Kerala High Court
Gopalakrishnan Nair vs Thembatty Ramani on 8 December, 1988
Equivalent citations: AIR1989KER331, AIR 1989 KERALA 331, (1989) 1 CIVLJ 556, (1989) 1 KER LT 227, (1990) 1 HINDULR 202, (1989) 1 CURCC 362, (1989) 1 DMC 524, (1989) 1 KER LJ 124
Author: M. Fathima Beevi
Bench: M. Fathima Beevi
JUDGMENT
Sivaraman Nair, J.
1. The appellant and respondent were husband and wife. The husband filed O.P. No. 22 of 1981 Under Section 12(1)(a) of the Hindu Marriage Act, claiming that the marriage was null and void since he was an epileptic and impotant. It was his case that the marriage was not consummated for those reasons. That application was allowed by judgment dated 18-10-1982. The respondent filed an application. LA. No. 26 of 1983, before the lower Court under Section 25 of the Hindu Marriage Act, claiming maintenance at the rate of Rs. 300/- per mensem till she remarried. The appellant resisted the application. He contended that the application under Section 25 of the Hindu Marriage Act was not maintainable in a case where the marriage itself was declared null and void. He also contended that the respondent, his former wife, was not entitled to any maintenance at all, since the effect of the decree of nullity of marriage was that there never existed any jural relationship between them and they were to be treated as if they were total and absolute strangers. Council placed reliance on a number of decisions, in support of the proposition, that maintenance can be granted only in cases where the Court by decree dissolves the marriage or directs judicial separation and not in cases where it annuls the marriage as invalid or void altogether.
2. The trial Court, however, found that Section 25 would be applicable to all cases of disruption of marriage by decree of Court, whether it be divorce, dissolution of marriage, judicial separation, or annulment of marriage. On a consideration of the evidence relating to the comparative means of parties, the lower Court ordered that the appellant should pay the respondent an amount of Rs. 150/- per month till her death or till she remarries or till the order is otherwise varied or modified.
3. Shri P. N. K. Achan, counsel for the appellant, urged emphatically that the effect of a declaration that the marriage was null and void is as if the spouses were never married at all. He submits that only spouses of disrupted marriages are entitled to claim maintenance and not strangers who were accidentally drawn into a void relationship which had no legal effect,
4. We are not persuaded to accept this submission for more reasons than one. It is not in dispute that the parties were married and that it was a legal and valid marriage at that time and till the Court by decree disrupted it. The reasons mentioned by the husband in his application for declaring the marriage to be null and void was that he himself was an epileptic and impotent and therefore the marriage could not be consummated. The terms of Section 12(1)(a) of the Act did not apply to such a situation. It applied only to cases where the petitioning spouse urged that the other spouse was impotant or that for other such reasons comprehended by Section 5(2) of the Act, the marriage was null and void. This aspect would have been very material, had we been considering the correctness of the decree of nullity passed by the trial Court. We need not consider this aspect in this case since the subject-matter of this appeal is the order granting maintenance.
5. It is not as if epileptics never marry, nor that impotance of one or both the spouses should always lead to declaration of nullity of the marital relationship. In many cases, such relationships endure in spite of unforseen misfortunes. It is only in very rare and exceptional cases that marriages are disrupted by decree of Court, even if one or the other of the invalidating circumstances mentioned in S. 5 of the Act was present even at the time of the marriage.
6. Had it not been for the intervention of Court by decree dated 18-10-1982, the marriage between the parties would have continued. Right of a Hindu wife to be maintained by her husband is a part of our ancient law. It has now acquired statutory recognition under Section 18 of the Hindu Adoptions and Maintenance Act. Had the marriage continued -- it would have continued but for the intervention of Court -- the respondent would have been entitled to insist upon being maintained by the appellant. We are of the opinion that the order under appeal is an order which the Court had to pass to do justice between parties. We are also of the opinion that if there is no specific prohibition in the governing statute, it is only appropriate that matrimonial Courts pass such orders as are reasonable to provide maintenance to the less advantaged of the spouses.
