This is defendant's appeal. The respondents filed O.S. No. 155 of 1978 in the Court of the Munsiff, Basavakalyan, under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as H.A. & M. Act) claiming maintenance from the defendant.
2. The basic facts in the plaint are :- Respondent-1-plaintiff-1 is the married wife of the defendant-appellant and Respondent-2 is the minor daughter of plaintiff-1 and the defendant.
3. The defendant contended that he had married one Sarjabai in 1964 and after her death, he married one Ranjanabai in the year 1967. As she had not yet attained puberty, she was not brought home. Plaintiff-1 was acquainted with him. Intimacy developed between them and the villagers insisted that he must marry plaintiff-1. He married her according to customary ceremonies and rites. Plaintiff-2 is his daughter by plaintiff-1. In view of the fact that his marriage with plaintiff-1 had taken place during the subsistence of the marriage between him and Ranjanabai during her life (Ranjanabai is still alive), his marriage with plaintiff-1 is void under Section 5(i) of the Hindu Marriage Act (hereinafter referred to as.H.M. Act). Hence plaintiff-1 is not entitled to be maintained by him as of right and the suit filed by her is not maintainable.
4. The Trial Court has recorded a finding, after appreciating the evidence, that the defendant had established that he had married Ranjanabai after the death of Sarjabai and during the subsistence of that marriage he had married plaintiff-1 and therefore the marriage between plaintiff-1 and the defendant is void. Thereafter, it has proceeded to apply the law as laid down in C. Obula Konda Reddy -v.- C. Pedda Venkata Lakshamma and hold that the suit was maintainable It has granted Rs. 100/- per month for maintenance of plaintiff-1 and Rs. 45/-towards maintenance of plaintiff-2. The defendant preferred R. A. No. 79 of 1981 and the plaintiffs preferred R.A. No. 15 of 1982, in the Court of the Civil Judge, Bidar. In their appeal, the plaintiffs claimed enhancement of maintenance. In his appeal the defendant contended that the decree passed by the Trial Court was not sustainable in law. The lower appellate Court has disposed of the appeals, without recording any finding on the question whether the defendant had married plaintiff-1 in contravention of Section 5(i) of the H.M. Act. According to the lower appellate Court even if the marriage is considered to be void, plaintiffs have to succeed in view of C. Obula Konda Reddy's case1. It has allowed the appeal of the plaintiffs and enhanced the maintenance of plaintiff-1 to Rs. 125/- per month and that of plaintiff-2 to Rs. 75/- per month. R.A. No. 79 of 1981 filed by the defendant has been dismissed.
5. This second appeal is directed against the said judgments and decrees. It has been admitted for consideration of the following substantial questions of law, as formulated at the time of admission:
1) Whether in view of plaintiff-1's case that she was married to defendant some ten years before the institution of the suit O S No. 155/1978, during the lifetime of the second wife of the defendant, would she be a Hindu wife within the meaning of Section 18(1) and (2) of the Hindu Adoption end Maintenance Act ?
2) If she was married to the defendant during the life time of his second wife, would she be entitled to maintenance under Section 18 of the Hindu Adoption and Maintenance Act ?
6. Sri M. Mahableshwar Goud, Learned Counsel for the appellant, submitted that the appeal is restricted to the claim of plaintiff-1 only and argued that it was the duty of the lower appellate Court to record a finding on the question whether plain tiff-1's marriage with the defendant was or was not hit by Section 5(i) of the H.M. Act. He urged that a direction be given for recording such a finding. He pointed out that in case such a finding is recorded in favour of the plaintiffs, their suit under Section 18 of the H.A. & M.Act would be maintainable and if not it may not be maintainable.
7. Sri M. Ram Bhat, appearing for respondents-plaintiffs, on the other hand, argued that even if the marriage of plaintiff-1 is hit by Section 5(i) of the H.M. Act, this suit is maintainable as held in C. Obula Konda Reddy's1 case and also in Shantaram Tukaram Patil and anr. -v.- Smt. Dagubai Tukaram Patil and ors. .
8. The arguments urged by the Counsel call for interpretation of Sections 5, 11 and 25 of the H.M. Act, on the aspect whether Section 25 of the Act confers a right on plaintiff-1 even if the marriage of plaintiff-1 with the defendant is declared void in view of Section 5(i) of the H.M. Act. This Court felt that the decision might lead to consequence of considerable impact. Therefore, with the consent of Sri M. Mahableshwar Goud and Sri M. Ram Bhat, this Court invited the members of the Bar who were interested to address arguments and to participate in this appeal. Sri V. Krishna Murthy, Senior Advocate and Sri N.A. Mandgi, Advocate, devoted part of their busy time in studying various aspects pertaining to this question and ably argued and assisted the Court. The gist of their arguments will be shortly narrated. But, before proceeding to do so, this Court wishes to place on record its deep appreciation of the assistance rendered by them.
9. The argument of Sri V. Krishna Murthy is based on the principle that in the case of a wife pre-existing right to claim and receive maintenance is a must in law. He argued that when Section 5 of H.M. Act declares the marriage between plaintiff-1 and the defendant void, the marriage is ipso jure void. Hence, even if the requisite Hindu ceremonies had been performed, the marriage became non-est and did not secure legal status of a wife to plaintiff 1 and she had no right to claim and receive maintenance. He further argued proceeding on these lines, that such a right must be existing till a decree under the provisions of H.M. Act is passed and because of the decree so passed the status as wife must get extinguished and then only the ingredients of Section 25 of the H.M. Act would be satisfied. According to him, the use of the words "husband and wife" in Section 25 of the H.M. Act supported this argument and conclusion and therefore on a decree being passed in a petition under Section 11 of the H.M. Act, the so-called wife would not be entitled to claim and receive maintenance. When that is so, no question of such a so called wife being conferred with a right to claim and receive maintenance under Section 25 of the H.M. Act can arise and muchless in any other proceeding or suit. He strongly relied or A.P.K. Narayanaswami Reddiar -v.- Padmanabhan (minor) and Ors. and disagreed with the views expressed in the decisions in Dayal Singh -v.- Bhajan Kaur Govindrao Ranoji Musale -v.- Sou. Anandibai and Anr. Smt.
Rajeshbai and Ors. -v.- Smt. Shantabai and Shantaram Tukaram Patil and ors. It may be stated here that he is supported by the decision in A P.K. Narayanaswami Reddiar.
10. Sri N.A. Mandgi, learned Counsel, argued that H-A. & M.Act codifies the Hindu law on Adoption and Maintenance and makes the provisions in that Act over-ride any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act, and any other law in force immediately before the commencement of the Act, by stating so in Section 4 of H.A. & M.Act. Therefore, Section 18 of the H.A. & M. Act. would necessarily mean that only a wife who continues to have that legal status has the right to claim and receive maintenance provided she satisfies the conditions laid down therein. He made it clear by stating that Section 18 of the H.A. & M.Act does not permit a divorced wife or a wife whose marriage has been annulled by a decree of nullity or declared void by a decree of nullity to claim and receive maintenance. According to Sri N.A. Mandgi, the H.M. Act codifies the law on Hindu Marriage and therefore deals with all aspects about the Hindu Marriage and its incidents. His exposition is that Section 25 of the H.M.Act not only deals with passing of all the decrees under the provisions of the Act, but also makes provision regarding the incidents arising on the passing of the decrees. The words "any decree" occurring in Section 25 of the H.M.Act cannot be given a restricted meaning so as to exclude a decree of nullity either contemplated under Section 11 or Section 12 of the H.M.Act. Plain reading of Section 25 of the H.M.Act, according to him shows that at the time of passing a decree or at any time subsequent thereto, the spouse concerned (stated as husband or wife in the Act) is given a right to make an application claiming maintenance, for adjudication by the Court exercising jurisdiction under that Act (hereinafter referred to as Matrimonial Court). Sri N.A. Mandgi's argument further is that this is a special provision in the Act. It provides for a specific right which arises under the conditions enumerated in the provision, the remedy and the forum to grant relief. When that is so, such a spouse has to claim such a relief in accordance with the provisions of Section 25 of the H.M. Act and it is not open to such spouse to claim maintenance in any other proceeding even if the question of declaring the marriage void in view of Section 5(i) of the H.M. Act arises for consideration in that proceeding i.e., in the ordinary Court.
