Surendran vs Najima Bindu

R. Basant, J.—Is the wife in a voidable marriage, annulled u/s 12 of the Hindu Marriage Act entitled to claim maintenance u/s 125 of the Code of Criminal Procedure?

(ii) Can the statutory compassion in favour of the woman in distress in a terminated marriage and the legislative anxiety and concern to prevent vagrancy against woman persuade Courts to bring such a woman in an annulled marriage within the sweep of the definition of deemed wife in Explanation (b) to Section 125, Cr. P.C.?

(iii) Can the changing norms in society evidenced by subsequent statutory instruments persuade the Courts to expand entrenched concepts in society?

This theme and these questions fall for our consideration in this case.

We must acknowledge the efforts of Mr. P.K. Mohanan (Palakkad) and Mr. Sunil Nair, the learned Counsel for the parties and Dr. Sebastian Champappilly who was requested to assist us as amicus curiae. Resolution of this controversy has, by no means, been easy or simple. A lot of debate, contemplation and discussion had preceded. We do, in fact, offer an apology to the learned Counsel that we were obliged to reopen the case and seek their further assistance on a couple of occasions. Before we start the dictation, we place on record our appreciation for the service rendered by the Counsel, particularly the painstaking efforts of the amicus curiae-Dr. Sebastian Champappilly.

To the vitally relevant, crucial and undisputed facts to start with. The claimant/wife and the respondent/husband (we shall refer to them thus in this judgment) had entered matrimony by formal solemnization in accordance with law on 15.7.2002. They are both Hindus and their marriage had been solemnized in due compliance with the requirements of the Hindu Marriage Act. The marriage was short lived. There was acrimony in their matrimony. As early as on 12.11.2002 the wife filed an application u/s 125, Cr. P.C. claiming maintenance for herself. In 2003, she filed a further application u/s 12(1)(a) of the Hindu Marriage Act for annulment of the voidable marriage on the ground that the marriage has not been consummated owing to the impotence of the respondent/husband. Both these petitions were pending before the Family Court, Kannur. The learned Judge of the Family Court by Ext. P1 order dated 28.1.05 allowed the petition u/s 12(1)(a) of the Hindu Marriage Act and declared the marriage to be null and void. By Ext. P2 order which was also passed on the very same date i.e., 28.1.2005 the petition filed u/s 125, Cr. P.C. was allowed with effect from 28.1.2005 and maintenance was ordered to be paid at the rate of Rs. 1,000 per mensem with effect from the date of the order.

We must mention that it is not possible now to ascertain which order (Exts. P1 or P2) was passed earlier. Both were ex parte orders and it is impossible to ascertain now as to which order preceded the other. The fact remains that both Exts. P1 and P2 were accepted by the respondent/husband and the same were not challenged. It may not be inapposite in this context to mention that an earlier application for restitution of conjugal rights appears to have been filed by the respondent/husband before the Family Court, Palakkad, and the same O.P. No. 1054/06, was dismissed by the Family Court by the subsequent order dated 23.6.2006. That order was passed making specific reference to Ext. P1 order of annulment of the marriage.

Subsequently, the claimant/wife filed applications for execution of the order of maintenance passed u/s 125, Cr. P.C. The amounts due under the order were paid without demur by the respondent/husband evidently accepting Ext. P2 order, notwithstanding the annulment of the marriage under Ext. P1.

It is in this context that the claimant/wife filed Ext. P3 application for recovery of the amount of maintenance due under Ext. P2 order for the period from 1.10.2007 to 1.8.2008. She claimed an amount of Rs. 10,000 as maintenance due for the said period of 10 months - at the rate of Rs. 1,000 per mensem.

It is at this juncture that the respondent/husband has come to this Court with this petition. He takes up the contention that Ext. P2 order is void in law in the light of Ext. P1 order annulling the marriage. An order of annulment of marriage terminates the marital tie for all purposes with effect from the date of marriage and after such an order of annulment, no relief can be claimed on the plea that such a marriage existed. It is prayed that the inherent jurisdiction of this Court u/s 482, Cr. P.C. or the jurisdiction under Articles 226/227 of the Constitution may be invoked to ensure that the patently illegal order Ext. P2 is not executed against the respondent/husband. This is the fact scenario in which the present controversy is raised before us. The prayer, in short, is that Ext. P1 order, and the subsequent attempt vide Ext. P3 to enforce that order may be quashed.

