A Hindu wife whose marriage is void under the Hindu Marriage Act, 1955, is entitled to maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956.

A. GANGADHARA RAO, J.

( 1 ) AN interesting question of law is raised in this appeal. The 1st defendant is the appellant. The plaintiff is his wife and his father is the 2nd defendant in the suit. The plaintiff filed the suit for maintenance and for recovery of jewels.

( 2 ) THE plaintiffs case briefly is that the 1st defendant deserted his first wife Balanarasamma and married her in January, 1955. They lived together till 1967 when the 1st defendant began to ill-treat her and ultimately drove her out of the house.

( 3 ) THE 1st defendant denied the marriage with the plaintiff.

( 4 ) THE learned District Munsif dismissed the suit holding that the 1st defendant married the plaintiff in October, 1955 after Hindu Marriage Act, 1955, came into force on 18-5-1955, and therefore the marriage was void under Sec. 5 read with Section 11 of that Act, and consequently the plaintiff was not the legal wife of the 1st defendant entitled to any maintenance.

( 5 ) AGAINST that decree, the plaintiff filed an appeal before the District Judge, Cuddapah. The learned District Judge held that the 1st defendant married the plaintiff in October, 1955. So it was not valid under the Hindu Marriage Act since the 1st defendant was having another wife. He further held that even assuming that the marriage between the plaintiff and the 1st defendant took place in January, 1955 even then the marriage would be invalid under the provisions of Section 5 of the Madras Hindu (Bigamy Prevention and Divorce) Act 1949. So he held that the plaintiff was not entitled to any maintenance as the legally wedded wife of the 1st defendant. A contention was advanced before him that the plaintiff should be treated as Avarudha stree i. e. , a permanently kept concubine of the 1st defendant and so she is entitled for maintenance under Hindu Law. The learned District Judge held that the status of the plaintiff was higher than that of Avarudha Stree because the marriage was in fact solemnized and, therefore, she was entitled for maintenance. He awarded a sum of Rs. 80/- P. M. maintenance including her residential allowance and expenses towards her clothing. He also directed that the 1st defendant should return 6 Tolas of Gold chain and 4 Tolas of gold nanu or their value of Rs. 2,000. 00 to the plaintiff.

( 6 ) AGGRIEVED by that decree the 1st defendant has preferred this appeal. Both the parties have not rightly canvassed before me the findings of the lower courts on questions of fact. The learned counsel for the appellant has raised before me two contentions. First, a permanently kept concubine is not a dependent within the meaning of Section 21 of the Hindu Adoptions and Maintenance Act, 1956, and therefore, she is not entitled for any maintenance. Secondly, even assuming that the plaintiff is to be treated as an Avarudha Stree i. e. , a permanently kept concubine still she is not entitled to claim any maintenance after his death. In reply the learned counsel for the respondent has argued that even assuming that the plaintiff was married to the 1st defendant in October, 1955 after the Hindu Marriage Act has come into force still she would be entitled for maintenance under Section 18 of Hindu Adoptions and Maintenance Act, 1956.

( 7 ) SECTION 21 of the Hindu Adoptions and Maintenance Act has no application since it defines the dependents of the deceased who can claim maintenance from his heirs. I the plaintiff is to be treated as an Avardudha Stree she would not also be entitled to claim any maintenance during the lifetime of the 1st defendant. The next question is whether the plaintiff would be entitled for maintenance under Section 18 of the Hindu Adoption and Maintenance Act 1956. Section 18 of that Act to the extent it is relevant reads as follows:--"section 18 (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 b

Click Here to Read the rest of this document