THE HON'BLE MR JUSTICE V ESWARAIAH THE HON’BLE MR JUSTICE B CHANDRA KUMAR A.S. NO. 1073 OF 1999 DT. 12.7.2011 Between: Pandurthi Seshagiri Rao … Petitioner And Pandurthi Nagamani … Respondents Counsel for the Petitioner: Sri Koka Raghava Rao Counsel for respondent: Sri Sri Ravi Kumar Tolety The Court made the following ORDER: THE HON'BLE MR JUSTICE V ESWARAIAH THE HON’BLE MR JUSTICE B CHANDRA KUMAR A.S. NO. 1073 OF 1999 JUDGMENT : (Per Sri Justice V Eswaraiah) The appellant herein is husband-defendant. This appeal is filed questioning the judgment and decree passed in O.S.No. 31 of 1995 dated 7.1.1999 granting maintenance of Rs.500/- per month to the wife- plaintiff/respondent herein from the date of petition till there is a change of circumstances. For the sake of convenience, the parties will be referred to as they are arrayed before the Court below. The plaintiff -wife filed a suit in O.S. No. 31 of 1995 under Section 18 (1) of the Hindu Adoptions and Maintenance Act, 1956 claiming maintenance of Rs.500/- per month. She claims that she married the defendant on 15.4.1992 at Yenamalakuduru village as per Hindu customs and rites and their marriage was consummated. Both of them lived happily leading a marital life at Autonagar, Vijayawada where defendant was doing hotel business and later shifted to Yanamalakuduru. She alleged that during the two years family life, the defendant used to torture her both physically and mentally and neglected to continue family life with her or ensure her maintenance and deserted her and started staying with K Bullabbai near Old Checkpost in Krishna Nagar, Vijayawada. In spite of several persuasions by herself and mediators, he did not take her back and started selling the properties one after the other in order to avoid her claim for maintenance. She alleges that she has got no property and that her health deteriorated due to heavy work she rendered while assisting the defendant in running the hotel at Autonagar, Vijayawada. It is stated that the defendant sold his hotel at Autonagar, Vijayawada for Rs.60,000/-, two house sites at Gangoor for Rs.80,000/- and a lorry for Rs.1,25,000/- and is in a sound financial position. She claims that she has no means to survive and filed a petition seeking a monthly maintenance of Rs.500/-. The defendant filed a written statement disputing the plaint averments and denying the marital relationship with the plaintiff and stated that no marriage was solemnized between them. It is alleged that the plaintiff was already married to somebody who is residing at Srinagar village near Bodhan mandal of Nizamabad district and has begotten a female child viz., Rupa Lalitha who is studying at Vijayawada. The plaintiff is staying with her father at Yenamalakurudu and has not obtained any divorce from her husband, that she is a women of bad repute and bad character. That the plaintiff opened a bank account with special term deposit receipt bearing No. 393514 dated 16.10.1991 for Rs.7000/- with a maturity value of Rs.10,275/- in State Bank of India, Petamata, Autonagar Branch, Vijayawada in the name of the minor daughter being a mother and natural guardian. It is also stated that on maturity, she withdrew the said amount on 18.10.1994. That her surname is ‘Pendurti’ which is surname of her husband. That her name was registered in Electoral roll of Yanamalakuduru village in 1979 for Kankipadu Assembly constituency. It is alleged that she used to quarrel with her husband and living separately at Yenamalakurudu along with her minor daughter. Ultimately, he alleges that she filed the suit with a view to derive unlawful benefits showing him as defendant. The plaintiff examined herself as P.W.1 and also examined P.W.2 to 4 and marked documents in Ex.A1 to A.23. The defendant examined himself as D.W.1 and also examined D.W.2 to D.W.4 and marked documents in Ex.B1 and B.2. The learned family Court Judge, Vijayawada on consideration of rival contentions of the parties, framed the following issue for consideration. “Whether the plaintiff-wife is entitled to claim maintenance @ Rs.500/- per month from the defendant-husband under Section 18 (1) of the Hindu Adoptions and Maintenance Act, 1956, with a first charge on the plaint schedule house?” The Court below on consideration of the matter, referring to the judgments of this Court in Pallamsetti Vs. D Sriramulu[1], Panchireddi Appala Suramma Vs. Ganapatlu[2] and C.O.K.Reddy Vs. C. Pedda Venkata Lakshmamma[3] held that the first marriage of the plaintiff performed at the age of 14 years is void and though she did not obtain divorce from her first husband, she is entitled to maintenance. The Court below considering the evidence of P.W.1, 2 and 4 and documentary evidence in Ex.A.1 to A.7 i.e., the wedding photographs wherein the defendant appeared having participated in various marriage ceremonies with the plaintiff like tying tali around the neck of plaintiff in Ex.A1, applying jaggery on each others’ heads in Ex.A-5, being garlanded by the plaintiff in Ex.A.7, being blessed by the plaintiff’s uncle in Ex.A.3, being blessed by wife of P.W.4 in Ex.A.4, being presented with clothes by uncle of plaintiff in Ex.A.6, disbelieved the contention of the defendant that he did not marry the plaintiff and only participated in the engagement ceremony with her during which period some photographs were taken and later on coming to know that she was already married women, refused to marry her. Further the Court below having regard to the evidence in Ex.A.9 to A.13 and Ex.A.15 to 22 which prove the financial status of the defendant, i.e., permission from the Divisional Fire Officer to run the hotel, driving licence, pass books and chit fund receipts, life insurance police receipt etc, has granted a monthly maintenance of Rs.500/- to the plaintiff. Having aggrieved by the said order, the defendant preferred the present appeal. The learned counsel for appellant-defendant mainly contended that admittedly the plaintiff has earlier married