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2012 STPL(Web) 731 SC 1
Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad
Supreme Court Judgements @ www.stpl-india.in
2012 STPL(Web) 731 SC
SUPREME COURT OF INDIA
(P. SATHASIVAM & RANJAN GOGOI, JJ.)
DEOKI PANJHIYARA
Appellant
VERSUS
SHASHI BHUSHAN NARAYAN AZAD & ANR.
Respondents
Criminal Appeal Nos.2032-2033 of 2012 (Arising out of SLP (Criminal) Nos. 8076-8077 of
2010)-Decided on 12-12-2012.
Maintenance to Wife – Void marriage
JUDGMENT
Ranjan Gogoi, J.-Leave granted.
2. The appellant, who was married to the respondent in the year 2006, had filed a petition under
Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred
to as ‘the DV Act’) seeking certain reliefs including damages and maintenance. During the
pendency of the aforesaid application the appellant filed an application for interim maintenance
which was granted by the learned trial court on 13.02.2008 at the rate of Rs.2000/- per month.
The order of the learned trial court was affirmed by the learned Sessions Judge on 09.07.2008. As
against the aforesaid order, the respondent (husband) filed a Writ Petition before the High Court
of Jharkhand.
3. While the Writ Petition was pending, the respondent sought a recall of the order dated
13.02.2008 on the ground that he could subsequently come to know that his marriage with the
appellant was void on the ground that at the time of the said marriage the appellant was already
married to one Rohit Kumar Mishra. In support, the respondent – husband had placed before the
learned trial court the certificate of marriage dated 18.04.2003 between the appellant and the said
Rohit Kumar Mishra issued by the competent authority under Section 13 of the Special Marriage
Act, 1954 (hereinafter referred to as ‘the Act of 1954’).
4. The learned trial court by order dated 7.8.2009 rejected the aforesaid application on the ground
that notwithstanding the certificate issued under Section 13 of the Act of 1954, proof of existence
of the conditions enumerated in Section 15 of the Act would still required to be adduced and only
thereafter the certificate issued under Section 13 of the Act can be held to be valid.
5. The aforesaid order dated 07.08.2009 was challenged by the respondent-husband in a revision
application before the High Court which was heard alongwith the writ petition filed earlier. Both
the cases were disposed of by the impugned common order dated 09.04.2010 holding that the
marriage certificate dated 18.04.2003 issued under Section 13 of the Act of 1954 was conclusive
proof of the first marriage of the appellant with one Rohit Kumar Mishra which had the effect of
rendering the marriage between the appellant and the respondent null and void. Accordingly, it
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Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad
Supreme Court Judgements @ www.stpl-india.in
was held that as the appellant was not the legally wedded wife of the respondent she was not
entitled to maintenance granted by the learned courts below. It is against the aforesaid order of
the High Court that the present appeals have been filed by the appellant – wife.
6. We have heard Shri Gaurav Agarwal, learned counsel for the appellant and Shri Mahesh
Tiwari, learned counsel for the respondent.
7. Learned counsel for the appellant has strenuously urged that the allegation of the earlier
marriage between the appellant and Rohit Kumar Mishra had been denied by the appellant at all
stages and the said fact is not substantiated only by the Marriage Certificate dated 18.04.2003.
Even assuming the marriage between the appellant and the respondent to be void, the parties
having lived together, a relationship in the nature of marriage had existed which will entitle the
appellant to claim and receive maintenance under the DV Act, 2005. Placing the legislative
history leading to the aforesaid enactment, it is urged that in the Bill placed before the Parliament
i.e. Protection from Domestic Violence Bill, 2002 an “aggrieved person” and “relative” was,
initially, defined in the following terms :
“Section 2……… (a) “aggrieved person” means any woman who is or has been relative
of the respondent and who alleges to have been subjected to act of domestic violence by
the respondent; (b)… ( c )… (d)…. (e)…. (f)… (g)… (h)…. (i)”relative” includes any
person related by blood, marriage or adoption and living with the respondent.”
