FAO No.291-M of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.291-M of 2008 Date of decision: 11.08.2009 Smt.Promila ..Appellant Versus Ashok Kumar & Anr. ...Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present:- Mr.M.K.Yadav, Advocate, for Mr.J.V.Yadav, Advocate, for the appellant. Mr.S.R.Hooda, Advocate, for respondent No.1. Mr.Pawan Hooda, Advocate, for respondent No.2. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- VINOD K. SHARMA,J. The appellant/wife has invoked the appellate jurisdiction of this court to challenge the judgment and decree dated 28.8.2008 passed by the FAO No.291-M of 2008 2 learned District Judge, Sonepat accepting a petition filed under section 11 of the Hindu Marriage Act, 1955 (for short the Act). The respondent/husband filed a petition against the appellant/ wife, and her first husband namely Jasbir Singh alias Jasu under section 11 of the Act, on the plea that her marriage with the respondent Jasbir Singh alias Jasu was still subsisting on the date of her marriage with him. It was pleaded case of the respondent that the parties are Hindu and they were married as per Hindu rites and ceremonies on 19.11.1999 at Jahari Tehsil and District Sonepat. The marriage was duly consummated which resulted in the birth of a baby namely Pankaj on 1.2.2002. The case of the appellant was that the appellant/wife deserted him on 7.11.2005 without any just excuse and cause, all efforts made by the husband to bring her back could not succeed. That the appellant finally refused to return to matrimonial home on 25.2.2006, which prompted the respondent to file a petition under section 9 of the Act, which was dismissed. It was also alleged by the respondent that he was manhandled by the mother and brother of the appellant, who revealed that the appellant was earlier married to one Jasbir Singh alias Jasu. Thereafter, inquiry made by him confirmed the factum of appellant being married with Jasbir Singh alias Jasu prior to marriage with him. The case pleaded, therefore, was that the marriage between the appellant and Jasbir Singh alias Jasu subsisted on the date of marriage of appellant with the respondent and therefore, was a nullity. The petition was contested on the plea that the respondent had FAO No.291-M of 2008 3 not approached the court with clean. That from the marriage between the parties a male child was born on 1.2.2002. She denied having withdrawn from the society of the respondent, it was further pleaded that the petition filed under section 9 of the Act by the respondent was dismissed for non- prosecution to avoid the payment of maintenance pendente lite. She, however, admitted that she was earlier married to respondent Jasbir Singh but it was pleaded that the respondent was in know of this, at the time of his marriage with her. It was also pleaded that the marriage between the appellant and Jasbir Singh alias Jasu was dissolved by panchayat, therefore, her subsequent marriage with the respondent was not hit by provisions of Section 5 of the Hindu Marriage Act. Learned matrimonial court on appreciation of evidence recorded a finding that the marriage between the parties was performed on 19.11.1999. It was also found as a fact that out of marriage one Baby Pankaj was born on 1.2.2002. The learned matrimonial court further held that at the time of marriage with the respondent, appellant was married with Jasbir Singh alias Jasu and the marriage was never dissolved by any court of competent jurisdiction. The earlier marriage of appellant was found to be legally subsisting on the date of second marriage. The plea of the appellant that marriage was dissolved by panchayat was not accepted as the appellant had failed to plead custom in support of this plea. The dissolution of lawful and valid marriage by the panchayat was held to be without jurisdiction. Learned matrimonial court decided issue No.1 to hold that the marriage was nullity by recording the FAO No.291-M of 2008 4 following findings:- “12. The law on the point is fairly settled. Our own Hon'ble High Court has held in Asha Rani Vs,. Gulshan Kumar, AIR 1995 Punjab & Haryana 287 that custom cannot be extended by analogy nor one custom can be deduced from another. The earlier marriage of the wife could not be dissolved by the Panchayat. It is also held by a D.B. Of our own Hon'ble High Court in Rajesh Kumar Madaan Vs. Mrs. Mamta alias Veena, (2005-2) The Punjab Law Reporter 196 that a valid marriage can be dissolved by a decree of divorce passed by the court of competent jurisdiction and not in any proceedings before the Panchayat. Any marriage solemnized between two Hindus in contravention of the provisions of section 5 (i) of the Hindu Marriage Act., 1955 is null and void and may be declared as such on a petition filed under Section 11 of the Act, as has been held by a D.B. Of our own Hon'ble High Court in a case reported as Surjit Singh Vs. Mohinder Pal Singh & Ors. Vol.XI (1987) Marriage Law Journal 206. 