Punjab-Haryana High Court
Navdeep Kaur vs Dilraj Singh on 27 May, 2002
JUDGMENT M.M. Kumar, J.
1. The question of law raised in this revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) is whether a wife divorced under the customary law is entitled to claim maintenance from her husband to whom she married subsequent to the divorce. The wife petitioner aggrieved by the order dated 14.5.2001 passed by the Additional District Judge, Amritsar declining her application under Section 24 of the Hindu Marriage Act, 1955 (for brevity, 'the Act') has approached this Court by filing the present revision petition.
2. Brief facts of the case which led to the filing of the present petition are that the wife petitioner filed an application under Section 11 of the Act being HMA No. 140 of 2000 against the husband-respondent levelling allegations that at the time of their marriage in March 1996 the husband-respondent has a spouse living at that time and, therefore, the marriage between the wife-petitioner and husband-respondent was a nullity. She has further stated in her application under Section 11 of the Act that one male child was born on 4.8.1999. The fact that husband-respondent had a spouse living at time of marriage came to the knowledge of wife-petitioner on 8.9.2000. It is further averred that divorce has been granted by dissolving that marriage only on 10.5.1999. Therefore, it has been alleged that the marriage between the wife-petitioner and the husband-respondent in March 1996 was in contravention of the provision of Sub-section 1 of Section 5 of the Act.
3. In reply, the husband-respondent took the counter stand that as a matter of fact wife-petitioner was already married to one Harprit- Singh and she never acquired the status of a legally wedded wife. Moreover, she has not been legally divorced from the aforementioned Harprit Singh. It was further alleged that her assertion in the application that she had taken divorce under custom from afore-mentioned Harprit Singh has not been substantiated. During the pendency of application under Section 11 of the Act wife-petitioner filed another application under Section 24 read with Section 25 of the Act seeking grant of maintenance pendente lite and litigation expenses. She has claimed that she would be entitled to maintenance at the rate of Rs. 5,000/- per month for herself and Rs. 3,000/- for her son because the husband-respondent is drawing a salary of Rs. 6,000/- as he is working in the Indian Army and also has 15 killas of land drawing an income of Rs. 3 lac per annum. The application has been dismissed by the Additional District Judge by recording the following findings.
"After hearing learned counsel of the parties and after going through the record, I find that Navdeep Kaur petitioner has filed the petition Under Section 11 of H.M. Act for decree of nullity of marriage. In the first para of the petition it is written that marriage between the parties was solemnised after commencement of the Hindu Marriage Act. It is nowhere stated in the petition whether the marriage was solemnised as per Hindu Rites or Sikh Rites etc. Further in para No. 2 the petitioner herself given her statutes before the marriage divorcee by custom. Thus fact shows that petitioner was earlier married to some person from whom she has alleged to have taken divorce by custom. In para No. 4, it is stated that respondent has spouse living at the time of marriage and petitioner came to know about this fact on 8.9.2000. In the written statement the respondent has denied the marriage and it is stated that petitioner was earlier married with Harpreet Singh s/o Harbans Singh and marriage between the petitioner and Harpreet Singh was not dissolved by decree of divorce. On this point I find that after coming into force of Hindu Marriage Act divorce can be obtained from the Court only on grounds given in Hindu Marriage Act. The petitioner has alleged that she has taken the divorce by custom but there is no other particulars of custom. Therefore, prima facie from the record, it is clear that the petitioner's earlier marriage was not dissolved as per law and she was having living spouse at the time of her alleged marriage with respondent. It is also admitted fact that respondent was having a living spouse at the time of petitioner's alleged marriage with the respondent. The counsel for the respondent cited 1995(2) C.C.C. Allahabad, Page 128 in which it is held as under-Hindu Marriage Act, 1955, Sections 11, 17 Second marriage during subsistence of first marriage. No remedy is available under Section 11 and 17. However, wife has a right to file suit for declaration that marriage of her husband with a second wife is illegal and void.
The learned counsel for the respondent further cited AIR, 1988, Supreme Court, Page 644 in which it is held as under-Hindu Marriage Act (25 of 1955), Sections, 5(i), 11, 12, 14, 16 Marriage with person having living spouse-Is null and void-cannot be treated as voidable under Section 12.
Criminal P.C. (2) of 1974), Section 125.- Maintenance-Expression "Wife"-Means legally wedded wife-Marriage of woman with man already having living spouse as per Hindu Rites is complete nullity. She is not entitled to maintenance. It is further held in this citation as under.