We must, at the outset, refer to technical pleas raised by the claimant/ wife. The claimant/wife, first of all, contends that if Ext. P2 order were passed subsequent to Ext P1 order, the respondent/husband had the option in law to challenge the order invoking the revisional jurisdiction of this Court. Having not challenged the same and having paid the amounts of maintenance due under Ext. P2 for some period of time, the respondent/husband cannot now be permitted to challenge, Ext P2 order by attempting to bring the challenge within the purview of Section 482, Cr. P.C. or Articles 226/227 of the Constitution. On the contrary, if Ext. P1 order of annulment were passed subsequent to Ext. P2 order, the option of the respondent/husband was to file a petition u/s 127, Cr. P.C. before the Family Court to modify/cancel Ext. P2 order in the light of the subsequent Ext. P1 order. Having not done the same and having chosen to comply with Ext P2 order all along, it is not open to the respondent/husband now to challenge Ext. P2 order passed as early as on 28.1.2005 in December, 2008 by such a petition u/s 482, Cr. P.C. and/or Articles 226/227 of the Constitution. This is impermissible in law. Order/ procedure and discipline must persuade this Court not to re-open the old and stale challenges which have not been promptly raised in accordance with law. The jurisdiction u/s 482, Cr. P.C. and/or Articles 226/227 of the Constitution cannot be invoked by the litigants who have slept over their rights for a substantially long period of time and have complied with the impugned order without demur all along.

We do not want to hold that the technical contentions raised are not sustainable; but we must take the view that ignoring the technicalities the bull has to be tackled by the horns. It will be idle and improper for any Court to take umbrage on such technicalities and to avoid decision on such a question of moment raised by the respondent/husband. We do, in these circumstances, choose to ignore the technicalities and proceed to consider the question exhaustively on merits.

We now rivet our attention on Section 125, Cr. P.C. It is unnecessary to extract the section in detail. The section deals with the obligation of persons having sufficient means who refuse or neglect to maintain their wives, legitimate or illegitimate children, father or mother. For our purpose in this case we shall pointedly refer to the rights/obligations in respect of the wife alone. Prevention of vagrancy is the signature tune of Section 125, Cr. P.C. Society has to prevent vagrancy. Vagrancy may lead to destitution and may have an adverse impact on the law and order situation. The concern under Chap. IX of the Cr. P.C. is hence undoubtedly the prevention of vagrancy. Legal/moral obligation of the person to maintain his wife is only the jurisprudential justification for the legislative prescription to prevent vagrancy. Whether personal law or the moral code in society (or any particular section of society) obliges a, person to maintain his wife, children, father or mother or not, Section 125, Cr. P.C. mandates that he must maintain them if he has sufficient means and they are unable to maintain themselves. What we would like to emphasise is that the legislative mission and purpose is to prevent vagrancy and that is sought to be achieved by placing on the shoulders of persons having sufficient means, the statutory obligation to maintain their wives, children, father or mother who are unable, to maintain themselves. In a socialist welfare State the State has the obligation as patron patriarch to prevent destitution. State which may not now have the means and schemes to discharge that duty, outsources that obligation by legislation to near relatives having sufficient means. To sum up, the yearning of the State to prevent vagrancy and destitution is the plank, basis or bedrock on which the right/liability u/s 125 rests.

The obligation to maintain the wife was stipulated even u/s 488 of the earlier Code. In 1973 when the Cr. P.C. was exhaustively amended, the Legislature obviously perceived the unfortunate plight of women in terminated marriages who remain unmarried. The legislative concern/ compassion flowing in favour of such wives of terminated marriages who remain unmarried found expression in the expansive inclusion of certain categories of women within the protective sweep of Section 125, Cr. P.C. It is thus that Explanation (b) was introduced by the Parliament in the Code of Criminal Procedure, 1973. This inclusion raised several eye-brows. It will be apposite straightaway to extract Explanation (b) which is crucial for the resolution of the controversy before us. Explanation (b) to Section 125 reads as follows:

Explanation.--For the purposes of this Chapter--

(a)xxxxxx

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."

