Soumyanarayanan vs Jayalakshmi Ammal

P.S. Kailasam, J.—The husband against whom an order for maintenance has been passed on a petition presented by the wife, who

succeeded in her petition for annulment of the marriage, is the appellant. The marriage was annulled by a decree on a petition filed by the wife on

the ground that the husband was impotent from the date of the marriage. Subsequent to the annulment of the marriage, the wife filed a petition for

maintenance u/s 25 of the Hindu Marriage Act. The maintenance was ordered.

The point that has been taken by the learned Counsel appearing for the husband is that Section 25 of the Hindu Marriage Act is not applicable

to a marriage which has been annulled by a decree of nullity and which thereby becomes void, for, according to the learned Counsel, a void

marriage never existed, at all. The learned Counsel further contends that the jurisdiction of the Court u/s 25 of the Hindu Marriage Act is limited

only to marriages which are voidable and not void ab initio. Section 25 (1) of the Hindu Marriage Act provides:

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, while the applicant remains unmarried, pay to

the applicant for her or his maintenance....

Therefore, an application u/s 25 is maintainable before any Court exercising jurisdiction under the Act, and that application may be filed at the time

of passing of any decree or at any time subsequent thereto. The section is wide enough to enable the Court exercising jurisdiction under the Act,

that is, under any of the provisions of the Act. Section 12 relates to annulment of a marriage by a decree of nullity on the ground that the

respondent was impotent at the time of the marriage. When a Court passes an order u/s 12 (1) of the Act, it is certainly an order passed in

exercise of its jurisdiction under the Act. Therefore, there is very little force in the contentions of the learned Counsel for the appellant that it is a

void marriage and that the provisions of Section 25 (1) enabling the wife to get maintenance till her remarriage would not be applicable. Void

marriages are referred to in Section 11 of the Act. Under that section, a marriage will be declared null and void by a decree of nullity, if it

contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of the Act. Clause (i) of Section 5 relates to cases where a

party has a spouse living at the time of the marriage; Clause (iv) relates to marriages within the prohibited decrees of relationship; and Clause (v)

relates to marriages between sapindas, which are prohibited. None of these clauses are applicable to the present case. So, the provision relating to

void marriage will not apply. Annulment of a marriage by a decree of nullity on the ground of impotency at the time of marriage is stated to be

voidable u/s 12 (1) of the Act. The learned Counsel is therefore not right in calling the present marriage as a void marriage. Further, Section 25

does not refer to any remarriage at all. Even if the learned Counsel''s contention is accepted and the marriage is treated as void and it is further held

that there was no marriage at all, still there can be no objection u/s 25 (1) of the Act to grant maintenance so long as the wife remains unmarried.

We feel that this appeal is totally devoid of merits. It is accordingly dismissed with costs.