The expression "Wife" used in Section 125 of the Code should be interpreted to mean only a legally wedded wife. The word "Wife" is not defined in the code except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorce, A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must therefore, be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is, therefore, not entitled to the benefit of S.125 of the Code. I have gone through these citations. These citations fully apply in the present case. The learned counsel for the petitioner cited 1991(1), All India Hindu Law Reporter Madhya Pradesh, Page 56 in which it is held as under:-
Hindu Marriage Act, 1955, Sections 5, 9, 11, 24 and 25 - Petition for conjugal rights by wife - During the pendency of the petition prayer for interim maintenance was made-Wife was not dis-entitled from claiming maintenance pendente lite under Section 24 of the Act on a prima facie case having been found in favour of the husband that her marriage was bigamous and liable to be declared void under Section 11 read with Section 5(i) of the Act.
I have gone through this citation. In view of the law laid down by the Hon'ble Supreme Court in A.I.R. 1988 Supreme Court Page 644 as discussed above, the citation cited by learned counsel for the petitioner will not apply. Therefore, from the above discussion, I find that the litigation expenses and maintenance cannot be granted to the petitioner. Finding no merit in the petition the same is dismissed."
4. I have heard Shri Kanwaljit Singh, learned counsel for the wife-petitioner and Shri P.S. Garaya, learned counsel for the husband-respondent.
5. Learned counsel for the wife-petitioner has argued that in the application filed under Section 125 of the Code of Criminal Procedure, 1973 (for brevity, 1973 Code.) it was averred that marriage between the parties was solemnised according to Sikh rites by way of Anand Karaj at village Beas, District Amritsar in the month of March, 1996. Thus husband-respondent admitted the fact of marriage further alleging marriage of the wife-petitioner with Harprit Singh was not disclosed. He submitted that in the proceeding under Section 24 of the Act once the fact of marriage is admitted then a prima facie case is made out for grant of maintenance pendente lite and litigation expenses. He has pointed out that the wife-petitioner and her son has been granted Rs. 500/- per month each in the proceedings under Section 125 of the 1973 Code. According to the learned counsel the marriage of the wife-petitioner with Harprit Singh stood dissolved by custom and dissolution of marriage by custom is well recognised by Section 29(2) of the Act.He has further submitted that at the stage of deciding application under Section 24 of the Act proof of dissolution of marriage by customary law could not be insisted and, therefore, it should be decided on the basis of prima facie material placed on record. For this proposition, learned counsel has placed reliance on a judgment of this Court in Sarabjit Singh v. Charanjit Kaur, 1996(2) H.L.R. 57 and also on another judgment of this Court in Mohan Lal Sharma v. Parveen Sharma, (1995-2)110 P.L.R. 706. Learned Counsel has further argued that the reliance placed by the Additional District Judge on a judgment of the Supreme Court in the case of Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr., A.I.R. 1988 S.C. 644 is absolutely misplaced.
6. Shri P.S. Garaya, learned counsel for the husband-respondent has argued that once it is accepted that the marriage between the wife-petitioner and husband-respondent is prima facie nullity because at the time of marriage the wife-petitioner had a living spouse i.e. Harprit Singh. Her divorce from Harprit Singh under the customary law has not been substantiated except by a bald assertions made in the application filed under Section 11 of the Act. He has further argued that prima facie marriage between the wife-petitioner and husband-respondent is nullity and would not confer on them the status of wife and husband.
7. 1 have thoughtfully considered submissions made by the learned counsel for the parties. It would be necessary to make a reference to the provisions of Sections 3(a), 4(a), 23(a), 24 and 29(2) of the Act in order to appreciate controversy raised by the learned counsel, which reads as under:-
"3. Definitions.- In this Act, unless the context otherwise requires,
(a) the expression "custom and usage", signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community group or family;
Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;
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4. Overriding effect of Act. - Save as otherwise expressly provided in this Act.
(a) any text rule or usage interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.
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23. Decree in proceedings.- (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that-
a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him.
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24. Maintenance pendents lite and expenses of proceedings.- Where in any proceeding under this Act is appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding. It may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income of the respondent, it may seem to the Court to be reasonable.
29. Savings.- (2) Nothing contained in this Act shall be deemed to effect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage, whether solemnised before or after the commencement of this Act."
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8. A conjoint reading of the above-referred provisions would show that the wife or husband is entitled to maintenance pendente lite and expenses of proceedings. Expression "husband and wife" used would necessarily mean the legally wedded husband or wife. Sub-section 2 of Section 29 of the Act has accorded recognition to the customary law by providing that no right recognised by custom would be adversely affected by the provision of the Act and the expression "custom" has been defined by Sub-section (a) of Section 3 of the Act to signify any rule which has been continuously and uniformly observed for a long time and has obtained the force of law among Hindus in any local area, tribe etc. The above principle is further subject to the condition that such a "custom" and "usage" are certain reasonable and not opposed to public policy.
