Kerala High Court
Raman Pillai Vasudevan Nair vs Subhadra Amma Nirmala Devi And Anr. on 5 August, 1988
Equivalent citations: 1989CRILJ1274
ORDER K. Sreedharan, J.
1. First respondent approached the trial court, claiming herself to be the legally wedded wife of the petitioner, for maintenance Under Section 125 of the Code of Criminal Procedure. The court allowed that petition and directed the petitioner to pay maintenance at the rate of Rs. 100/- per month. That order is under challenge.
2. The short question that arises for consideration is whether the first respondent is the legally wedded wife of the petitioner. The claim for maintenance of the first respondent was disputed on the ground that there is no valid marriage between the parties because the petitioner had married another lady by name, Vasanthakumari D/o. Jagadamma, on 30-8-1973 and that, that marriage is subsisting. According to the first respondent the petitioner did not divulge the existence of the marriage between him and Smt. Vasanthakumari and that a valid marriage took place between them. The learned Magistrate came to the conclusion that the petitioner married the first respondent as per the law and custom prevalent in their community and since there is no proof that the petitioner married Smt. Vasanthakumari as per the law and custom, it cannot be said that the marriage between the petitioner and first respondent is not valid.
3. According to the learned Counsel appearing for the petitioner the first respondent in the petition filed before court below and in her evidence as PW 1 admitted the marriage between the petitioner and Smt. Vasanthakumari and so she was bound to prove that her marriage with the petitioner was valid in accordance with the provisions of the Hindu Marriage Act, hereinafter referred to as 'the Act'. In the absence of such proof, it is contended that the first respondent is not entitled to maintenance Under Section 125 of the Code. Only a wife who is unable to maintain herself can claim maintenance from her husband. For a legal marriage not only that all the ceremonies in accordance with the religious rites of the community to which they belong should be undergone, but the marriage must also be in accordance with the personal law applicable to the parties. The parties in this proceeding are Hindus. For a valid marriage between them the marriage should be in conformity with the provision contained in Section 5 of the Act. Section 5(i) of the Act provides that for a valid marriage neither party to it should have a spouse living at the time of the marriage. Contravention of this provision makes the marriage a void one as per Section 11 of the Act. Marriages covered by Section 11 of the Act are void ipso jure i.e. void from the very inception. Such marriage has to be ignored as not existing in law, No legal right can flow out of such marriage. Section 16(1) of the Act implies that a void marriage falling Under Section 11 of the Act can be treated as void even without a formal declaration by any court.
4. The learned Counsel appearing for the first respondent argued that the term 'wife' in Section 125 of the Cr. P.C. should be given a wider and extended meaning so as to include therein not only a legally wedded wife but also a woman married in fact by performance of the necessary rites applicable to the community to which they belong. The learned Counsel would contend that the party who alleges invalidity of the marriage, on account of the violation of the provisions contained in Section 5(i) of the Act, must establish the same. The wife who claims maintenance Under Section 125 of the Code should not be compelled to adduce negative evidence to show that her husband had no spouse living at the time of the marriage. In order to disentitle a woman who has undergone the ceremonies of a marriage with a man, the man who disputes her claim should prove that there was no legal marriage between them. In other words, the lady who lets in evidence, regarding the solemnisation of the marriage in accordance with the religious rites of the community to which they belong should be awarded maintenance, if it is found that she is incapable of maintaining herself and the husband, though, having sufficient means fails to maintain her. In support of this argument the learned Counsel brought to my notice the decision in Narayanan v. Rajalekshmi 1977 Ker LT 945. In that decision it was observed:
Therefore, it stands to reason that once it is proved that the man and the woman concerned underwent the ceremony of marriage, a legal marriage can be presumed unless it is made out that one or more of the conditions mentioned in Section 5 of the Hindu Marriage Act do not exist.
This court went on to observe:
Therefore, in order to disentitle a woman who has undergone the ceremony of marriage with a man, it should be proved that there was a legal marriage between either of the parties to the ceremony and another person which was subsisting at the time of such solemnization.
I am afraid, the said decision cannot now be considered as laying down good law in view of the decision of the Supreme Court in Yamunabai Anantrao v. Anantrao Shivaram (1988) 1 Ker LT 416. The point that arose for consideration before the Supreme Court was whether a Hindu woman whose marriage after coming into force of the Hindu Marriage Act, 1955, to a Hindu male having a living lawfully wedded wife can maintain an application for maintenance Under Section 125 of the Cr. P.C., 1973. Their Lordships observed ;
The attempt to exclude altogether the personal law applicable to the parties from consideration also has to be repelled. The Section has been enacted in the interest of a wife, and one who intends to take benefit under S. l(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes her status or relationship with reference to the personal law that an application for maintenance can be maintained.
This means, a lady who wants to claim maintenance from the man should establish that she has lawfully married him in conformity with the provisions contained in Section 5(0 of the Act as well. In other words, in the absence of proof that the marriage between the parties was not void on account of the contravention of the provisions contained in Section 5, the lady will not be entitled to claim maintenance. Marriage of a woman, even if it is in accordance with the Hindu rites, with a man, having a spouse living at the time of the marriage, is a nullity in the eye of law. The lady will not get the status of a legally wedded wife. She is accordingly not entitled to the benefit of Section 125 of the Code of Criminal Procedure.
5. In the instant case the first respondent has averred in paragraph 5 of the petition filed before court below that the enquiries revealed that the petitioner married Smt. Vasanthakumari D /o. Jagadamma prior to her marriage with him. As PW 1 she reiterated the said statement. Thus, it is seen that the first respondent has admitted the marriage of the petitioner with Smt. Vasanthakumari. That marriage was subsisting at the time of the alleged marriage between the first respondent and the petitioner. The first respondent has no where raised a contention that the marriage between the petitioner and Smt. Vasanthakumari was in any way invalid. In the absence of such a contention it has to be held that the petitioner had validly married Smt. Vasanthakumari, That marriage has never ended in a divorce. Smt. Vasanthakumari is still alive. Therefore, at the time of the alleged marriage between the first respondent and the petitioner, the petitioner had his spouse living. Since the petitioner had his spouse living at the time of the second marriage, the second marriage is void as per Section 11 of the Act. The finding entered by the learned Magistrate that the first respondent was married by the petitioner in accordance with the religious rites of the community to which they belong will not make that marriage a valid one. Even if It is, taken that the first respondent has become a de facto wife on account of the ceremonies, she will not become a legally wedded wife, The provision contained in Section 125 of the Code will not apply to a de facto wife where the marriage is void ab initio as per the Act.
6. In view of what has been stated above, I hold that the first respondent is not the legally wedded wife of the petitioner and consequently she is not entitled to maintenance Under Section 125 of the Code of Criminal Procedure. The contrary finding entered by the learned Magistrate is illegal and contrary to the provisions of law.
7. In the result, I allow this Revision Petition, set aside the order passed by the learned Magistrate and dismiss the petition, M .C. 2 /86, filed before that court.