Maintenance denied in a Null and Void ab Initio Marriage Archives

The division bench of Apex Court held as follows,

From Paras 26, 27 and 28

26. It is well settled that a marriage which is null and void is no marriage in the eye of law. Where the marriage is a nullity application for maintenance is liable to be set aside on that ground alone. Under Section 5 of the Hindu Marriage Act, a marriage may validly be solemnized between any two Hindus, subject to the following conditions:-
(i) Neither party has a spouse living at the time of marriage [(Section 5(i) of the Hindu Marriage Act];
(ii) Neither party was incapable of giving valid consent of the marriage in circumstances specified in Section 5(ii) of the Hindu Marriage Act;
(iii) The parties to the marriage are of requisite age, that is, the bridegroom should have completed 21 years of age and the bride 18 years of age, at the time of marriage [Section 5(iii) of the Hindu Marriage Act];
(iv) The parties should not be within the degree of prohibited relationship unless the custom or usage governing each of them permits such marriage
[(Section 5(iv) of the Hindu Marriage Act];
(v) Parties are not sapindas of each other unless the custom or usage governing each of them permits between two. [(Section 5 (v) of the Hindu Marriage Act];
27. Section 11 of the Hindu Marriage Act provides that 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 of the conditions in Clauses (i), (iv) and (v) of the Section 5.
28. A careful reading of Sections 5, 11 and 15 makes it amply clear that while Section 5 specifies the conditions on which a marriage may be solemnized between two Hindus, only contravention of some of those conditions render a marriage void.

And from Para 38,

38. Learned counsel appearing on behalf of the Appellant has also argued that maintenance cannot be refused on the ground of nullity of marriage, until there is a declaration of nullity of marriage by a competent Court, in appropriate proceedings under Section 11 of the Hindu Marriage Act. We need not go into this question in view of our finding that a marriage contracted during the pendency of an appeal from a decree is not ab initio void, and certainly not when such an appeal is filed after expiry of the period of limitation.

Krishnaveni Rai Vs Pankaj Rai and Anr on 19 Feb 2020

Citations : [2020 SCC ONLINE SC 225]

Other Sources :

https://indiankanoon.org/doc/81931264/

https://www.casemine.com/judgement/in/5e52c0a93321bc1e173f86fe

https://www.indianemployees.com/judgments/details/krishnaveni-rai-versus-pankaj-rai-anr

This Allahabad High Court judgment also clarifies established below legal point in Maintenance case under section 125 of CrPC. It relies on Deoki here.

In the absence of any custom and in absence of any decree for divorce, it cannot be said that marriage between Alok Berman and Smt. Rani was dissolved, which goes to show that Alok Berman was still legally married husband of Smt. Rani, who was, admittedly, alive at the time of marriage of Smt. Kiran Dhar with Alok Berman, and the marriage between them was not annulled as per law.

Further,

26. Section 13 of Hindu Marriage Act clearly requires a petition either by the husband or the wife for dissolving the marriage by decree or divorce on the ground mentioned in Section 13 of Hindu Marriage Act. No other form of divorce has been recognized by Hindu Marriage Act. Annexure 5 is an agreement between Alok Berman and his earlier wife – Smt. Rani in which parties had signed a divorced deed in which they have stated that they are dissolving the marriage by this deed on the conditions mentioned in the deed. Condition no.6 is also very relevant in which she has stated that if either of the parties filed a divorce case in the Court, then another party will give consent to the divorce without making any objection.

27. It is not on record as to whether any suit for divorce was filed by Smt. Rani or not. In absence of any document and decree of divorce by the court, it can safely be presumed that no such application was moved by either of parties before the competent court for dissolution of marriage. In view of this, the only evidence of divorce is the document Annexure 5. This document has not seen the light of day during any divorce proceeding. Hindu Marriage Act does not recognize any divorce of such type. It has also not been averred and proved that there was such custom in the society of parties to recognize such type of divorce.

28. In the absence of any custom and in absence of any decree for divorce, it cannot be said that marriage between Alok Berman and Smt. Rani was dissolved, which goes to show that Alok Berman was still legally married husband of Smt. Rani, who was, admittedly, alive at the time of marriage of Smt. Kiran Dhar with Alok Berman, and the marriage between them was not annulled as per law.

29. In view of Sections 5 (1) and 11 of Hindu Marriage Act and also in view of decision of Apex Court in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another (supra) the marriage between Smt. Kiran Dhar and Alok Berman is void ab initio, and she is not entitled to maintenance.

30. It is also clear from the decision of Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another (supra) that even if the second wife (Smt. Kiran Dhar) was not aware of first marriage of her husband with another woman, she is not entitled to any maintenance.

Smt.Kiran Dhar vs Alok Berman on 14 May, 2014

Citations: [2015 DMC ALL 2 357], [2014 ALLCC 86 807], [2015 ACR 1 945], [2014 ALR 106 405], [2015 CRIMES ALL 1 607], [2014 SCC ONLINE ALL 15005], [2015 ALL LJ 1 391], [2014 AIC 142 877], [2015 HLR 2 522]

Other Sources:

https://indiankanoon.org/doc/187951850/

https://www.casemine.com/judgement/in/56b492ff607dba348f003b0a

https://www.courtkutchehry.com/Judgement/Search/AdvancedV2?docid=158933

Shades of Knife

True Colors of a Vile Wife

Tag: Maintenance denied in a Null and Void ab Initio Marriage

Krishnaveni Rai Vs Pankaj Rai and Anr on 19 Feb 2020

Kiran Dhar Vs Alok Berman on 14 May, 2014