Sukhdev Singh Vs. Sukhbir Kaur
[Civil Appeal No. 2536 of 2019]
[Civil Appeal No. 5726 of 2019]
Abhay S. Oka, J.
ISSUE REFERRED
1. The reference to a Bench of the three Hon'ble Judges has been made by the order dated 22nd August 2024 of this Court, which reads thus:
"Learned counsel appearing for the parties state at the Bar that these matters need to be considered by a Three Judge Bench combination as there are conflicting views on the applicability of Sections 24 and 25 of the Hindu Marriage Act, 1955, whether alimony can be granted where marriage has been declared void. Following are the judgments in favour of granting alimony:-
| Sl. No. |
CITATION |
TITLED |
| 1. |
(1993) 3 SCC 406 |
Chand Dhawan Vs. Jawaharlal Dhawan |
| 2. |
(2005) 2 SCC 33 |
Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga |
Following are the judgments against granting alimony:-
| Sl. No. |
CITATION |
TITLED |
| 1. |
(1988) 1 SCC 530 |
Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav & Another |
| 2. |
AIR 1999 AP 19 |
Abbayolla Reddy Vs. Padmamma |
| 3. |
(2003) 1 HLR 100 |
Navdeep Kaur Vs. Dilraj Singh |
| 4. |
(2004) AIR Bom. 283(FB) |
Bhausaheb @ Sandhu S/o Raguji Magar Vs. Leelabai W/o Bhausaheb Magar |
| 5. |
(2005) 3 SCC 636 |
Savitaben Somabhai Bhatiya Vs. State of Gujarat & Others |
Accordingly, let the papers be placed before Hon'ble the Chief Justice of India for passing appropriate orders."
RELEVANT PROVISIONS OF LAW
2. Before we refer to the submissions made across the Bar, it will be necessary to briefly refer to the provisions of the Hindu Marriage Act, 1955 (for short, 'the 1955 Act'). Section 5 deals with the conditions for a Hindu marriage, which reads thus:
"5. Conditions for a Hindu marriage.-
A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity;
(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;"
(emphasis added)
3. The 1955 Act deals with void marriages and voidable marriages. Section 11, which deals with void marriages, reads thus:
"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, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5."
4. The 1955 Act contemplates the filing of the following categories of petitions for grant of different reliefs:
a. A petition seeking relief of restitution of conjugal rights in accordance with Section 9;
b. A petition seeking relief of judicial separation in accordance with Section 10;
c. A petition seeking a declaration that a marriage is void in accordance with Section 11;
d. A petition for annulment of a marriage on the ground that it is voidable in accordance with Section 12;
e. A petition seeking a divorce in accordance with Section 13; and
f. A petition seeking divorce by mutual consent in accordance with Section 13B.
5. We are called upon to interpret Sections 24 and 25 of the 1955 Act, which read thus:
"24. Maintenance pendente lite and expenses of proceedings.-
Where in any proceedings under this Act it 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 and the income of the respondent, it may seem to the court to be reasonable:
Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be."
25. Permanent alimony and maintenance.-
(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is, a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just."
(emphasis added)
6. The following questions arise for our consideration:
(i) Whether a spouse of a marriage declared as void by a competent Court under Section 11 of the 1955 Act is entitled to claim permanent alimony and maintenance under Section 25 of the 1955 Act?
(ii) Whether in a petition filed seeking a declaration under Section 11 of the 1955 Act, a spouse is entitled to seek maintenance pendente lite under Section 24 of the 1955 Act?
SUBMISSIONS
7. The learned counsel appearing for the appellant-husband relied upon five decisions mentioned in the order dated 22nd August 2024. We have already reproduced the said order in this judgment. The learned counsel has taken us through the relevant paragraphs of the five decisions. He urged the Court to reconsider the two decisions mentioned in the order dated 22nd August 2024, which support the proposition that a spouse of a declared void marriage is entitled to seek maintenance under Section 25 of the 1955 Act.
8. The learned counsel pointed out that there can be void marriages between father and daughter, brother and sister and grandfather and granddaughter. He questioned whether, in the case of such marriages, after the same are declared void, the Court can exercise the power under Section 25 of the 1955 Act to grant maintenance. He submitted that there would be cases where parties to void marriages are conscious of the fact that their marriage would be bigamous.
There would be cases where the wife may be responsible for concealing her first marriage which is in subsistence, and induce the husband to marry. There may be cases where both parties may be unaware that they are solemnising a void marriage. He submitted that it is absurd to include a decree declaring a marriage as void in the expression "any decree" used in Section 25 of the 1955 Act. He submitted that to that extent, the view taken by this Court in the case of Chand Dhawan v. Jawaharlal Dhawan1 and Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga2 is incorrect.
