Kerala High Court
Preetha Kottayi vs Sivadasan.P on 13 August, 2025
Author: P.V. Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:61255
RPFC NO. 282 OF 2017
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 13TH DAY OF AUGUST 2025 / 22ND SRAVANA, 1947
RPFC NO. 282 OF 2017
AGAINST THE JUDGMENT DATED 09.09.2016 IN MC NO.31 OF 2015
OF FAMILY COURT, THALASSERY
REVISION PETITIONER/PETITIONER:
PREETHA KOTTAYI
AGED 42 YEARS,D/O LATE CHATHUSMRITHI,
PUNNOLPUNNOL P.O., KODIYERI VILLAGE,
PUNNOL DESOM.
BY ADV SMT.BINDUMOL JOSEPH
RESPONDENT/RESPONDENT:
SIVADASAN.P
AGED 35 YEARS
S/O LATE KUNHIKANNAN,AGED 35 YEARS,PARANTAVIDE,
OLAVILAM P.O.,CHOKLI AMSOMOLAVILAM DESOM,
THALASSERY TALUK,KANNUR DISTRICT.PIN-670691.
BY ADVS.
SRI.P.N.SUKUMARAN
SHRI.AKHIL S.VISHNU
SRI.K.VISWAN
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR
ADMISSION ON 13.08.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:61255
RPFC NO. 282 OF 2017
2
P.V. KUNHIKRISHNAN, J.
--------------------------------
R.P.F.C. No.282 of 2017
----------------------------------------------
Dated this the 13th day of August, 2025
ORDER
This revision petition is filed against the order dated 09.09.2016 in MC No.31/2015 of Family Court, Thalassery. As per the impugned order, the Family court granted maintenance to the petitioner at the rate of Rs.5,000/- from the date of petition till the date of the impugned order, which is 09.09.2016. Aggrieved by the same, this revision petition is filed.
2. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
3. The counsel for the petitioner submitted that the Family Court erred in limiting the maintenance till 09.09.2016.
The counsel submitted that the Family court denied maintenance from that date onwards because in OP No.671/2014, a decree is passed nullifying the marriage. That is not a reason to deny the maintenance to the petitioner is the 2025:KER:61255 RPFC NO. 282 OF 2017 3 contention. The counsel for the petitioner relied on the judgment of this Court in Surendran T.K. v. P.Najima Bindu and Another [2012 (2) ILR 28]. The counsel for the respondent submitted that there is nothing to interfere with the impugned order. It is submitted that the Family Court already declared the marriage as a nullity. Therefore the petitioner is not entitled maintenance from the date on which the marriage is annulled by the Family Court. The counsel also relied on the judgment of the Andhra Pradesh High Court in Palla Shanthi Kiran v. The State of AP and Others [MANU/AP/0193/2020], the judgment in Badshah v. Urmila Badshah Godse and Others [AIR 2014 SC 869] and also the judgment in Amina v.
Hassan Koya [1985 KHC 135].
4. This Court considered the contention of the petitioner and the respondent. This Court perused the impugned order also. The Family Court found that in the light of the decree of nullity of marriage passed by the same court in OP No.671/2014, the wife is entitled maintenance only till the date on which the marriage is declared as nullity. But a Division Bench of this Court in Surendran T.K.'s case (supra) 2025:KER:61255 RPFC NO. 282 OF 2017 4 considered the matter in detail. The relevant portion of the above judgment is extracted hereunder:
" C42. The precise question to be considered is whether a woman whose marriage is annulled under Sec.12 of the Hindu Marriage Act can be included within the sweep of Explanation
(b) to Sec.125(1) Cr.P.C. A reference to the language of Sec.12 may be of relevance. A marriage attracting Grounds (a) to (d) of Sec.12(1) "shall be voidable and may be annulled by a decree of nullity." This is all that is mentioned in Sec.12. The effect or consequence of a marriage annulled under Sec.12 is not declared by the legislature in any provision of the Hindu Marriage Act. The marriage is said to be voidable and may be annulled by a decree of nullity. This is all that is stated. We note again that such a marriage shall remain and continue to be valid for all purposes unless it is annulled by a decree under Sec.12 of the Hindu Marriage Act. Parties have the option to treat the marriage as valid. If they do not go to court and seek a decree annulling the marriage under Sec.12 the same shall continue to be valid for all intents and purposes. A marriage duly solemnized gets annulled only if parties in their volition approach the court to get the same terminated in accordance with the provisions of 2025:KER:61255 RPFC NO. 282 OF 2017 5 Sec.12 of the Hindu Marriage Act. The consequence of such annulment is not specifically declared.