7. We do not find any such prohibition or limitation in Section 25 of the Hindu Marriage Act. The relevant portions of the section are as follows :
"Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by 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 or 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 of the applicant, 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."
The argument seems to be that the application for maintenance could be made either by the "wife" or the "husband" and spouses of marriages which were annulled are not taken in by the above term. We understand the purpose of Section 25 of the Act is only to enable Courts to grant maintenance in favour of the disadvantaged spouse consequent on disruption of matrimonial bonds in all cases. The terms "wife" and "husband" occurring in the earlier portion of Section 25 of the Act, according to us, are used only for the purpose of enabling the spouses belonging to either of the species -- Male or female -- to claim maintenance. In the latter portions of the section, the terms used are "applicant" and "respondent". That may be either the wife or husband and vice versa. We understand the words "wife" and "husband" used in the former portion of the section only to mean the erstwhile wife or the erstwhile husband, who may either be the applicant or the respondent in the proceedings.
8. We obtain considerable support for this view from Mulla on Hindu Law, Fifteenth Edition, as revised by S. T. Desai. The following passage is relevant :
"The section vests wide power in the Court for making orders for maintenance and support of one spouse by the other where it passes any decree for restitution of conjugal rights, judicial separation, dissolution of marriage by divorce or annulment of the marriage on the ground that it was void or voidable......
The High Court of Madras has expressed the view that a second wife whose marriage with the respondent was a nullity on the ground that the husband had a wife living at the time of his marriage with her, is not entitled to alimony or maintenance under this section. It is submitted that the present section applies inter alia to a marriage which may be null and void under Section 11 read with Section 5(1) and the correctness of the above view must be doubted." (page 878) Dealing with the discretion which Courts have under Section 25 of the Act to award maintenance, it was observed :
"So wide is the discretion vested in the Court under the present section in this behalf that an order under it may for instance be made in favour of a wife, even if a decree for judicial separation has been passed against her on the ground of adultery or cruelty or desertion on her part. The discretion is judicial and would be exercised in favour of a spouse found guilty of matrimonial misconduct only where the Court is satisfied that such an order should be made in the interests of justice. The same considerations would apply where the Court passes a decree for any other relief under the Act and the respondent though shown to have been guilty of a matrimonial offence or to have been in the wrong, can ask for an order for permanent maintenance even when dissolution of marriage by divorce or annulment of the marriage is decreed against the respondent. ..... The matter is one of discretion with the Court under Sub-section (1) and the discretion would be exercised only after taking into consideration all the aspects of the case including her conduct and maintenance would be awarded to her, if so required by ends of justice. Being a matter of discretion there can be no hard and fast rule applicable to all cases."
9. We understand Section 25 of the Hindu Marriage Act only provides that if the Court disrupts the normal civil relationship by its decree -- whatever be its form -- it can as well order either spouse to pay maintenance to the disadvantaged spouse at least to avoid starvation or waywardness or other like unsavoury consequences. In the case of the female, this becomes all the more important, since the anxiety of the law has always been to protect her not only from starvation, but from temptations which may seemingly save her from penury and despondency. Such an order cannot ordinarily be understood as beyond its competence, in view of the designedly wide provisions of Section 25 of the Hindu Marriage Act. In a case where the husband moves for declaration of nullity of the marriage, due to his own fault, his epilepsy, his impotency, and his inability to consummate the marriage, it is all the more reason why the Court shall direct him, as incidental to the dispensation whereby he obtained what he wanted, to ensure that the person against whom the Court passed a decree at his instance should be maintained by him till she remarried or till the Court otherwise ordered.
10. Yet another reason why we hold that we need not interfere with the order of the lower Court is that Section 25 of the Hindu Marriage Act, under which the order was made, is largely discretionary; and except in cases where that discretion was exercised in a manifestly wrong and improper manner, the appellate Court cannot ordinarily interfere. The very wide terms of the section give a clear indication supporting the above view. In Sydenham v. Sydenham and Illingworth, 1949 (2) All ER 196, on a consideration of the corresponding provision in the English Statute it was held :
"There is nothing in the statute to say that a wife against whom a decree has been made cannot be awarded maintenance, and there is nothing in it about discretion being exercised "in favour of "one side or the other or about a "compassionate allowance." All it says is that on a decree of divorce the Court may award maintenance to the wife. This includes a guilty wife as well as an innocent one; but in awarding maintenance, the Court must have regard, of course, to the conduct of the parties."
