PETITIONER:
SMT. YAMUNABAI ANANTRAo ADHAV A
Vs.
RESPONDENT:
RANANTRAo SHIVRAM ADHAV AND ANOTHER
DATE OF JUDGMENT27/01/1988
BENCH:
SHARMA, L.M. (J)
BENCH:
SHARMA, L.M. (J)
MISRA RANGNATH
CITATION:
1988 AIR 644 1988 SCR (2) 809
1988 SCC (1) 530 JT 1988 (1) 193
1988 SCALE (1)184
ACT:
Criminal Procedure Code, 1973: Section 125-Hindu woman
marrying a Hindu man having a lawfully wedded wife -Whether
entitled to maintenance-Personal law of the party-Whether
can be excluded-Expression 'wife'-Meaning of.
Hindu Marriage Act, 1955: Sections 4, 5(i), 11, 12, 14,
1 Hindu woman marrying a Hindu man having a lawfully wedded
wife Whether such marriage valid-Effect of such marriage-
Whether such woman entitled to maintenance under s. 125 Cr.
P. C. . 1973.
Words and Phrases: Expression 'wife'-Meaning of.
HEADNOTE:
%
The appellant was married to the first respondent by
observance of rites under Hindu Law in June, 1974, while the
first respondent's earlier marriage was subsisting and the
wife was alive. After living with the first respondent for a
week, she left the house alleging ill-treatment. She filed
an application for maintenance in 1976, which was dismissed
by the trial Court. Her appeal to the High Court was
dismissed by a Full Bench.
In the appeal to this Court 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 and in any event, the marriage would be voidable
under s. 12 of the Hindu Marriage Act, 1955, that the term
"wife" in s. 125 of the Cr. P.C., 1973 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, that the personal law of the
parties to a proceeding under s. 125 of the Cr. P.C. should
be excluded from consideration, and since a divorcee has
been held to be entitled to the benefits of the section, a
woman in the same position as the appellant should also be
brought within the sweep of the section, and since the
appellant was not informed about the respondent's earlier
marriage, when she married him, who treated her as his wife,
her prayer for maintenance should be allowed.
810
It was contended on behalf of the respondent that the
term "wife" used in Section 125 of the Cr. P.C. meant only a
legally wedded wife, and as the marriage of the appellant
must be held to be null and void by reason of the provisions
of the Hindu Marriage, Act, 1955 the appellant was not
entitled to any relief under the section.
Dismissing the appeal,
^
HELD: l. The marriage of a woman in accordance with the
Hindu rites with a man having legal spouse, after coming
into force of the Hindu Marriage Act, 1955 is a complete
nullity in the eye of law and she is not entitled to the
benefit of Sec. 125 of the Criminal Procedure Code, 1973.
[813D]
2.1 Clause (1)(i) of s. 5 of the Hindu Marriage Act,
lays down, for a lawful marriage, the necessary condition
that neither party should have a spouse living at the time
of the marriage, and therefore a marriage in contravention
of this condition is null and void, under section 11 of the
Act. [813G]
2.2 By reason of the overriding effect of the Act, as
mentioned in s. 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 provisions of the Act. Section 12 is
confined to other categories of marriages, and is not
applicable to one solemnized in violation of s. 5(1)(i) of
the Act. Cases covered under section 12 are not void ab
initio. [813H; 814A-B]
2.3 The marriage covered by s. 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. [814B-C]
The marriage of the appellant must, therefore, be
treated as null and void from its verv inception. [815C]
3.1 Section 125 has been enacted in the interest of a
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. [815E]
811
3.2 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. 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. [816D-E]
3.3 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 women not lawfully married. [816F]
3.4 The word "wife" is not defined in the Cr. P.C.
except indicating in the Explanation to s. 125 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). A
divorcee is included in the section on account of cl. (b) of
the Explanation. [815D-E]
3.5 Principle of estoppel cannot be relied upon to
defeat the provisions of the Act. So far as the first
respondent treating her as wife is concerned, it is 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 parties. The prayer of the appellant for
maintenance cannot, therefore, be allowed even if the
appellant was not informed, at the time of her marriage to
the respondent, about his earlier marriage. [816G-H]
Mohd. Ahmed Khan v. Skah Bano Beghum, [1985] 3 SCR 844,
distinguished.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
475 of 1983.
From the Judgment and order dated 21/22-4-1982 of the
Bombay High Court in Crl. Appln. No. 478 of 1980.
A.K. Sanghi for the Appellant.
A.M. Khanwilkar for the Respondents.
The Judgment of the Court was delivered by
812
SHARMA, J. The point involved in this appeal is whether
a Hindu woman who is married after coming into force of the
Hindu Marriage Act, 1955 to a Hindu male having a living
lawfully wedded wife can maintain an application for
maintenance under section 125 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as the Code). The
appellant Smt. Yamunabai was factually married to respondent
no. 1 Anantrao Shivram Adhav by observance of rites under
Hindu Law in June, 1974. Anantrao had earlier married one
Smt. Lilabai who was alive and the marriage was subsisting
in 1974. The appellant lived with the respondent no. 1 for a
week and there after left the house alleging ill-treatment.