43. What are the consequences in fact and in law? This has to be considered. The learned counsel for the respondent/husband contends that once a marriage is annulled under Sec.12 as a voidable marriage, it ceases to exist in the eye of law. Thereafter it is impermissible to reckon such voidable marriage as valid for any purpose. A decree of annulment under Sec.12 will have the effect of obliterating and annihilating the marriage solemnized. Therefore it is not a case of a marriage being terminated as in the case of a decree for divorce/dissolution under Sec.13. It is a case of there being no marriage at all. No rights or liabilities can stem or emanate from such a marriage which is annulled under Sec.12 of the Hindu Marriage Act, contends counsel.
44. We find it difficult to persuade ourselves to accept this contention. The learned counsel for the claimant/wife contends that a decree of annulment cannot certainly restore the parties to their position prior to marriage, in fact. The solemnized marriage is a reality. Law cannot close its eyes to such solemnized marriage. Law 2025:KER:61255 RPFC NO. 282 OF 2017 6 cannot ignore the fact that the spouses had lived as husband and wife in such matrimony for some period of time. Law cannot afford to ignore the fact that it is the volition of the parties which had led to the annulment of the marriage under Sec.12 of the Hindu Marriage Act. They could have treated the same to be valid. Conduct of parties has a crucial bearing in a decree of annulment under Sec.12.
45. We find force in this submission. In the Indian context where the virginity of a woman is given utmost importance, she can never, in fact, re- claim her status as a spinster after annulment of her marriage under Sec.12 of the Hindu Marriage Act. She has lost her maidenhood. In the eye of society she has lost her virginity. Whatever be the law, on declaration of nullity or voidness of the marriage, in fact, she will continue to be the woman in a terminated marriage. Her maidenhood is lost. If she wants to enter matrimony again, society will reckon the same only as a remarriage with all its inadequacies and inconveniences. One cannot wish away a solemnized marriage merely because such marriage has been annulled at the volition of parties by a court by passing a decree under Sec.12. What we intend to note is that there is undoubted transformation of the status of a woman from a maiden to the woman in a 2025:KER:61255 RPFC NO. 282 OF 2017 7 terminated marriage. In fact, consistent with the societal norms she ceases to be a maiden. Her re- marriage will ordinarily be a difficult and uphill task. She would be left in the lurch without any one to support until her re-marriage takes place. We are only attempting to satisfy and convince ourselves that such a woman certainly falls within the target group of unfortunate women in whose favour the legislative compassion gets eloquent expression by the enactment of Explanation (b) to Sec.125 Cr.P.C.
46. It is not as though the law assumes that such an annulled marriage can be ignored, overlooked or forgotten for all purposes. We shall now look into the eventualities pointed out by the learned amicus curiae and the learned counsel for the claimant/wife where the law realistically takes into account the different status of spouses in an annulled marriage. The law also does not reckon or accept that because of a decree for annulment, such marriage can be ignored, overlooked or forgotten for all purposes.
55. We do, in these circumstances, have no hesitation to come to the conclusion that the expression "woman who has been divorced by or has obtained a divorce from her husband" in 2025:KER:61255 RPFC NO. 282 OF 2017 8 Sec.125(1)(b) Cr.P.C. must receive a liberal and expansive interpretation to include a destitute woman in distress whose marriage has been annulled by a decree under Sec.12 of the Hindu Marriage Act. To us, the core or the crux of the ingredients specified under Explanation (b) is that the woman must be one whose matrimonial relationship stands severed by acts of spouses - including intervention of court at their instance, and who has not re-married. Going by the object, purpose and rationale of the deemed inclusion of certain non-wives in the category of wives by Explanation (b) it would be impermissible to deny the benefit of the legislative compassion to wives whose marriages have been annulled by court at the volition of parties, on grounds available under Sec.12."
5. In the light of the above dictum by the Division Bench of this Court, I am of the considered opinion that even if the marriage is annulled based on an application under Section 12 of the Hindu Marriage Act, the petitioner is entitled maintenance under Section 125 Cr.P.C. Therefore the restriction of maintenance till the impugned order is unsustainable. The revision is to be allowed to that extent.
2025:KER:61255 RPFC NO. 282 OF 2017 9 Therefore this revision petition is allowed. The impugned order dated 09.09.2016 in MC No.31/2015 of the Family Court, Thalassery is modified and it is declared that the revision petitioner is entitled future maintenance at the rate of Rs.5,000/- from 09.09.2016 onwards also.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE