Soumyanarayanan vs Jayalakshmi Ammal

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 contention of the learned counsel for the appellant that it is a void marriage

and that the provisions of Section 25(J) 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 degrees 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 marriages 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 re-

marriage 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.