Uttarakhand High Court
Master Dharmesh Nankani Alais Suraj ... vs Smt. Savitri Devi And Others on 4 July, 2017
Equivalent citations: AIR 2018 (NOC) 27 (UTR.)
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
First Appeal No. 128 of 2014
Master Dharmesh Nankani @ Suraj (Minor)
......Appellant
Versus
Smt. Savitri Devi and others ...... Respondents.
Present:
Mr. Dharmendra Barthwal, Advocate for the appellant.
Mr. Piyush Garg, Advocate for the respondents.
JUDGMENT
Coram: Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Dated: 4th July, 2017 Per Hon'ble Sharad Kumar Sharma, J.
An interesting question has been raised in the instant appeal. The case originated from an application submitted by the minor son said to have been born from the alleged wedlock between Neha Nankani and late Sri Arjun Nankani. According to the application, as submitted under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as "Act") on 27th October, 2007, the minor children of late Arjun Nankani, namely, Master Dharmesh Nankani, who was represented through his natural mother and guardian Neha Nankani, had claimed the benefit of maintenance under Section 18 of the Act.
Before venturing into the intricacies of the issues involved in the case, an interpretation of Section 18 (1) and (2) is necessary Section 18 of the Act reads as under :-
"Section 18 - Maintenance of wife (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.2
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or willfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying her living separately."
Section 38 of the Specific Relief Act deals with the grant of mandatory injunction against the party concerned. The concept of grant of mandatory injunction would be a concept to refrain a party from doing a particular act or to do an act as directed by the Court. Since, the Act of 1956 is self contained social legislation intended for the welfare of the claimants under it, Section 38 of the Specific Relief Act would not be applicable. The said analogy could be settled on the scrutiny of Section 38 itself which is quoted hereunder:
"38 - Perpetual injunction when granted. - (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.3
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:--
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings."
The application has been submitted by a minor son of the deceased father though her mother and natural guardian as revealed for the cause title of the application, it would be deemed that it was an application filed by the minor and not by the wife for the claim under Section 18 of the Act. Section 18 in itself only deals with the maintenance to be provided to a wife only. No maintenance to a son is contemplated under the said Section, hence, also the application is not tenable. To bring the claim within the ambit of Section 18 of the Act, the basic ingredients required are:-
1. Claimant has to be a Hindu wife.
2. Has to be married.
The term 'marriage' has not been defined under the Act. The Judicial precedence lay down that the term marriage would be a connotation which is being used in a common parlance. In a society, marriage is a relation, the basis of its acceptance of the normal customs and usages, recognizing the relationship between a male and female.
4This relationship of wife or husband has to be in accordance with the customs and usages, which is continuously and uniformly observed for a considerable long period of time, in society.
The judicial precedence and statutes are silent so far it relates to defining the term 'marriage'. The reason behind it, because the institution of marriage which dates back to the century old when the law had barely come into existence, was flowed by precedents.
It could be said that it is the law which should follow the institution of marriage and not the other way around.
The definition which is normally being used in United States - "its a joining of male and female in matrimony by a person qualified by law to perform the ceremony."
In accordance with Black's Law Dictionary, the marriage has been defined as - The legal union of a couple as husband and wife. The essentials of a valid marriage are (1) parties legally capable of contracting to marry, (2) mutual consent or agreement, and (3) an actual contracting in the form prescribed by law. Marriage has important consequences in may areas of law, such as torts, criminal law, evidence, debtor-creditor relations, property , and contracts.
Under the common law, the theory of marriage is usually when a man and woman live together and they hold themselves out to friends, family and the community as being married.
In the Webster Legal Dictionary, the marriage means "a state of being united as spouses in consensual and contractual relationship recognized by the Law."
Farlex Legal Dictionary defines marriage "as to be relationship with man and woman who have the capacity to enter into such agreement, and they promise to live together in relationship as husband and wife in Law." With the concept of marriage, it changes the legal status of both the parties to the marriage giving husband and wife new rights and obligations.
In legal analogy, the word 'marriage' used under Section 18 of the Act has to be read as a marriage in relation to which public is deeply interested and subject to proper 5 6 regulation. Under the Hindu Law, marriage is a sacrament of which there is a control by the State or its sovereignty under the prevailing laws. This concept is prevalent in almost all the countries.
