1. A person of the type like Rajeshbai, who came to be united with Sadashiv by going through the form of marriage that was later found to be void de jure could at all be considered as having entitlement to inherit or to succeeds under any of the provisions of the Hindu Succession Act. 2. The term "widow", though not defined in express terms, clearly means and implies a female who was united in marriage recognised by law and who survives the husband without remarriage. 3. The right recognised by section 25 of the Hindu Marriage Act can clearly be worked out in any civil proceedings subject to consideration of facts and circumstances so as to meet ends of justice by resort to the inherent powers conferred upon the Court by section 151 of the Code of Civil Procedure.

Headnote:
HINDU MARRIAGE ACT - SECTION 5(1), 11 - CUSTOMARY DIVORCE - MAINTENANCE - INHERITANCE - SUCCESSION - WIDOW - LEGITIMATE WIFE - ILLEGITIMATE WIFE - MAINTENANCE ACT - SECTION 21 - HINDU ADOPTIONS AND MAINTENANCE ACT - SECTION 25 - INHERENT POWERS OF THE COURT - SECTION 151 OF THE CODE OF CIVIL PROCEDURE - FAIRNESS AND JUSTICE - INTERPRETATION OF STATUTES - LEGAL PRINCIPLES - SOCIAL OBJECTIVES - PUBLIC POLICY - MORAL AND SECULAR GROUNDS - SOCIAL SECURITY - ECONOMIC OR MORAL DESTITUTION - PARI MATERIA PROVISIONS - FULL AND FINAL SETTLEMENT.
Fact of the Case:

The plaintiff, Shantabai, filed a suit seeking reliefs of injunction against the defendants, the present appellants, restraining them from disturbing her possession and enjoyment of the properties and, alternatively, also seeking relief of possession of the properties which may not be found to be in her possession. She also prayed for the partition of C.S. No. 372 and possession of one-third share therein. These reliefs were so claimed on the basis that the plaintiff, Shantabai was the lawfully married wife of deceased Sadashiv and, upon his death, was entitled to inherit all his properties which are described and set out in the schedules attached to the plaint.
Finding of the Court:

1. The custom of divorce, as well as the validity of the marriage of Rajeshbai in its turn were all denied by the plaintiff, the first wife of Sadashiv. 2. After trying the contentious questions between the parties, the trial Court found, upon evidence, that the custom was not established, that there was no divorce given by Sadashiv to Shantabai, that, therefore, though Rajeshbai went through the form of Hindu marriage, her marriage was void and as a result of this, it was the plaintiff who, as the legally married wife and after her husbands death being his widow, was entitled to succeed to the interest and all the properties of Sadashiv. 3. The trial Court found that the properties were in possession of the defendants and, therefore, made a decree directing the defendants to deliver possession of the properties described at Serial Nos. 1 to 4 in the schedule attached to the plaint and further made a decree with regard to the one third share in the house bearing C.S. No. 372.
Issues: 1. Whether the custom of divorce was established? 2. Whether there was a divorce given by Sadashiv to Shantabai? 3. Whether the marriage of Rajeshbai was void? 4. Whether Shantabai was the legally married wife and after her husbands death being his widow, was entitled to succeed to the interest and all the properties of Sadashiv? 5. Whether Rajeshbai was entitled to maintenance from the estate of Sadashiv?
Ratio Decidendi: 1. The evidence consistently shows that by mutual consent and by calling the panchas customary divorce is extant. Minor variations in the testimony of these witnesses on the aspects of actual working out the customary divorces do not affect the proof of the custom itself. 2. The evidence does not carry any conviction at all that Shantabai was duly divorced by Sadashiv according to the caste custom. On the other hand, Shantabais evidence and the photographs produced during the trial, and particularly at Exhibit 138, clearly go to show that Shantabai was in the family even after Rajeshbai was married with Sadashiv. 3. The evidence on record is indicative that though there is a caste custom under which the consenting parties can take a divorce, it does not go further to establish that actually Shantabai consented to or was actually divorced by Sadashiv. Her marriage with Sadashiv, being not in dispute, continued till he died. 4. Under the provisions of the Hindu Marriage Act, which was applicable to the marriage of Rajeshbai, it is obvious that in view of the first subsisting marriage of Sadashiv with Shantabai, the marriage of Sadashiv with Rajeshbai would be void, being in breach of section 5(1) of that Act. Such marriage, section 11 of the Hindu Marriage Act declares to be null and void. 5. It is not permissible to include in the term "wife" of "widow" that relation which is not recognised by law. However, it is implicit in the judgment of this Court in Govindaraos case (supra) that there can be class of persons who, as I propose to call, are "illegitimate wives of widows" who can be the subject of benefaction of law of maintenance, notwithstanding that eventually their trial status is annulated. 6. The measures for maintenance by themselves are secular and social in character. Those aim at avoiding immorality and destitution. Maintenance for judicial purposes has its own pragmatics having relation to the need and necessity to make provisions for securing reasonable bioeconomic as well as bio-cultural requirements for persons, such as shelter, food garment and health. 7. The principles underlying section 151 of the Code of Civil Procedure are no more in doubt. Where the need and the circumstances to do justice require, the power to Act ex debito justitios exists and can be invoked. 8. Relying on the pari materia provisions of section 25 of the Hindu Marriage Act and relying on the inherent powers of the Court to make orders so as to meet the ends of justice, I think, an appropriate order for maintenance in favour of Rajeshbai can be made, though it has to be concluded that in her appeal on other aspects, she cannot but fail.
Final Decision: 1. The decree made by the trial Court, though confirmed, is made condition a, in that upon the deposit of Rs. 20,000/- to be paid in a lump sum in full and final settlement of claim for maintenance of Rajeshbai, the plaintiff would recover possession of the properties as are described in the decree made by the trial Court. 2. It is made clear that it is only upon the deposit of Rs. 20,000/- and from that date onwards, if at all the plaintiff wishes to recover any mesne profits, that cause of action for that would arise in her favour. 3. There will be no order as to costs throughout in view of the findings herein.