one Murali Krishna, which marriage is subsisting, as such even assuming that defendant lived with plaintiff for some time, it cannot be said that he is liable to pay any maintenance. He further submits that Section 18 of the Hindu Adoption and Maintenance Act, 1956, is not applicable to the present case, inasmuch as under the said provision wife alone is entitled for maintenance. He further submits that even assuming that the second marriage with the defendant is established, it is only nullity in law and such a marriage cannot be recognized, as admittedly the first marriage of the plaintiff with Murali Krishna is subsisting and no decree of divorce from the competent Court of law is obtained. It is also contended that the defendant is not in a position to pay any maintenance to the plaintiff. On the other hand, learned counsel for respondent-plaintiff while supporting the judgment of the Court below, submitted that the first marriage of the plaintiff was performed during her childhood at the age of about 14 years and the same is a void marriage and since she has amply proved her marriage with the defendant, she is entitled to maintenance. It is also contended that since the first marriage itself is void one, there is no necessity for her to take any divorce from her first husband. It is thus contended that the Court below having considered the same and following the judgments of this Court in Pallamsetti case, Panchireddi Appala Suramma case and C.O.K.Reddy case (referred supra), has rightly held that the plaintiff is entitled to maintenance. Further in support of his contentions he placed reliance on the judgment of the Supreme Court in Ramesh Chandra Rampratapji Daga Vs. Rameshwari Ramesh Chandra Daga[4]. Heard the learned counsel for petitioner and learned counsel for respondent and perused the material available on record. It is not in dispute that the order under appeal is passed by the Family Court and the Family Court is entitled to award maintenance under Section 7 (1) (f) of the Family Court Act. It is also not in dispute that the respondent- defendant has not filed any application to declare that his marriage with the plaintiff-respondent herein is null and void. Though, it is contended by the learned counsel for defendant that section 18 of the Hindu Adoption and Maintenance Act, has no application to the instant case, we are of the considered opinion that the family Court is empowered to grant maintenance under Section 25 of the Hindu Marriage Act, 1955. Section 25 of the Act, 1955, enables 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, as has been held by the Supreme Court in Chand Dhawan Vs. Jawaharlal Dhawan case[5]. Further, the facts of the present case are similar to the facts of the case in Ramesh Chandra case (cited supra 4) relied upon by the learned counsel for respondent-plaintiff, wherein, the Apex Court held as under; 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 case7, 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. 21. Section 25 is an enabling provision. It empowers the court in a matrimonial case to consider facts and circumstances of the spouse applying and decide whether or not to grant permanent alimony or maintenance. 22. 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 enquiries about the previous marriage of the present wife. The wife's version is natural and inspires belief that the document of chhor chithhi was shown and given to the husband. It is proved from the photocopy of the foil of registration, placed on record. According to the wife, the husband did receive the document of chhor chithhi 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 if 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 his second marriage and calling his wife only to be a governess of his children from the first wife. He unsuccessfully denied even the parentage of daughter Puja, born through him. He failed to lead any evidence on the illegitimacy of the child. After the second marriage the parties lived as husband and wife and they had a considerably long married life of about nine years from 1981 to 1990. In such a situation, the Family Court and the High Court were fully justified in holding that the wife deserves to be granted maintenance under Section 25 of the Act. In the present case, the husband has not filed any application to declare his marriage with the plaintiff as null and void and claims that in view subsisting first marriage of the plaintiff with one Murali Krishna, his second marriage is void and he has no legal obligation to pay the maintenance. The Court below has considered this aspect and following the judgments of this court (referred supra as 1 to 3) has rightly held that the first marriage of the plaintiff is void and she is entitled to maintenance since she has proved her second marriage with the defendant by abundant oral and documentary evidence. Having regard to the facts and circumstances of the case and in view of the dicta laid down by the Hon’ble Apex Court in Ramesh Chandra case, we are of the considered opinion that the Family Court is empowered to grant maintenance under Section 25 of the Hindu Marriage Act, while passing a decree. In the present case, though the defendant claims that the earlier marriage is subsisting, still the defendant-appellant herein has got legal duty to pay maintenance, as ordered by the Court below. For the foregoing reasons, we do not see any illegality or irregularity in the order under appeal warranting any interference by this Court. We hereby confirm the judgment and decree passed in O.S. No. 31 of 1995 dated 7.1.1999 and dismiss the appeal. However, in the circumstances of the case, no costs. ______________ V ESWARAIAH,J __________________ B CHANDRA KUMAR,J DATE: 12.7.11 TVK THE HON'BLE MR JUSTICE V ESWARAIAH THE HON’BLE MR JUSTICE B CHANDRA KUMAR A.S. NO. 1073 OF 1999 Date: 12.7.2011 [1] AIR 1968 AP 375 [2] AIR 1975 AP 193 [3] AIR 1975 AP 43 [4] 2005 (1) Supreme 155 [5] 1993 (3) SCC 406