the impugned judgment and order that the appellant has sufficient source of livelihood consisting of service pension, the retirement dues as also her income from playing roles in T.V. Serials. In the above circumstances, we dismiss the appeal with costs." Considering that it is not in dispute that the appellant cannot be considered to be a legally wedded wife of respondent No. 1, the lower Appellate Court was justified in coming to the conclusion that the appellant was not entitled to claim maintenance from the respondent. The judgment of the Delhi High Court in the case of Smt. Narinder Pal Kaur Chawla (supra) relied upon by the learned Counsel appearing for the appellant has been distinguished by the Division Bench of this Court at paras 18 and 20 while observing thus: "18. Division Bench of Delhi High Court has taken a different view on the question and granted maintenance to the second wife on an application filed under section 18. According to Delhi High Court, a Hindu husband is stopped from challenging validity of the second marriage in view of the wrong committed by him in not disclosing to the second wife the factum of his first marriage, otherwise it would amount to giving premium to the husband for defrauding the second wife. It was of the opinion that the legislature never intended that a woman who is in the position of a second wife, be not treated as the wife at least for the purposes of section 18 of the Act and be deprived of her right to seek maintenance. The Delhi High Court drew distinction between the claim of maintenance under section 125 Cri. P.C. and section 18 of the Act in order to distinguish the decision of the Apex Court in the case of Savitaben. The Delhi High Court drew distinction between the claim of maintenance under section 125 Cri. P.C. and section 18 of the Act in order to distinguish the decision of the Apex Court in the case of Savitaben. "20.............It is thus seen that after the extensive discussion on the statutory provisions, the Delhi High Court founded its order not on the provision of section 18 of the Hindu Adoption and Maintenance Act, but, on the inherent powers of the Court under section 151 C.P.C. With respect we do not agree with such a course of action because it is well established that the inherent powers are required to be exercised by the Court only in the absence of statutory provisions and not to circumvent a statutory provision. Besides, inherent power of section 151 CPC is only a source of power to the Court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court. It cannot be a source of right to claim maintenance. In the circumstance, in our opinion, the decision of the Delhi High Court does not really help the appellant in her contention that the second wife is entitled to claim maintenance under section 18." 4. In view of the judgment of the Division Bench of this Court in the case of Mangala Bhivaji Lad (supra), I find that there are no substantial questions of law which requires consideration by this Court in the present second appeal. As admittedly, the appellant was the second wife of the respondent and she had married during the substance of the earlier marriage, the appellant was not entitled to claim any maintenance within the provisions of section 18 of the said Act. 5. In view of the above, the second appeal stands rejected. In view of the rejection of the second appeal, nothing survives in the Civil Application No. 666 of 2012 and the same stands accordingly disposed of.