19 Sep 2010

No maintenance to second wife of Hindu: High Court

n a recently reported decision [Mangala Bhivaji Lad v. Dhondiba Rambhau Aher, AIR 2010 Bom 122], a Division Bench of the Bombay High Court has declared that since second wife of a Hindu male is not recognized as a legally wedded wife, she is not covered within the ambit of the provisions requiring payment of maintenance by husband to wife. No persuaded to hold otherwise in view of the categorical provisions of the Hindu Marriage Act disregarding the validity of the second marriage, the High Court set aside the claim of maintenance by the second wife.

The Bench inter alia observed as under;
8. The different provisions of law made to enable a woman to claim maintenance are Section 25 read with Section 24 of the Hindu Marriage Act, Section 18 of the Hindu Adoption and Maintenance Act and Section 125 Criminal Procedure Code. Unlike the earlier two provisions, the provision under the Criminal Procedure Code is wider and available to any women irrespective of her religion. The question of right of a woman whose marriage is null and void (hereinafter referred to as “the second wife” for the sake of convenience) to seek maintenance under Section 125 Criminal Procedure Code as also under Section 25 of Hindu Marriage Act has already been settled by pronouncements of the Supreme Court which will be referred to presently. However, no direct decision of the Supreme Court on the right under Section 18 of Hindu Adoption and Maintenance Act was brought to our notice by either side.
9. Section 125 Criminal Procedure Code. The two decisions of the Apex Cour under this provision are : 1. Yamunabai’s case (supra). 2. Savitaben Sonabhai Bhatia V/S. State of Gujarat & Ors. reported in (2005) 3 S.C.C. page 636. 
In Yamunabai’s case, after holding that the marriages covered by Section 11 are void ipso jure, the Apex Court considered the meaning to be given to the expression “wife” used in Section 125 of Criminal Procedure Code. It held that the expression must be given the meaning in which it is understood in law applicable to the parties. It was then sought to be argued on behalf of the appellant before the Apex Court that the personal law of the parties to a proceeding under Section 125 of the Code should be completely excluded from consideration. While rejecting the argument, the Apex Court observed : 
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 subsection (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 or relationship with reference to the personal law that an application for maintenance can be maintained.”
With the above observations, the Apex Court rejected the appeal holding 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 it’s subsequent decision in Savitaben’s case (supra) the Apex Court followed its decision in Yamunabai’s case in every respect. It was additionally sought to be argued in that case that a rigid interpretation given to the word “wife” goes against the legislative intent of protecting destitute and harassed women and also such interpretation operates harshly against the woman who unwittingly gets into relationship with a married man. The Apex Court dealt with the argument with following observations : 
This may be an inadequacy “ in law, which only the legislature can undo. But as the position in law stands presently there is no escape from the conclusion that the expression 'wife' as per Section 125 of the Code refers to only legally married wife.” 
A N D 
“It may be noted at this juncture that the legislature considered it necessary to include within the scope of the provision an illegitimate child but it has not done so with respect to woman not lawfully married. However, desirable it may be, as contended by learned counsel for the appellant to take note of the plight of the unfortunate woman, the legislative intent being clearly reflected in Section 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'.
11. Section 25 read with Section 24 of Hindu Marriage Act : The legal position as regards right of the second wife to claim maintenance under Section 25 of The Hindu Marriage Act, is crystallized in the decision of the Apex Court in Rameshchandra Daga V/S. Rameshwari Daga reported in ( 2005) 2 S.C.C. page 33 . In that case, the second wife had filed proceedings for a decree of judicial separation and maintenance for herself and her daughter. The husband filed a counter petition seeking declaration of his marriage to the appellant as a nullity on the ground that on the date of the marriage with the appellant, her marriage with the previous husband had not been dissolved by any court in accordance with the provisions of the Act. The Family Court had allowed the petition of the wife and granted in her favour a decree of judicial separation and maintenance and dismissed the counter petition of the husband. The husband went in appeal to the High Court and the wife preferred a crossobjection. The High Court held that the first marriage of the wife with her previous husband having not been dissolved by any decree of the court, her second marriage was in contravention of Section 5(1) of the Hindu Marriage Act and had to be declared as a nullity under Section 11 of the Act. On the above finding, the High Court granted decree of declaration of marriage as nullity in favour of the husband and set aside the decree of judicial separation, but, maintained the decree granting maintenance to the wife and her daughter. In the challenge to the order of maintenance before the Apex Court, it was contended that where a marriage is declared to be null and void by grant of decree, no order awarding permanent alimony or maintenance can be made in favour of the unsuccessful party under Section 25 of the Act. While considering the contention, the Apex Court held :
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.”