Any marriage in confinement without the information or knowledge of the public and furthermore concealment of the fact that marriage being brought to the note of the public at large cannot be treated as public marriage. If it so the either of the spouse under the social term cannot be treated as to be a married wife or married husband.
Marriage that rests merely on agreement and wishes of the parties, such marriage entered into a secret way, as the one soleminized by and with a notorious person without all the required formalities has been termed to be "clandestine marriage". Has got no legal sanction in the eyes of the law. It is, thereby, it has been held that right of wife for maintenance is a incidence of her social status or the estates she has to occupy as a consequence of matrimony and as a Hindu under legal obligation to maintain a legal wife.
The Orrisa High Court in its judgment reported in AIR 2011 Orissa 98 para 13, Lakhan Murmu Vs. Smt. Gurubari Murmu and another as well as the Bombay High Court in its judgment reported in AIR Bombay 2010 page 690 has used the expression "Hindu wife used under Section 18 means legally wedded wife and no less."
The Chhattisgarh High Court in the judgment reported in AIR 2010 Chhattisgarh p/25 has held the expression Hindu wife used under Section 18 does not include any wife of second marriage during subsistence of first marriage. The Court has held as under :-
"9. In the instant case, the appellant and other witnesses including Kaushilya Devi Satnami (NAW 2) have categorically stated that Kaushilya is wife of the appellant, 7 she is alive and during the subsistence of her marriage, the respondent has claimed that she has married the appellant and she has claimed for maintenance. Respondent Bhagwantin Bai has not admitted in specific terms that she had earlier married with Keshav Sahu, but in her cross- examination she has admitted that she was living with Keshav Sahu, she conceived through Keshav Sahu and gave birth to Mamta, Keshav Sahu has not divorced her, however, customary divorce has been effected. She has proved and admitted the documents Ikrarnama/consent and affidavits executed by the respondent. Exhs. A-l to A-4 clearly show that both the parties were having spouses at the time of alleged marriage and with the consent of first wife of the appellant the respondent has married the appellant. These documents and the statements of the witnesses are sufficient to establish the fact that at the time of alleged marriage of the respondent with the appellant, both the parties, i.e., the appellant and the respondent were having spouses and their marriage was not dissolved by a decree of divorce or by any recognized custom and during the subsistence of their marriage they have married with each other. Such marriage is in violation of Section 5(i) of the Act, 1955 and such marriage is a void marriage under Section 11 of the Act, 1955. Therefore, the respondent is not the legally wedded wife or lawful wife of the appellant. Only the lawful wife or legally wedded wife is entitled for maintenance under Section 18 of the Act, 1956."
In the case, in hand, the petition under Section 18 read with Section 38 of the Specific Relief Act, the appellant had claimed himself to be the son of late Arjun Nankani who was represented through natural guardian and mother claims for maintenance under Section 18 of the Act. According to the plaint allegations, the mother of the plaintiff claimed that she 8 was a married wife, whose marriage was solemnized in accordance with the Hindu customs and rituals. Out of the marriage between them, the appellant was born on 5th November, 2002. In the application under Section 18 read with Section 38 of the Specific Relief Act. The following relief was sought :
"d& ;g fd ;g ?kks'k.kk dh tkos fd oknh] e`rd vtqZu uudkuh iq= Jh eU"kkjke uudkuh fuoklh vtwZu gksVy] tLlkjke jksM] gfj}kj dk ,dek= iq#'k lUrku gS rFkk ,dek= okfjl gS rFkk e`rd vtqZu uudkuh dh leLr py o vpy lEifRr dks izkIr djus dk vf/kdkjh gSA [k& ;g fd izfroknhx.kksa dks vkKkRed O;kns"k }kjk vknsf"kr fd;k tkos fd og oknh dks okn i= dh frfFk ls U;k;ky; dh vkxkeh vkns"kksa rd vadu 1]00]000@& #i;s izfrekg Hkj.k iks'k.k dh /kujkf"k esa ns vkSj bldk dkj.k cusaA ,slk u fd;s tkus ij e`rd vtZqu uudkuh dh leLr py o vpy lEifRr ij fjlhoj fu;qDr dj fn;k tkos vkSj fjlhoj dks vkns"k fn;k tkos fd og vadu 1]00]000@& #i;s dh /kujkf"k Hkj.k iks'k.k esa oknh dks nsaA x& ;g fd vU; dksbZ izfrdkj fd tks oknh dks izfroknhx.kksa ls feyuk lEHko gks oknhx.kksa dks fnyok;k tkosA ?k& ;g fd leLr okn O;; oknh dks izfroknhx.kksa ls fnyok;k tkosA"
Either under Section 18 of the Act or under Section 38 of Specific Relief Act, no such relief of declaration could be sought for.
