Court:MADRAS HIGH COURT
Bench: JUSTICE Prabha Sridevan
JAYALAKSHMI Vs. KRISHNA PADAYACHI Decided on 04 September 2002
Woman Marrying Person While First Marriage is Subsisting : In law, Woman can be Given Recognition Either as Wife of Man or as His Concubine : There cannot be any intermediary clause described as an “illegitimate wife” : Appellant not entitled to maintenance.
1. The only question that is raised in this second appeal is whether a woman, who has married a man when the earlier marriage has not been dissolved in accordance with law and when the first wife is still living, is a wife, who is entitled to claim maintenance under Section 18 of the Hindu Adoptions and Maintenance Act.
2. According to the learned Counsel for the appellant she is entitled to claim maintenance. The learned Counsel for the respondent submitted that she is not entitled to claim maintenance and that, a Division Bench of this Court is squarely on the point and would bind this decision in this second appeal.
3. Section 18 of the Act reads as follows :
“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) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance—
(d) if he has any other wife living.”
4. The law of maintenance applicable to Hindus is now totally covered by the Hindu Adoptions and Maintenance Act. Of course excluding whatever right they have under Section 125 of the Code of Criminal Procedure, Chapter 3 of the Act is a complete Code with regard to law of maintenance.
5. The question is whether the Hindu wife referred to in Section 2 includes also a wife whose marriage is void or voidable.
6. In Kopparthi Satyanarayana v. Smt. Kopparti Seetharamamma, AIR 1963 AP 270, the Full Bench of the Andhra Pradesh High Court was called upon to consider Section 2, Clause (d) of the Hindu Women’s Right to Separate Residence and Maintenance Act (1946), and as per this Act the Hindu married woman shall be entitled to separate residence on one or more of the grounds mentioned in the section which included Clause (d) which is, “if he marries again”. The Full Bench had to interpret the above expression to solve the question whether a Hindu wife whose husband had married another wife before the commencement of the Act would obtain the benefit of the section and the Full Bench held that :
“This section has been so drafted as to take in all cases of husbands having their other wives living. So this has undoubtedly a wider scope than the one which we are required to construe. It shows that when the Legislature thought of including all Hindus who were married more than once, it had employed comprehensive language. A comparison of the language of the two clauses leads to the inescapable conclusion that Clause (4) of Section 2 covers only future marriages.”
7. In Subbegowda v. Honnamma & Anr., AIR 1984 Kar. 41, it was held that:
“The expression “any other wife” in Section 18(2)(d) means any other legally wedded wife. Therefore, even if the husband was 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).”
8. In Dr. Ranjit Kumar Bhattacharyya v. Smt. Sabita Bhattacharyya, AIR 1996 Cal. 301, marriage was alleged between
a Hindu wife and a Christian husband purported to have taken place according to Hindu rites after Hindu Marriage Act came into force. The marriage between husband and his first wife which had been solemnised according to Christian rites was still subsisting. It was held by the Division Bench of the Calcutta High Court that the second marriage cannot confer status of lawful wife since it was void ipso jure. It was held that a marriage in contravention of the provisions of the Hindu Marriage Act was null and void and has to be ignored as not existing in law at all. Therefore, while allowing the appeal filed by the husband, directed him to pay to the respondent Rs. 30,000/- as damages for his misdeeds.
9. In Saraswathamma v. Bhadramma, AIR 1970 Mys. 157, it was held that the first wife’s claim of maintenance will accrue only if the second marriage was a valid one.