12. It was then argued that extending the benefit of Section 25 to a second wife would defeat the object and purpose of Section 11 to ban and discourage bigamous marriages. The Apex Court rejected the argument observing :
“20. It is well known and recognized legal position that customary Hindu Law like Mohammedan Law permitted bigamous marriages which were prevalent in all Hindu families and more so in royal Hindu families. It is only after the Hindu Law was codified by enactments including the present Act that bar against bigamous marriages was created by Section 5(i) of the Act. Keeping into consideration the present state of the statutory Hindu Law, a bigamous marriage may be declared illegal being in contravention of the provisions of the Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependant. It is with the purpose of not rendering a financially dependant spouse destitute that Section 25 enables the court to award maintenance at the time of passing any  type of decree resulting in breach in a marriage relationship.”
“21. Section 25 is an enabling provision. It empowers the Court in a matrimonial case to consider facts and circumstances of the spouse applying and decide whether or not to grant permanent alimony or maintenance.” 
On clarifying the position in law in above terms, the Apex Court confirmed the order of grant of maintenance to the second wife passed at the time of decree under Section 11 of the Hindu Marriage Act.
13. Since while deciding Daga’s case, the Apex Court has extensively relied upon it’s decision in Chand Dhawan V/S. Jawaharlal Dhawan reported in (1993) S.C. page 406, we consider it appropriate to refer to that decision at this place so as to complete the discussion on the subject. Chand Dhawan’s case arouse of a petition filed by wife simplicitor for grant of maintenance under Section 25 of The Hindu Marriage Act. In the appeal arising out of the said proceedings, the question that fell for consideration of the Apex Court was whether payment of alimony is admissible without the relationship between the spouses being terminated. The Apex Court while interpreting Section 25 held that Section 25 refers to any decree provided for under Sections 9 to 14 of the Hindu Marriage Act affecting or disrupting the marital status but does not include any order dismissing the petition under any of those sections thereby sustaining marital status. Hence, in the case of dismissal of the petition under any of the provisions under Sections 9 to 14, no alimony can be granted to the wife petitioning under Section 25. It has further observed that, however, without affectation or disruption to the marital status, a wife can claim maintenance under Section 18(1) of the Hindu Adoption and Maintenance Act or under Section 125 Criminal Procedure Code, whichever applicable. 
14. Section 18 of The Hindu Adoption and Maintenance Act : The last provision available for maintenance is Section 18 of The Hindu Adoption and Maintenance Act. The relevant portion of Section 18 reads as follows :
"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 forfeiting her claim to maintenance 

(a) to (c)................
(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.”
15. There are two diametrically opposite decisions of two different High Courts on the question of right of the second wife to claim maintenance under this provision that are relied upon by the parties. Mr. Gokhale relies upon the decision of the Delhi High Court in the case of Smt. Narinder Pal Kaur Chawla V/S. Manjit Singh Chawla reported in AIR 2008 Delhi 7 whereas Mr. Akerkar, the learned counsel for the respondent relies upon the decision of Full Bench of Andhra Pradesh High Court in the case of Abbayolla M. Subba Reddy V/S. Padmamma, reported in AIR 1999 Andhra Pradesh 19. A glance at the decisions would show that in both the matters the arguments advanced on behalf of the second “ wife” before the two courts are almost same. The same arguments have also been advanced before us. They can be enumerated as follows :
(i). The Hindu Adoption and Maintenance Act does not define expression “Hindu wife”. As section 18 of the Act confers statutory right of maintenance on every wife, there is no valid reason to restrict the application of such a wife to a legally wedded wife.
