Punjab-Haryana High Court
Sarabjit Singh vs Charanjit Kaur on 30 May, 1996
Equivalent citations: AIR1997P&H66, (1997) MARRILJ 289, AIR 1997 PUNJAB AND HARYANA 66, (1996) 2 CURLJ(CCR) 408, (1996) 2 HINDULR 57, (1996) 3 RECCIVR 40
Author: Sarojnei Saksena
Bench: Sarojnei Saksena
ORDER
1. The petitioner-husband has assailed the trial Court's order dated January 20, 1996, whereby the petition filed under S. 24 of the Hindu Marriage Act, 1955 (in short, 'the Act') has been allowed and the petitioner is ordered to pay maintenance at the rate of Rs. 350/- per month during the pendency of the petition and Rs. 800/- as litigation expenses to the respondent wife.
2. The skeletal facts of the case are that the petitioner-husband filed a petition under S.11 of the Act on the ground that respondent Charanjit Kaur was earlier married to one Kashmira Singh and when she was married to the petitioner on March 6, 1992, this marriage was subsisting and Kashmira Singh was alive. Hence respondent's marriage with the petitioner is void under S. 5(1) of the Act. The respondent-wife in her written statement admitted that earlier she was married to Kashmira Singh, but further averred that she got this earlier marriage dissolved through a Talaknama dated May 31, 1991, as per the custom prevalent in their Jat community. Thus, according to her, her first marriage was dissolved on May 31, 1991, as per their custom and, therefore, her marriage with the petitioner solemnised on March 6, 1992, cannot be treated as void. During the pendency of these annulment proceedings, the respondent wife filed a petition under S. 24 of the Act, which was allowed by the impugned order, as stated above.
3. The petitioner-husband's learned counsel valiantly argued that the wife has admitted in unequivocal terms that earlier she was married to one Kashmira Singh before she was married to the petitioner. Thus, according to him, she is not his legally wedded wife as her marriage with the petitioner is in violation of the mandatory provisions of S. 5(1) of the Act. His second submission is that as she is not his legally wedded wife, she is not entitled to claim maintenance under S. 24 of the Act. In support of his contentions he has relied on Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, (1988) 1 SCC 530: (AIR 1988 SC 644) and Manjeet Singh v. Parson Kaur, (1990) 2 Pun LR 97.
4. The respondent's learned counsel contended that the wife has admitted that earlier she was married to Kashmira Singh, but she has also pleaded that under the customary law her first marriage was duly dissolved on May 31, 1991, and thereafter on March 6, 1992, she was married to the petitioner as per Sikh rites. The parties are yet to adduce evidence. She has to prove dissolution of her first marriage as per customary law, which she is entitled to prove under S. 29(2) of the Act. It is held in Smt. Rita Rani v. Ramesh Kumar, (1995) 2 Pun LR 434: (AIR 1995 Punj & Har 337) that marriage can be dissolved by brotherhood or by executing an agreement as per customary law. His second contention is that under S. 24 of the Act it is not necessary that before claiming maintenance the wife or the husband, as the case may be, must first prove that he or she is the legally wedded wife/husband, of the opposite party. Section 24 clearly envisages grant of maintenance pendente lite and expenses of proceedings in any proceeding under this Act, which embraces within its fold a petition under S. 11 of the Act as well. He also argued that the authorities relied on by the petitioner's counsel are distinguishable on facts. He relied on Rishi Dev Anand v. Smt. Devinder Kaur, AIR 1985 Delhi 40 and Jit Singh v. Jasbir Kaur, (1992) 1 Pun LR 305.
5. In the Act the status of woman is not defined. Section 24 of the Act clearly lays down that where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceedings, it may on the application of the wife or the husband, Order the respondent to pay to the petitioner the expenses of the proceedings and monthly maintenance. No exception is made in this section with regard to the petition filed under S. 11 of the Act.
6. In Manjeet Singh's case (1990 (2) Pun LR 97) (supra) the facts were that the applicant-respondent sought annulment of marriage with the appellant under Sec 11 of the Act and prayed that marriage of the applicant-respondent and the appellant be declared as nullity, as the husband had a living spouse when the respondent was married to him. The trial Court found that the, husband was already married, that marriage was subsisting and that the spouse was alive at the time of alleged marriage with the applicant-respondent. Thus, the applicant's marriage was declared to be void. During the pendency of the appeal, wife filed an application under S. 24 of the Act. Relying on Yamunabai Anantrao Adhav's case (AIR 1988 SC 644) (supra) M. S. Liberhan, J. held that "A marriage in violation of S. 5 of the Act has to be ignored as non-existing in law." He further held "thus, in the eye of law the applicant-respondent never attained the status of a wife, which has a definite connotation as observed above and as understood by the society. Section 24 of the Act statutorily confer a right of maintenance on a spouse during the pendency of the proceedings under the Act but when the marriage itself is void and none of the spouses enjoys the status of husband/wife, neither of the spouse can stake claim for maintenance during the pendency of the proceedings", and thus the petition was dismissed.