Hindu Adoption and Maintenance Act, 1956, is a social welfare legislation which will have a predominance over the general law i.e. Specific Relief Act as the special provision contemplating a grant of special right and relief will prevail over the general.
Since, there was a certain dispute between Neha Nankani and late father of the appellant Arjun Nankani, there have been various sets of proceedings including that of 9 proceedings under Section 125 of the Cr.P.C. for maintenance. The basis of the proceedings under Section 125 Cr.P.C. was a cruelty said to have been exercised by late Arjun Nankani. In the proceedings under Section 125 Cr.P.C., according to the plaint allegation itself, it was accepted by the parties that the relationship between late Arjun Nankani and Neha Nankani was friendly relationship without any socially recognized marriage rituals, however, late Arjun Nankani denied that the plaintiff being the son born out of the relationship with Neha Nankani. To support the aforesaid purpose, a DNA test was conducted but, during the intervening period, late Arjun Nankani was met with the sad demise on 3rd September, 2007.
The mother of the appellant Neha Nankani requested the Family Court to preserve some part of the body so that the DNA itself may be conducted to show that the appellant was the son of late Arjun Nankani. That controversy pertaining to establishment of relationship between father and son, i.e. Arjun Nankani and the appellant should not hold us long because that is the controversy not to be settled by this case.
In the application, itself, filed under Section 18 of the Act, the appellant claimed to be the only male child and successor of the estates of late Arjun Nankani. In relief No.
(b), the claim was for the payment of Rs. 1 lac p.m. and, in the event of failure, the same may be recovered from the estates of Arjun Nankani by appointing receiver.
The respondent No. 1 who happens to be the legally wedded wife of Arjun Nankani filed her pleadings before the Court below by way of written statement on 22nd August, 2008 and denied the claim as raised by the appellant in the application under Section 18 of the Act. In the objection, specific plea was taken that the claim of marriage by Neha 10 Nankani with Arjun Nankani was a fallacy, because they were never married in accordance with recognized Hindu rites and rituals and alleged theory of marriage, is fictitious and is developed for the purpose of the case. To support her case further she stated that no such deed of marriage has been pleaded by Neha Nankani, or ever proved by her.
At this place, the entitlement of Neha Nankani for maintenance under the Act of 1956, would be only when she is legally married wife. Yet again under the Act or laws relating to the Hindu the definition of "wife" has not been provided. Under common law, wife means a woman who was party to a "common-law marriage." As above defined is one who, having lived with a man in a relation of concubinage during his life, asserts a claim, after his death, to have been his wife according to the requirements of the common law. Even, if a lady is residing with a man in a concubinage than to that has to be according to the requirement of common law. Here in the instant case, the guardian of the applicant, i.e. Neha Nankani was not in concubinage because concubinage is not permitted under the Hindu society.
According to the Oxford Dictionary, word concupine has been defined as under :
"Concubine - Chiefly historical (in polygamous societies) a woman who lives with a man but has lower status than his wife or wives or mistress."
On the reading of this definition too a lady who is not legally wedded does not ever acquire the status of wife. Hence the appellant would not be covered under the definition of wife and would not be entitled for any maintenance under the Act of 1956.
Wife in Hinduism - In Indo-Aryan languages, a wife is known as Patni, which means a woman who shares 11 everything in this world with her husband and he does the same, including their identity. Decisions are ideally made in mutual consent. A wife usually takes care of anything inside her household, including the family's health, the children's education, a parent's needs.
It has also come on record that Neha Nankani was already married to one Mr. Manjeet Singh Kukerja on 16th April, 1999. The said marriage was dissolved on 22nd April, 2002. Hence, any relationship which Neha Nankani had with late Arjun Nankani, prior to 22nd April, 2002, when marriage of Neha Nankani with Mr. Manjeet Singh Khukreja was not dissolved would be an illegal marriage. Hence the marriage was invalid, non existent in the eyes of law.