Unilateral divorcees (wives) whose marriages stand terminated by acts of their husbands and persons whose marriages have been terminated by intervention of Courts at the instance of either spouse, are certainly included within the sweep of the inclusive definition of "wife". By the norms prevalent in society such divorced women (or women in terminated marriages) are not wives as ordinarily understood in language and law. The Legislature by a bold intervention included women of such terminated marriages also within the sweep of the expression "wife" subject to an important rider that they should not have re-married.

What we intend to note is that the legislative compassion was in favour of a woman in a terminated marriage and who has not re-married. We may safely call it the concern in favour of a destitute woman who has no one to depend on after termination of the earlier marriage till she re-marries. It is easy to identify the concern of the Legislature and the malady which the legislature sought to remedy by the enactment of Explanation (b) to Section 125(1), Cr. P.C.

Societal realities cannot be ignored by a Court trying to ascertain the reason or reasons and the meaning of meanings which prompted the Legislature to introduce such an unconventional definition for the ''wife'' u/s 125, Cr. P.C. The Legislature was not evidently concerned with the emancipated Indian women--educated, employed and having properties. They are excluded by one stroke from the operation of Section 125, Cr. P.C. as the compassion of the Legislature flows only in favour of a wife--actual or deemed who is "unable to maintain herself. The legislative compassion, empathy and sympathy was flowing towards that section of feminine humanity in India who following the traditional prescription did not deserve any freedom. She had to depend on her father during childhood, her husband during youth and on her children during old age. She had no right to aspire for freedom. She was a ''sub person'' always in need of support and patronage from another. It is to the unfortunate plight of such deprived, under privileged and marginalised feminine section of humanity that the Legislature addressed itself and conferred the right u/s 125, Cr. P.C by a bold inclusion under Explanation (b). Such a woman whose matrimony has been terminated-- divorced unilaterally or by intervention of Courts and who has not been able to find the successor to whom she can look up for dependence, is the recipient of the legislative compassion by the inclusive Explanation (b) to Section 125, Cr. P.C. In our mind there can be no doubt or confusion on this crucial aspect. The target group of the legislative compassion and concern is thus clearly identifiable. Ascertainment of Legislature intention, though words used-- often inadequate, is the mission of the interpreter/adjudicator. The adjudicator/interpreter shall not be unequal to the task. He should have the constitutional vision He must resonate to the frequency of the legislative idealism. So viewed, the target group identification is crucial.

The Indian State, the functionaries of the State and even citizens have the duty to pursue the constitutional idealism exemplified in the preamble to the Constitution. Every one, the State, its functionaries--the Legislature, the executive and the judiciary and the citizen have all got the obligation to be sovereign/ socialist, secular and democratic. Constitutional socialism is certainly not any competing political ideology. If so, the pluralist Indian Constitution would not have committed itself to any such competing political ideology as a fundamental constitutional value. The constitutional socialism has its foundation on humane humanism which the fundamental duty under Article 51-A(b) commands every Indian citizen to develop. Concern for the weak, compassion for the marginalised, sympathy and empathy for the deprived, helpless and hapless is undoubtedly the signature tune of Indian constitutional socialism. We find the compassion of the socialist Legislature flowing in favour of the deprived section of feminine humanity who are unable to find a Saviour to give them comfort, protection and dignity of life consequent to the unfortunate termination of their matrimony and their inability to get settled in their life thereafter by re-marriage.

How is the legislative prescription in Section 125, Cr. P.C. including Explanation (b) to Section 125, Cr. P.C. to be understood and interpreted by an adjudicator with due constitutional moorings and values. This is the question that calls for consideration.

The Legislature is a body. Its concern and vision are reflected in the words of the Statute. Word and semantics have their limitation. The language of the Legislature is that of the draftsman. No Legislature can use language which covers all situations and can offer precise and specific resolution for the myriad and varied situations that may arise before the adjudicator/interpreter when law actually operates. Inadequacies of language cannot interrupt the flow of the Legislature compassion. That is where the role of the interpreter/ adjudicator comes in. The axiom that the Legislature uses appropriate language and that the intention of the Legislature is fully expressed in the language used in the Statute is trite. That Courts cannot legislate is equally trite. These are doctrines of expediency and not invariable truth. But all this cannot persuade an interpreter to abdicate his jurisdiction and obligation to decipher the meaning of meanings and the reason of reasons. An interpreter must have the trained competence to jump over insignificant fences and lead the polity to the Legislative destinations. An interpreter who succumbs to technicality and throws his hands up too easily lacks the requisite constitutional commitment. He lacks foresight and vision of the promised constitutional and statutory destination. Imperfections and inadequacies of language cannot deter an interpreter when the legislative intentions and purpose are clearly identifiable.

