Ms. Suresh Khullar vs Mr. Vijay Khullar
2002 Latest Caselaw 616 Del

JUDGMENT

Mahmood Ali Khan, J.

1. This civil revision petition is filed under Section 115 of the CPC assailing the order of an Additional District Judge dated 24.2.1997 whereby he has dismissed an application of the petitioner filed for grant of interim maintenance to her during the pendency of proceeding instituted under Sections 18, 20 and 23 of Hindu Adoption and Maintenance Act (hereinafter the Act) against the respondent.

2. The short question that arises for adjudication in this revision petition is whether the petitioner, the second wife of the respondent, may be allowed the interim maintenance under Section 18 of the Act.

The facts are short and simple. The respondent was married to one Ms. Manju Khullar in 1980. He filed a divorce petition in the court of the District Judge, Himachal Pradesh and his marriage with Ms. Manju Khullar was dissolved by an ex parte decree of divorce dated 29.10.1984. Thereafter he contracted second marriage with the petitioner on 14.10.1988. Ms. Manju Khullar filed application for setting aside the ex parte divorce decree which was allowed by the District Judge, Himachal Pradesh by order dated 4.11.1989. The petitioner filed a petition against the respondent under Sections 18 and 20 of the Act for grant of maintenance to her. She also filed an application for grant of interim maintenance during the pendency of the proceeding. The allegation of the petitioner was that the respondent had married her by representing to her that he was a divorcee and he had obtained valid divorce from his first wife Ms. Manju Khullar. Later on the petitioner came to know that the respondent had played a fraud upon her. She alleged that after the marriage she was treated with mental and physical cruelty by the respondent and he other members of his family. He filed a petition for divorce against her. During its pendency he moved an application for amendment of the petition stating the divorce decree obtained by him against his wife Ms. Manju Khullar had been set aside and, therefore, the marriage between him and Ms. Manju Khullar shall be deemed to be subsisting at the time of his marriage with the petitioner. He, therefore, claimed a decree of nullity of the marriage. He was a businessman and his income was in four figures. He also had a diploma in Industrial Marketing Management and was a well-to-do man with business interest and properties including commercial office in Lajpat Nagar. She prayed for granting interim maintenance to her. The application is opposed by the respondent.

3. The learned Additional District Judge dismissed the application mainly on the ground that the petitioner being the second wife of the respondent, marriage having been solemnised during the subsistence of the first marriage, was not entitled to be granted maintenance under the Act. He relied upon the judgment of the Supreme Court in Bakulabai etc. v. Gangaram 1998 RLR (SC) 171. He also dismissed the main petition.

4. The petitioner has not disputed that her marriage with the respondent shall be deemed to have been solemnised during the subsistence of the respondent's marriage Ms. Manju Khullar. The parties are Hindu and are governed by the provisions of Hindu Marriage Act. The provisions of the Act were also applicable on them. Clause (i) of Section 5 of Hindu Marriage Act lays down, for a lawful marriage, the necessary conditions are that neither party should have spouse living at the time of the marriage. The marriage on contravention of this condition was, therefore, null and void. Such a marriage could be declared null and void under Section 11 of the Hindu Marriage Act. No doubt when the petitioner was married to the respondent on 14.10.1988 the marriage of the respondent with his first wife Ms. Manju Khullar had been dissolved by an ex parte divorce decree by the District Judge, Una in Himachal Pradesh. But the ex parte decree was set aside by the court in 1989. The respondent also withdrew his own the divorce petition. As a consequence of the setting aside of ex parte decree of divorce by the court, the marriage between the respondent and his first wife Ms. Manju Khullar shall be deemed to be subsisting in law on 14.10.1988 when the marriage between the petitioner and the respondent was solemnised. If it is so, there is no escape from holding that the marriage between the petitioner and the respondent became null and void and conferred no right on the parties. In other words, the petitioner lost the status of a wife who can claim maintenance either under the provisions of Hindu Marriage Act or under the provisions of the Act.

5. The petition is filed by the petitioner for maintenance under Section 18, 20 and 23 of the Act. Section 20 deals with legal obligation of a Hindu to provide maintenance to his legitimate or illegitimate children and old parents. Section 23, on the other hand, indicates the guidelines to the court while fixing the quantum of maintenance. Section 18, however, being relevant for deciding the question involved is reproduced below:-

"18. Maintenance of wife.-

(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

(2) A Hindu wife shall be entitled to live separately from her husband without for feiting her claim to maintenance.-

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of willfully neglecting her;

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband.

(c) if he is suffering from a virulent from of leprosy;

(d) if he has any other wife living;

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f) if he has ceased to be a Hindu by conversion to another religion;

(g) if there is any other cause justifying her living separately.

