A^^ <^'"I APPELLANT: HZ6H COURT OF CHHATTIS6ARH. BILASPUR First ^ppaal No. 194 of 2004 Megh Prasad Versus RESPONbENT: Bhagwantin Bai ^ '%^ Post for pronoyncement of judament on 2^ FebryQry, 2009 Sd/- T.P.Sharma Judge t- v '"s. HI@H COURT OF.CHHATTISeARH^BlLASPUR First ^ppea! No. 194 of 2004 APf^. [^; APPELLANT/: (Defendant) RESPONDENT/: (Appiicant) Megh Prasad, aged 43 years, S/o Budhram/ - by Caste Satnami, R/o Darrighat, Assistant ^uard, S.E, ftly,^ Biiaspur, Distt Biiaspur (C.G.} Versus Bhagwantin Bai, aged about 37 years, VV/o Ategh Prasad, by Caste Satami, R/o Chandaniapara, Janjgir, Tahsi! & Distt. Janjgir-Champa (C.G.) {First appea! under Section 96 of the Code of Civii Procedure, 1908} Present: Mr. Maiay Kumar Bhaduri & Mr..< P.K. TuJsyan, counsei for the appeliant. Mr. H.B. Agrawa!, Senior Advocate V41ith A^r. J-K< Supta, Advocate for the respondent. Sinde Bench: Ho.n*b}€ Mr. T..P, Sharma. J (Delivered on 2^ February, 2009) 1. By this oppeal the appeiSant has challenged iegaiity <& proprie'iy of the order & decree 28-7-2004 passed by the Additional District Judge, Janjgir in Misc. Case No.17/2001, whereby learned ^dditiona! District Judge has awarded rnaintenance of fts.l.OOO/- per month to the respondent under Section 18. of the Hindu Adoption and Maintenance Act, 1956 (for short 'the Act, 1956'). 2. The order is chaSienged on the ground that the respondent who is second wife of the appeliant i^. not entitied for mointenance under the provisions of -the Act, 1956 and the Court'below has committed iiiegaiily by awarding maintenance to her* 3. I have 'heard learned counse! for the parties and perused the order & decr.ee impugned as a!so the recor-d of the Court beiow, 4. Mr. Matoy Kumar Bhaduri,.learned counsei for the.appeltant, argued that respondent Bhagwantin Bai previously married to one Keshav Sahu and @ '^' ^ the appeibnt was also married to Kaushiiya, and during the subsistence of first .marriage of the appellant &. the respondent, they again solemnized marriage. Both the parties are governed by Hindu Law, as such the Hindu Marriage Act, 1955 (for short lthe Act, 1955% Second marriage .during the subsistence of first marriage is bar under Section 5 (i) of the Act, 1955, The words 'Hindu wife' used in Section 18 of the Act, 1956 include oniy bwfu! wife and any worpan who married i-vith another person during the subsistence of her prevlous marriage is not entitled for maintenance under the provisions of Section 18. of the Act, 1956. Learned counsel subrnits that respondent Bhagwantin Bai has specificaiiy deposed and proved in her evidence the documents Exs.A-1, A-2, A"3 & A-4. Ex<A-l is an agreement./consent ietter executed by the present-appellant in favour of the respondent whlch shows that at the time of su.ch consent or alieged marriage with the respondent he was having one' spouse and he'has accepted the respondent as v^ife. Ex.A~2 is an affidavit executed by respondent Bhagwantin Bai which shows tho.t her first husband is alive though he has !eft her and she has so!emni%d marriage with the appejhnt with the consent of the first wife of the appeliant. Ex*A-3 is an agreement/consent jetter executed by the respondent in favour of the appeii'arit which shows that firstly she was married with another person who left her and she has soSem-nized marriage with the appeibnt with the consent of the first ^ife of,the appeiiant. Ex-A-4 is an affidayit executed by the appelfont whlch shows that the appeiiant has solemnized marriaQe with-the.respondent during the subsistence of his first marriage with another woman with'heF'con^ent- Learned counsei further submits that the appeibnt has mentioned the name of his wife Kaushilya in ration card Ex*D-l, Free Medica! Treatment Entjtlenient Cards Exs<D"2, &-3, AAedicai Attendance Identity Card & Ex<D-4 Insurance Policy paper. These documents are sufficient for drawing inference that Koushijya is wife of the appeibnt, Learned counsel