On exchange of pleadings, the learned Family Court, by the impugned judgment dated 24th November, 2014, rejected the application for grant of maintenance under Sections 18 and 20 of the Act. The defendant No. 1, in written statement asserted in his para 4 that Arjun Dass Nankani was murdered on 3rd September, 2007 and denied the plaintiff to be the valid son of Arjun Nankani. She contended that she happens to be the legally wedded first wife and other defendants are the children of late Arjun Nankani. Thus, they were entitled for all the assets movable and immovable left by late Arjun Nankani. On the basis of the last registered Will dated 3rd October, 2006, executed by Arjun Nankani in favour of the defendants with the present suit. On exchange of pleadings, the Court framed the following issues :-
1- D;k oknh e`rd vtZqu uudkuh dk ,d ek= iq:'k larku gS vkSj leLr py o vpy laifRr dk Lokeh gS\ 2- D;k oknh dks vius v/;;u ds fy, o Hkj.kiks'k.k ds fy, e`rd vtqZu uudkuh ds bLVsV ls ,d yk[k : izfrekg ikus dk vf/kdkjh gS\ 3- D;k oknh dks dksbZ okndkj.k izkIr ugha gS tSlk fd izfrokni= dh pj.k la[;k 13 esa vfHkdfFkr gS\ 12 4- D;k okn dk ewY;kdu de fd;k x;k gS vkSj U;k;"kqYd Hkh de vnk fd;k x;k gS] tSlk fd izfrokni= dh pj.k la[;k 14 esa vfHkdfFkr fd;k x;k gS\ 5- D;k oknh dk okn /kkjk 34 ijUrqd fof"k'V vuqrks'k vf/kfu;e ds izko/kku ls ckf/kr gS] tSlk fd izfrokni= ds pj.k la[;k 21 esa vfHkdfFkr gS\ 6- D;k oknh eakxk x;k vuqrks'k ikus dk vf/kdkjh gS\ 7- D;k oknh dh ekrk Jherh usgk uudkuh dk fookg Jh vtqZu uudkuh ds lkFk fgUnq jhfr fjokt ds vuqlkj nsgjknwu esa laiUu gqvk Fkk o og fookg oS/k Fkk\ ;fn gka rks izHkkoA The controversy which is now being centered around would primarily depend upon the findings on issue No. 7 as to whether Neha Nankani was married with Arjun Nankani in accordance with the Hindu rites and rituals and whether it was a valid marriage.
Before the Court below Issue no. 1 was framed to the effect as to where appellant happens to be the only male child of late Arjun Nankani who is entitled for all the movable and immovable assets. The Trial Court by recording the finding on issued No. 1, held that since according to the statement of PW1 Neha Nankani, in her cross examination, she has stated in relation to the Will that if a person who can speak lie for the purpose of getting married, why would he disclose the fact of Will executed in favour of the defendants. She contended that when she learnt about the death of Arjun Nankani who was murdered on 3rd September, 2007, then only she applies to the Municipal Board to get a certified copy of the will.
The plaintiff, thus, had the knowledge of the will executed by Arjun Nankani which was a registered will and its validity will be presumed, but the same was not challenged in the application under Section 18 of the Act read with 38 of the Specific Relief Act and no such pleadings pertaining to the will and its validity has been agitated.
The Court, while dealing with issue No. 7, as to whether Neha Nankani was legally wedded wife, the Court has held that in her cross examination she has stated that her 13 marriage was solemnized with Arjun Nankani in accordance with Hindu rites and rituals which was done in the presence of Pandit. She admits the fact that marriage was not registered. To support the case that she was married, she stated that one Usha and Mr. Praveen Gupta had attended the marriage and they are the witnesses of the same. But they were not produced in witness box before Court below to establish the solemnization of marriage of Arjun Nankani with Neha Nankani, hence their non production adverse inference to be drawn There has been no evidence lead by the plaintiff to establish the existence of marriage. Name of whosoever have been expressed by Neha Nankani in her statement as PW1, were not produced as witness nor was cross examined and, thus, the Court held that in the absence of there been any evidence on record, and since Neha Nankani has not produced any witnesses, whom she alleges to have participated in the marriage, the factum of marriage with Neha Nankani with late Sri Arjun Nankani is not proved and, thus, the application was rejected.