11. One more aspect is available for consideration as expressed by V B. Raju, J. in State of Gujarat -v.- Chandramani Shanker Jadhavlal Sanghvi and ors. . This decision is cited in Dayal Singh's
case4 and Narayanaswami Reddiar's case8, in support of the proposition that Section 25 of the H.M. Act applies to all actions and proceedings under the Act, whether they be for judicial separation or dissolution of marriage or for decree of nullity. Thorough reading of this decision shows that if an application is given subsequent to the passing of the decree for divorce or decree of nullity annulling the marriage or a decree of nullity declaring the marriage void, an order for payment of alimony would be outside the scope of Section 25 of the H. M. Act, as to be entitled to maintenance even after a decree under the provisions of the H.M. Act a wife has to have existing legal status as a wife. Therefore, maintenance under Section 25 of the H.M. Act can in law be granted only on the passing of a decree for judicial separation or for restitution of conjugal rights. It may be remembered in this connection that the aspect argued by Sri V. Krishnamurthy is slightly different inasmuch as it is based on the principle that but for the passing of the decree under the Act the parties ought to have been husband and wife. That view point would make granting of alimony possible even when a decree for divorce is granted while the same is ruled out by the decision of the Gujarat High Court7.
12. Section 5 of the Hindu Marriage Act reads as follows :
Section 5. Conditions for a Hindu Marriage :
A Marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely :-
(i) neither party has a spouse living at the time of the marriage ;
(ii) at the time of marriage, neither party :-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind ; or
(b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children ; or
(c) has been subject to recurrent attacks of insanity or epilepsy.
(iii) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage ;
(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two ;
(v) the parties are not SAPINDAS of each other, unless the custom or usage governing each of them permits of a marriag between the two.
Section 11 of the Hindu Marriage Act reads as follows :
Section 11. Void marriages :- 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.
13. So far as the marriage solemnized between two Hindus when one of the parties had a spouse living at the time of marriage is concerned, Section 11 of the H.M. Act clearly renders that marriage void. There can also be no doubt that such a marriage is void ipso jure.
14. It is plain that though the statute renders such a second marriage void ipso jure, a party to the marriage is enabled to petition the Matrimonial Court requesting that Court to pass a decree of nullity declaring the marriage void provided it is presented against the other party. The words "against the other party" were introduced by Section 5 of Marriage Laws (Amendment) Act, 1976 It is well settled that if anything is statutorily declared as void, it is deemed to be non-est and parties have every right to ignore it. Ordinarily there is no need to approach a Court praying for a decree declaring such a thing as void. Therefore, it will have to be held that a specific relief is provided in Section 11 of the H.M.Act for this purpose. This relief is comparable to the reliefs provided in Chapter V, of the Specific Relief Act, 1963 which relate to both void and voidable transactions. What are voidable marriages are enumerated in Section 12 of the H.M. Act. A petition for a decree of nullity annulling such a voidable marriage is provided in Section 12 itself.
15. The words "against the other party" occurring in Section 11 of the H.M. Act necessarily lead to the conclusion that the decree of nullity declaring the marriage void has to be passed in the presence of both the parties to the marriage hit by Section 5(i), (iv) and (v) of the H.M. Act. The controversy in this behalf existing, in view of the various decisions rendered prior to the amendment of Act of 1976, has been set at rest by introducing the words "against the other party" in Section 11 of the H.M. Act. When a petition under Section 11 of the H.M. Act is filed, the other party will be called upon to appear and therefore has a right to resist it. If the other party happens to be a wife, the wife has an opportunity to show that there was no spouse of the petitioner-husband living at the time of her marriage. If the finding on fact goes against her, then by virtue of Section 5 of the H.M.Act, the Matrimonial Court can declare the marriage void and pass a decree of nullity declaring the marriage void.