also submits that respondent Bhagwantin. Bai has admitted in para 6 of her evidence that Keshav Sahu jeft her, but he has not divorced her\ however, customary divorce has been effected without any written document. She has specifically admitted that when she unmorried she was sent by the members of her community with ^. ^'(- Keshav Sahu whereupon she left with Keshav Sahu/she conceived and gave birth to one daughter Mamta Learned counsei placed reliance in the matter of Abbayoila M. Subba Reddy v. Padmamma1 in which Fuli Bench of the Andhra Pradesh High Court heid that Hindu woman married with Hindu rna!e having legoiiy wedded wife is not entitied to maintenance under Section 18 of the Act, '1956. Further reiiance h.as been placed in the matter of Suresh XhulSar v. Vyay Khuliar in which the Deihi High Court has-held that rnarriage soiemnized during subsistenceof first marriage is hit by Section 5 of the Act, 1955. ReJiance has also been piaced in the matter ofSmt. v, Anantrao Shivram Adhav and another3 in which the Apex Court has hsld that marriGge by Hindu with person having living spouse is null and void. 5, On the other hand, Mr. H..B, Agra^ai.barned Senior Advoc^ate appearing on behaif of the respondent ai^gued that although the respondent was living with one Keshav Sahu, but the.re were only iove affGJrs with Keshav Sahu ond -she ha.s not marriecl Ke^hav Sahu. She has solemnized marriage only wlth the present appetbnt. She has not solemni^ed marriage with'the •appellant during the subsistence of marriage of herseif or rfiarriage of the appeiiant. 'ThereforA, the respondent is entitted for maintenance under Ssction 18 of the Act, 1956. 6. Section 18 of the Act, 1956 reads as fo!lows: ~ "18. of wlf€<—(l) Subject to the provisions of this section/ a Hindu wife, whether rnarried before or after the commencemBnt of this Act, shall be entitied to be mainl^inedfcy her husband during her 'ife time< (2) A Hindu wife shail be entitled to live separateiy frorn her husband v^ithout forfeiting her claim to maintenance- (a) if he i.s guilty of desertion, that is to say/of abandoning her without reasonabie cause and without her- consent cr- agdnst her wish, or wiiifuily negiecting her; 1 AIR 1999 AndhraPradesh 19 (FB) 2 AIR 2002 Deihi 373 3 AIR 1988 SC 644 ~%^ 'M^MM WiSS' ^^ ?1% 4 (b)if he has treated her with such cruelt)/ as to cause a reasonabie apprehension in her mind that it wiil be harmfui or injurious to iive with her husband; (c) if he is suffering from a viruient form of ieprosy; (d) if he has any other wife iiving; (e)if he keeps a concubi.ne in the sorne house in which his wife is ilving or habituaily resides with a concubine ejsewhere; (f) if he has ceased to be a Hindu by conversion to another reiigjon; (g) if there Is any other cause Justjfying Siving separate!y* (3) A Hindu wife -shaii not be entitied to separata residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by converslon to another reiigion/' 7. Section 5 of the Act, 1.955 deals wlth Conditions. for a Hindu. marriage< Section '5 (i) reads as foiiows: " "A rnarriage may be soiemnized between any two Hjndus, if the foliowing conditions are fuifiileci, namely: - (i) neither party has a spouse iiving at the time of the rnarriage;" Section 11 of the Act, 1955 deals with Void marriages, which reads as folbws: - "Any marrioge solemnized after3 the commencement of this Act shali be nuil and void and- may, on a petition presented by either party' thereto against the other, party, be- so deciared by a decree of nuliity If it contravenes any one of the conditlons specified in clauses (i), (iv) and (v) of section 5/3f 8. Any Hindu marriage may dissoive by a decree of divorce in accordance with Section 13 of the Act, 1955 and there is no other form of divorce in the Act, 1955. Section 29 of the Act, 1955 reads os follows: - '"29. Sa¥Jngs."