Sri Lila Saikia vs Smti. Sarumai Saikia

S. Haque, J.—Smti. Sarumai Saikia, as legally married wife, obtained maintenance allowance u/s 125 of the Code of Criminal Procedure from the court of the Judicial Magistrate, Nowgong, and the same had been affirmed by the Sessions Judge, Nowgong. Now, Sri Lila Saikia has come up with this petition under provision of Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India.

Learned Advocate Mr. A. Bari Choudhury for the Petitioner argued that the marriage of Smti. Sarumai Saikia with Shri Lila Saikia was void in view of Section 11 read with Section 5(i) of the Hindu Marriage Act of 1955, and, therefore, she was not entitled to maintenance allowance u/s 125. The only point for consideration is whether Smt. Sarumai Saikia would be disqualified from the benefit of Section 125 on the ground that at the time of her marriage, the first wife of Shri Lila Saikia was alive and marriage between them was subsisting. Mr. A.B. Choudhury has referred to the decisions of several cases in support of his argument.

This point arose in the case reported in AIR 1967 Pat 227, in that case, Shrimati Chabbi Chatterjee claimed to be a legally married wife of Shri Banshidhar Jha from 21st July, 1962 and she gave birth of a child in May, 1963, She claimed Maintenance u/s 486 of the Code of Criminal Procedure from her husband Banshidhar Jha. Besides denying the marriage with her, he also pleaded that he had already a lawfully married wife under Hindu law since 1952 and in view of the provisions of Hindu Marriage Act, the marriage, if any, with Chabbi Chatterjee was void ab-initio and therefore, she was not entitled to maintenance u/s 488. The marriage of Smt. Chabbi Chatterjee with Banshidhar Jha was proved in the case. As the trial Court did not give any finding about the earlier marriage of Mr. Banshidhar Jha which he pleaded and led evidence to that fact, so the High Court remanded the case to the trial Court to give a finding whether Mr. Banshidhar Jha had any lawfully married wife living on the date of marriage of Chabbi Chattarjee with him in 1962. It was held if the answer of this question was found to be in the affirmative, then the marriage of Chabbi Chatterjee with Mr. Banshidhar Jha was void in view the provision of Section 11 read with Section 5(i) of the Hindu Marriage Act, and she was not entitled to maintenance as wife u/s 488 Code of Criminal Procedure.

Section 11 of the Hindu Marriage Act lays down that any marriage solemnised after the commencement of the Hindu Marriage Act of 1955 shall be null and void if it contravenes the condition specified in Section 5(i) of the Act. Such marriage stands as void ab-initio even without any declaration by a decree of nullity. Section 5(i) of the Hindu Marriage Act lays down:

a marriage may be solemnised between two Hindus, if neither party has a spouse living at the time of marriage.

The word ''spouse'' used in Section 5 means lawfully married husband or wife; and, therefore, before a valid marriage can be solemnised, the parties to the marriage must be either single or divorced or widow or a widower.

Wife''s right to maintenance was also a subject in the case reported in Naurang Singh Chuni Singh Vs. Smt. Sapla Devi, The Magistrate granted maintenance allowance u/s 488 to Smt. Sapla Devi holding her to be a legally married wife of Shri Naorang Singh, the Petitioner before the High Court. It was found that Naorang Singh was first married to Smt. Kapla Devi about 12 years ago and that marriage still subsisted, when he took Smt. Sapla Devi as his second wife. Disagreeing with the Magistrate, the Sessions Judge was of the opinion that the second marriage, in the life time of the first wife, was void under suction 3 and 11 of the Hindu Marriage Act, and for which Smt. Sapla Devi was not entitled to maintenance. Hence, the Sessions Judge made the reference to the High Court. As to the object of maintenance proceeding and persons, entitled to that, the pronouncement was as:

The object of a proceeding for maintenance is to prevent vagrancy by compelling the husband or father to support his wife or child unable to support itself. These provisions are not in the nature of penal provisions but are only intended for the enforcement of duty, a default in which may lead to vagrancy. The real object is to provide food, clothing and shelter to deserted wife and children. A plain reading of section (488) indicates that only a legally wedded wife or a legitimate or illegitimate child could claim a maintenance from the husband or father as the case may be. It is clear that a child whether legitimate or illegitimate is entitled to claim maintenance from the father, if other conditions required under law are satisfied. But against a husband, maintenance could be claimed only by his wife. No specific provision has been made in the case of a wife whose marriage has not been solemnised according to the requirement of law. Though an illegitimate child is entitled to maintenance, but no illegitimate wife has been gives any such right under the law.

Finally held that marriage of Sapla Devi with Naorang Singh, in the life time of his first wife, was null and void under the Hindu Marriage Act and so, she was not entitled to claim maintenance from her husband Naorang Singh u/s 488.

Mr. A.B. Chaudhury has referred to another instance of such nature reported in Bai Bhanbai Mavji Vs. Kanbi Karshan Devraj and Another, It was clearly stated therein that the term ''wife'' contemplated in Section 488 was the ''lawfully wedded wife'' and the term at any rate did not cover any other women much though she was living with a man as if she was his wife. When the term ''wife'' is used, it has to be taken as a legitimate wife by reason of a valid marriage according to the law governing the parties. No illegitimate wife is given any right to claim maintenance u/s 488 although the same was extended to illegitimate child. It was held that a woman who has contracted second marriage during subsistence of her first marriage, was not entitled to claim maintenance from her second husband as her marriage with him was void in view of section II read with Section 5(i) of the Hindu Marriage Act.

