Patna High Court
Ram Narain Mahto And Ors. vs Phul Kumari Devi And Ors. on 1 August, 1988
Equivalent citations: II(1990)DMC262
JUDGMENT P.S. Mishra, J.
1. Since notice was issued to the plaintiffs-opposite party and they have entered appearance and the main contention, not decided, may prejudice one or the other party, I propose to decide the matter finally and accordingly proceed to deliver my judgment.
2. The plaint and the written statement which precisely precipitate the issues are produced for the Court's perusal by the learned counsel for the petitioners. Plaintiffs opposite party have come forward with a simple case. According to them, plaintiff No. 1 was married with the defendant No. 1 in accordance with Hindu rites about 25 years ago and lived with him giving birth to a son who died. About 15 years ago defendant No. 1 married with the plaintiff No. 2 according to Hindu rites. She, however, could not give any child to the defendant No. 1. Defendant No. 1 being a simpleton, however, fell under the undue influence and pressure of defendants 2 to 4 and executed a deed of gift with respect to his interest to the extent of half with defendants 2 to 4, in their favour on 18-6-1985. Defendants 2 to 4 thereafter, taking advantage of the deed of gift removed the plaintiffs-petitioners from their shelter in the house of the defendant No. 1 and they were accordingly driven to the houses of their respective parents. Since they have no other means of livelihood and are living at the charity of their respective parents, they have instituted the suit for maintenance by the defendants. In their common written statement defendants 2 and 3 Opposite party have admitted that plaintiff No. 1 was married with the defendant No. 1 and have also not specifically disputed the fact that plaintiff No. 2 was married with the defendant No. 1, but have said that she deserted the defendant No. 1 before the execution of the deed of gift and remarried herself to one Rajendra Mandal. They have further mentioned in their written statement that the plaintiffs are not entitled to any maintenance and that the gift is valid and final and they have become absolute owner of the said property without there being any attached encumbrance including maintenance.
3. Their further case, however, is that the defendant No. 1 became a Sadhu and died a civil death.
4. After the defendants appeared in the suit the plaintiffs moved a petition for interim maintenance. The learned Subordinate Judge, Sitamarhi has ordered that defendants 2 and 3 should pay interim maintenance at the rate of Rs. 150/- per month to each of the plaintiffs, from the date of the institution of the suit until its disposal. Petitioners have moved this Court against the said order.
5. Mr. Mishra, learned counsel appearing for the petitioners has contended that defendant No. 1 who has already met a civil death could not contract a second marriage in the life time of his first wife, namely, the plaintiff No. 1 in view of the provisions forbidding such marriage as contained in the Hindu Marriage Act. Section 18 of the Hindu Adoption and Maintenance Act is a provision to grant maintenance after adjudication and not any interim maintenance. According to the learned counsel, the order thus is invalid as without jurisdiction and fit to be set aside.
6. It is not in dispute that the defendant No. 1 took his first wife some time in the year 1960 and the second wife some time in the year 1972. The defendant No. 1, therefore, was married to the plaintiffs after the Hindu Marriage Act, 1955 had come into force. Section 5 of the Act lays down the conditions which must be fulfilled before a marriage may be solemnized. Clause (i) thereof says :
"Neither party has a spouse living at the time of marriage."
Section 11 of the Act says that any marriage solemnized after the commencement of the Act shall be null and void and may, on a petition presented by either party thereto (against the other party) be so declared by a decree. When a dispute had arisen in connection with the grant of maintenance under Section 125 of the Code of Criminal Procedure and a contention was raised as to whether a Hindu woman married with a man already having a living spouse is entitled to such maintenance or not, a Bench of the Supreme Court in the case of Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. (AIR 1988 SC 644) has said :
"The marriages covered by Section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such formal declaration from a court in a proceeding specifically commenced for the purpose."
