Marriage of second wife being voidable second wife not entitled to maintenance.

The only question that is raised in this second appeal is whether a woman, who has married a man when the earlier marriage has not been dissolved in accordance with law and when the first wife is still living, is a wife, who is entitled to claim maintenance under Section 18 of the Hindu Adoption and Maintenance Act.

2. According to the learned counsel for the appellant she is entitled to claim maintenance. The learned counsel for the respondent submitted that she is not entitled to claim maintenance and that, a Division Bench of this court is squarely on the point and would bind this decision in this second appeal.

3. Section 18 of the Act reads as follows:

"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.--

(d) if he has any other wife living;

4. The law of maintenance applicable to Hindus is now totally covered by the Hindu Adoption and Maintenance Act. Of course excluding whatever right they have under Section 125 of the Code of Criminal Procedure, Chapter 3 of the Act is a complete code with regard to law of maintenance.

5. The question is whether the Hindu wife referred to in section (2) includes also a wife whose marriage is void or voidable.

6. In Kopparthi Satyanarayana Vs. Smt. Kopparti Seetharamamma (AIR 1963 AP 270), the Full Bench of the Andhra Pradesh High Court was called upon to consider Section 2, Clause (d) of the Hindu Women's Right to Separate Residence and Maintenance Act (1946), and as per this Act the Hindu Married women shall be entitled to separate residence on one or more of the grounds mentioned in the section which included Clause (d) which is, "if he marries again". The Full Bench had to interpret the above expression to solve the question whether a Hindu wife whose husband had married another wife before the commencement of the Act would obtain the benefit of the section and the Full Bench held that,

"This Section has been so drafted as to take in all cases of husbands having their other wives living. So this has undoubtedly a wider scope than the one which we are required to construe. It shows that when the Legislature thought of including all Hindus who were married more than once, it had employed comprehensive language. A comparison of the language of the two clauses leads to the inescapable conclusion that cl.(4) of S.2 covers only future marriages."

7. In Subbegowda V. Honnamma and another (AIR 1984 Karnataka 41), it was held that,

"The expression "any other wife" in Section 18(2) (d) means any other legally wedded wife. Therefore, even if the husband was living with another woman treating her as his wife, it cannot be said that he "has any other wife living" within the meaning of S.18(2)(d)."

8. In Dr.Ranjit Kumar Bhattacharyya V. Smt. Sabita Bhattacharyya (AIR 1996 Calcutta 301), marriage was alleged between a Hindu wife and a Christian husband purported to have taken place according to Hindu rites after Hindu Marriage Act came into force. The marriage between husband and his first wife which had been solemnised according to Christian rites was still subsisting. It was held by the Division Bench of the Calcutta High Court that the second marriage cannot confer status of lawful wife since it was void ipso jure. It was held that a marriage in contravention of the provisions of the Hindu Marriage Act was null and void and has to be ignored as not existing in law at all. Therefore, while allowing the appeal filed by the husband, directed him to pay to the respondent Rs.30,000/- as damages for his misdeeds.

9. In Saraswathamma Vs. Bhadramma (AIR 1970 Mysore 157), it was held that the first wife's claim of maintenance will accrue only if the second marriage was a valid one.

10. In T.P.K. Natesan Chettiar V. Achiyay