JUDGMENT - B.A. MASODKAR, J.:---This appeal heard at some length raises, as is apparent, some intricate questions of law intermixed with problems of justice and fairness, of legality and of humanity, technical as well as of substance. The controversy centres round the human relations that became recognised by ties of marriage, its legal fallibility and consequential possibilities of avoidance of rights-personal and of property. These problems arise this way.

2. Respondents Shantabai filed the present suit seeking reliefs of injunction against the defendants, the present appellants, restraining them from disturbing her possession and enjoyment of the properties and, alternatively, also seeking relief of possession of the properties which may not be found to be in her possession. She also prayed for the partition of C.S. No. 372 and possession of one-third share therein.

3. These reliefs were so claimed on the basis that the plaintiff, Shantabai was the lawfully married wife of deceased Sadashiv and, upon his death, was entitled to inherit all his properties which are described and set out in the schedules attached to the plaint. It is not dispute that Dagadu and Mahadu (original defendants Nos. 1 and 2), appellants Nos. 2 and 3, are the two brothers of Sadashiv, all being sons of Bayaji.

4. The common defence of these appellants was one of denial of title of the plaintiff and an assertion to the effect that as per the caste custom applicable to Maratha community of which the parties were members, during the life-time of Sadashiv, the plaintiff was divorced by him and thereafter, Sadashiv had taken Rajeshbai, appellant No. 1, as his wife, who was till his deth residing with him as his lawful wife. As the plaintiff was the divorced wife, she was not entitled to any share or any right of possession to the properties of Sadashiv. According to the defence, Rajeshbai was married according to the Hindu religious rites applicable to the community on November 26, 1963 at Nasik and as she was the only lawfully married wife and as such the widow of Sadashiv, she would be entitled to succeed to all the interest of Sadashiv to the exclusion of the divorced wife.

5. The factum of the custom, of divorce, as well as of the validity of the marriage of Rajeshbai in its turn were all denied by the plaintiff, the first wife of Sadashiv.

6. After trying the contentious questions between the parties, the trial Court found, upon evidence, that the custom was not established, that there was no divorce given by Sadashiv to Shantabai, that, therefore, though Rajeshbai went through the form of Hindu marriage, her marriage was void and as a result of this, it was the plaintiff who, as the legally married wife and after her husbands death being his widow, was entitled to succeed to the interest and all the properties of Sadashiv. The trial Court found that the properties were in possession of the defendants and, therefore, made a decree directing the defendants to deliver possession of the properties described at Serial Nos. 1 to 4 in the schedule attached to the plaint and further made a decree with regard to the one third share in the house bearing C.S. No. 372. That decree is under challenge in the present appeal.

7. During the course of the hearing of this appeal, Civil Application No. 1639 of 1981 was filed by the appellants, learned Counsel raising alternate plea in defence as far as appellant No. 1 Rajeshbai is concerned and that is to the effect that in any case upon the finding that Rajeshbai having gone through the form of marriage and her marriage because of law being declared null and void and for no fault on her part, she would be entitled to the relief of maintenance against the admitted estate of her husband Sadashiv. That application was allowed as the same was not opposed.

8. Therefore, in the appeal there is an additional issue raised at the behest of the appellants as to whether upon the finding that the marriage between Sadashiv and Rajes

Click Here to Read the rest of this document

1981 Supreme(Bom) 135

Cases Referred (1)