10. In T.P.K. Natesan Chettiar v. Achiyayee Ammal, 1975 (1) MLJ 142, a Division Bench of this Court held that “if a person had contracted a second marriage subsequent to the coming into force of the Madras Hindu (Bigamy Prevention and Divorce) Act, when the first wife was living, that marriage is void by reason of Section 4 of the Act. If however the marriage had taken place prior to the enactment of the statute such marriage is valid. In such a case the first wife is entitled to maintenance from the husband by reason of the provisions contained in Section 18(2)(d) of the Hindu Adoptions and Maintenance Act”. Reference was made in that case to an earlier Division Bench judgment quoted in A.P.K. Narayanaswamy Reddiar v. Padmanabhan (minor) & Ors., 1966 (1) MLJ 529, where it was held that in law, a woman can be given recognition either as the wife of a man or as his concubine and that there cannot be an intermediary clause picturesquely described as an “illegitimate wife”. But in that case, it was held that the second marriage was celebrated before the coming of the relevant acts and, therefore, the right to maintenance was upheld.
11. In Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav & Anr., I (1988) DMC 205 (SC)=AIR 1988 SC 644, the Supreme Court held that the expression “wife” in Section 125 of the Code of Criminal Procedure means a legally wedded wife. In marriage of a woman with a man already having a living spouse as per Hindu rites is a complete nullity. The Supreme Court considered the provisions of Sections 11 and 12 of Hindu Marriage Act and held that while the cases covered by Section 12 are not void ab initio and such marriages continue to be effective unless the aggrieved party chooses to avoid it. 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.
12. In A.P.K. Narayanaswamy Reddiar v. Padmanabhan (minor) & Ors. (supra), the question arose whether a woman marrying a man bigamously can claim maintenance from the latter ?
“It is true that the medieval conservative approach in progressive times should be avoided, with reference to laws which purport to make reforms and introduce innovations in personal laws in order that women folk particularly are invested with more rights and better freedom. But while a legislative enactment may be liberally construed, the liberality cannot overstep the legitimate limits of interpretation and put into the legislation something which is not there.”
“We come back, therefore, to the question whether, where the factum of marriage is established and the form of it is in accordance with the personal law, but because it is bigamous, it is void, the woman, who is contracting party, could still be regarded as a wife or something in between a wife and a concubine, with a right to claim maintenance from the man. Apart from considerations of morals or sympathy, we are unable to say that there is a status of wifehood for such a woman intermediate between the legitimate wife, so to speak, and a concubine. There is no textual authority or statutory authority to be found for such a position, not do we feel justified that we can recognise such a status, especially when the policy of the law is to declare a bigamous marriage as void and, in fact, constitute it as a crime, which is liable to be punished. We are of the view, therefore, that the fourth plaintiff has no right to maintenance, and the Court below was not justified in granting her any maintenance.”
13. In view of the decision of the Division Bench of our Court, by which I am bound it is difficult to hold in favour of the appellant. If the observation of the Full Bench in the AIR 1963 AP 270, extracted above is accepted then necessarily, wives like the appellant must be able to draw benefit.
14. Section 18(1) of the Act deals with a Hindu wife whether married before or after the commencement of this Act. Therefore, regardless of whether the marriage was pre 1956 or post 1956, she can claim maintenance under this Act. Section 2 refers to a Hindu wife who is entitled to live separately from her husband without forfeiting her claim to maintenance. The Hindu wife mentioned in Sub-section (2) cannot be different from the “Hindu wife” mentioned in Sub-section (1), since there is no such indication. Therefore, in Section 2, the words “Hindu wife” should also be understood as a Hindu wife married before or after the commencement of the Act. With regard to a Hindu wife if she is married before the commencement of the Act and if there is a second wife, who was also married before the commencement of the Act, then either of them can claim maintenance under this Act because the Hindu Marriage Act, which laid down the conditions of a valid marriage had not come into force and, therefore, those marriages were valid, though the second marriage being bigamous may be illegal. The difficulty arises with regard to a wife, who was married after the Act. The section does not say that the wife who is entitled to live separately must be the first wife. Indeed, after the Hindu Marriage Act, Section 18(2)(d) can have no meaning because there cannot be two valid marriages and there cannot be two `wives’ living at the same time. But it must be so construed as to make it meaningful or rational.