(ii). Section 18(2)(d) says that a “Hindu wife” shall be entitled to live separately from her husband without forfeiting her claim for maintenance if he has any other wife living. The provision will be applicable to a Hindu wife whether married before or after the commencement of the Act, as long as the husband has another wife living. 
(iii). The Maintenance Act is a piece of beneficial and social legislation intended for the benefit of women and children and must be construed liberally. Therefore, even if the marriage is void abinitio the second wife is entitled for maintenance. .
(iv). Section 25 of the Hindu Marriage Act confers jurisdiction on the court to grant permanent alimony and maintenance to a wife or a husband at the time of passing any decree under the Act and that even a woman whose marriage is declared to be null and void under Section 11 of the Act is entitled to get alimony and maintenance. Therefore, it has to be inferred that the legislature intended to confer statutory right of maintenance even in cases where her marriage contravenes Section 5 of the Act and hence is null and void. 
16. Full Bench of Andhra Pradesh High Court rejected all the above arguments to hold that the second wife is not entitled to maintenance under Section 18 of the Hindu Adoptions and Maintenance Act. Taking support from Yamunabai’s case (supra) it held that marriage in contravention of Section 5(i) of the Hindu Marriage Act is void abinitio. The personal obligation of a Hindu husband to maintain his wife and the right of a Hindu wife for maintenance are incidents of the status of matrimony. Therefore, unless the marriage is valid Hindu wife cannot claim maintenance under Section 18 of the Act. The expression any other wife in Clause “ ”(d) of Section 18(2) means any other legally wedded wife i.e. where both the marriages had taken place prior to the Hindu Marriage Act coming into operation.
17. As regards the contention of the Maintenance Act being a piece of beneficial legislation, Andhra Pradesh High Court was of the opinion that the legislation cannot be construed as conferring maintenance rights on a woman, whose marriage is void, under the Hindu Marriage Act. While a legislative enactment may be liberally construed, the liberality cannot overstep the legislative limits of interpretation putting into the legislation something which is not there. If it is felt that a particular enactment causes hardship and inconvenience, it is for the legislature to redress it, but it is not for the court to ignore the legislative injunction. As far as Section 25 of Hindu Marriage Act is concerned, Andhra Pradesh High Court held that for a Hindu wife or husband to make claim for maintenance under the provision, there must be a matrimonial petition filed under the Hindu Marriage Act and then on such a petition a decree must be passed by the Court concerning the marital status of the wife or husband. Thus the whole exercise is within the gamut of a broken marriage. But where the question of nullity is in issue and is contentious, the court had to proceed on the assumption until the contrary is proved that the applicant is the wife. It is in that sense, Section 25 should be appreciated. Both the statutes i.e the Hindu Marriage Act and Hindu Adoption and Maintenance Act are codified laws on the respective subjects and by liberality of interpretation, interchangeability cannot be permitted so as to destroy the distinction on the subject of maintenance.
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 estoped 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” atleast 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 CrPC and Section 18 of the Act in order to distinguish the decision of the Apex Court in the case of Savitaben. 
19. As regards Section 18(2)(d), the interpretation placed by the Delhi High Court thereupon, was that in the absence of definition of expression Hindu “ wife”, the same must be interpreted in the spirit in which it appears in Section 18 of the Act without taking any external aid as Section 4 of the Act gives an overriding effect to it. It then observed as follows :
“This Act was brought into force in the year 1956. As on that date Hindu Marriage Act, 1955 was already in force, which contains provision like Section 5 regarding void marriages. If “second wife”, though her marriage is void under the Hindu Marriage Act, was to be denied maintenance, then the legislature would not have included provision like clause (d) in subsection (2) of Section 18 of the Act or would have clarified that this clause was added only to take care of those second marriages performed before the Hindu Marriage Act, 1955 was enacted when polygamy was permissible for male Hindus.”
The Delhi High Court discussed use of expression “concubine” in Clause (e) of subsection (2) of Section 18 of the Act to observe that the legislature has carved out a distinction between “second wife and concubine and that the ” “ ” expression “Hindu wife” and “wife” are definitely to be placed on a higher pedestal than “concubine”. 
