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2006 Supreme(Bom) 1838
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(AURANGABAD BENCH)
N. V. DABHOLKAR & P. R. BORKAR, JJ.
Bhausaheb @ Sandu s/o. Raghuji Magar - Appellant.
Vs.
Smt. Leelabai w/o. Bhausaheb Magar - Respondent.
Family Court Appeal No.12 of 2003
Decided on 14th November, 2006.
Advocates Appeared
Shri. S. K. BARLOTA, Advocate for the Appellant.
Shri. S. L. JONDHALE, Advocate for the Respondent.
Headnote:Hindu Marriage Act, 1955 - - Sections 5 (1), 11, 12 and 25 (1) - Permanent alimony and maintenance - Claim of - Expression "any decree cannot be considered as "every decree - Court required to consider not only income of both parties but also required to consider conduct of parties and other circumstances appearing in case. - Use of phrase "any decree and even Sections 11 and 12 referring to the wedlock as "marriage", although apparently either void or voidable, were the reasons why it was held that the Court has wide powers to entertain and grant an application for maintenance by a wife, who has gone through all rites of a Hindu marriage, which is otherwise valid but for provision of Section 5 (1) of the Act. Basically, the use of expression "any decree" must be viewed to have been used, having regard to various kind of decrees, which could be passed at the behest of either spouse. But, it cannot be stretched to construe Section 25 (1) in such a manner that expression "any decree" would be read as "every decree . The section as quoted in analytical form has indications that the wide powers indicated by the expression "any decree" are not so unbridled, as to be considered as "every decree" and the controls over the powers are evident in the opening part as well as the terminal part. Section begins with the phrase "Court may" and not with the phrase "Court shall . On taking into consideration the terminal part of the section, Court is required to give due thought, not only to the income of both parties, but it is also required to take into consideration the conduct of the parties and other circumstances of the case.
Hindu Marriage Act, 1955 - - Sections 5 (1), 11, 12 and 25 (1) - Permanent alimony and maintenance - Claim of - Expression "any decree cannot be considered as "every decree - Court required to consider not only income of both parties but also required to consider conduct of parties and other circumstances appearing in case. - Use of phrase "any decree and even Sections 11 and 12 referring to the wedlock as "marriage", although apparently either void or voidable, were the reasons why it was held that the Court has wide powers to entertain and grant an application for maintenance by a wife, who has gone through all rites of a Hindu marriage, which is otherwise valid but for provision of Section 5 (1) of the Act. Basically, the use of expression "any decree" must be viewed to have been used, having regard to various kind of decrees, which could be passed at the behest of either spouse. But, it cannot be stretched to construe Section 25 (1) in such a manner that expression "any decree" would be read as "every decree . The section as quoted in analytical form has indications that the wide powers indicated by the expression "any decree" are not so unbridled, as to be considered as "every decree" and the controls over the powers are evident in the opening part as well as the terminal part. Section begins with the phrase "Court may" and not with the phrase "Court shall . On taking into consideration the terminal part of the section, Court is required to give due thought, not only to the income of both parties, but it is also required to take into consideration the conduct of the parties and other circumstances of the case.
2. Most of the facts giving rise to this appeal are undisputed. Present respondent Leelabai approached the Family Court, Aurangabad with a case that on 16-12-1997 she had legally married the present appellant. Madhuri a daughter was born in the wedlock, however, the appellant and the respondent could not carryon the happy married life and so respondent Leelabai filed Petition No.331 of 1999 for maintenance under Section 125 of the Criminal Procedure Code. The said petition came to be dismissed on 25-3-2000 as respondent Leelabai could not satisfy the Court that she was legally wedded wife of appellant Bhausaheb.
3. Thereafter respondent Leelabai filed Petition No.B-7/2000 for declaration that her marriage with appellant Bhausaheb was a valid marriage and Madhuri was their legitimate child. At the same time, she filed another application bearing Petition No.E-525/2000 for maintenance under Section 125 of the Criminal Procedure Code on behalf of the child Madhuri. Both the petitions were heard together and decided by a common judgment dated 29-9-2001. It was held that the marriage was not a valid marriage, since respondent Leelabai was having a spouse living at the time of alleged marriage and therefore, the petition for declaration of validity of marriage was dismissed, however, Madhuri was awarded maintenance at the rate of Rs.500/- per month under Section 125 of the Criminal Procedure Code.
4. Thereafter, respondent Leelabai filed Petition No.C-39/2001 under Section 25 of the Hindu Marriage Act, 1955. The same was heard by the Principal Judge, Family Court, Aurangabad and he awarded maintenance of Rs.1,000/- per month to respondent Leelabai from the date of the petition., It is this order dated 30-11-2002 which is challenged in the present appeal.
5. The main point that was raised for our consideration is whether respondent Leelabai is entitled to maintenance under Section 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as, "the H.M. Act") in view of earlier declaration that her alleged marriage with appellant Bhausahed was not valid marriage.
6. Pending this appeal, a Reference was made by the Division Bench to a Larger Bench. The Honourable the Chief Justice formulated a Full Bench for deciding the issue under Reference. Two cases of this Court, (i) Shantaram Tukaram PatH Vs. Dagubai Tukaram Patil (1987 Mh.L.J. 179) and (ii) Krishnakant Mulashankar Vyas Vs. Reena Krishna Vyas (AIR 1999 BOM. 127) were the decisions declaring that even if marriage between the parties was void, the wife is entitled to maintenance under Section 25 of the H.M. Act; whereas the Full Bench of the Andhra Pradesh High Court in the case of Abbayolla M. Subba Reddy Vs. Padmamma (AIR 1999 A.P. 19) took view that where marriage is nullity, Section 25 of the H.M. Act has no application. In view of the fact that the earlier petition of the wife for declaration of her marriage with the appellant was decided by judgment dated 29.1.2001, the Division Bench felt that the matter should be referred to the Larger Bench.
7. The Full Bench heard advocates of both sides and answered the Reference as follows on paragraph 24.
"24. For the reasons discussed above, with due respect, it is held that the decisions of the Bombay High Court, upholding right of maintenance to "illegitimate wife" [or "faithful mistress"] by liberal construction of word "wife" as contained in Section 25 of H.M. Act, cannot be said to be a good law and are required to be overruled to that extent."
8. Being dissatisfied with the Ruling of the Full Bench, the respondent wife approached the Honourable Supreme Court and her Special Leave Petition No.(C) 6875 of 2004 was dismissed by the Honourabl