Thereafter, the different clauses of the Bill were considered by a Parliamentary Standing
Committee and recommendations were made that having regard to the object sought to be
achieved by the proposed legislation, namely, to protect women from domestic violence and
exploitation, clause (2)(i) defining “relative” may be suitably amended to include women who
have been living in relationship akin to marriages as well as in marriages considered invalid by
law. Pursuant to the aforesaid recommendation made by the Standing Committee, in place of the
expression “relative” appearing in clause 2(i) of the Bill, the expression “domestic relationship”
came be included in clause (f) of Section 2 of the Act. Learned counsel by referring to the
definition of “aggrieved person” and “domestic relationship” as appearing in the DV Act, 2005
has urged that the legislative intent to include women, living in marriages subsequently found to
be illegal or even in relationships resembling a marriage, within the protective umbrella of the
DV Act is absolutely clear and the same must be given its full effect. It is submitted that having
regard to the above even if the marriage of the appellant and the respondent was void on account
of the previous marriage of the appellant, the said fact, by itself, will not disentitle the appellant to
seek maintenance and other reliefs under the DV Act, 2005.
8. Before proceeding further it will be appropriate to notice, at this stage, the definition of the
expressions “aggrieved person” and “domestic relationship” appearing in Section 2(a) and (f) of
the DV Act, 2005. “Section 2….. (a) “aggrieved person” means any women who is, or has been,
in a domestic relationship with the respondent and who alleges to have been subjected to any act
of domestic violence by the respondent; (b) …… (c) …… d) …… (e) …… (f) “domestic
relationship” means a relationship between two persons who live or have, at any point of time,
lived together in a shared household, when they are related by consanguinity, marriage, or
through a relationship in the nature of marriage, adoption or are family members living together
as a joint family.”
9. Learned counsel, in all fairness, has also drawn the attention of the court to a decision rendered
by a coordinate Bench in D. Velusamy vs. D.Patchaimmal [(2010) 10 SCC 469] wherein this
court had occasion to consider the provisions of Section 2(f) of the DV Act to come to the
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Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad
Supreme Court Judgements @ www.stpl-india.in
conclusion that a “relationship in the nature of marriage” is akin to a common law marriage
which requires, in addition to proof of the fact that parties had lived together in a shared
household as defined in Section 2(s) of the DV Act, the following conditions to be satisfied: a)
The couple must hold themselves out to society as being akin to spouses. b) They must be of
legal age to marry. c) They must be otherwise qualified to enter into a legal marriage, including
being unmarried. d) They must have voluntarily cohabited and held themselves out to the world
as being akin to spouses for a significant period of time…….” [Para 33]
10. Learned counsel has, however, pointed out that in Velusamy (supra) the issue was with regard
to the meaning of expression “wife” as appearing in Section 125 Cr.P.C. and therefore reference
to the provisions of Section 2(f) of the DV Act, 2005 and the conclusions recorded were not
required for a decision of the issues arising in the case. Additionally, it has been pointed out that
while rendering its opinion in the aforesaid case this Court had no occasion to take into account
the deliberations of the Parliamentary Standing Committee on the different clauses of Protection
of Women from Domestic Violence Bill, 2002. It is also urged that the equation of the expression
“relationship in the nature of marriage” with a common law marriage and the stipulation of the
four requirements noticed above is not based on any known or acceptable authority or source of
law. Accordingly, it is submitted that the scope and expanse of the expression “relationship in the
nature of marriage” is open for consideration by us and, at any rate, a reference of the said
question to a larger bench would be justified.