20. Finally the Delhi High Court felt that when Law’s terms are inadequate and lead to loose ends, the court can rely on it’s inherent powers to do justice. It observes at para 40 that :
“Strictly, the statutory entitlement of the Court may not apply but having the recognised right and necessity to enforce it, the Court can, in exercise of its inherent powers reach out justice by giving remedial and such salutary reliefs. Justice after all is another name of fairness. It cannot be blind to the facts in a given case and should reach out in its mercy those results which would be necessary to avoid ruinous consequences like economic or moral destitution. Ultimately, having based the relief on Sec. 151 of the C. P. C. with the aid of inherent powers and drawing upon the principles underlying Sec. 25 of the Hindu Marriage Act, it is implicit that before maintenance is granted, the need to grant such must exist as well as the grantee must fulfill the ordinary conditions like that of chastity, not being married to any other person and further of not being in a position to maintain herself.” 
It is thus seen that after the extensive discussion on the statutory provisions, the Delhi High Court founded it’s 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 CPC. 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.
21. In any case, we are unable to persuade ourselves to agree with the discussion on the position in law on the question contained in the Delhi High Court decision though one may want to agree with the sentiments expressed therein on the conduct of the husband in entering into  the second marriage during the subsistence of the first marriage by keeping the second wife in dark about the first marriage. It must be clarified at this stage that in the case on hand, there is a finding of fact of the Family Court supported by the evidence on record that the appellant married the respondent with full knowledge that he was already married and that his first wife is living. In the circumstances, the appellant cannot lay any claim to sympathy on that count. The decision of the Andhra Pradesh High Court on the other hand, in our considered opinion, espouses the correct position in law on the subject.
22. We have already seen that it is well settled position in law that a marriage contravening Section 5(i) of the Hindu Marriage Act is void ipso jure and the woman entering into such a marriage is not wife within “ ” the meaning of either the Hindu Marriage Act or Section 125 Criminal Procedure Code. The expression “wife” used in both the statutes means only a legally wedded wife. The Hindu Adoption and Maintenance Act cannot be treated differently for the meaning to the expression “wife” used therein. The expression must be given the meaning in which it is understood in the law applicable to the parties. Since the institution of marriage and the very relationship of husband and wife originates from the personal law applicable to the parties, there can be no escape from reference to the personal law while understanding the expressions “husband” and “wife” used in different statutes. As far as Hindus are concerned, the law relating to marriage amongst Hindus is codified by Hindu Marriage Act and therefore unless the marriage is valid under the provisions of the Hindu Marriage Act the parties entering into such a marriage cannot describe themselves as “husband” and “wife” for the purposes of application of different statutes or for deriving the benefits available under different statutes.
23. As regards the argument based on Section 18(2)(d) of Hindu Adoption and Maintenance Act is concerned, we are inclined to agree with the view expressed by the Andhra Pradesh High Court, which has held that the ground laid down under the provision can obviously exist only in case of marriages solemnized before the Hindu Marriage Act came into operation. Had the Hindu Marriage Act not laid down monogamy as a rule of law and that Hindu husband cannot marry another wife after the commencement of that Act, the Clause (d) enabling a wife to be entitled for separate residence without forfeiting her claim to maintenance if her husband has any other wife living, could not have been included under Section 18. Further, a bigamous marriage contracted after coming into force of the Hindu Marriage Act being null and void, question of having another wife cannot arise after the Hindu Marriage Act came into operation. Therefore, it can be applicable only in cases where a husband has entered into two marriages prior to coming into operation of the Hindu Marriage Act. 
24. Mr. Gokhale, then sought to argue that if the expression wife is to mean only legally “ ” wedded wife, it would render Section 23 of the Hindu Marriage Act ineffective. According to him, the interpretation would take away the discretion provided to the court under Section 23 to grant reliefs under the Hindu Marriage Act. We have already seen above that the application filed by the appellant herein before the Family Court was under Section 18 of Hindu Adoption and Maintenance Act and not under Section 25 of the Hindu Marriage Act. Further, the position as regards the meaning to be given to the expression “wife” has already been settled by the pronouncement of the decision of the Apex Court in Daga’s case. In that circumstance, there is no question of this Court considering the impact of the meaning upon Section 23.

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