9. He submitted that a marriage declared void under Section 11 is void ab initio, which does not exist. Therefore, a wife whose marriage is declared void cannot claim to be a spouse within the meaning of Section 25 of the 1955 Act. He relied upon a decision of the Full Bench of the Bombay High Court in the case of Bhausaheb @ Sandhu s/o Raghuji Magar v. Leelabai w/o Bhausaheb Magar3. He relied upon the observations made therein that an illegitimate wife cannot be equated to a divorced wife. He would, therefore, submit that Section 25 of the 1955 Act cannot apply to a spouse whose marriage is declared void.
10. The learned senior counsel appearing for the respondent-wife has made detailed submissions. She supported the decisions in the cases of Chand Dhawan1 and Rameshchandra Rampratapji Daga2 and submitted that the view taken therein is correct. She relied upon Article 15(3) of the Constitution of India and submitted that Section 25 is a special provision enacted for women. The learned senior counsel also tried to argue on facts of the case. However, we are not concerned with the facts of the case.
OUR VIEW ON THE QUESTION (i)
11. If Section 5 is read in conjunction with Section 11, the following categories of marriages are void:
a. If one or both the parties to the marriage have a spouse living at the time of marriage;
b. The parties to the marriage are within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two and
c. The parties are sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
12. A marriage is void when either of the parties to the marriage has a spouse living, and the marriage with the spouse is subsisting. If any of the spouses of the marriage had an earlier marriage dissolved by a decree of divorce before their marriage, clause (a) above will not apply. As far as clause (b) regarding prohibited relationships is concerned, the degrees of prohibited relationships have been specified in clause (g) of Section 3. Regarding the third category of sapinda relationship, clause (f) of Section 3 defines what is a sapinda relationship.
13. Section 11 provides for the grant of a declaration of a marriage as null and void. The marriages covered by the categories (a), (b) or (c) mentioned above become void at the inception. Therefore, such marriages are void ab initio. Such marriage does not exist at all in the eyes of the law.
14. Now, we come to Section 25 of the 1955 Act. We have already reproduced Section 25. It confers a power on the matrimonial court to grant permanent alimony "at the time of passing any decree or at any time subsequent thereto". The issue is about the meaning of the decree contemplated by Section 25. A cause of action arises for the spouses to apply for permanent alimony and maintenance when any decree is passed by any court exercising its jurisdiction under the 1955 Act.
15. Section 23 has the title "decree in proceedings". Section 23 of the 1955 Act reads thus:
"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 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, and
(b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and
(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and
(c) the petition (not being a petition presented under section 11) is not presented or prosecuted in collusion with the respondent, and
(d) there has not been any unnecessary or improper delay in instituting the proceeding, and
(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.
(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about reconciliation between the parties:
Provided that nothing contained in this subsection shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13.
(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.
(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties."
(emphasis added)
Clause (a) of Section 23(1) applies to a case where a decree of annulment is sought under Section 12. Only clause (d) of Section 23(1) is applicable when a decree of nullity is sought. The decree of nullity cannot be passed if there has been unnecessary and improper delay in instituting the petition seeking a declaration of nullity.
16. The following are the decrees which may be passed under the 1955 Act:
a. A decree under Section 9 of restitution of conjugal rights;
b. A decree under Section 10 of judicial separation;
c. A decree under Section 11 declaring a marriage as void;
d. A decree under Section 12 of annulment of a marriage on the ground that it is voidable; and
e. A decree of divorce under Sections 13 and 13B.
17. An order of dismissal of a suit will be a decree, provided the conditions in Section 2(2) of the Code of Civil Procedure, 1908 are satisfied. However, a decree in proceedings contemplated by Section 23 of the 1955 Act is a narrower concept. It can only be a decree granting one of the reliefs under Sections 9 to 13 of the 1955 Act. The decree referred to in Section 25 of the 1955 Act is the decree as contemplated by Section 23, which has the title 'decree in proceedings'.
On plain reading thereof, the decree contemplated by Section 23 is a decree granting relief under the 1955 Act. Section 23 deals with only the decrees granting reliefs under Sections 9 to 13 of the 1955 Act. Considering the language employed in Section 23, the 'decrees in proceedings' will not include the decisions dismissing the petitions seeking reliefs under Sections 9 to 13. The decrees passed under Sections 11 to 13 bring about a change of status of the parties to the marriage.
Even a decree of restitution of conjugal rights brings about a change of status of the parties in case there is no restitution of conjugal rights within one year of a decree. That is a ground for passing a decree of divorce under Section 13(1A)(ii). Even a decree of judicial separation under Section 10 brings about a change of status in the sense that a spouse who has got such a decree is no longer under an obligation to cohabit with his or her spouse. If the separation from the date of the decree continues for a period of one year, it becomes a ground for passing a decree of divorce by invoking Section 13(1A)(i).
