N Criminal Appeal No 475 of 1983
From the Judgment and order dated 2122 4 1982 of the Bombay High Court in Crl
Appln
No 478 of 1980
AK Sanghi for the Appellant
AM Khanwilkar for the Respondents
The Judgment of the Court was delivered by 812 SHARMA J
The point involved in this appeal is whether a Hindu woman who is married after coming into force of the to a Hindu male having a living lawfully wedded wife can maintain an application for maintenance under section 125 of the Code of Criminal Procedure 1973 hereinafter referred to as the Code
The appellant Smt
Yamunabai was factually married to respondent No 1 Anantrao Shivram Adhav by observance of rites under Hindu Law in June 1974
Anantrao had earlier married one Smt
Lilabai who was alive and the marriage was subsisting in 1974
The appellant lived with the respondent No 1 for a week and there after left the house alleging ill treatment
She made an application for maintenance in 1976 which was dismissed
The matter was taken to the Bombay High Court where the case was heard by a Full Bench and was decided against the appellant by the impugned judgment
Section 125 of the Code by sub section 1 which reads as follows clothes the wife with the right to receive maintenance is a n summary proceeding under the Code 1251
If any person having sufficient means neglects or refuses to maintain a his wife unable to maintain herself or b his legitimate or illegitimate minor child whether married or not unable to maintain itself or c his legitimate or illegitimate child not being a married daughter who has attained majority where such child is by reason of any physical or mental abnormality or injury unable to maintain itself or d his father or mother unable to maintain himself or herself a Magistrate of the first class may upon proof of such neglect or refusal order such person to make a monthly allowance for the maintenance of his wife or such child father or mother at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct 813 Provided that the Magistrate may order the father of a minor female child referred to in clause b to make such allowance until she attains her majority if the Magistrate is satisfied that the husband of such minor female child if married is not possessed of sufficient means
Explanation
For the purposes of this chapter a minor means a person who under the provisions of the 9 of 1875 is deemed not to have attained his majority b wife includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried
 According to the respondent the term wife  used in the section means only a legally wedded wife and as the marriage of the appellant must be held to be null and void by reason of the provisions of the  she is not entitled to any relief under the section
For appreciating the status of a Hindu woman marrying a Hindu male with a living spouse some of the provisions of the 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 solemnized 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
 Clause 1i 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 in 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 814 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 S1i 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 marriages 1 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 not withstanding the decree of nullity
3 Nothing contained in sub section 1 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 815 rights by reason of his not being the legitimate child of his parents
Emphasis added
Sub section 1 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 sub section 2 refers to a decree of nullity as an essential condition and sub section 3 prominently brings 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
The question then arises as to whether the expression wife used in section 125 of the Code should be interpreted to mean only a legally wedded wife not covered by section 11 of the Act
The word is not defined in the Code except indicating in the Explanation its inclusive character so as to cover a divorcee
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 subject to the Explanation b which is not relevant in the present context
It has been contended on behalf of the appellant that the term wife  in section 125 of the Code should be given a wider and extended meaning so as to include therein not only a lawfully wedded wife but also a woman married in fact by performance of necessary rites or following the procedure laid down under the law
Relying upon the decision of this Court in Mohd Ahmed Khan vs Shah Bano Beghum 1985  3 SCR 844 it was argued that the personal law of the parties to a proceeding under section 125 of the Code should be completely excluded from consideration
The relationship of husband and wife comes to an end on divorce but a divorcee has been held to be entitled to the benefits of the section it was urged and therefore applying this approach a woman in the same position as the present appellant should be brought within the sweep of the section
We are afraid the argument is not well founded
A divorcee is included within the section on account of clause b of the Explanation
The position under the corresponding section 488 of the Code of 1898 was different
A divorcee could 816 not avail of the summary remedy
The wife s right to maintenance depended upon the continuance of her married status