We have heard Mr. Dharmendra Barthwal, learned counsel for the appellant and Mr. Piyush Garg, the learned counsel for the respondents.
On perusal of Section 18 of the Act, for wife to be entitled to receive maintenance, it is essentially that she has to be a "Hindu Marriage Wife". The words "Marriage and wife" has not been defined under the Act. Under Black's Dictionary, the word 'wife' means "a married woman who has a lawful husband living". On reading the definition of wife, it means that she has to be a spouse who is legally and socially recognized as a partner to the other. Admittedly, in the instant case, the status of wife was not proved by Neha nor her marriage has been proved. If this be so, she renders 14 herself ousted from the benefit of Section 18 of the Act in the absence of she being a legally wedded wife.
She contends that the marriage was soleminised according to the Hindu rites and rituals. According to the dictionary meaning, "marriage means a legal union of couple as husband and wife", which means an essentiality of valid marriage that the parties are legally capable of contracting to marry. In the present case, the period in which Neha claims herself to be married with Arjun Nankani, he was already having respondent No. 1 as his legally wedded wife. In the absence of establishing the fact that there was a legal marriage solemnized between late Arjun Nankani and Neha she will not be falling under definition of Section 18 of the Act and, thus, would not be entitled for maintenance.
The learned counsel for the appellant has placed reliance on the judgment rendered by the High Court of Bombay in Review Petition No. 19 of 2016 in First Appeal No. 577 of 2015, Indubai Jaydeo Pawar and Another Vs. Draupada @ Draupadi Jaydeo Pawar and others. In the said judgment rendered by the Single Bench it was a case where two wives claimed pensionary benefits of late Jaidev Panwar after his death. They also simultaneously claimed the property. While the case was pending, the Appeal of Draupada was allowed after substitution of her heirs and also that the first wife is alive and the second wife has no right to receive the family pension. Thus, it is established by the said judgment itself that it was held that the second wife who was not legally married would not be entitled for any pensionary benefits. Paragraph 19 of the said judgment is extracted hereunder :-
"19. Neither the word 'wife' nor 'marriage' are defined in Hindu Marriage Act or Hindu Succession Act or also under section 125 of the Code of Criminal Procedure. The word 'solemnisation' is also not defined but it 15 recognises and means "a performance" according to the respective customary and religious rites and rituals. The age old institution of marriage in India has many shades depending on the different colours of religion, caste and custom. Since beginning of civilisation, a union of a male and a female is celebrated after performing customary rituals resulting in social and legal sanctity. In Hindu Dharma Shastra, Rakshasa Vivaha and Gandharva Vivaha were also included in eight forms of marriages. If we refer to Black's Law Dictionary to understand the word "marriage, we get different meanings and interpretation and forms of the word hidden in multiple social layers. For example, a clandestine marriage, consensual marriage, cross marriage, green card marriage, a runaway marriage, limited purpose marriage, marriage of convenience, marriage of conscience, morganatic marriage, putative marriage, scotch marriage, etc. Thus, if we study the social history of mankind, then, we realise that marriage has no exact or static form. Marriage and family institution is a cream of the civilisation and backbone of the culture of any nation or community and, therefore, to regulate the social order, restrictive meaning is given under the law. The word 'marriage' is required to be understood in common parlance on the backdrop of requirements under law. Though the marriage is not defined under Hindu Marriage Act, void or voidable marriage is defined under sections 5, 11 and 12 of the Hindu Marriage Act. Thus, broadly, either customary solemnization of marriage is required or performance of legal formality is a condition precedent to label that relationship as a marriage. For example, a one night consensual affair cannot be called a marriage. Merely having a physical relationship between man and a woman also cannot be called as a marriage. Any physical intimacy/sexual intercourse which took place by choice or by chance or by accident is not a marriage. Thus, though physical relationship is a vital part of the marriage, it is still something more than that. Basically what is required to call such relationship as a marriage is firstly the intention and desire of the parties to marry and to give status to each other as a husband and wife. The manifestation of such desire is through performance of certain religious rites or legal formalities. There is legal, social or customary requirement of solemnization between the parties. The duration of marital status also is one of the determining factors to render them a status of a married couple."
The counsel for the appellant, after argument was concluded sought a prayer to submit written argument. In place thereof he has submitted compilation of the judgments.