In a situation like this, this Court can certainly draw inspiration from the words of Hon''ble Justice Krishna Iyer in Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others, . We extract the said passage below which can perpetually inspire adjudicators/interpreters struggling to find the meaning of meanings and the reason of reasons. Dealing with the interpretation of Section 125, Cr. P.C. Justice Krishna Iyer observed thus in paragraph-9:

This provision is a measure of social justice and specifically enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that Sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker Sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause--the cause of the derelicts.

(Emphasis supplied)

Arguments have been advanced before us about the manner in which such a deemed inclusive definition of wife has to be understood. We have already noted that wife in language and law does not include a divorced wife (a wife whose matrimony stands terminated either unilaterally or by operation of law and who has not re-married). Legislature has employed the technique of including within the sweep of the expression "wife" in Section 125(1)(a) non-wives who do not ordinarily fall within the meaning of the expression in law and language. It is artificial inclusion of certain persons within the sweep of a definition not justified by the meaning ordinarily assigned to the expression in language and law. There is actually a fiction and deeming pressed into service by the Legislature. To include certain categories of women not ordinarily falling within the sweep of the expression "wife", the Legislature has employed the technique of inclusive fiction. They are not wives stricto senso; but they are included as wives in the definition by the legislature. Can our claimant/wife be included in that target group of deemed wives, women is distress, is the burning concern before us.

As to how an inclusive definition has to be understood, Counsel have advanced detailed arguments. Observations in paragraph-10 in The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, , is pressed into service.

It is obvious that the words, used in inclusive definition denote extension and cannot be treated as restricted in any sense. (Vide: Stroud''s "Judicial Dictionary", Vol. 2, p. 1415). Where we are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of wider denotation.

It is unnecessary to advert to more precedents on this aspect. However we remind ourselves of one subsequent decision in P. Kasilingam and others Vs. P.S.G. College of Technology and others, , where Justice S.C. Agrawal observed that:

the word "includes" when used enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import; but also those things which the clause declares that they shall include.

A literal reading of Explanation (b) might convey that a woman in order to claim inclusion in the sweep of the expression "wife" by the deemed definition must necessarily have been divorced or obtained a divorce from her husband and must not have re-married. What is the sweep of the expression "divorced by or has obtained a divorce from"''. Can by a process of interpretative expansion the wives in annulled marriages also be included within the sweep of Explanation (b)? This is the challenging controversy that is raised before us.

23 It may be apposite in this context to go to the body of Section 125 and the very fundamentals. Liability u/s 125 is only on the husband to maintain his wife. The liability is not on "the spouse" having sufficient means to maintain the other spouse unable to maintain himself/herself. Only the man and not the woman can be made liable u/s 125 to maintain his spouse. It is relevant to note that though the Legislature had cautiously included legitimate as well as illegitimate children within the sweep of Clauses (b) and(c) of Section 125, the Legislature did not choose to include the illegitimate, non-formal or de facto wives within the sweep of Section 125 by specific employment of words. It appears that the expression "wife" used in Section 125 was intended to refer to legitimate/legal wives. That undoubtedly is the interpretation of the Supreme Court in a line of decisions. We may broadly refer to the three mile stones namely Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Another, ; Vimala (K.) Vs. Veeraswamy (K.), and Savitaben Somabhai Bhatiya Vs. State of Gujarat and Others, . The position appears to be well settled. u/s 125 as interpreted in these decisions proof of formal and legal solemnization is necessary to bring a spouse within the sweep of the expression "wife" in Section 125(1)(a). Formal entry to the legal and valid institution of matrimony is essential as per these precedents. Mere relationships in the nature of marriage have to be distinguished from formal and legal marriages. As per the three decisions referred above the former is not entitled to and the latter alone is entitled to claim rights u/s 125, Cr. P.C At a certain point of time in the development of society certainly such insistence on formal solemnization of marriage by performance of rituals became essential to confer on the spouses the status of legally wedded spouses. Marriage is the foundation of family and the most basic of all human institutions in society. The same has to be distinguished from non-formal relationships of expediency. Arrangements for carnal satisfaction--mere satisfaction of physical demand of sexuality have to be distinguished from the formal solemn relationship of marriage. Intention to enter matrimony should be unequivocally declared by formal solemnization of marriage in accordance with personal law. Intention to enter matrimony may be inferred from long cohabitation of parties and acts of parties. But wherever status is in dispute, proof of formal solemnization of marriage in accordance with personal law has to be insisted. This is the irreducible desideratum that Anatrao, Vimala and Savitaben insist.