11. Opposing the contentions advanced on behalf of the appellant learned counsel for the
respondent – husband has submitted that the object behind insertion of the expression
“relationship in the nature of marriage” in Section 2(f) of the DV Act is to protect women who
have been misled into marriages by the male spouse by concealment of the factum of the earlier
marriage of the husband. The Act is a beneficial piece of legislation which confers protection of
different kinds to women who have been exploited or misled into a marriage. Learned counsel has
pointed out that in the present case the situation is, however, otherwise. From the marriage
certificate dated 18.04.2003 it is clear that the appellant was already married to one Rohit Kumar
Mishra which fact was known to her but not to the respondent. The second marriage which is
void and also gives rise to a bigamous relationship was voluntarily entered into by the appellant
without the knowledge of the husband. Therefore, the appellant is not entitled to any of the
benefits under the DV Act. In fact, grant of maintenance in the present case would amount to
conferment of benefit and protection to the wrong doer which would go against the avowed
object of the Act. Learned counsel has also submitted that the conduct of the appellant makes it
clear that she had approached the court by suppressing material facts and with unclean hands
which disentitles her to any relief either in law or in equity. In this regard the decision of this
court in S.P. Changalvaraya Naidu vs. Jagannath and others [AIR 1994 SC 853] has been
placed before us.
12. Having considered the submissions advanced by the learned counsels for the contesting
parties, we are of the view that the questions raised, namely, whether the appellant and the
respondent have/had lived together in a shared household after their marriage on 4.12.2006; if the
parties have/had lived together whether the same gives rise to relationship in the nature of
marriage within the meaning of Section 2(f) of the DV Act, 2005; whether the decision of this
Court in Velusamy (supra) is an authoritative pronouncement on the expression “relationship in
the nature of marriage” and if so whether the same would require reference to a larger Bench,
may all be premature and the same need not be answered for the present. Instead, in the first
instance, the matter may be viewed from the perspective indicated below.
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Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad
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13. The Respondent before us had claimed (before the trial court as well as the High Court) that
the marriage between him and the appellant solemnised on 4.12.2006, by performance of rituals
in accordance with Hindu Law, was void on account of the previous marriage between the
appellant with one Rohit Kumar Mishra. In support thereof, the respondent relied on a marriage
certificate dated 18.4.2003 issued under Section 13 of the Special Marriage Act, 1954. Acting
solely on the basis of the aforesaid marriage certificate the learned trial court as well as the High
Court had proceeded to determine the validity of the marriage between the parties though both the
courts were exercising jurisdiction in a proceeding for maintenance. However, till date, the
marriage between the parties is yet to be annulled by a competent court. What would be the effect
of the above has to be determined first inasmuch as if, under the law, the marriage between the
parties still subsists the appellant would continue to be the legally married wife of the respondent
so as to be entitled to claim maintenance and other benefits under the DV Act, 2005. Infact, in
such a situation there will be no occasion for the Court to consider whether the relationship
between the parties is in the nature of a marriage.
14. Admittedly, both the appellant and the respondent are governed by the provisions of the
Hindu Marriage Act, 1955. Section 11 of the Hindu Marriage Act makes it clear that a marriage
solemnised after the commencement of the 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 so specified in clauses (i), (iv) and (v) of Section 5.”
15. While considering the provisions of Section 11 of the Hindu Marriage Act, 1955 this Court in
Yamunabai v. Anantrao [AIR 1988 SC 645] has taken the view that a marriage covered by
Section 11 is void-ipso-jure, that is, void from the very inception. Such a marriage has to be
ignored as not existing in law at all. It was further held by this Court that a formal declaration of
the nullity of such a marriage is not a mandatory requirement though such an option is available
to either of the parties to a marriage. It must, however, be noticed that in Yamunabai (supra) there
was no dispute between the parties either as regards the existence or the validity of the first
marriage on the basis of which the second marriage was held to be ipso jure void.
16. A similar view has been expressed by this Court in a later decision in M.M. Malhotra v.
Union of India [2005 (8) SCC 351] wherein the view expressed in Yamunabai (supra) was also
noticed and reiterated.
17. However, the facts in which the decision in M.M. Malhotra (supra) was rendered would
require to be noticed in some detail: The appellant M.M. Malhotra was, inter alia, charged in a
departmental proceeding for contracting a plural marriage. In reply to the charge sheet issued it
was pointed out that the allegation of plural marriage was not at all tenable inasmuch as in a suit
filed by the appellant (M.M. Malhotra) for a declaration that the respondent (wife) was not his
wife on account of her previous marriage to one D.J. Basu the said fact i.e. previous marriage was
admitted by the wife leading to a declaration of the invalidity of the marriage between the parties.
