Court: Karnataka High Court
Bench: JUSTICE K. Sreedhar Rao & B. Sreenivase Gowda
Chandamma & Ors. Vs. Muktabai & Anr. Decided on 19 August 2008
Law Point:
Second wife not entitled to invoke Section 25 of Hindu Marriage Act to seek maintenance — Section 25 of Hindu Marriage Act cannot be invoked to seek maintenance by either of the spouses of such bigamous marriage.
JUDGEMENT
1. The 1st respondent filed a suit O.S. No. 16/2006 seeking maintenance from the estate of her deceased husband Hanumanthraya and also seeks creating charge on the suit property. The marriage of 1st respondent with Hanumanthraya is evidently contracted during the subsistence of the valid marriage with the 1st wife who is the appellant No. 1. The Trial Court has granted maintenance at the rate of Rs. 1,000 p.m. and created charge on the suit property which is held to be the estate of deceased Hanumanthraya. Hence, this, appeal by the defendants.
2. Mr. Veeresh B. Patil, learned Counsel appearing for the 1st respondent relied on the ruling of Supreme Court in Ramesh Chandra Rampratapji Daga v. Rameshwari Ramesh Chandra Daga, I (2005) DMC 1 (SC)=VII (2004) SLT 632=(2005) SCC 107, and decision of Bombay High Court in Shantaram Tukaram Patil & Anr. v. Smt. Dagubai Tukaram Patil & Ors., AIR 1987 Bom. 182, to contend that even in the case the 2nd marriage is held to be void. The 2nd wife is entitled to get maintenance under Section 25 of the Hindu Marriage Act.
3. The learned Counsel for the appellants relied on the Full Bench Ruling of Andhra Pradesh High Court in Abboyolla M. Subba Reddy v. Padmamma, AIR 1999 AP 19. In the said decision it is held that where the marriage is admittedly a nullity, the 2nd wife is not entitled to invoke Section 25 of the Hindu Marriage Act to seek maintenance.
4. The decision of the Supreme Court in Rameshchandra Daga’s, Case in para 15 and 16 the following observations are made:
“15. The learned Counsel appearing for the respondents took us through the Full Bench decision of the A.P. High Court and earlier decisions of this Court to persuade and to take a view that where the marriage is found to be null and void under Section 11 question of grant of permanent alimony or maintenance can never arise in favour of either of the spouses.
16. The decisions of this Court and the High Courts, which have been, relied, in our opinion, are distinguishable and are not directly on the point of law before us……………”
5. The facts in Ramesh Chandra Daga’s case and in the cited decision of the Bombay High Court, the 2nd marriage prima facie had taken place on the premise that the first wife has been divorced according to the customary practices of the community. The 2nd wife entering into matrimony believing the fact of the divorce of the first wife. It is for that reason the Supreme Court in Ramesh Chandra Daga’s case in para 22 has made the following observations:
“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 and according to us rightly so. From the circumstances, preceding and attending the marriage, it can safely be inferred that the present husband must have made reasonable inquiries about the previous marriage of the present wife. The wife’s version is natural and inspires belief that the document of Choor chithhy was shown and given to the husband, it is proved from the photo copy of the foil of registration, placed on record. According to the wife, the husband did not receive the document of Choor Chithhy. But has not produced it before the Family Court. It is argued that it is open to the wife if the document was registered, to get a copy from the registration office. Even it that was possible we find 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 the 2nd marriage and calling his wife only to be a governess of his children from the first wife. He unsuccessfully denied the parentage of daughter Pooja born through him. He failed to lead any evidence on the illegitimacy of the child. After the 2nd marriage the parties lived as husband and wife and they had a considerably long married life of about 9 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 25 of the Act.”
6. In the instant case, the first respondent docs not plead any kind of divorce of Hanumanthraya with appellant No. 1. The first respondent is married to Hanumanthraya with the knowledge of subsisting valid marriage between Hanumanthraya and appellant No. 1. Therefore, the marriage is per se a nullity. The ratio laid down by the Supreme Court in para 22 in Ramesh Chandra Daga’s case does not apply to the facts on hand. On the other hand, the observations in the said decision in paras 15 and 16 would attract the facts of the case. In that view, we hold that if the 2nd marriage is consciously held to the knowledge of both the spouses that the first wife/husband is living at the time of 2nd marriage, Section 25 of the Hindu Marriage Act cannot be invoked to seek maintenance by either of the spouses of such bigamous marriage. Accordingly the appeal is allowed. The order of the Family Court is set aside.
Appeal allowed.
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