A wife whose marriage is null and void under Section 11 of the Hindu Marriage Act cannot claim maintenance under Section 18 of the Hindu Adoptions and Maintenance Act.

( 1 ) THIS regular first appeal is directed against the judgment and decree dated 1-3-1980 passed by the court of the civil judge, madhugiri, in r. a. No. 183/1978 while dismissing the appeal the first appellate court has confirmed the judgment and decree passed in o. s. No. 58/1976 by the court of the munsiff, madhugiri, wherein the appellant was directed to pay maintenance in a sum of Rs. 25/- per month and another sum of Rs. 50/- per annum towards separate residence.

( 2 ) THIS court at the stage of admission formulated the following proposition of law for consideration: "whether Section 18 of the adoption and maintenance act could be so construed as to hold that not with standing the nullity of a marriage under Section 11 of the Hindu Marriage Act the wife claiming maintenance, retains her status as wife for the purposes of applying for maintenance?

( 3 ) THE few facts to briefly state are: the plaintiff by name siddagangamma, the third wife of one basappa filed original suit against her husband, who is arrayed as 1st-detendant and against another sakamma, who is a transferee of the portion of the suit schedule properties on which the plaintiff sought a charge for her maintenance.

( 4 ) THE undisputed facts of the case are that at the time of marriage of the plaintiff siddagangamma with the 1st-defendant basappa, the first wife by name hanumakka was alive. In the suit, the plaintiff sought for maintenance and for a charge on the properties belonging to the first defendant. The husband-appellant while admitting the subsistence of his marriage with one hanumakka denied his marriage with the plaintiff and also the factum of a child having been born to their wedlock. Further, he contested the suit mainly on the ground that the suit as being not maintainable in view of his marriage with the plaintiff as being null and void by virtue of the Provisions of Section 11 of the Hindu Marriage Act, 1955, which came into force ou 18-5-1955 disentitling her claim for maintenance. Both the courts have come to the conclusion that the plaintiff's suit for maintenance under the Provisions of the hindu adoptions and maintenance Act, 1956, which came into force on 21-12-1956 as being maintainable inspite of affirmation of the issue that her marriage with the first-defendant as being null and void. This court in Kishan v Sakharabai and another, reported in 1987 (2) kar. L. j. page 357 has discussed the scope and ambit of sections 11 and 25 of the Hindu Marriage Act and as well as the scope and ambit of Section 18 of the hindu adoptions and maintenance act. The relevant observations are as follows: the argument of Sri V. Krishna Muriny is based on the principle that in the case of a wife pre-existing right to claim and receive maintenance is a must in law. He argued that when Section 5 of h. m. act declares the marriage between plaintiff-1 and the defendant void, the marriage is ipso jure void. Hence, even if the requisite hindu ceremonies had been performed, the marriage became non-est and did not secure legal status of a wife to plaintiff-1 and she had no right to claim and receive maintenance. He further argued, proceeding on these lines, that such a right must be existing till a decree under the Provisions of h. m. act is passed and because of the decree so passed the status as wife must get extinguished and then only the ingredients of Section 25 of the h. m. act would be satisfied. According to him, the use of the words "husband and wife" in Section 25 of the h. m. act supported this argument and conclusion and therefore on a decree being passed in a petition under Section 11 of the h. m. Act, the so-called wife would not be entitled to claim and receive maintenance. When that is so, no question, of such a so-called wife being conferred with a right to claim and receive maintenance under Section 25 of the h. m- act can arise and much-less in any other proceeding or suit,. He strongly relied on A. P. K Arayanaswami Re