16. At this stage, it would be proper to consider the provisions of Section 25 of the H.M. Act which reads as follows :
Section 25 Permanent alimony and maintenance.--
(1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary by a charge on the immovable property of the respondent.
(2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under Sub-section (1 ), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just.
(3) If the Court is satisfied that the party in whose favour an order has been made under this Section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the Court may deem just.
For the present, it would be necessary to concentrate on Section 25(1) of the H.M. Act only. What is found therein is: -
(1) A decree (any) contemplated by provisions of the Act should be passed by the Matrimonial Court ;
(2) An application for granting maintenance and support should be made by a spouse who is a party to the decree either at the time of passing of the decree or at any time subsequent thereto (no period of limitation is provided).
The Matrimonial Court is given the power to pass an order against the respondent in the application so made to pay to the applicant, may be husband or wife, gross sum or monthly or periodical Sum for maintenance and support but for a term hot exceeding the life of the applicant and if a Matrimonial Court finds it just, it has the power to secure the payment so ordered to be made by keeping a charge on the immovable property of the respondent to the application.
17. In a proceeding for a decree of divorce or for a decree for restitution of conjugal rights or for judicial separation, the parties thereto are, in law, husband and wife and such legal status existed between them. A marriage though solemnized according to Hindu customary ceremonies and rites, is declared void by Section 11 of the H.M. Act. There would not be subsisting legal status as husband and wife between the parties. Such a wife who is called 'illegitimate wife' by Masodkar, J., in Rajesh Bai's case6--if that be so, the husband concerned may have to be characterised as an illegitimate husband--cannot at all maintain a proceeding under Section 18 of the H.A & M. Act. Even if such a wife is considered as Avaruddha stree or exclusively kept mistress or concubine, she Would not have any right to claim and receive maintenance-which she bad earlier to 21-12-1956 the date of passing of the H.A. & M. Act in view of the over riding provisions in Section 4 of H.A. & M Ac. But that happens only if a woman becomes an Avaruddha stree after 21-12-1956. Therefore, it has to be held that a wife whose marriage is statutorily declared void, does not, under H.A. & M. Act have any right to claim and receive maintenance which she might have otherwise had. But after such declaration is made by the statute can she have such claim in view of Section 25 of the H.M. Act ? It is this aspect that has been put in the forefront in the matter of interpreting and understanding Section 25 of the H.M. Act. As already pointed out V.B. Raju., J. has taken the view that Section 25 does not confer any right on any person but only empowers the Matrimonial Court to pass an order for maintenance in cases of two kinds of the decrees only. Those decrees being for restitution of conjugal rights or for judicial separation. Similarly, Sri V. Krishnamurthy, Senior Advocate, has advanced the view that even a wife concerned in a divorce proceeding would be entitled to claim and receive maintenance under Section 25 of the H.M. Act on a decree being passed therein as she had such a pre-existing right.
18. This takes me to the intention of the Legislature and the object of Section 25 of the H.M. Act bearing in mind the scheme and other provisions of the H.M. Act. I have no doubt in my mind and there cannot according to me, be any dispute that the H.M. Act has codified the law relating to the marriages between two Hindus, severance of such marriages and incidences arising out of such severance of marriages.
19. Sri V. Krishnamurthy drew support from the words ''either the wife or the husband" occurring in Section 25 of the H.M. Act. According to him, these words should be given the legal meaning. A wife will be wife and husband will be a husband in the legal sense if they are legally wedded. If such a wedlock is declared void, in the case on hand by Section 11 of the H. M. Act, they cannot be called wife and husband in the legal sense. It may straightaway be stated that there can be no quarrel with this proposition of law. But the question is whether the legislature while using these words intended that strict legal meaning should be attached to these words ?
