Important pointWhere the Court has declared the marriage as null and void under Section 11 read with Section 5(i) of the Hindu Marriage Act, the award of maintenance under Section 25 of the Act for the unsuccessful party can be maintained.

Headnote:(i) Hindu Marriage Act, 1955—Sections 5, 11 and 25—Null and Void Marriage—Maintenance claim by wife and daughter—Maintainability—On husband’s petition, a decree declaring the second marriage as null and void has been granted—Whether the wife is entitled to maintenance after the Court held that the marriage was nullity—(Yes)—Expression ‘at the passing of any decree’ as has been used in Section 25, includes a decree of nullity of marriage.
       Held : We have critically examined the provisions of Section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in Chand Dhawan’s case (supra), the expression used in the opening part of Section 25 enabling the ‘Court exercising jurisdiction under the Act’ ‘at the time of passing any decree or at any time subsequent thereto’ to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as ‘at the time of passing of any decree,’ it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13. (Para 18)
       (ii) Hindu Marriage Act, 1955—Sections 5, 11 and 25—Maintenance claim—Husband is an Income Tax Practitioner—His first marriage was solemnized in year 1963—After the death of his wife, he remarried present wife in 1981—Present wife had previously married one ‘G’—She had filed a divorce petition but in accordance with the prevalent custom a Chhor Chithhi was executed between the wife and her husband ‘G’—Present husband allegedly started ill treating her—She filed proceedings for grant of a decree of judicial separation and maintenance—Family Court granted a decree of judicial separation—Award of maintenance in favour of wife as well as daughter—Husband filed appeal while wife filed cross objections—High Court held that first marriage of present wife with her previous husband having not been dissolved by any Court decree, her second marriage is in contravention of Section 5(i) of the Act—High Court granted a decree of declaration of marriage as nullity in favour of husband—However, it maintained the decree granting maintenance to the wife and her daughter—Whether order awarding maintenance could be sustained in favour of unsuccessful wife u/s 25 of the Act where a marriage is declared to be null and void—(Yes).
       Held : It is well known and recognized legal position that customary Hindu Law like Mohammedan Law permitted bigamous marriages which were prevalent in all Hindu families and more so in royal Hindu families. It is only after the Hindu Law was codified by enactments including the present Act that bar against bigamous marriages was created by Section 5(i) of the Act. Keeping into consideration the present state of the statutory Hindu Law, a bigamous marriage may be declared illegal being in contravention of the provisions of the Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependant. It is with the purpose of not rendering a financially dependant spouse destitute that Section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in marriage relationship. Section 25 is an enabling provision. It empowers the Court in a matrimonial case to consider facts and circumstances of the spouse applying and decide whether or not to grant permanent alimony or maintenance. The facts of the present case fully justify grant of maintenance both to the wife and the daughter. The evidence of the wife has been believed by the courts below and according to us rightly so. From circumstances preceding and attending the marriage, it can safely be inferred that the present husband must have made reasonable enquiries about the previous marriage of the present wife. The wife’s version is natural and inspires belief that the document of Chor Chhithi was shown and given to the husband. It is proved from the photocopy of the foil of Registration, placed on record. According to the wife, the husband did receive the document of Chor Chhithi but has not produced it before the Family Court. It is argued that it is open to the wife, if the document was registered, to get a copy from the Registration office. Even if that was possible, we find no ground to disbelieve her version that the fact of her previous marriage was not concealed from the present husband. The husband is an advocate. His falsehood went to the extent of denying his second marriage and calling his wife only to be a governess of his children from the first wife. He unsuccessfully denied even the parentage of daughter Puja, born through him. He failed to lead any evidence on the illegitimacy of the child. After the second marriage the parties lived as husband and wife and they had a considerably long married life of about nine years from 1981 to 1990. In such a situation, the Family Court and High Court were fully justified in holding that the wife deserves to be granted maintenance under Section 25 of the Act. (Paras 20 to 22)

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

When a marriage is declared null and void under the relevant law, the court retains the authority to grant maintenance or alimony to the unsuccessful party, including the spouse seeking support, at the time of passing any decree or even thereafter, provided the application is made (!) .
The expression “at the time of passing any decree” in the relevant statute is interpreted broadly to include all types of decrees related to marriage, such as declarations of nullity, judicial separation, divorce, or annulment, and does not restrict maintenance claims to only divorce or judicial separation decrees (!) .
The law recognizes that marriages found to be bigamous or in contravention of statutory provisions, although illegal or void, do not necessarily imply immorality that would bar the spouse from claiming maintenance, especially when the spouse is financially dependent and the circumstances justify such support (!) .
The court's jurisdiction to award maintenance is based on the facts and circumstances of the case, including the financial condition of the parties and the conduct of the spouses, and is not invalidated solely because the marriage was declared null and void (!) .
Even where a marriage is declared null and void, the court can grant maintenance if the evidence indicates that the spouse was dependent and that the marriage, despite its invalidity, resulted in a relationship that justifies support (!) .
The court emphasizes that the purpose of the maintenance provision is to prevent a financially dependent spouse from becoming destitute, regardless of the legal validity of the marriage, thus supporting the award of maintenance in such cases (!) (!) .
The court maintains that the legislative intent behind the relevant law is to allow courts flexibility in addressing the needs of spouses who, despite their marriage being declared null, are still entitled to support based on their circumstances (!) .
The decision underscores that the legal provisions enable courts to consider all relevant facts, including the nature of the marriage, conduct of the parties, and dependency, when awarding maintenance, and that these considerations are valid even if the marriage itself is nullified (!) (!) .
The court dismisses the argument that a marriage declared null and void automatically disqualifies the spouse from claiming maintenance, affirming that the law allows for such claims to be considered in appropriate cases (!) .
The overall ruling affirms that maintenance rights are not negated solely due to the marriage being null and void, provided the circumstances justify support, and the court’s broad discretionary power under the law supports this approach (!) (!) .

Please let me know if you need further clarification or assistance.

Judgment

Dharmadikari, J.—These two cross appeals arise from matrimonial proceedings. The wife is aggrieved by the impugned reversing judgment of the High Court declaring her marriage as null and void under Section 11 read with Section 5(i) of the Hindu Marriage Act 1955 (hereinafter referred to as ‘the Act’ for short). The husband is aggrieved by the part of the impugned judgment of the High Court whereby it maintained the amount of maintenance fixed per month for the wife under Section 25 of the Act.

2. The facts of this case tell the tragic tale of an Indian woman, who having gone through two marriages with a child born to her apprehends destitution as both marriages have broken down.

3. The husband is an Income Tax Practitioner in the town of Ratlam in the State of Madhya Pradesh. His first marriage was solemnized with late Smt. Usha in the year 1963 and from her he has two sons and one daughter. The marriage of the present wife, it is alleged, was arranged with one Girdhari Lal Lakhotia on 15.5.1979. According to the wife, the customary rituals of marriage were not completed as in the marriage ceremony family members quarrelled over dowry. She has filed a Divorce Petition No. 76/78 in Matrimonial Court at Amravati but it was not prosecuted and no decree of divorce was passed. It is the case of the wife that in accordance with the prevalent custom in Maheshwari community a Chhor Chithhi or a document of dissolution of marriage was executed between the wife and her previous husband on 15.5.1979 and it was later go registered.

4. After the death of his previous wife, the present husband remarried the present wife on 11.7.1981. According to the version of the wife the document of registered Chhor Chithhi was shown and given to the present husband before his accepting the second matrimony with the present wife. A daughter, who is named Puja, was born from the second marriage on 14.7.1983.

5. The wife alleges that the husband started ill-treating her due to non-fulfulment of his demands by her father. She was driven out of the house in the year 1989. She thereafter filed proceedings in the Family Court, Bombay for grant of a decree of judicial separation and maintenance of Rupees three thousand per month for herself and for her daughter.

6. The husband filed a counter-petition seeking declaration of his second marriage with the present wife, as nullity on the ground that on the date of second marriage, her marriage with the previous husband Girdhari Lal Lakhotia, had not been dissolved by any court in accordance with the provisions of the Act. The husband not only disputed validity of the second marriage but also parentage of daughter Puja.

7. The Family Court, Bombay allowed the petition of the wife and granted in her favour, a decree of judicial separation. It also granted maintenance in the sum Rupees one thousand per month to the wife and Rupees two thousand per month to the child. The Family Court dismissed the counter petition filed by the husband seeking declaration of his marriage with the present wife as null and void.

8. The husband went in appeal to the High Court and the wife preferred a cross objection. By the impugned judgment the High Court held that the first marriage of the present wife with her previous husband having not been dissolved by any decree of the Court, her second marriage is in contravention of Section 5(i) of the Act and has to be declared as nullity under Section 11 of the Act. The High Court, on the above finding, granted a decree of declaration of marriage as nullity in favour of the husband. Consequently, the High Court set aside the decree of judicial separation granted to the wife.

9. Even though the High Court dismissed the wife’s petition for decree of judicial separation and granted declaration of the second marriage as null and void in favour of the husband, it maintained the decree granting maintenance to the wife and her daughter. Aggrieved by the order of the High Court, both the parties ar

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2004 Supreme(SC) 1573

Important pointWhere the Court has declared the marriage as null and void under Section 11 read with Section 5(i) of the Hindu Marriage Act, the award of maintenance under Section 25 of the Act for the unsuccessful party can be maintained.

Cases Referred (6)