It was pointed out in Shah Bano s case that since that right could be defeated by the husband by divorcing her unilaterally under the Muslim Personal Law or by obtaining a decree of divorce under any other system of law it was considered desirable to remove the hardship by extending the benefit of the provisions of the section to a divorced woman so long as she did not remarry and that was achieved by including clause b of the Explanation
Unfortunately for the appellant no corresponding provision was brought in so as to apply to her
The legislature decided to bestow the benefit of the section even on an illegitimate child by express words but none are found to apply to a de facto wife where the marriage is void ab initio
The attempt to exclude altogether the personal law applicable to the parties from consideration also has to be repelled
The section has been enacted in the interest of a wife and one who intends to take benefit under sub section 1a has to establish the necessary condition namely that she is the wife of the person concerned
This issue can be decided only by a reference to the law applicable to the parties
It is only where an applicant establishes her status on relationship with reference to the personal law that an application for maintenance can be maintained
Once the right under the section is established by proof of necessary conditions mentioned therein it cannot be defeated by further reference to the personal law
The issue whether the section is attracted or not cannot be answered except by the reference to the appropriate law governing the parties
In our view the judgment in Shah Bano s case does not help the appellant
It may be observed that for the purpose of extending the benefit of the section to a divorced woman and an illegitimate child the Parliament considered it necessary to include in the section specific provisions to that effect but has not done so with respect to women not lawfully married
Lastly it was urged that the appellant was not informed about the respondent s marriage with Lilabai when she married the respondent who treated her as his wife and therefore her prayer for maintenance should be allowed
There is no merit in this point either
The appellant cannot rely on the principle of estoppel so as to defeat the provisions of the Act
So far as the respondent treating her as his wife is concerned it is again of no avail as the issue has to be settled under the law
It is the intention of the legislature which is relevant and not the attitude of the party
817 8
We therefore hold that 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 not entitled to the benefit of section 125 of the Code
The appeal is accordingly dismissed
There will be no order as to costs
During the pendency of the appeal in this Court some money was paid to the appellant in pursuance of an interim order
The respondent shall not be permitted to claim for its refund
NPV Appeal dismissed


Summary:
 Words and Phrases Similar description  meaning of
The appellant manufacturer of Hospital and Pharmaceutical Appliances and Heavy Duty Industrial Canteen Equipment classified certain items like cooking range deep fat fryer express coffee machine bread toaster etc
 numbering 14 under Tariff Item No 68 of the Central Excise and Salt Act 1944
The Assistant Collector held that products 2 to 14 were classifiable under Tariff Item No 33C in view of the Explanation thereof and demanded differential duty for the period of 1st March 1979 to 30th June 1980
The Collector on appeal held that these items were to be classified under Tariff item No 68 and not under Tariff item 33C 
On appeal by the Revenue the Central Customs Excise and Gold Control Appellate Tribunal while noting that the equipment in question some of which were electrically operated machines were used in industrial canteens five star hotels big hospitals etc
held that the intention of the Legislature was clear from the Explanation to Tariff Item No 33C and the items in question could not be classified under Tariff Item No 68
Dismissing the appeal by the manufacturer
 HELD The statute does not contemplate that goods classed under the words of similar description shall be in all respects the same
If it did these words would be unnecessary
These were intended to embrace goods but not identical with those goods
If the items were 732 similar appliances which are normally used in household these will be taxable under Tariff Item No 33C 73CD It is not necessary to be a domestic appliance that it must be actually used in the home or the house
It must be of a kind that they are generally used for household purposes
736B The types of items concerned in the instant case are generally used for household purposes and that is sufficiently good test for classification in the light of explanation to tariff item No 33C
The Tribunal was
therefore right in holding that these items could not be classified under Item 68
736C Since the appellant had set out all the details and the Revenue had assessed the appellant under Tariff Item No 68 the Tribunal was right in holding that there was no intention to evade payment of duty and in directing that the modification of the classification list could only be prospective and not retrospective
In the absence of any proof of suppression of fact it was also right in holding that section l 1 A of the Act would not be applicable
736D E