6. The word "a Hindu wife" used in this Section are significant. Sub-section (1) of Section 2 of the Act provides that the provisions of the Act will be applicable to a person who is a Hindu. The word 'Hindu' has been given a wider meaning and includes within its ambit every person, who is not a Muslim, Christian, Parsi or Jew by religion. Sub-section (3) of Section 2 expands the meaning of the word 'Hindu' further and states that this words included a person who though not a Hindu by religion was nevertheless a person to whom this Act applied by virtue of the provisions of Section 2. The expression 'a Hindu wife', as such connotes that a wife, who is Hindu, as defined by Section 2 of the Act in its widest sense, has a right to be maintained by her husband during her lifetime by dint of Section 18. A Hindu wife whose marriage was solemnised with a Hindu male before the commencement of the Act, who had one or more spouses living, shall also be entitled to be maintained by her husband. Before the enactment of Hindu Marriage Act in 1955 a Hindu male, in law, could have married more than one wife. The embargo on his performing marriage with another woman during the lifetime of his first spouse was put by Hindu Marriage Act It is clear from Section 18 that a non-Hindu wife of a Hindu husband had no right to claim maintenance from her husband under the provisions of this Act. Similarly a wife who ceases to be a Hindu by conversion to another religion is also not entitled to claim maintenance under the Act as per Section 24.

7. The word 'wife' has not been defined under the Act. It has also not been defined by the provisions of Hindu Marriage Act. However, how a marriage could be solemnised between two Hindus legally is codified in Section 7. Conditions essential for a valid marriage are embodied in Section 5 of Hindu Marriage Act. The first condition is that neither party should have a spouse living at the time of the marriage. The expression 'spouse living' used in this Section is to be understood as the existence of a legally wedded spouse, husband or wife. The word 'wife' is used in some of the enactments regulating the matrimony in a narrow meaning i.e., the marriage which is performed/contracted as per procedure prescribed by law. Some other enactments use it in a wider meaning. For instance, Hindu Marriage Act used this word in its restricted sense i.e. a woman whose marriage is performed/solemnised with a Hindu male in accordance with the procedure prescribed in Section 7 of the Act and is not void as declared by Section 5. On the other hand Section 125 of the Civil Procedure Code which empowers a Magistrate to grant maintenance, inter alia, to a wife, states that the word "wife" will include a woman whose marriage has been dissolved by divorce and has not remarried. The petitioner has claimed maintenance under the provisions of the Act, which though not defined the word 'wife', but have used it in the same meaning which have been given to this word under Hindu Marriage Act since the right to maintenance arises out of the status of a wife. The expression 'a Hidnu wife', therefore, has to be given its ordinary meaning. A Hindu woman whose marriage is solemnized with a Hindu husband in accordance wit the provisions of Hindu Marriage Act and is not void or dissolved by a decree of divorce is, as such, a Hindu wife within the meaning of Section 18 of the Act.

8. The ex parte decree of divorce obtained by the respondent from the Himachal Pradesh Court was set aside. As a consequence on the date of the marriage of the respondent with the petitioner in 1988 the respondent shall be presumed to have a spouse living. It is in clear violation of the conditions of a valid marriage as embodied in Section 5 of Hindu Marriage Act. This Section provided, as one of the essential conditions of a valid marriage, that none of the parties to the marriage has a spouse living at the time of the marriage. No civil suit or proceedings under Hindu Marriage Act for declaration of the marriage null and void is necessary before the second wife is divested of right to be maintained by a husband. The parties to the marriage can ignore that marriage. It may be unfortunate and cause tremendous hardship to the petitioner but there is no escape from the legal position that her marriage with the respondent was hit by Section 5. She being not a Hindu wife within the meaning of Section 18 of the Act has become disentitled to be maintained by her husband under this provision. For this reason, she also became disentitled to claim interim maintenance during the pendency of the proceeding.

9. This view finds support from several judgment of the Supreme Court.

The Supreme Court in Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. analysed the provision of Section 5 of the Hindu Marriage Act in the context of a claim of maintenance of a woman claiming herself to be the second wife of a Hindu husband under Section 125 Cr.P.C. It was observed as under:-

"Clause (i) of Section 5 lays down, for a lawful marriage the necessary condition 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. It was urged on behalf of the appellant that a marriage should not be treated as void because such a marriage was earlier recognised in law and custom. A reference was made to Section 12 of the Act and it was said that in any event the marriage would be voidable. There is no merit in this contention. 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. So far as Section 12 is concerned, it is confined to other categories of marriages and is not applicable to one solemnised in violation of Section (i) of the Act. Sub-section (2) of Section 12 puts further restrictions on such a right. The cases covered by this section are not void ab initio and unless all the conditions mentioned therein are fulfillled and the aggrieved party exercises the right to avoid it, the same continues to be effective. 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 the 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 has been contended on behalf of the appellant that the term 'wife' in Section 125 of the Code should be given a wider and extended meaning so as to include therein not only a lawfully wedded wife but also a woman married in fact by performance of necessary rites or following the procedure laid down under the law. Relying upon the decision of this Court in Mohd. Ahmed Khan v. Shah Bano Beghum , it was argued that the personal law of the parties to a proceeding under Section 125 of the Code should be completely excluded from consideration. The relationship of husband and wife comes to an end on divorce, but a divorce has been held to be entitled to the benefits of the section, it was urged, and therefore applying this approach a woman in the same position as the present appellant should be brought within the sweep of the section. We are afraid, the argument is not well founded, a divorcee is included within the section on account of Clause (b) of the Explanation. The position under the corresponding Section 488 of the Code of 1898 was different. A divorce could not avail of the summary remedy. The wife's right to maintenance depended upon the continuance of her married status. It was pointed out in Shah Bano's case that since that right could be defeated by the husband by divorcing her unilaterally under the Muslim Personal Law or by obtaining a decree of divorce under any other system of law, it was considered desirable to remove the hardship by extending the benefit of the provisions of the section to a divorced woman so long as she did not remarry, and that was achieved by including Clause (b) of the Explanation. Unfortunately for the appellant no corresponding provisions was brought in so as to apply to her. The legislature decided to bestow the benefit of the section even on an illegitimate child by express words but none are found to apply to a de facto wife where the marriage is void ab initio.