20. In case the Legislature had the intention that the words "any decree" occurring in Section 25 of the H.M. Act should mean only two kinds of decrees, namely, for restitution of conjugal rights and judicial separation, there was no need for it to adopt such a circuitous way of expressing that intention by using the words "either the wife or the husband." The Legislature would have made its intention clear by introducing the following (except on petition under Section 11) immediately after the words "at the time of passing any decree" in Section 25 of the H.M. Act. The Legislature has adopted this way of expressing its intention in Section 23(1)(c) of the very Act, That provision reads as follows :
"Section 23. Decree in proceedings :
(1) in any proceeding under this Act, whether defended or not, if the Court is satisfied that :
(a) ... ... ...
(b) ... .... ....
(bb) ... ... ...
(o) the Petition not being a Petition presented under Section 11 is not presented or prosecuted in collusion with the respondent; and...."
Therefore, I am of the considered view that, to understand the words "any decree", to mean only some kinds of decrees and not all decrees under the H.M.Act, would amount to introducing words or expressions in the provisions in support of the conclusion that the words- "either the wife or the husband" are to be understood to convey the meaning in the strict legal sense. The word "wife" must be understood to mean the person who calls herself wife or who is called as wife in that proceeding and the word "husband" must be understood to mean the person who calls himself a husband or who is called a husband in that proceeding.
21. In this connection, Sections 26 and 27 of the H.M. Act may be advantageously looked into. They read as follows :
Section 26. Custody of children :- In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance, and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by Petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made
Section 27. Disposal of property :- In any proceeding under this Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.
The use of the words "In any proceeding under this Act" in Sections 26 and 27 of the H.M.Act and the words "any decree" in Section 25(1) of the H.M. Act is very significant. The words "either the wife or the husband" employed in Section 25(1) are not employed in Section 26. Though under Section 25 the Matrimonial Court exercises power of granting maintenance only on its passing a decree, under Section 26 it exercises power even during the pendency of any proceeding before it. These aspects leave no doubt in my mind that Sections 25, 26 and 27 of the H.M. Act embrace all proceedings before the Matrimonial Court and the decrees passed by it.
22. The consequence that follows from the preceding paragraphs is that Section 25 of the H.M. Act entitles the woman who calls herself a wife, even in a petition under Section 11 of the Act, to claim maintenance by filing an application and empowers the Matrimonial Court to consider that claim and grant the relief to which she may be entitled to. This is a right which was and is not at all available to her under any other provision of law. This is a specific relief given to her. In this context, it is to be particularly noted that this relief is available to a husband also. That is an entirely new concept to the Hindu law as in force prior to 21-12-1956, the date H.A. & M. Act came into force and also existing after coming into force of the said Act as there is no provision in H.A. & M. Act entitling a husband to claim and receive maintenance from his wife. Hence, it must be concluded that such relief is given for the first time to such persons by Section 25 of the H.M.Act.
23. At this stage, the question arises whether the said right available to a party to a decree passed, even under Section 11 read with Section 25 of the H.M. Act can lawfully be agitated in any other proceeding wherein a declaration that a marriage is void is called for. This question did arise for consideration in Narayanaswami's case3. But as already pointed out, the Division Bench look the view that Section 25 of the H.M. Act did not confer any such right. In that view of the matter, the question was not decided.
24. In the decision in Govindarao's case5 an application claiming maintenance was filed under Section 25 of the H.M. Act after a decree of nullity declaring the marriage void, was passed. Maintainability of the application was questioned. Kania, J., as he then was, held it was maintainable. This decision is approved in Rajeshbai's case6 while considering the question of conferment of right by Section 25 of the H. M. Act. The Division Bench of the Bombay High Court has in Shantaram's case2 also accepted, with approval, the decision in Govindarao's case5.
25. In Smt. Rajeshbai's case6 Masodkar, J., has held that the right conferred under Section 25 of the H.M. Act entitles the party concerned, in any proceeding wherein there has to be a declaration of the marriage as void and the Court has the power under Section 151 of the Code of Civil Procedure to grant the relief. The very same question was considered by the Division Bench in Shantaram's case2. The Division Bench has approved the conclusion of Masodkar, J., but has observed as follows :
"The inherent powers of a Court are in addition to and complementary to the powers expressly conferred upon it by other provisions of the Civil Procedure Code. They are not intended to enable a Court to create rights in the parties, but they are meant to enable the Court to pass such orders for the ends of justice as may be necessary considering the rights which are conferred upon the parties by substantive law. Judicial activism does not permit a Court to do what in effect is legislation."