18. While enacting Section 25(1), the legislature has made no distinction between a decree of divorce and a decree declaring marriage as a nullity. Therefore, on a plain reading of Section 25(1), it will not be possible to exclude a decree of nullity under Section 11 from the purview of Section 25(1) of the 1955 Act.
19. In the case of Chand Dhawan1, the issue arose regarding the meaning of 'decree' referred to under Section 25 of the 1955 Act. In paragraph 25 of the said decision, this Court observed thus:
"25. We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affectation or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant.
In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under Section 18(1) of the Hindu Adoptions and Maintenance Act. The court is not at liberty to grant relief of maintenance simpliciter obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation interchangeability cannot be permitted so as to destroy the distinction on the subject of maintenance."
(emphasis added)
In the case of Rameshchandra Rampratapji Daga2, the same view was taken relying upon the decision in the case of Chand Dhawan1. In paragraphs 18 to 20, this Court held thus:
"18. 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 the eye of the law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance.
We have critically examined the provisions of Section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in Chand Dhawan case [(1993) 3 SCC 406 : 1993 SCC (Cri) 915], 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, as contended, 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.
19. Learned counsel for the husband has argued that extending the benefit of Section 25 to even marriages which have been found null and void under Section 11 would be against the very object and purpose of the Act to ban and discourage bigamous marriages.
20. It is a well-known and recognised legal position that customary Hindu law like Mohammedan law permitted bigamous marriages which were prevalent in all Hindu families and more so in royal Hindu families. It is only after the Hindu law was codified by enactments including the present Act that bar against bigamous marriages was created by Section 5(i) of the Act. Keeping in consideration the present state of the statutory Hindu law, a bigamous marriage may be declared illegal being in contravention of the provisions of the Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent. It is with the purpose of not rendering a financially dependent spouse destitute that Section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in a marriage relationship."
(emphasis added)
When a decree is sought under Sections 9 to 13 and is declined by the court, the remedy under Section 18 of the Hindu Adoption and Maintenance Act, 1956, remains available to the wife. Even the remedy under Section 125 of the Code of Criminal Procedure, 1973 (for short, 'the CrPC') or Section 144 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (for short, 'the BNSS') continues to be available. The view taken in both cases on the interpretation of the words 'any decree" used in Section 25 is consistent with what we have held above.
20. But in the case of Rameshchandra Rampratapji Daga , this Court observed that as a bigamous marriage cannot be said to be immoral, the right to claim maintenance under Section 25 is not taken away. The real question involved was whether a decree of nullity was a decree within the meaning of section 25. If a decree of nullity is covered by Section 25, the issue of whether a bigamous marriage is immoral is irrelevant. The entitlement under Section 25 does not depend on whether the bigamous marriage is moral or immoral.
21. Now, we come to the decision relied upon by the appellant-husband. In the first decision in the case of Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav & Anr.4, this Court was dealing with an application under Section 125 of the CrPC. This Court held that when a marriage is nullity by Section 25 of the 1955 Act, the spouse of such marriage is not entitled to get the benefit of Section 125 of the CrPC. Section 125 of the CrPC operates altogether in a different field. It is a quick and efficacious remedy made available to a wife or a child to seek maintenance.
The proceedings under Section 125 of the CrPC are of a summary nature. While deciding the applications under Section 125 of the CrPC, a summary procedure is required to be followed, and a detailed adjudication of the rights of the parties cannot be made. The same is the legal position as regards the corresponding remedy under Section 144 of the BNSS. Hence, the decision in the case of Yamunabai6 will have no application to Section 25.
22. The remedy under Section 25 of the 1955 Act is completely different from the remedy under Section 125 of the CrPC. It confers rights on the spouses of the marriage declared as void under Section 11 of the 1955 Act to claim maintenance from the other spouse. The remedy is available to both husband and wife. The principles which apply to Section 125 of the CrPC cannot be applied to Section 25 of the 1955 Act. The relief under Section 125 of the CrPC can be granted to wife or child and not to husband.
23. Now, we come to the decision in the case of Abbayolla Reddy v. Padmamma5. The Andhra Pradesh High Court's view is based on the right of a spouse to claim maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. This is a specific provision for the grant of maintenance to the wife. The right under Section 25 of the 1955 Act is different.
The right is created in favour of both spouses once there is a decree passed under Sections 9 to 13 of the 1955 Act. The third decision is in the case of Navdeep Kaur v. Dilraj Singh6. In paragraph 10 of the said decision, the Himachal Pradesh High Court gave a very narrow meaning to the 'decree in proceedings' under the 1955 Act by holding that the expression "husband and wife" used in Section 23 must mean legally wedded husband and wife. This view is entirely contrary to the view taken in the case of Chand Dhawan1.