-"(l) A marrloge solemn.ized- between Hindus before the commencement of this Act, which is otherwise vaiid, shaii not.be deerned to be jnvaiid or ever to have been jnva!id by reason only of the fact that the parties thereto beionged to the saiiie gotra or prayara or beionged to different religion-s, castes or sub-divisions of the same caste, ^s>sAt^' ''s- ^- (2) Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any speciai enactment to obtain the dissoiution of a Hindu marriage, whether soiemnized before or after the commencement of this Act (3) Nothing contained in this Act shail affect any proceeding under any bw for the time being in force for declaring any niarriage to be null and void or for annulling or dissoiving any marriage 'or for judiciai separation pending at the commencement of this Act,.and any such proceeding may be continued and determJned as if this Act had not been passed* • (4) Nothing contained in this Act sha!l be deemed to affect the provisions contained m the Special Marriage Act, 1954 (43 of 1954) with respect to marriages between Hindus solemnized under that Act, whether before or after the commencement of this Act," In accordance with Section 29 (2) of the Act, 1955, Hindu marriage moy come to on end by dissolution by a recognized custom, 9. In the instant case, the o.ppeibnt & other witnesses inciuding Kaushaiya Devi SGtnami (NAW-2) have categorically stated that Kaushliya is wife of the appeilant, she is alive and durlng the subsistence of her marriage, the respondent has ciaimed that she has married the oppellant and she has chimed for maintenance. Respondent Bhogwantin Bai has not admitted in specific terrBS that she had eariier3 married with Keshav Sahu, but in her cross-examination she has admitted that she 'was living vvith Keshay Sahu, she conceived through Keshav Sahu and gave birth to Mamta, Keshav Sahu has not divorcea1 her^.hGwever, customary divorce hos been effected. She has proved and admitted the documents Ikrarnama/consent & affjdavits executed by the respondent Exs.A-1 to A-4 clearly show that both the parties were having spouses at the time of oJJeged marriage o.nd with the consent of first wife of the appeibnt the respondent has married the appeilant. These documents and the statements of the witnesses are' sufficient to establish the fact that at the time of aileged marriage of the respondent with the appeliant, both the parties i,e. the appeJJant & the respondent vvere having spouses and their niorrio.ge not dissso!ved by a decree of divorce or by any recognized custom o.nd during the subsistence or their rriarpiaae thev have marn'ed with each other» Such rparriaae is in < ~^ v^ viobtion of Section 5 (i) of the Act, 1955 and such marriage is a void marriage under Section 11 of the Act, 1955. Therefore, the respondent is not the iegaliy wedded wife or iawfu! wife of the appelbnt. Oniy the lawfui wife or legaliy wedded wife is entitled for maintenance under Section 18 of the Act, 1956. The Court below after pbcing reiiance in the matters of RojQrQm v. Roopabai4 & C. Obuia Konda R®ddyv. C. P@ddfi Venkata Lakshamma5 arrived at a conciusion that even woman of void marriage is entitied for maintenance. Judgment possed in the ca.se of Rajaram v< & C. Obula (sypra) has been overruied by the larger Bench of AP. High Court in the case of AbbayolJa (supra). The words 'Hindu wife' used in Section 18 of the Act only include iawfui wife or iegaiiy wedded v^ife and does not inciude any wife of second marriage during subsistence of her first marrJQge. The leamed Court bebw has committed illegdity. The Act, 1955 applies to all Hindu marriages. Finding of the Court below is not sustainable and deserves to be setaside* 10, Consequentiy, the appea! is ailowed. Order &. decree impugned are hereby set aside, Claim and order of maintenance of the respondent is hereby dismissed, Parties shal! bear their costs of oppeai and os well as the proceedings before the Court below. r Sd/- T.P. Sharma Judge ^oma 4 1986 (1) M.P.W.N. 92 5AIR1976A.P,43