16The counsel for the appellant places reliance on the judgment reported in (2011) 11 SCC 1, Revanasiddappa and Another Vs. Mallikarjun and Others. The said judgment will not be applicable in the instant case for the reason in the judgement referred thereto the Hon'ble Apex Court was ceased to interpretation of beneficial legislation so far it related to Section 16 (3) of the Hindu Marriage Act which was pertaining to issue of legitimacy of a child of void and voidable marriage. Whereas, in the instant case, the grant of maintenance under Section 18 (2) to the wife which is being claimed by the appellant is depending upon the status of the marriage. With all humility, the impact of change status of society while interpreting the beneficial legislation as laid down by the said judgement since was ceased with the impact of the provision of Hindu Marriage Act only, the same would not be applied.
The learned counsel for the appellant relied on a judgment reported the judgment rendered by the Division Bench of Delhi High Court in the case of 'W' Vs. 'H' and another reported in 2016 SCD OnLine Del 4786, wherein, the wife appellant has assailed an order passed in the proceedings under the Hindu Marriage Act whereby her application under Section 151 of the CPC seeking DNA test of the appellant and minor child was allowed. The judgment of Delhi High Court, has dealt with the concept of legislative impact of the DNA test in the light of provision contained under Section 112 of the Indian Evidence Act to establish the legitimacy of the child during marriage and held to be conclusive proof of legitimacy. In the concluding part of the judgment, the order allowing the DNA test on an application under Section 151 of the CPC was set aside and the matter was remitted back with an observation that no expression in the said judgment would be treated as to be effecting any 17 issue on merits. Hence, as a matter of fact the said judgment was not conclusive and the circumstances under which the said case emanated since being distinct to the one at hand will not be applicable.
Another judgment on which the reliance has been placed by the appellant is that reported in (2011) 4 SCC 80, Surendra Koli Vs. State of Uttar Pradesh and others which pertains to the impact of DNA test. This judgement pertains to the impact of DNA test and has got no relevance as far as claim under Section 18 of the Hindu Marriage Act is concerned.
Thus, the Court feels that the appellant has gone astray by placing reliance on the judgments given in the compilation which relates to the impact of the DNA test, oblivions of the fact that DNA test is not on issue in the appeal. The issue in the appeal is confined to the entitlement for maintenance under Section 18 of the Act by a lady illegally married claiming maintenance from respondent No. 1, the first legally wedded wife. Thus all the judgments do not come to the rescue of the appellant being distinct on the facts and legal issues.
An identical question came up for consideration before the Division Bench of Calcutta High Court in the case of Dr. Ranjit Kumar Bhattacharyya Vs. Savita reported in AIR 1996 Calcutta 301. His Lordships has held as under :
"31. The personal law regarding maintenance has been thoroughly changed by the Hindu Adoptions and Maintenance Act, 1956. The Act supersedes the rule of the Law of Maintenance previously applied to Hindu by virtue of any text or rule of Hindu Law or by custom or usages having the force of law, and there is no provision in the said Act enabling and/or entitling a woman to claim maintenance from a person with whom she had entered into a void marriage or of whom she was a concubine or even an "Avaruddhastri", as S. 18 of the Hindu Adoptions and Maintenance Act, 1956, speaks of the maintenance of a Hindu wife by her husband and according to us the expression "wife" as used in the said S. 18 obviously means 18 a legally married wife. The expression must, therefore, be given the meaning in which it is understood in law applicable to the parties. Moreover a bigamous marriage contacted after coming into force of the Hindu Marriage Act, 1955 would be void ab initio and/ or void ipso jure. The marriage of a woman in accordance with the Hindu rites with a man having a spouse living at the time of marriage and held after the Hindu Marriage Act, 1955 has come into force, is a nullity in the eye of law and such woman, according to us is not entitled to get any maintenance under the Hindu Adoptions and Maintenance Act, 1956 since she is not a legally married wife. The reasonings given in the decisions cited by Mr. Bhatta- charyya, accordingly appear to be quite sound and logical.
34. Thus we hold that the respondent No. 1 not being a legally married wife of the appellant for the reasons as aforesaid, is not entitled to gel any maintenance from the appellant under the Hindu Adoptions and Maintenance Act, 1956. The judgment and decree of the trial court also cannot stand for the reasons as aforesaid and, therefore, are set aside and the appeal is allowed without, however, no order as to costs."