24. The Bombay High Court, in the case of Leelabai3, dealt with the reference made to the Full Bench of the three Hon'ble Judges. The issue referred to Full Bench was the same one we are dealing with. The Full Bench of the Bombay High Court relied upon the decision in the case of Yamunabai6. In paragraph 18 of the judgment, the Full Bench has coined the term "illegitimate wife". Calling the wife of a marriage declared as void as an illegitimate wife is very inappropriate.
It affects the dignity of the concerned woman. Unfortunately, the Bombay High Court went to the extent of using the words "illegitimate wife". Shockingly, in paragraph 24, the High Court described such a wife as a "faithful mistress". It is pertinent to note that the High Court has not used similar adjectives in the case of husbands of void marriages. Under Section 21 of the Constitution of India, every person has a fundamental right to lead a dignified life. Calling a woman an "illegitimate wife" or "faithful mistress" will amount to a violation of the fundamental rights of that woman under Article 21 of the Constitution of India.
Describing a woman by using these words is against the ethos and ideals of our Constitution. No one can use such adjectives while referring to a woman who is a party to a void marriage. Unfortunately, we find that such objectionable language is used in a judgment of the Full Bench of a High Court. The use of such words is misogynistic. The law laid by the Full Bench of the Bombay High Court is obviously not correct.
25. Then comes the decision in the case of Savitaben Somabhai Bhatiya v. State of Gujarat & Ors7. We must note here that in this decision, this Court was dealing with the proceedings under Section 125 of the CrPC which is of a summary nature. This Court dealt with the eligibility of a spouse to claim maintenance under Section 125 of the CrPC. Therefore, none of these decisions support the stand taken by the appellant-husband.
26. An apprehension is the expression by the learned counsel for the appellant that if it is held that Section 25 of the 1955 Act also applies to void marriages, it will lead to a ridiculous result. He gave an example of a wife whose first marriage is subsisting, inducing another man to marry her. He also gave an example of a daughter getting married to her father. We must note that Sub-Section 1 of Section 25 uses the word "may". A grant of a decree under Section 25 of the 1955 Act is discretionary.
If the conduct of the spouse who applies for maintenance is such that the said spouse is not entitled to discretionary relief, the Court can always turn down the prayer for the grant of permanent alimony under Section 25 of the 1955 Act. Equitable considerations do apply when the Court considers the prayer for maintenance under Section 25. The reason is that Section 25 lays down that while considering the prayer for granting relief under Section 25, the conduct of the parties must be considered.
OUR VIEW ON THE QUESTION (ii)
27. Section 24 confers a power on a matrimonial Court to grant interim maintenance in pending proceedings seeking a decree contemplated under the 1955 Act. The power is to be exercised pending the proceedings for a grant of a decree under Sections 9 to 13 of the 1955 Act. The conditions for applicability of Section 24 are:
(i) There must be a proceeding under the 1955 Act pending and
(ii) the court must come to a conclusion 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.
26. Even if, prima facie, the matrimonial court finds the marriage between the parties is void or voidable, the court is not precluded from granting maintenance pendente lite provided the conditions mentioned above are satisfied. The grant of relief under Section 24 is discretionary as the Section uses the word 'may'. While deciding the prayer for interim relief under Section 24, the Court will always consider the conduct of the party seeking the relief. It provides for issuing a direction to pay a reasonable amount.
28. Accordingly, we answer the questions as follows:
a. A spouse whose marriage has been declared void under Section 11 of the 1955 Act is entitled to seek permanent alimony or maintenance from the other spouse by invoking Section 25 of the 1955 Act. Whether such a relief of permanent alimony can be granted or not always depends on the facts of each case and the conduct of the parties. The grant of relief under Section 25 is always discretionary; and
b. Even if a court comes to a prima facie conclusion that the marriage between the parties is void or voidable, pending the final disposal of the proceeding under the 1955 Act, the court is not precluded from granting maintenance pendente lite provided the conditions mentioned in Section 24 are satisfied. While deciding the prayer for interim relief under Section 24, the Court will always take into consideration the conduct of the party seeking the relief, as the grant of relief under Section 24 is always discretionary.
We direct the Registry to place these appeals before the appropriate Bench for the decision on merits.
......................J. (Abhay S Oka)
......................J. (Ahsanuddin Amanullah)
......................J. (Augustine George Masih)
New Delhi;
February 12, 2025.
1 (1993) 3 SCC 406
2 (2005) 2 SCC 33
3 AIR 2004 Bom 283
4 (1988) 1 SCC 530
5 AIR 1999 AP 19
6 (2003) 1 HLR 100 : 2002 SCC OnLine P&H 498
7 (2005) 3 SCC 636