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 a wife, and one who intends to take benefit under Sub-section (1)(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 on (or) relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. The issue whether the section is attracted or not cannot be answered except by the reference to the appropriate law governing the parties. In our view the judgment in Shah Bano's case does not help the appellant. It may be observed that for the purpose of extending the benefit of the section to a divorced woman and an illegitimate child the Parliament considered it necessary to include in the section specific provisions to that effect, but has not done so with respect to woman not lawfully married. Lastly it was urged that the appellant was not informed about the respondent's marriage with Lilabai when she married the respondent who treated her as his wife, and, therefore, her prayer for maintenance should be allowed. There is no merit in this point either. The appellant cannot rely on the principle of estoppel so as to defeat the provisions of the Act. So far as the respondent treating her as his wife is concerned, it is again of no avail as the issue has to be settled under the law. It is the intention of the legislature which is relevant and not the attitude of the party.

We, therefore, hold that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of Section 125 of the Code."

10. In Vimala (K.) v. Veeraswamy (K.) the Supreme Court was dealing with a petitioner under Section 125 filed by a Hindu wife for grant of maintenance to her against the husband. It was observed:

"The term 'wife' in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term 'wife' consistent with the objective. However, under the law a second wife, whose marriage is void on account of the survival of the first marriage is not a legally wedded wife and is, therefore, not entitled to maintenance under this provision.

In another case Khemchand Om Prakash Sharma v. State of Gujarat and Anr. which was again a case of maintenance under Section 125 CrPC filed by the second wife against the Hindu husband, the Supreme Court held as under:

"During the subsistence of the first marriage, any second marriage is null and void, and therefore, the courts below committed a mistake in granting maintenance in favor of Jasumatiben, who claimed maintenance as the second wife of the applicant. We, therefore, set aside the grant of maintenance in favor of Jasumatiben alone. Needless to mention the children, namely, Trupti and Vaishali will continue to get maintenance, as directed."

11. Similar view was taken by Apex Court in Bakulabai v. Ganga Ram 1988 Rajdhani Law Reporter (SC) 171 which is relied upon by the learned Additional District Judge in the impugned order. The petitioner has not been able to cite any case law in which a contrary view was taken by any court. She, of course, cited Sivankutty v. S. Komalkumari and Ors. ; Tarini Gupta Chowdhury v. Sm. Gouri Gupta Chowdhury ; Khadal Penthi v. Hulash Dei and Anr. ; Smt. Neelam Malhotra v. Rajinder Malhotra and Ors. ; Hema v. S. Lakshmana Bhat ; Sangeeta Piyush Raj v. Piyush Chaturbhuj Raj 1999 Marriage Law Journal (28) 434; C. Obula Konda Reddy v. C. Pedda Venkata Lakshamma ; Maganbhai Chhotubhai Patel v. Maniben in which it has been laid down that interim maintenance can be granted during the pendency of the proceeding instituted under Section 18 of the Act. In Khadal Penthi (supra) the Full Bench of the Orissa High Court further held that interim maintenance can be granted to a wife even where the matromonial relationship was denied by the husband.

12. In C. Obula (supra) Andhra Pradesh High Court was dealing with a case of a Hindu wife whose marriage was solemnised before the Act came into force in 1956 and it was held that the words "Hindu wife" under Section 18 cannot be interpreted to mean only a wife whose marriage was valid according to the provision of Hindu Marriage Act and that a Hindu wife whose marriage was solemnized before the 'Act' came into force will be valid even though the husband had another wife living. In view of the judgment of the Supreme Court such an interpretation was not permissible on the construction of the Act and will be contrary to the law laid down by the Supreme Court.

13. Having regard to the position in law, the petitioner will not be entitled to be maintained by the respondent husband under Section 18 or claim relief under any other provision of the Act.

14. There is no error in the exercise of the jurisdiction, material irregularity and illegality committed by the learned Additional District Judge warranting interference by this court.

15. The petition, therefore, has no merit. It is dismissed.