The Division Bench has ultimately laid down as follows :
"In regard to a woman whose marriage is void or declared void under the provisions of the Hindu Marriage Act :
(1) Section 25, Hindu Marriage Act, confers upon a woman, whose marriage is void or is declared to be void, a right of maintenance against her husband ;
(6) This right of maintenance can be enforced by her not only in proceedings under Section 25, Hindu Marriage Act, but also in any other proceedings where the validity of her marriage is determined ;
(3) This right can be enforced by her not only during the lifetime of her husband-but also after his death against the property of her husband after his death ;
(4) Of course, this right of maintenance is available only during her life time and ceases if she remarries".
In C. Obula Konda Reddy's case1 Gangadhara Rao, J., while dealing with the matter arising under Section 18 of H.A. & M. Act has observed as follows :
"The 'Hindu wife' contemplated by Section 18 means a Hindu wife whose marriage is solemnised, though void under the Hindu marriage Act. She will therefore be entitled to claim maintenance from the husband."
With due respect, I am unable to agree for the reasons contained in the preceding paragraphs. Further, it has been concluded that even under the provisions of the H.M. Act such a wife would be entitled to an order of maintenance under Section 25 of the H.M. Act and therefore her claim under Section 18 of the H.A. & M. Act is maintainable. Her again, with due respect, I am unable to agree that the right available to her under Section 25 of this H.M. Act can be adjudicated by her in a proceeding under Section 18 of the H.A. & M. Act as it strictly contemplates a proceeding by a wife during the subsistence of her status as a wife.
26. The object of the Hindu Marriage Act as its preamble points out is to amend and modify the law of marriage among Hindus. Section 4 of the H.M. Act states that the provisions of the Act have over-riding effect on any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act and any other law already in force and so on. It is hence clear that this Act is the Code governing Hindu marriages All other laws and concepts in this behalf in so far as they are inconsistent with any of the provisions of this Act shall cease to have effect on the coming into force of this Act, namely, 18-5-1955. Section 5 and Section 6 lay down conditions for a Hindu Marriage and ceremonies for a Hindu marriage. Thereafter, the Act proceeds to deal with law relating to restitution of conjugal rights (Section 9) and judicial separation (Section 10). Further-on nullity of marriage and divorce is provided for in Sections 11 to 13B. Section 14 lays down the period of limitation for presenting a petition for divorce. Section 15 deals with the question as to when divorced persons can marry again. Punishment of bigamy (Section 17) is provided vis-a-vis Section 494 and Section 495 of the Indian Penal Code. Contravention of certain other conditions for a Hindu marriage is made penal Section (18). What is the effect of contravention of the conditions of marriage in Section 5 is found in Sections 11 and 12 of the H.M.Act. Rights of the children born out of marriages which are null and void under Section 11 of the H M.Act are taken care of and provided in Section 16 of the H.M. Act. As already stated in some of the preceding paragraphs, the H.M. Act provides for the following four types of decrees:-(l) Restitution of conjugal rights, (2) Judicial separation, (3) Divorce and (4) Nullity. A decree of nullity may be classified, because of Sections 11 and 12 of the H.M. Act, as (a) a decree of nullity declaring a marriage null and void (Section 11) and (b)a decree of nullity annulling a marriage (Section 12). How one should proceed to obtain the decrees is specifically prescribed in Sections 19 and 20 of the H.M. Act. Provision for counter claim in any proceeding for divorce or judicial separation or restitution of conjugal rights is made in Section 23A of the H.M. Act. It is to be noted here that procedure to obtain decrees for nullity of the marriage either under Section 11 or under Section 12 of the H.M. Act are not included in Section 23A. Thereafter, provisions regarding maintenance pendente lite, permanent alimony and maintenance, custody of children and disposal of property are found in Sections 24, 25, 26 and 27 respectively. Provisions for appeals and for enforcement of decrees and orders are also made in Sections 28 and 28A of the H.M. Act.