The distinction between ''void marriage'' and ''voidable marriage'' may be summarised. A marriage void ab-initio does not change the status of parties. It does not create any right or obligation between the parties. They may be criminally prosecuted as mentioned in Section 17 of the Hindu Marriage Act. A void marriage is non-existent in the eye of law, and a declaration for a decree of nullity u/s 11 is merely optional one. Where as a voidable marriage stands valid and binding and continues to subsist as such for all purposes unless a competent court annuls it by a decree u/s 12 of the Hindu Marriage Act. Parties to a voidable marriage are not criminally liable and as such out of the purview of Section 17. Since, a voidable marriage is valid until annulled by a decree of nullity, so annullment is necessary u/s 12.

The old Section 488 is now corresponds to Section 125 of the Code of Criminal Procedure, 1973. Now in Section 125, the term ''wife'' also includes a woman who has been divorced by, has or obtained a divorce from, her husband and has not re married.

Similar question was involved in the case reported in AIR 1983 CriLJ 259 (Bombay High Court Full Bench). The basic facts of the case were that marriage of Smt. Yumuna Bai with Anantarao was performed in June, 1974 after undergoing all necessary rites of Hindu law and the marriage was duly registered as required under H.M. Act. But, at the time of the said marriage, Anantarao''s first wife Lila Bai was alive and their marriage was subsisting. On the face of these facts, the Full Bench had held that the marriage between the parties was null and void u/s 11 of the Hindu Marriage Act for contravening the condition of Section 5(i) of the Act, and as such, Smt. Yumuna Bai was not entitled to maintenance u/s 125 from Anantarao. It is also held that the term ''wife'' in Section 125 only contemplates legally wedded wife''. The relevant decisions appear in para 26 of the judgment and which run as:

In this case the personal law of the parties regarding marriages was as laid down in Hindu Marriage Act, 1955. Since, admittedly, at the time of marriage between the parties one of the conditions for the validity of the marriages, as contained in Section 5(i) of the Act was contravened or not complied with, the said marriage was, u/s 11 of Act, null and void, as if it had not taken place. In the absence of such a legal and valid marriage a mere fact that the parties had lived together, as husband and wife to the knowledge of the public or otherwise, as contended by the learned Counsel for the Petitioner and suggested in the Referring Order, could not confer on such a woman a status of a ''wife'', however, otherwise one may term such a woman. The fact of the parties having lived together as husband and wife for a long time would be relevant to raise only a presumption in law of they being husband and wife. However, even such presumption itself was rebuttable on proof of marriage being invalid. That question, however, would not arise in this case. On the facts, therefore, the Petitioner could not be considered to the ''wife'' of the Respondent to claim maintenance u/s 125.

The facts of the present case in hand are that Shri Lila Saikia had lawfully married his first wife, but they had no issue for several years. So, both decided that Lila Saikia should marry another woman in order to get children, and with that view both jointly negotiated with Smt. Sarumai to contract marriage with Lila Saikia and Smt. Sarumai agreed. Thus, the marriage between Smt. Sarumai and Lila Saikia was solemnised by observing all necessary rites under Hindu Law. The personal law of the parties regarding marriage is as laid down in Hindu Marriage Act, 1955. Since, admittedly, at the time of marriage between Smt. Sarumai and Shri Lila Saikia, the first wife of Lila Saikia was alive and the marriage between them was subsisting, therefore, the marriage between Sarumai and Lila was null and void u/s 11 of the Hindu Marriage Act for contravening the condition u/s 5(1) of the Act. It is not necessary that the said marriage is required to be declined as null and void by a decree, because the marriage was void ab-initio. Such declaration by a decree is an option of either party of that void marriage. Smt. Sarumai Saikia was not a lawfully married wife and is not entitled to maintenance allowances u/s 125 Code of Criminal Procedure.

Learned Counsel Mr. B. Sarma on, behalf of Smt. Sarumai Saikia submitted that even a divorced woman is recognised as wife for the purpose of maintenance u/s 125 Code of Criminal Procedure, so, it will not be proper to deprive her from the benefit of Section 125. There is no legal force in this submission. The marriage of Smt. Sarumai with Lila was void ab-initio. She has not attained the status of a lawfully married,wife. The ''term wife'' in Section 125 contemplates only legally wedded wife. A ''divorced woman'' means that initially she was a legally wedded wife. The question of divorce either by a decree or otherwise will not arise unless initially the marriage was legal and valid. The question of a divorced woman will never arise in case where the decree of nullity is passed for either the marriage being null and void or voidable. So, ''divorced woman'' within the terms ''wife'' in Section 125 only means an initially lawfully wedded wife. Again, the inclusion of a divorced woman in the term ''wife'' which was not there before (Under Section 488), clearly shows that the term ''wife'' only means a legally wedded wife.

For the above reasons and findings this petition of Lila Saikia must succeed. The judgment and order of the Magistrate and as well as of the Sessions Judge, Nowgong in M.R. Case No. 208/79 and C.M. 58 (N-3) of 1983 respectively are set aside. In the result, the M.R. Case No, 208/79 u/s 125 of the Code of Criminal Procedure stands rejected.

This revision is allowed. Rule is made absolute. No order is passed as to the costs.