a knowledge society such insistence on solemnization by rituals will certainly be open to challenge. These rituals of solemnization were earlier insisted traditionally in ancient society to distinguish between a real intention to enter formal matrimony from other non-formal relationships. It may be difficult in a knowledge society to sell the idea that formal declarations in documents including, unquestioned registered documents are insufficient and want of ritualistic solemnization would detract against such intention to enter matrimony formally. Solemnization used to be insisted only as unmistakable expression of intention to formally enter matrimony. Certainly in a knowledge society Courts cannot continue with such ritualistic insistence on performance of rituals for solemnisation. For a modern Indian who has imbibed the constitutional fundamental duty to be reasonable--to develop the scientific temper, humanism and the spirit of inquiry and reform, as insisted under Article 51A(h), such insistence may appear to be empty and hollow. However, the fact remains that the law as it now stands insists oh formal ritual solemnization of marriage in accordance with the respective personal law. Under the secular general law, formal verbal and express written declarations have been held to be sufficient. A right to be irrational in matters of faith cannot obviously be claimed even in our secular republic which tolerates all religious faiths. Bold innovations in law must come in a knowledge society where the citizens right to enter matrimony cannot depend on the involvement of the pundit, monk or Khazi. By giving expression of their unmistakable intention to marry in unquestionable documents it must be possible in a knowledge society for a young man and woman, who do not deny their religion, to enter valid matrimony. We can certainly foresee a future date where emphasis and accent will not be on performance of empty rituals which may not have relevance in the modern society. The search in future will certainly be to unambiguous evidence of intention to create and enter such formal relationship of marriage. Expressed intention in undisputed documents may have to be given due weight undoubtedly in the proof of marriage in future.

The learned ''Counsel for the claimaint/wife and the amicus curiae laboriously contend that distinction must be drawn on the basis of the purpose for which proof of marriage is insisted. The purpose is important. For the purpose of succession and for ascertainment of legal status, totally different considerations may apply as distinguished from mere claims for maintenance, support and alimony. The observations of the Bombay High Court in Bhausaheb @ Sandu v. Leela Bai, 2004 Bombay 253, cited by the learned amicus curiae does appear to be crucially relevant and perfectly acceptable to us:

It would not be permissible to include in the term "wife" or "widow", that relationship which is not recognized by law. However there can be class of persons who are "illegitimate wives or widows" who can be the subject of benefaction of law of maintenance, notwithstanding that eventually their legal status is annulled: For the purpose of the Succession Act and the Maintenance Act the terms "wife and widow" would have a restricted articulate legal meaning; that by itself would not be the position when the matter arises for the purpose of providing the measures of sustenance on considerations of justice and fair play involved and basic to all human and social relations.

(Emphasis supplied)

We find considerable merit in this approach. Ascertainment of legal status for the purpose of success ion, etc., will have to be distinguished certainly from the ascertainment of the legal relationship for the purpose of mere avoidance of vagrancy. Section 125, Cr. P.C. is not in any way concerned with declaration of status. It deals only with the avowed object of preventing vagrancy in the polity. Ascertainment of strict legal relationship is not legally necessary when we consider the object and purpose of Section 125, Cr. P.C.

Winds of change are blowing across our judicial system. The concept that a de facto wife/illegitimate wife so-called is also entitled for maintenance is being progressively accepted. A perusal of the relevant provisions of the Protection of Women from Domestic Violence Act, 2005 (for short ''the DVA'') makes the position eloquent. Monetary relief including maintenance is declared to be available to an aggrieved person u/s 20 of the DVA. An aggrieved person as per Section 2(a) is a woman who is or has been in a domestic relationship with the respondent. "Domestic relationship" is defined u/s 2(f) of the DVA as the relationship between two persons who live or have at any point of time lived together in a shared household when they are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. A shared household is again defined in Section 2(s) of the DVA to mean a household where the aggrieved person lives or has lived in a domestic relationship with the respondent. We need not delve deeper into the provisions of the DVA. The crux of the change brought about by the DVA is that the monetary relief of maintenance can be claimed not only by wives in legal matrimony but also by women related to men through relationships in the nature of marriage also. The law has taken a great stride forward to ensure security for and to prevent vagrancy in respect of such women who have relationships in the nature of marriage with the person against whom the claim is made. Not only those living in such relationship; but also those who at any point of time had lived together in such relationship are also entitled to the monetary relief of maintenance u/s 20 of the DVA.