27. The scheme of the Hindu Marriage Act as noted in the preceding paragraph, the subjects dealt with by the different provisions and the effect of Section 4 of the H.M. Act leaves no doubt in my mind that the Act not only amends and codifies the law relating to marriage but also of the incidences arising out of the marriage among Hindus. As already noted rights regarding claim of maintenance which were not hitherto available to either of the spouses have been made available on a decree being passed under the Act (Section 25). An entirely new right, i e., a husband being enabled to claim maintenance on a decree under the Act being passed, is created (Section 25). What should be the contents of the petition for obtaining a decree under the Act (Section 20), the forum to which such petition is to be presented, special provision relating to trial and disposal of the Petition under the Act (Section 21B) and the decrees to be passed in the proceedings (Section 23) are specifically prescribed. Hence, it can be stated without any hesitation that the whole gamut of law relating to marriages and the incidences arising out of marriages amongst Hindus is covered by the Hindu Marriage Act to the exclusion of all the pre-existing texts, rules, customs or usages or interpretation of Hindu law and other laws in force prior to 18-5-1955. Even a new right for claiming maintenance by a husband is, for the first time, created by Section 25 of the H.M. Act. This right of the husband will be available to him only on a decree under the Act being passed. Therefore, it is impossible to hold that such husband could agitate this right, as if it is a substantial right conferred on him, in an ordinary Court of law. When that is so, there would be no understandable reasoning available to hold otherwise in a case of a wife whose claim for maintenance arises, in view of Section 25, on a decree of divorce or nullity being passed.
28. In view of all the aforesaid reasons, I hold that the right of maintenance provided in Section 25 of the H.M.Act is a right created under the Act and therefore the remedy for its enforcement will have to be as provided in the Act itself. The principle of law laid down by the Supreme Court in The premier Automobiles Ltd -v.- Kamalakar Shantaram Wadke and ors. squarely applses. With due respects to the Learned Judges, I venture to disagree with the law enunciated in A.P.K. Narayanaswami Reddiar -v.-Padmanabhan and ors.3, State of Gujarat -v.- Chandramani Shanker Jadhavlal Sanghvi and ors.7, Smt, Rajeshbai and ors. -v.- Smt. Shantabai6 and Shantaram Tukaram Patil and anr. -v.- Smt. Dagubai Tukaram Patil and ors.2.
29. In the case on hand the Court will have jurisdiction and power to grant maintenance to plaintiff-1 only if her marriage is not void in view of Section 5(i) of the H.M. Act. The Trial Court has, on facts, found that her marriage is void. The lower appellate Court has not gone into that aspect as made clear earlier. Therefore, plaintiff-1 cannot be non-suited unless her marriage is void being hit by Section 5(i) of the H.M. Act to hold that her remedy would be under the provisions of the Hindu Marriage Act and not by way of a suit in the ordinary Civil Courts. Hence, the argument of Sri M. Mahableshwar Goud, Advocate, appearing on behalf of the defendant-appellant that the lower appellate Court should be directed to record a finding on this question, has substance.
30. The claim of plaintiff 2 does not arise for consideration in this appeal as Sri Mahableshwar Goud has, at the outset itself, made it absolutely clear that the claim in this appeal is restricted against plaintiff-1 only.
31. In the result, this appeal is allowed against plaintiff-1 respondent-1. The decree passed by the Lower Appellate Court in this behalf only is set aside and the decree passed in favour of plaintiff-2-respondent-2 is confirmed. The matter is remitted, as against plaintiff 1- respondent-1 only, to the Civil Judge, Bidar, with a direction that he should hear the appeal over again from the stage of arguments and record a finding on the question whether the marriage between plaintiff-1 and the defendant is or is not hit by Section 5(i) of the H.M. Act and then dispose of the appeal according to law bearing in mind the law laid down in the body of this Judgment. No order as to costs.