7. Relying upon the said judgment of the Supreme Court it has been contended that assuming all the facts in favour of the plaintiffs-opposite party the court below would not have allowed maintenance to two wives who claim to be married with the defendant No. 1 after the Hindu Marriage Act came into force. It was plaintiff No. 2 who was taken as the second wife by the defendant No. 1. According to the petitioners, she contracted a second marriage after the alleged civil death of the defendant No. 1. The court below, according to the learned counsel, has thus gone beyond jurisdiction in recognising the right of the plaintiff No. 2 as the wife of the defendant No. 1 for maintenance. Casual reading of the provisions of the Hindu Marriage Act, however, may take one to the above conclusion. On the facts of the case decided by the Supreme Court conclusion that a wife contracting a second marriage is not entitled to maintenance is alone possible because such void marriage could not give a legal basis for maintenance. A closer examination of the law, however, may indicate a situation in which the wife may be a victim of the designs of the husband and in a situation obtaining as indicated in the various provisions of the Hindu Marriage Act, a void marriage may not be a ground for a decree of divorce or a decree that the marriage was a nullity. Section 23 of the Hindu Marriage Act is a provision which states that in any proceeding under the Hindu Marriage Act whether defended or not, if the court is satisfied that any of the grounds for granting relief exists and the petitioner (except in cases where the relief is sought by him on the ground specified in Sub-clause (a), Sub-clause (b) or Sub-clause (c) of Clause (ii) of Section 5) is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief the decree may not be granted. Defendant No. 1 has not appeared to deny the allegations made by the plaintiffs. It is not on the record of the case that the plaintiff No. 2 contracted the marriage with the defendant No. 1 knowing that he had a living spouse or that there was no representation made to her which misled her to believe that no illegality was committed by the second marriage. If she was subjected to a wrong act by the defendant No. 1, he could not take shelter under Section 12 of the Act to suggest that the marriage was void. In the absence of any material for such a conclusion merely on the basis that plaintiff No. 1 was still alive when plaintiff No. 2 was taken as the wife by the defendant No. 1 it can not be said that she is not a wife entitled to claim maintenance from the defendant No. 1. That defendant No. 1 had met a civil death or that the plaintiff No. 2 had contracted a second husband are facts which require proof. These allegations have been brought on the record by the defendants 2 and 3 and unless they prove that the defendant No. 1 has met a civil death or that the plaintiff No. 2 has taken a second husband, it can not be said that her rights as the wife of the defendant No. 1 are destroyed. It is in this background that the court considering whether interim maintenance be granted or not has to proceed to examine how defendants 2 and 3 have entered upon the property of the defendant No. 1 on the basis of the alleged deed of gift which has been described in the plaint as obtained by fraud and undue influence, H.L. Agrawal, J. as he then was, has taken the view in Baliram Ram v. Radhika Devi (AIR 1980 Patna 67) that interim maintenance can be granted to the wife in a claim against the husband if relationship of husband and wife between the parties is not in dispute. He based his judgment upon several authorities including a judgment of the Supreme Court in Manohar Lal Chopra v. Seth Hiralal (AIR 1962 SC 527). Although the said case of the Supreme Court was not with respect to grant of maintenance or under the Hindu Adoption and Maintenance Act, it dealt with general powers of the Court to grant interim relief under Section 151 of the Code of Civil Procedure. Cases referred to in the said judgment carry the consensus that where the wife established a prima facie case the court was competent to order for grant of pendente lite maintenance. Learned counsel for the petitioner has, however, drawn my attention to two judgments (i) in the case of Gorivelli Appanna v. Gorivelli Selthamma (AIR 1972 AP 62) and (ii) in the ease of Ram Chandra Behera and Ors. v. Smt. Snehalata Devi (AIR 1977 Orissa 96). Andhra Pradesh judgment has been taken notice of by this Court in the case of Baliram Ram (supra). The Orissa Judgment, however, is one which appears to support the contention of the learned counsel for the petitioners to the effect that the court has no power to award interim maintenance under Section 18 of the Hindu Adoption and Maintenance Act. The view taken by the Orissa Court, however, is in conflict with atleast three judgments of the Calcutta High Court and judgments of the Rajasthan, Madras and Karnataka High Courts. It is also contrary to the view expressed by a Full Bench of the Punjab High Court in the case of Durga Das v. Smt. Tara Rani (AIR 1971 Punjab and Haryana 141). The Orissa Court has proceeded on the basis that in a case where maintenance is claimed under Section 18 of the Act, the Court, since it proceeds to exercise its inherent powers only in the absence of any specific provisions therefor generally declines to exercise its inherent power under Section 151 of the Code of Civil Procedure. But it is one thing to say that a Court may decline to exercise its inherent power and another to say it has no jurisdiction to do so. Where issue as to the claim of marriage is hotly contested the court may express reluctance and refuse to grant any interim maintenance. It has been invariably pointed out that a court adheres to the provisions of law if they are made for specific purposes and does not go beyond them but where there are no provisions of law and justice demands an order to protect interests pendente lite, recourse is taken to the inherent power preserved in all courts and specified in Section 151 of the Code of Civil Procedure. I am, therefore, not in agreement with the view expressed by the Orissa High Court. The precedent of this Court supports my view that interim maintenance can be granted by the Court. In the set of facts of this case I am satisfied that grant of interim maintenance to the plaintiffs-opposite parties is legal and valid.
8. No other contention having been raised I find no merit in this application. It is accordingly dismissed.