13. It is established to the hilt that respondent Promila was married with respondent Jasbir alias Jasu prior to her marriage with petitioner Ashok Kumar and her first marriage still subsisted at the time of her marriage with the petitioner. The marriage is thus a nullity under section 5 (i) of the Hindu Marriage act and issue No.1 is, consequently, decided in favour of the petitioner.” FAO No.291-M of 2008 5 The decree of nullity of marriage, therefore, was passed in favour of the respondent. Learned counsel for the petitioner contended that once the marriage was dissolved by the panchayat as per the traditions governing the parties and also that the fact that the earlier marriage, was within the knowledge of the respondent, the learned matrimonial court wrongly applied the provisions of section 5 of the Act to declare the marriage, to be nullity. Hon'ble Supreme Court in the case of M.M.Malhotra Vs. Union of India and others AIR 2006 SC 80, has laid down as under:- “11. For appreciating the status of a , Hindu woman marrying a Hindu male with a living spouse some of the provisions of the Hindu Marriage Act, 1955 (herein referred to as the “Marriage Act”) have to be examined. Section 11 of the Marriage Act declares such a marriage as null and void in the following terms:: 11. “Void marriage-- 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 (i) 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 FAO No.291-M of 2008 6 of this condition, therefore, is null and void. By reason of the overriding effect of the Marriage Act as mentioned in section 4, no aid can be taken of the earlier 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 marriages and is not applicable to one solemnized in violation of Section 5 (i) 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 FAO No.291-M of 2008 7 of Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriageunder 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 to 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 notwithstanding 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 rights by reason of his not being the legitimate child of his parents. 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 FAO No.291-M of 2008 8 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.” In view of law laid down by Hon'ble Supreme Court no fault can be found with the judgment and decree of learned matrimonial court. But in spite of decree of nullity the respondent and minor child are entitled to permanent alimony in view of the law laid down by Hon'ble Supreme Court in the case of Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga 2005 (2) SCC 33, wherein Hon'ble Supreme Court has been pleased to lay down that permanent alimony under section 25 can be granted even in case of decree under section 11 of the Act. It was further held by Hon'ble Supreme Court as under:- “ A Hindu marriage can be dissolved only in accordance with the provisions of the Act by obtaining a decree of divorce from the court. In the absence of any decree of dissolution of marriage from the court, it has to be held that in law the first marriage of the wife subsisted when she went through the second marriage with the present husband. The appeal preferred by the wife, therefore, against grant of decree of declaration of her second marriage as void, has to be rejected whatever may be the circumstances which existed and FAO No.291-M of 2008 9 the hardships that he wife had to undergo, as alleged, at the hands of her second husband. (2) 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 decree of judicial separation under Section 10 of 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. Chand Dhawan Vs. Jawaharlal Dhawan, (1993) 3 SCC 406: 1993 SCC (Cri.) LJ 897, followed. Nazir Ahmad vs. Emperor AIR 1936 PC 253 (2): 63 IA 372: 37 Cri.L.J.897; Mohd. Ikram Hussain vs. State of UP AIR 1964 SC 1625: (1964) 2 Crli.L.J. 590; Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav (1988) 1 SCC 530: 1988 SCC (Cri) 182; Raj Kumar Karwal vs. UOI (1990) 2 SCC 409: 1990 SCC (Cru.) 330:AIR 1991 SC 45; K. Vimla vs. K.Veeraswamy (1991) 2 SCC 375: 1991 SCC (Cri) 442: and Abbayolla M.Subba Reddy vs. Padmamma AIR 1999 AP 19: (1998) 5 An LT 152 (FB) followed. FAO No.291-M of 2008 10 It is not possible to accept the argument 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. Customary Hindu law like Mohammedan law permitted bigamous marriages which were prevalent in all 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. 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. 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 FAO No.291-M of 2008 11 according to us rightly so. 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 Chor Chhithi was shown and given to the husband. There is 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 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. 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. It is not possible to say anything on the prayer that the daughter is now of marriageable age and the maintenance of total rupees three thousand granted to them, therefore, deserves to be suitably enhanced to fulfil their present needs. It is always open to the wife and the daughter in accordance with sub- section (2) of Section 25, to approach the Matrimonial Court to suitably enhance the quantum of maintenance granted to the. If such an application is made to the Matrimonial Curt, it shall be FAO No.291-M of 2008 12 decided after hearing the husband in accordance with law.” In view of the law laid down by Hon'ble Supreme Court in the case of Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga (Supra) with the consent of the parties the appellant is granted permanent alimony of Rs.2 lacs (Rupees two lacs only), whereas Pankaj minor son is allowed permanent alimony at the rate of Rs.1500/- (Rupees fifteen hundred only) per month till the date of attaining majority. The payment be made to the appellant within one month of the receipt of certified copy of this order. Appeal dismissed. (Vinod K.Sharma) 11.08.2009 Judge rp