A division bench of Supreme Court held that, Alimony and maintenance can be given even if a marriage is held to be null and void.
From Para 18,
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 case, 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.
Citations : [2005 ALD SC 2 62], [2005 BOMCR 3 834], [2005 CTC 1 66], [2005 DMC SC 1 1], [2005 GLH 1 288], [2005 GLR 2 939], [2005 JCR SC 2 306], [2004 JT SC 10 366], [2005 KLT SC 1 188], [2005 LW 4 11], [2005 MLJ SC 2 49], [2004 SCALE 10 391], [2005 SCC 2 33], [2005 AIR SC 422], [2005 GUJLR 2 939], [2005 GUJ LR 2 939]
Other Sources :
https://indiankanoon.org/doc/938507/
https://www.casemine.com/judgement/in/5609adffe4b0149711412a91
Index of Maintenance Judgements under HMA is here.