The full Bench of Andhra Pradesh High Court in a judgment reported in AIR 1999 Andhra Pradesh p/19, Abbayolla M Subba Reddy Vs. Padmamma has held as under with regards to the entitlement of a wife whose married is void :-
"15. A Hindu is under an obligation to maintain his wife, his minor sons, unmarried daughters and aged Parents. The obligation is personal. It arises from the very nature of the relationship and exists whether he possesses any property or not. The Maintenance Act gives statutory form to that obligation. The right of a Hindu wife for maintenance is an incident of the status of matrimony. Subsection (1) of Section 18 of the Act substantially reiterates that right and lays down the general rule that a Hindu wife whether married either before or after the commencement of the Act is entitled to be maintained by her husband during her life time. The rule laid down in this Section is subject to the exceptions stated in sub-section (3) which lays down that she cannot claim separate residence and maintenance if she is unchaste or ceases to be a Hindu by conversion to another religion. Under sub-section (2) of Section 18 wife is entitled to live separately from her husband without forfeiting her claim for maintenance, in the circumstances stated in clauses (a) to (g) mentioned in that subsection. Under clause (d), wife is entitled for separate 19 residence without forfeiting her claim for maintenance if her husband has any other wife living. The claim for maintenance is maintainable under this Section irrespective of the fact that the marriage had taken place after or before the marriage of the applicant wife, provided the other wife is living. The ground laid down in this Section can, obviously exist only in case of any marriage solemnized before the Hindu Marriage Act came into operation. It is obviously for the reason that the Hindu Marriage Act, 1955 laid down monogamy as a rule of law and Hindu husband cannot marry another wife after the commencement of that Act. A bigamous marriage contracted after the coming into force of that Act, would be null and void and no question of having another wife can arise. Therefore, the word "Hindu wife" in Section 18(1) connotes only a legally wedded wife of Hindu and such wife alone is entitled to claim maintenance from her husband under this Section. If her marriage is void ab initio, she is not entitled to claim maintenance under this Section. "Hindu wife" in this Section, we reiterate, only means a wife whose marriage is valid under the provisions of the Hindu Marriage Act, 1955. The wife whose marriage has been solemnized, but is void on the ground that the first wife of the husband is living at the time of the marriage is not entitled to claim maintenance under this provision.
16. The expression "any other wife" in Section 18(2)(d) of the Act came up for consideration before Karnataka High Court in Subbe Gowda v. Hanamma, AIR1984Kant41, and it is held by that Court that:
'The expression 'any other wife .' in Section 18(2)(d) means, any other legally wedded wife. Therefore, even if the husband is living with another woman treating her as his wife, it cannot be said that he has any other wife living within the meaning of Section 18(2)(d)."
While the personal law governing the parties prohibits bigamous marriage, on a parity of reasoning, it. can also be stated that the expression 'Hindu wife' in Section 18 means only a legally wedded wife and not a wife whose marriage is void under the provisions of the Hindu Marriage Act. The second marriage/bigamous marriage being void cannot create a legal statute of "husband" and "wife" between the parties. That marriage is void ab initio and the woman cannot get the status of a wife nor the male gets the status of husband to her. Therefore, she cannot get a right to claim maintenance under Section 18 of the Act.
18. It is no doubt true that Maintenance Act is a piece of beneficial legislation conferring additional rights on women and children. But, it cannot be construed as conferring maintenance rights on a woman whose marriage 20 is void under Hindu Marriage Act. While a legislative enactment may be liberally construed, the liberality cannot overstep the legislative limits of interpretation, putting to the legislation something which is not there. If it is felt that a particular enactment causes hardship or inconvenience, it is for the Legislature to redress it, but, it is not open to the Court to ignore the legislative injunction.
28. We are also of the opinion that even the principles of justice, equity and good conscience do not come to the rescue of the respondent as the subject of maintenance is covered by statute law and there is no scope to invoke those principles where the legislative enactments on the subject do not permit the grant of maintenance to a woman who was a party to a bigamous marriage."
For the reasons aforesaid, we feel that the judgment does not suffer from any legal vices or any error apparent on record. Hence, the appeal fails and the same is dismissed with cost.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) 04.07.2017 04.07.2017 Shiv