9. In the present case, the marriage of the wife-petitioner with one Harprit Singh is allegedly dissolved under the customary law before her marriage with the husband-respondent. Not only this even the marriage of the husband-respondent with another lady was subsisting in March 1996 when the wife-petitioner got married to the husband-respondent. Therefore, from the point of view of both the parties none of them would acquire, the status of wife or husband because such a marriage would be a void marriage under Section 5(1) of the Act. It appears to me that the reliance on the Supreme Court judgment by the Additional District Judge on Yamunabai's case (supra) is well founded because it emphasised the difference between void and voidable marriages and the distinction under Sections 11 and 12 of the Act. The judgment also referred to the recognition of marriage by custom and the importance of custom. The observation of their Lordships in Yamunabai's case (supra) in this regard reads as under:
"For appreciating the status of a Hindu woman marrying a Hindu male with a living spouse woman marrying a Hindu male with a living spouse some of the provisions of the Hindu Marriage Act, 1955(hereinafter referred to as the Act) have to be examined. Section 11 of the Act declares such a marriage as null and void in the following terms:-
"11. Void marriages.- Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party to so declared by a decree of nullity if it contravenes any one of the conditions specified in Clause (i),(iv) and (v) of Section 5."
Clause (i) of Section 5 lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage. A marriage is contravention of this condition, therefore, is null and void. It was urged on behalf of the appellant that a marriage should not be treated as void because such a marriage was earlier recognised in law and custom. A reference was made to Section 12 of the Act and it was said that in any event the marriage would be voidable. There is no merit in this contention. By reason of the overriding effect of the Act as mentioned in Section 4. No aid can be taken of the earlier Hindu Law or any custom or usage as a part of that Law inconsistent with any provision of the Act. So far as Section 12 is concerned, it is confined to other categories of marriage and is not applicable to one solemnised in violation of Section 5(i) of the Act. Sub-section (2) of Section 12 puts further restrictions on such a right. The cases covered by this section are not void ab initio and unless all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it, the same continues to be effective. 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 a formal declaration from a court in a proceeding specifically commenced for the purpose. The provisions of Section 16, which is quoted below, also throw light on this aspect:-
"16. Legitimacy of children of void and voidable marriage - Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
2. Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties of the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
3. Nothing contained in Sub-section (i) or Sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case where but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."
Sub-section (i), by using the words underlined above clearly implies that a void marriage can be held to be so without a prior formal declaration by a court in a proceeding. While dealing with cases covered by Section 12, an essential condition and Sub-section (3) prominently bring out the basic difference in the character of void and voidable marriages as covered respectively by Sections 11 and 12. It is also to be seen that while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage, it has not extended a similar protection in respect of the mother of the child. The marriage of the appellant must, therefore, be treated as null and void from its very inception.
10. The principle laid down in Yamunabai's case (supra) if applied to the facts of the present case it follows that divorce by custom asserted by the wife-petitioner without substantiating the same cannot be accepted as a good ground for believing that her marriage with Harprit Singh was validly dissolved. In the absence of details of custom baldly alleged by the wife-petitioner. It is not even possible to examine the over-riding effect of Clause (a) of Section 4 of the Act. The Clause (a) of Section 4 of the Act, it is expressly provided that any custom or usage concerning Hindu law in force immediately would cease to have effect with respect to any matter for which provision is made in the Act. For dissolution of marriage, Section 13 has been incorporated alongwith Section 11 read with Section 5 of the Act. Similarly the marriage of the husband-respondent with another lady in March 1996 was subsisting. Moreover, under Sub-section (a) of Section 3 of the Act a custom cannot be recognised unless bare averments are made showing the existence of custom and its continuous use in the community/tribe. It is further required to be shown that the custom relied upon by the wife-petitioner is not opposed to public policy and is not unreasonable. There is not even an averment showing the existence of custom or its continuation. Therefore, the bare minimum requirement of Sub-section (a) of Section 3 of the Act has not been fulfilled.
11. Reliance of the learned counsel on a judgment of this Court in Sarabjit Singh's case (supra) is absolutely misplaced because in that case it appears that the wife has made a detailed averment with regard to dissolution of her marriage with her earlier husband. She averred that according to the prevalent custom in their community a Talaknama dated 31.5.1991 was recorded and her first wife in that case has made averment to bring her case within the four corners of Sub-section (a) of Section 3 of the Act whereas in the present case there are no pleadings to that effect. Therefore, I have no hesitation in rejecting the argument of the learned counsel that the acceptance of subsisting marriage by the parties and dissolution of her earlier marriage of the wife-petitioner by custom is sufficient to grant maintenance pendente lite and litigation expenses. The impugned order passed by the Additional District Judge does not suffer from any legal infirmity which may warrant interference of this Court under Section 115 of the Code and, therefore, revision petition is liable to be dismissed.
12. For the reasons recorded above, this revision petition fails and is dismissed. In view of the fact that the proceedings in this case were stayed on 22.11.2001, the parties through their counsel are directed to appeal before the Additional District Judge, Amrit-saron 13.6.2002.