She made an application for maintenance in 1976 which was
dismissed. The matter was taken to the Bombay High Court,
where the case was heard by a Full Bench, and was decided
against the appellant by the impugned judgment.
2. Section 125 of the Code by sub-section (1) which
reads as follows clothes the "wife" with the right to
receive maintenance is a n summary proceeding under the
Code:
125(1). If any person having sufficient means
neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain
itself, or
(c) his legitimate or illegitimate child (not
being a married daughter) who has attained
majority, where such child is, by reason of
any physical or mental abnormality or injury
unable to maintain itself, or
(d) his father or mother, unable to maintain
himself or herself,
a Magistrate of the first class may, upon proof of
such neglect or refusal, order such person to make
a monthly allowance for the maintenance of his
wife or such child, father or mother, at such
monthly rate not exceeding five hundred rupees in
the whole, as such Magistrate thinks fit, and to
pay the same to such person as the Magistrate may
from time to time direct:
813
Provided that the Magistrate may order the
father of a minor female child referred to in
clause (b) to make such allowance, until she
attains her majority, if the Magistrate is
satisfied that the husband of such minor female
child if married is not possessed of sufficient
means.
Explanation. For the purposes of this
chapter:
(a) "minor" means a person who, under the
provisions of the Indian Majority Act, 1875
(9 of 1875), is deemed not to have attained
his majority;
(b) "wife" includes a woman who has been divorced
by, or has obtained a divorce from, her
husband and has not remarried. "
According to the respondent the term 'wife' used in the
section means only a legally wedded wife, and as the
marriage of the appellant must be held to be null and void
by reason of the provisions of the Hindu Marriage Act, 1955,
she is not entitled to any relief under the section.
3. For appreciating the status of a Hindu woman
marrying a Hindu male with a living spouse some of the
provisions of the Hindu Marriage Act, 1955 (hereinafter
referred to as the Act) have to be examined. Section 11 of
the Act declares such a marriage as null and void in the
following terms:
" 11. Void marriages-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. "
Clause (1)(i) of s. 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 s. 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 s. 4, no aid can be taken of the
earlier
814
Hindu Law or any custom or usage as a part of that Law
inconsistent with any provision of the Act. So far as s. 12
is concerned, it is confined to other categories of marriage
and is not applicable to one solemnised in violation of s.
S(1)(i) of the Act. Sub-section (2) of s. 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 fulfilled and the aggrieved
party exercises the right to avoid it, the same continues to
be effective. The marriages covered by s. 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. The provisions of s. 16, which is
quoted below, also throw light on this aspect:
" 16. Legitimacy of children of void and
voidable marriages.-(1) Notwithstanding 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 (68 of 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.
(2) Where a decree of nullity is granted in
respect of a voidable marriage under Section 12,
any child begotten or conceived before the decree
is made, who would have been the legitimate child
of the parties of the marriage if at the date of
the decree it had been dissolved instead of being
annulled, shall be deemed to be their legitimate
child not withstanding the decree of nullity.
(3) Nothing contained in sub-section (1) or
sub section (2) shall be construed as conferring
upon any child of a marriage which is null and
void or which is annulled by a decree of nullity
under Section 12, any rights in or to the property
of any person, other than the parents, in any case
where, but for the passing of this Act, such child
would have been incapable of possessing or
acquiring any such
815
rights by reason of his not being the legitimate
child of his parents.
(Emphasis added).
Sub-section (1), by using the words underlined above
clearly, implies that a void marriage can be held to be so
without a prior formal declaration by a court in a
proceeding. While dealing with cases covered by s. 12, sub-
section (2) refers to a decree of nullity as an essential
condition and sub-section (3) prominently brings out the
basic difference in the character of void and voidable
marriages as covered respectively by ss. 11 and 12. 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.
The marriage of the appellant must, therefore, be treated as
null and void from its very inception.
4. The question, then arises as to whether the
expression 'wife used in s. 125 of the Code should be
interpreted to mean only a legally wedded wife not covered
by s. 11 of the Act. 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.
5. It has been contended on behalf of the appellant
that the term 'wife' in s. 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, [1985 ] 3 SCR
844, it was argued that the personal law of the parties to a
proceeding under s. 125 of the Code should be completely
excluded from consideration. The relationship of husband and
wife comes to an end on divorce, but a divorcee 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 s. 488 of the Code of 1898
was different. A divorcee could
816
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 provision 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.
6. 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 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 women not lawfully married.
7. 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.
817
8. 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 s. 125 of the Code. The
appeal is accordingly dismissed. There will be no order as
to costs. During the pendency of the appeal in this Court
some money was paid to the appellant in pursuance of an
interim order. The respondent shall not be permitted to
claim for its refund.
N.P.V. Appeal dismissed.
818