15. In AIR 1976 AP 44, the learned Judge has dealt with this riddle—
“Section 21 of the Hindu Adoptions and Maintenance Act has no application since it defines the dependants of the deceased who can claim maintenance from his heirs. If the plaintiff is to be treated as an Avarudha Sthree, she would not also be entitled to claim any maintenance during the life-time of the 1st defendant. The next question is whether the plaintiff would be entitled for maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. Section 18 of that Act to the extent it is relevant reads as follows :
‘Section 18. (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) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance. Clauses (a) (b) and (c) omitted.
(d) If he has any other wife living’.”
The Act does not define a Hindu wife. Sub-section (1) of Section 18 says that a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband. This Act came into operation on 21st December, 1956. Sub-section (2) of Section 18 says that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance if he has any other wife living. Reading these two sub-sections together, it is clear that a Hindu wife whether married before or after the commencement of this Act, is entitled to live separately from her husband without forfeiting her claim to maintenance if he has any other wife living. Both the lower Courts have found that the plaintiff was in fact married to the 1st defendant in October, 1955 i.e., before this Act has come into force. It is not also disputed that the 1st defendant has another wife living. Therefore, both the requirements of Section 18 are satisfied and consequently the plaintiff is entitled for maintenance. I am not prepared to interpret the words ‘Hindu wife’ in Section 18 as a wife whose marriage is valid according to the provisions of Hindu Marriage Act for the provisions of Hindu Adoptions and Maintenance Act do not warrant such an interpretation. Such an interpretation will render the provisions of Section 18 otiose for, after the Hindu Marriage Act has come into force, there could be no legally wedded wife if another wife is living. So reading Section 18 without any limitations I hold that a Hindu wife contemplated by that section, means a Hindu wife whose marriage is solemnized.
“8. The problem can also be viewed in the light of the provisions of Hindu Marriage Act, 1955. Under Section 13 of the Act, any marriage solemnized, whether before or after the commencement of that Act, may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce. A wife may present such a petition on the ground that in the case of any marriage solemnized before the commencement of that Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of solemnization of her marriage provided that in either case the other wife is alive at the time of presentation of the petition. Under Section 25 of the said Act a Court at the time of passing a decree or at any time subsequent thereto, on application made to it for the purpose by the wife order that the husband shall, while the wife remains unmarried, pay to her for her maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the wife. Under Section 27 of that Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. Thus even under the provisions of Hindu Marriage Act a wife whose marriage was solemnized before the commencement of that Act is entitled to maintenance even if her marriage is void on the ground that her husband was having another wife living by the date of the marriage and on the date of presentation of the petition for divorce.
9. Any other interpretation of Section 18 of the Hindu Adoptions and Maintenance Act will lead to startling results. An unscrupulous married man may beguile an unwary woman into matrimony and thereafter turn her out and say “our marriage is void and I need not maintain you”. In fact there could be no better illustration than the present case. The 1st defendant has married the plaintiff in October, 1955 and has lived with her for nearly 12 years and deserted her. It could not have been the intention of the Legislature that such a woman is not entitled for any maintenance. So I do not agree with the finding of both the lower Courts that the plaintiff is not the wife of the 1st defendant. I confirm the decree passed by the learned District Judge, though for a different reason.”
16. There must be two wives if we have to give Section 18(2)(d) any meaning. As far as the other sub-clauses in Section 18(2) there is no difficulty. The section does not state that the wife claiming maintenance must be the first wife. So the “wife”, referred to in Clause (2), who is entitled to live separately without losing her right to maintenance could be either the first wife or the second wife. She cannot be the second wife, because there is no such thing as a second wife. So the wife who claims maintenance can only be the `first wife’. But Section 18(2)(d) cannot apply to a first wife because the phrase “any other wife living” cannot refer to a second wife, because “in law” there is no such “creature”. A legally wedded wife can live separately without forfeiting her right under Section 18(2)(d) only if there is any other legally wedded wife living and this is not possible. Indeed this appears to be like the questions which were asked of King Vikramaditya, with the threat that if unanswered the head would break into smithereens.
17. But I am respectfully bound by the judgment of the Division Bench of this Court and must answer the question against the appellant. The second appeal is dismissed. No costs.