Once it is found that the power Under Section 25 of the Hindu Marriage Act to award maintenance is largely discretionary without any limits set as to the circumstances under which the Court may not pass such orders, the only remaining question may be whether the order subserves the cause of justice between parties. The only reason that the same power could have been exercised in a slightly different manner is no reason justifying interference by an appellate Court with the exercise of the judicial discretion. Dealing with judicial discretion of this nature, Lord Asquith L.T., observed in 1948 (1) All ER 343 :
"We are here concerned with judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable, It is only where the decision exceeds the generous orbit within which reasonable disagreement is possible, and is, in fact, plainly wrong that an appellate body is entitled to interfere."
Dealing with an unrestricted right of appeal, Lord Goddard, C.J., observed in (1949) 1 All ER 256 :
"It is constantly said (although I am not sure that it is always sufficiently remembered) that the function of a Court of Appeal is to exercise its powers where it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right."
In the light of the above pronouncements, we are of the opinion that it is not shown that the order of the matrimonial Court under Section 25 of the Hindu Marriage Act was manifestly unjust or that the trial court exceeded the limits of its very generous discretion or that it was plainly wrong. We are therefore not persuaded to interfere with the order of the lower Court.
11. The amplitude of the power of the Matrimonial Courts Under Section 25 of the Hindu Marriage Act or similar provisions of corresponding statutes have been recognised by Courts, The Courts have gone to the extent of holding that even a wife against whom cruelty or unchastity is alleged and proved is entitled to maintenance : see Kunhikannan v. Malu, 1973 Ker LT 431 : (AIR 1973 Ker 273); Sydenham v. Sydenham, 1949 (2) All ER 196; Clear v. Clear, 1958 (2) AH ER 353. In cases where marriages were annulled due to illegality vitiating the relationships, award of maintenance to either of the spouses was upheld in view of the designedly wide terms of Section 25 of the Hindu Marriage Act: See Govind Rao v. Anandi Bai, AIR 1976 Bom 433, Rajeshbai v. Shantabai, AIR 1982 Bom 231. We do not propose to multiply authorities on this aspect.
12. We do not see any reason why Section 55 of the Act should not apply to a case where the husband obtained a decree of nullity not due to any defect or default in the female, but only due to his impotency and his incapacity to consummate the marriage.
13. We have yet another reason to uphold the order of the lower Court. Marriage is both a sacrament and a contract for the Hindus. The resultant relationship is both jural as also contractual. The grounds mentioned in Section 5(2) of the Act as invalidating a Hindu Marriage are incapacity to enter into a contractual relationship because of the minority or unsoundness of mind or an inherent incapacity to achieve the very purpose of the marriage, namely procreation, due to lack of capacity to consummate the marriage. These are considerations which may vitiate a contract. Invalidation due to any or all these grounds is virtually an annulment of the contractual relationship. It is only just and proper that a person who induced another to enter into a contractual relationship in spite of the existence and awareness of essentially invalidating circumstances compensates that other as an incidence of the decree of annulment which he obtains. It may be that because these jural and contractual relationships are so interwined in Hindu Marriages the former also snaps when the latter is annulled. The obligation flowing out of the jural relationship which the Court disrupts by its decree seems to us to be sufficient justification for an order to pay maintenance subject to reasonable restrictive conditions even after the decree of annulment.
14. We understand the order of the trial Court to be an earnest attempt to hold the scales even between the parties by requiring the person who caused disruption of their relationship which was sanctioned by law; to provide for the victim of that order till she remains (sic) or the Court otherwise orders.
We also hold, that the power of the matrimonial Court under Section 25 of the Hindu Marriage Act being very wide in its terms in conferring judicial discretion on the Courts, an order which subserves the cause of justice between parties in exercise of that discretion cannot be lightly interfered with.
We hold that the appeal is devoid of merit and the same is hereby dismissed with costs.