7. In Yamunabai Anantrao Adhav's case (AIR 1988 SC 644) (supra) the wife filed a petition under S. 125 of the Code of Criminal Procedure. The Apex Court held that "a Hindu woman who is married after coming into force of the Hindu Marriage Act, 1955, in accordance with Hindu rites with a Hindu male having a wife living, is not entitled to maintenance under S. 125, Cr.P.C. as such marriage is void ipso jure under S. 11 of the Act." While interpreting the word 'wife' used in S. 125(1)(a), Cr.PC. the Apex Court held that reference to personal law can be made. Their Lordships observed that "the word 'wife' is not defined in the Code except indicating in the Explanation its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must, therefore, be given the meaning in which it is understood in law applicable to the parties, subject to the Explanation (b), which is not relevant in the present context. It is only where an applicant establishes her status on relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law."
8. Thus, it is obvious that in Yamunabai Anantrao Adhav's case (AIR 1988 SC 644) (supra) the provisions of S. 125(1)(a) were interpreted by the Apex Court with the help of Explanation given thereunder, which gives an inclusive definition of the word 'wife'. With the help of this Explanation it was held that "a woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status." From this Explanation the intention of the Legislature became clear as to when a woman can claim status of a wife under the Code, but under the Act status of wife is not defined at all.
9. In Rishi Dev Anand's case (AIR 1985 Delhi 40) (supra) it is held that proceedings under Order 9, Rule 13, C.P.C. for setting aside an ex parte decree are proceedings under the Hindu Marriage Act and in such proceedings application under S. 24 of the Act is maintainable.
10. In Jit Singh's case (1992 (1) Pun LR 305) (supra) another single Bench of this Court has considered the provisions of S. 24 of the Act in a petition which was filed under S. 11 of the Act. In that case the wife filed a petition under S. 11 of the Act seeking a declaration by a decree of nullity that the marriage was void, but she filed a petition under S. 24 of the Act during the pendency of that petition. A. P. Chowdhri J. considered the Supreme Court authority in Baku lab at v. Ganga Ram, (1988) 1 Rec Cri R 304, and observed that in that case the Apex Court held that where marriage of a Hindu woman was void on account of contravention of S. 5(1) of the Act and such a woman was not entitled to maintenance under S. 125, Cr.P.C. A. P. Chowdhri, J. observed that "the analogy of the decision of the Supreme Court in Bakulabai's case (supra) is not applicable. The provisions of S. 125 of the Code of Criminal Procedure, on the one hand, and S. 24 of the Act, on the other hand, are not in pari materia with each other" and thus the maintenance was granted to the wife.
11. In Gopalakrishnan Nair v. Them-batty Ramani, AIR 1989 Kerala 331; Govind Rao v. Anandi Bai, AIR 1976 Bombay 433 and Dayal Singh v. Bhajan Kaur, AIR 1973 Punj & Har 44, the provisions of S. 25 of the Act are considered. In Dayal Singh's case (supra) a single Bench of this Court, has held that "the Act has not been very carefully drafted and the language of S. 25 of the Act has to be liberally construed. Even if the marriage was void ipso jure as the lady had been made to go through a mock marriage and to lose her maidenhood under the belief brought out by false pretences that she was a lawfully wedded wife, she should be treated as a wife for the purpose of making an application under S. 25 of the Act." In Gopalakrishnan Nair's case (supra) the husband obtained decree of nullity of marriage on the ground of his impotency and epilepsy. The wife held entitled to claim maintenance under S. 25 of the Act.
12. In Govind Rao's case (AIR 1976 Bombay 433) (supra) a learned single Judge of Bombay High Court upheld the claim of the wife whose marriage was declared null and void by making a decree of nullity, for the maintenance under S. 25 of the Act. In that case also the marriage was found void de jure and consequent decree held valid under S. 11 of the Act. The learned Judge found that S. 25 of the Act not only provides for a remedy but also confers a right upon such a wife and refused to give literal meaning to the word 'wife' or 'husband' used by that section. He held:
"..... the words 'wife' and 'husband' used in sub-section (1) of S. 25 of the Act would include within their scope a woman and a man professing the Hindu faith who have gone through a ceremony of marriage which would, in law, have conferred the status of a wife or husband oh them but for the provisions of S; 11 read with Cls. (i), (iv) and (v) of S. 5 of the Act."
