1980 Supreme(MP) 364

Faizan Uddin, J.
J. Rajeshwarkant Shahdev v. Neelam Shahdev
Cr. Revn. No. 605 of 1979 (J) ; Decided on 27-10-1980

Headnote:(1) Criminal P. C., 1973-S. 125 (1) Explanation (b)-wife-who is whether also includes a women whose marriage has been annulled-Hindu Marriage Act, 1955-S. 12.

       (2) Criminal P. C., 1973-S. 125-maintenance-claim for-whether maintainable at the instance of woman whose marriage has been annulled Hindu Marriage Act, 1955-S.12.

       (3) Hindu Marriage Act, 1955-S. 12-decree for annulment under consequences of-whether status of paries tatally obliterated for all purposes. .

       (4) Words and phrases-words-void, void able, annul, null divorced and nullity of marriage-meaning of

       The husband, applicant, denied all the allegations including the validity of the marriage and contested the maintenance petition of the wife mainly on the ground that there was no valid marriage between the parties to the proceedings, that they have never been husband and wife and, therefore, the petition under section 125 of the Code was not competent because in Misc. Judicial Petition No. 4195 of 1975, the marriage was annulled by a decree dated 23-9-i 975 by the City Civil Court, Bombay on the ground that the wife non-applicant was impotent not only at the time of the marriage but continued to be so till. the filing of the petition for annulment of the marriage.

       The husband applicant also made a separate application before the learned trial Magistrate to dismiss the maintenance petition summarily on the aforesaid ground only. The learned trial Magistrate, placing his reliance on AIR 1979 SC. p. (Bai Tahira v. Ali Hussain Fissali) rejected the said application by the ,impugned order, holding that the wife, non-applicant. was a "wife". within the meaning of Explanation (b) of sub-section (1) of section 125 of the Code and. therefore, her claim for maintenance would be competent and maintainable under section 125 of the Code. By this petition the husband applicant seeks to challenge the said order.

       Held: In Strouds Judicial Dictionary of words and phrases, Fourth Edition, by John S. James, Vol V at p. 2951 the word "void" means that it was always devoid of legal consequences. At page 1799 "nullity of marriage" means that there has been no real marriage at all. At page 2956 the word "void able" means that a thing is valid until repudiated, and not that it is invalid until confirmed. According to the Chambers 20th Centuary Dictionery the word. "void" means containing noting, devoid, destitute, ineffectual, not binding in law. null. invalid. The word "null" has been assigned the meaning as of no legal force. invalid. Similarly, the word "annul" has been assigned the meaning as to make null. to reduce to nothing. to abolish. The word "voidable". means that may be avoided that may be either avoided or confirmed and the words "divorced" means, the legal dissolution of marriage.

       A perusal of section 125 of the Code makes it clear that only a legally wedded wife or a legitimate or illegitimate child is entitled to claim maintenance from the husband or the father, as the case may be. A child whether legitimate or illegitimate is entitled to claim maintenance from the father. Rut, against a husband, maintenance could be claimed only by his legally wedded wife. No specific provision has been made in the Code of Criminal Procedure. for payment of maintenance. in the case of a wife whose marriage has not been solemnized according to the requirements of Hindu Marriage Act. Though an illegitimate child is entitled to claim maintenance but no illegitimate wife has been given any such right under law. See a Division Bench decision of All:.1habad High Court in Naurang Singh v. Satpa Devi (AIR 1968 All. 412).

       A similar view was taken by a Division Bench of Patna High Court in Banshidhar v. Chhabi Chatterjee (AIR 1967 Patna 277).

       In view of the aforesaid discussion the net result is that a legally wedded wife whose marriage is still subsisting or a woman legally wedded but has been divorced by her husband or who has obtained a divorce would only be covered by the provisions of section 125 of the Code but not the wives wh05c marriage has been declared a nullity under section 11 of the Act or annulled under section 12 of the Act, otherwise in Explanation (b) to section 125 (1) of the Code while providing the definition of "wife" as the one including a woman who has been divorced. etc. the words "or whose marriage has been annulled", would also have been added at the end of the said clause. so as to bring within its scope and fold the woman, (in case of a void able marriage) whose marriage did not subsist on and from the date of the decree of annulment.

       In my opinion, when the marriage is void-abinitio under section 11 of the Act, the claim for maintenance by a woman to such a void marriage. could not be maintainable for the simple reason that the marriage was absolutely a nullity and it will be deemed in the eye of law as if it never existed. In the case of void able marriage under section 12 of the Act, it will be deemed to be valid until repudiated and, therefore, a claim for maintenance under section 125 of the Code would be maintainable until it is so repudiated. But once it is repudiated by a decree of annulment of a competent Court such marriage becomes non-existent from the date of decree of annulment and their status as husband and wife from that date will be totally obliterated for all intent and purposes. They could not be treated as divorce also. Consequently after the passing of a decree of annulment of marriage the claim for maintenance under section 125 of the Code would not be maintainable. AIR 1979 SC 362 distinguished. AIR 1958.AI1.4l2 and AIR 1967 Patna 277 relied on. Revision allowed.