The opinion of this court in M.M. Malhotra (supra) was, therefore, once again rendered in the
situation where there was no dispute with regard to the factum of the earlier marriage of one of
the spouses.
18. In the present case, however, the appellant in her pleadings had clearly, categorically and
consistently denied that she was married to any person known as Rohit Kumar Mishra. The
legitimacy, authenticity and genuineness of the marriage certificate dated 18.4.2003 has also been
questioned by the appellant. Though Section 11 of the aforesaid Act gives an option to either of
the parties to a void marriage to seek a declaration of invalidity/nullity of such marriage, the
exercise of such option cannot be understood to be in all situations voluntarily. Situations may
2012 STPL(Web) 731 SC 5
Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad
Supreme Court Judgements @ www.stpl-india.in
arise when recourse to a court for a declaration regarding the nullity of a marriage claimed by one
of the spouses to be a void marriage, will have to be insisted upon in departure to the normal rule.
This, in our view, is the correct ratio of the decision of this Court in Yamunabai (supra) and M.M.
Malhotra (supra). In this regard, we may take note of a recent decision rendered by this Court in
A. Subash Babu v. State of Andhra Pradesh & Anr. [2011 (7) SCC 616] while dealing with
the question whether the wife of a second marriage contracted during the validity of the first
marriage of the husband would be a “person aggrieved” under Section 198 (1)(c) of the Code of
Criminal Procedure to maintain a complaint alleging commission of offences under section 494
and 495 IPC by the husband. The passage extracted below effectively illuminates the issue:
“Though the law specifically does not cast obligation on either party to seek declaration
of nullity of marriage and it may be open to the parties even without recourse to the Court
to treat the marriage as a nullity, such a course is neither prudent nor intended and a
declaration in terms of Section 11 of the Hindu Marriage Act will have to be asked for,
for the purpose of precaution and/or record. Therefore, until the declaration contemplated
by Section 11 of the Hindu Marriage Act is made by a competent Court, the woman with
whom second marriage is solemnized continues to be the wife within the meaning of
Section 494 IPC and would be entitled to maintain a complaint against her husband.”
19. In the present case, if according to the respondent, the marriage between him and the
appellant was void on account of the previous marriage between the appellant and Rohit Kumar
Mishra the respondent ought to have obtained the necessary declaration from the competent court
in view of the highly contentious questions raised by the appellant on the aforesaid score. It is
only upon a declaration of nullity or annulment of the marriage between the parties by a
competent court that any consideration of the question whether the parties had lived in a
“relationship in the nature of marriage” would be justified. In the absence of any valid decree of
nullity or the necessary declaration the court will have to proceed on the footing that the
relationship between the parties is one of marriage and not in the nature of marriage. We would
also like to emphasise that any determination of the validity of the marriage between the parties
could have been made only by a competent court in an appropriate proceeding by and between
the parties and in compliance with all other requirements of law. Mere production of a marriage
certificate issued under Section 13 of the Special Marriage Act, 1954 in support of the claimed
first marriage of the appellant with Rohit Kumar Mishra was not sufficient for any of the courts,
including the High Court, to render a complete and effective decision with regard to the marital
status of the parties and that too in a collateral proceeding for maintenance. Consequently, we
hold that in the present case until the invalidation of the marriage between the appellant and the
respondent is made by a competent court it would only be correct to proceed on the basis that the
appellant continues to be the wife of the respondent so as to entitle her to claim all benefits and
protection available under the DV Act, 2005.
20. Our above conclusion would render consideration of any of the other issues raised wholly
unnecessary and academic. Such an exercise must surely be avoided.
21. We, accordingly, hold that the interference made by the High Court with the grant of
maintenance in favour of the appellant was not at all justified. Accordingly, the order dated
09.04.2010 passed by the High Court is set aside and the present appeals, are allowed.
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