13. In Laxmibai v. Ayodhya Prasad, 1991 MPLJ 86 : (AIR 1991 Madh Pra 47), a single Bench of Madhya Pradesh High Court has interpreted the provisions of S. 24 of the Act. In that case the wife filed a petition under S. 9 of the Act for restitution of conjugal rights and claimed maintenance under S. 24 of the Act. The husband denied her claim and alleged that he was earlier married to Ram Bai, During summary enquiry parties adduced evidence in support of their pleadings. On the basis of the evidence adduced by the parties, the matrimonial Court came to the conclusion that she was the second wife of the husband and during the subsistence of the first marriage with Ram Bai and, therefore, the second marriage was void under S. 11 read with S. 5(i) of the Act. The matrimonial Court held that the applicant being the second wife under a void marriage is not entitled to any interim maintenance under S. 24 of the Act. D. M. Dharmadhikari, J. held that "the Hindu Marriage Act, 1955, is a piece of social welfare legislation regulating the marital relations of Hindus consistently with their customary law i.e. Hindu Law. The object behind S. 24 of the Act providing for maintenance pendente lite to a party in matrimonial proceedings is obviously to provide financial assistance to the indigent spouse to maintain herself or himself during the pendency of the proceedings and also to have sufficient funds to carry on the litigation so that the spouse does not unduly suffer in the conduct of the case for want of funds. He further held that keeping in view the aims and object of the Act and the wide powers conferred on the matrimonial Court in that respect, the expression 'wife' or 'husband' used in S. 24 of the Act has to be liberally construed to mean 'petitioner' or 'respondent', claiming to be wife or husband in a bona fide matrimonial cause. Construing the expression thus would fulfil the intent of the provision and aims and objects of the Act to provide sufficient interim maintenance to a spouse unable to maintain herself or himself to effectively take part in the "pending proceedings before the Court of law." He further observed that "assuming that after leading of the evidence by the parties, it is finally held that her second marriage with the respondent was a nullity under S. 11 of the Act, even then she cannot be denied an alternative relief of declaration of that effect and grant of permanent alimony under S. 25 of the Act for her maintenance."
14. Another single Bench of this Court in Mohan Lal Sharma v. Parveen Sharma, (1995) 2 Pun LR 706, has also held that S. 24 of the Act covers within its scope any proceedings under the Act. It does not exclude proceedings under S. 11 of the Act. In this case V. K. Jhanji, J. has considered the judgment of the Apex Court in Yamunabai Anantrao Adhav's case (AIR 1988 SC 644) (supra). He has also held that "S. 24 of the Act merely provides for summary relief which may be granted to either party, which has no independent source of income for his or her support, to claim maintenance pendente lite during the pendency of litigation. It also prescribes that necessary expenses of that litigation may be claimed by the petitioner from the opposite party. The dispute with regard to the validity or illegality of the marriage is not to be gone into in such a petition and it is a matter which is to be considered in the main petition. For the purposes of application under S. 24 of the Act, the Court is only called upon to make summary consideration of the amount which the applicant is to be awarded by way of maintenance pendente lite and for expenses of litigation:"
15. Manjeet Singh's case (1990 (2) Pun LR 97) (supra) is also distinguishable on facts, because in that case after full trial the matrimonial Court held that the marriage between the parties was void as when husband Manjeet Singh was married to Parson Kaur, husband was already married, marriage was subsisting and the first spouse was alive at the time of alleged second marriage with Parson Kaur.
16. In my considered view, Yamunabai Anantrao Adhav's case (AIR 1988 SC 644) (supra) and Bakulbai's case (1988 (1) Rec Cri R 304) (SC) (supra) are inapplicable in this case, because in both those judgments the petition filed under S. 125, Cr.P.C. was considered with reference to the inclusive definition of 'wife' given therein and it was held that such a petition is maintainable by a woman who is a legally wedded wife of the respondent. Section 24 is not in pari materia with S. 125, Cr.P.C. Further, S. 24 does not carve out an exception for the petition filed under S. 11 of the Act. Hence in such a petition filed under S. 24 the words wife/ husband are to be interpreted liberally, as petitioner or respondent claiming to be wife or husband. This is beneficial legislation which provides that if a party, may be wife or husband, is not possessed of sufficient means for her/his maintenance and to bear the expenses of the litigation and if the opposite party is possessed of sufficient means, opposite party should be ordered to pay maintenance and litigation expenses to the petitioner.
17. In this case the parties are at the initial stage of the trial. They have submitted their pleadings. The wife has pleaded customary mode of dissolution of marriage so far as her first marriage with Kashmira Singh is concerned. The husband has controverted this alleged fact by filing a replication thereto. While deciding such a petition the pleadings of the parties are required to be considered under S. 20(2) of the Act. Thus, in my considered view, the trial Court has not fallen into any error in granting maintenance and litigation expenses to the respondent-wife under S. 24 of the Act, though the husband has filed this petition under S. 11 of the Act, which is yet to be decided on merits.
18. Consequently, finding no merit in this revision, it is hereby dismissed with costs of Rs. 1000/-.
19. Revision dismissed.