Maintenance cannot be granted to a woman after a marriage is declared null and void.

Anil Kumar Sharma, J.:-

The appellant/husband has filed this first appeal under section 28 of the Hindu Marriage Act, 1955, challenging the judgment and decree dated 20-2-2006 passed in Civil Suit No. 9-A/2005 by learned Additional District Judge, Beohari, District Shahdol (M.P.).

2. The brief facts of the case are that appellant was married to the respondent/wife (Geeta Choudhrey) on 29-4-2004 at Village Masiyari, their marriage has not been consummated owing to the impotency of respondent (Geeta Choudhrey) as her genital parts in the body were absent. On filing petition under section 12 of the Hindu Marriage Act, challenging the marriage on the ground of contravention of the conditions specified in clause (2) of section 5, the learned trial Court, allowed the suit and passed the decree of nullity and granted Rs. 5007- per month for maintenance of wife and the appellant has challenged the said order of the learned trial Court granting awarding maintenance.

3. Learned Counsel for the appellant has submitted that the learned trial Court is not justified in awarding maintenance amount to the respondent/wife when the marriage was declared null and void. The maintenance can be awarded to legally wedded wife. Where the marriage is void ab initio and the woman cannot get the status of wife nor the male gets the status of husband.

4. Learned Counsel for the appellant has drawn attention towards the judgment passed by Hon'ble Full Bench of Andhra Pradesh High Court in the matter of Abbayolla M. Subba Reddy vs. Padamamma, AIR 1999 A. P. 19, in which considering the provision of section 25 of the Hindu Marriage Act, it has been held that where the marriage admittedly is nullity, hence, section 25 of the Hindu Marriage Act has no application. It is further held that the said relief of maintenance cannot be granted by invoking of section 151 of Civil Procedure Code.

The relevant Para 27 of the judgment is reproduced below : -

"27. Section 25 of the Hindu Marriage Act as it now stand after amendment by Act 68/76 is reproduced hereunder : -

'25. Permanent alimony and maintenance. –

(1) Any Court exercising jurisdiction under this Act may at the time of passing any decree or any time subsequent thereto, on application made to it for ) the purpose of either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum of such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant (the conduct of the parties and other circumstances of the case), it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the Court is satisfied that there is change in the circumstances of either party at any time after it has made an order under sub-section (1) it may at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just.

(3) If the Court is satisfied that the party in whose favour an order has been made under the section has re-married or if such party is the wife that she has not remained chaste, or if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may, at the instance of the other party, vary, modify or rescind any such order in such manner as the Court may deem just.'

It is clear from this provision that it confers a statutory right on the wife and the husband and confers jurisdiction on the Court to pass an order of maintenance and alimony in proceedings under sections 9 to 14 of the Hindu Marriage Act. At any time before or after the decree is passed in such a proceeding, therefore, the wife or husband could make such a claim and the conditions of section 25(1) will have to be satisfied. There must be a matrimonial petition f