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Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga
AIR2005SC422, 2004(10)SCALE391, (2005)2SCC33
Hon’ble Judges/Coram: D.M. Dharmadhikari and H.K. Sema, JJ.
Decided On: 13.12.2004
FACTS: –
The husband is an Income Tax Practitioner in the town of Ratlam in the State of Madhya Pradesh. His first marriage was solemnized with late Smt. Usha in the year 1963 and from her he has two sons and one daughter. The marriage of the present wife, it is alleged, was arranged with one Girdhari Lal Lakhotia on 15.5.1979. According to the wife, the customary rituals of marriage were not completed as in the marriage ceremony family members quarrelled over dowry. She had filed a Divorce Petition in Matrimonial Court at Amravati but it was not prosecuted and no decree of divorce was passed. It is the case of the wife that in accordance with the prevalent custom in Maheshwari community a Chhor Chithhior a document of dissolution of marriage was executed between the wife and her previous husband on 15.5.1979 and it was later got registered. After the death of his previous wife, the present husband remarried the present wife on 11.7.1981. According to the version of the wife the document of registered Chhor Chithhi was shown and given to the present husband before his accepting the second matrimony with the present wife. A daughter, who is named Puja, was born from the second marriage on 14.7.1983.
The wife alleges that the husband started ill-treating her due to non-fulfillment of his demands by her father. She was driven out of the house in the year 1989. She thereafter filed proceedings in the Family Court, Bombay for grant of a decree of judicial separation and maintenance of Rupees three thousand per month for herself and for her daughter. The husband filed a counter-petition seeking declaration of his second marriage with the present wife, as nullity on the ground that on the date of second marriage, her marriage with the previous husband Girdhari Lal Lakhotia, had not been dissolved by any court in accordance with the provisions of the Act. The husband not only disputed validity of the second marriage but also parentage of daughter Puja.
Existence of such customary divorce in Vaish community of Maheshwar is has not been established. A Hindu marriage can be dissolved only in accordance with the provisions of the Act by obtaining a decree of divorce from the Court. In the absence of any decree of dissolution of marriage from the court, it has to be held that in law the first marriage of the wife subsisted when she went through the second marriage on 11.7.1981 with the present husband. The Court rejected the appeal by the wife against grant of decree of declaration of her second marriage as void and admitted the appeal with regard to adjudicate on a limited question of maintenance after declaring the marriage as null and void.
ISSUE: –
Whether the wife is entitled to maintenance after the Court held that the marriage was nullity?
JUDGMENT: –
Section 25 of the Hindu Marriage Act confers jurisdiction on the Matrimonial Court to grant permanent alimony and maintenance to either of the spouses ‘at the time of passing of any decree’ or ‘at any time subsequent thereto.’ In the present case, on the husband’s petition, a decree declaring the second marriage as null and void has been granted. The learned counsel has argued that where the marriage is found to be null and void – meaning non-existent in eye of law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance. After critically examining, the provisions of Section 25, court was of the opinion that the expression used in the opening part of Section 25 enabling the ‘Court exercising jurisdiction under the Act’ ‘at the time of passing any decree or at any time subsequent thereto’ to grant alimony or maintenance cannot be restricted only to decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as ‘at the time of passing of any decree,’ it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13.
It is with the purpose of not rendering a financially dependant spouse destitute that Section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in marriage relationship. Section 25 is an enabling provision. It empowers the Court in a matrimonial case to consider facts, and circumstances of the spouse applying and decide whether or not to grant permanent alimony or maintenance.
The facts of the present case fully justify grant of maintenance both to the wife and the daughter. The evidence of the wife has been believed by the courts below. From circumstances preceding and attending the marriage, it can safely be inferred that the present husband must have made reasonable enquiries about the previous marriage of the present wife. The wife’s version is natural and inspires belief that the document of Chor Chhithi was shown and given to the husband. It is proved from the photocopy of the foil of Registration, placed on record. According to the wife, the husband did receive the document of Chor Chhithi but has not produced it before the Family Court. There is no ground to disbelieve her version that the fact of her previous marriage was not concealed from the present husband. The husband is an advocate. His falsehood went to the extent of denying his second marriage and calling his wife only to be a governess of his children from the first wife. He unsuccessfully denied even the parentage of daughter Puja, born through him. He failed to lead any evidence on the illegitimacy of the child. After the second marriage the parties lived as husband and wife and they had a considerably long married life of about nine years from 1981 to 1990. In such a situation, the Family Court and High Court were fully justified in holding that the wife deserves to be granted maintenance under Section 25of the Act.
HELD: –
On the basis of facts and circumstances, it is the power of the court to grant maintenance even when a decree of nullity of the marriage is passed by the court.
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