The concept was well entrenched in our society that maintenance can be claimed only by a legitimate and legal wife and not by a woman who had shared a relationship in the nature of marriage. But changes have come about. Today women who share a relationship in the nature of marriage can also claim maintenance. Meretricious relationships are excluded; but other relationships in the nature of marriage which fall within the definition of "domestic relationships" in Section 2(f) of the DVA are reckoned as sufficient if those in such relationships live or had lived together in a shared household to entitle them to the relief of maintenance u/s 20(1)(d) of the DVA. Entrenched concepts are undergoing transformation/change. We are conscious of the decision in D. Velusamy Vs. D. Patchaiammal, , in which guidelines are given to ascertain whether a relationship not amounting to formal marriage can be reckoned as sufficient to bring the relationship within the sweep of "domestic relationship" u/s 2(f) of the DVA. We need now only observe that proof of the formal relationship of marriage is no more essential under the Indian Law to entitle a woman to claim the monetary relief of maintenance u/s 20(1)(d) of the DVA.

This change in the law must necessarily get reflected in understanding the concept of wife u/s 125(1)(a), Cr. P.C. We take note of the submission of the learned amicus curiae that u/s 26(1) of the DVA which we extract below, it is open to a claimant in a petition u/s 125, Cr. P.C. to claim the monetary relief of maintenance u/s 20(1)(b):

Relief in other suits and legal proceedings--(1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceedings, before a Civil Court, Family Court or a criminal Court, affecting the aggrieved person and the respondent whether such proceedings was initiated before or after the commencement of this Act.

(2) Any relief referred to in Sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a Civil Court or Criminal Court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

We agree with the learned amicus curiae that, in the light of Section 26 of the DVA, the provisions of the DVA in relation to the monetary relief of maintenance have been brought into Section 125, Cr. P.C and it would be idle to attempt to understand the expression "wife" in Section 125 without reference to the concepts which have been accepted by the Indian legal system by the enactment of the DVA. By Section 26 we agree that provision to claim maintenance by a woman in non-formal relationship of marriage with the respondent has also been brought into Section 125, Cr. P.C. by incorporation. If the expression "wife" can be understood to include a woman in domestic relationship entitled to claim maintenance u/s 20(1)(d) of the DVA, there shall thereafter be no meaning or rationale in the insistence on proof of formal/legal relationship of wife to entitle her for maintenance u/s 125, Cr. P.C. "Wife" u/s 125, Cr. P.C. will then have to include a woman in domestic relationship under the DVA.

In the light of the DVA and particularly Section 26 thereof the decision in Anatrao, Vimala and Savitaben may definitely have to be re-visited and reinterpreted. We do not think it necessary for us to come to any final conclusions on that question. The same is unnecessary for our purpose in this proceedings where we are only trying to understand whether the inclusive definition under Explanation (b) would take in a wife in an annulled marriage. We do note that the Supreme Court in Chanmuniya Vs. Chanmuniya Virendra Kumar Singh Kushwaha and Another, , has already referred the question to a Larger Bench for decision. The nation and the legal community are anxiously awaiting the decision in Chanmuniya. We are informed that the said case has not been decided yet by the Supreme Court.

We now come to the immediate problem before us as to whether the wife in an annulled marriage can fall within the inclusive definition under Explanation (b).

What is the legal effect of a decree for nullity u/s 12 of the Hindu Marriage Act? Does it altogether obliterate and annihilate the duly solemnized marriage? What is the distinction between void marriages and voidable marriages? Is that distinction in any way relevant while considering the claim for inclusion of the wife in an annulled marriage also within the sweep of Explanation (b) to Section 125(1), Cr. P.C.

According to the Hindu Marriage Act, the marriage can be void or voidable. A valid marriage can be ordered to be dissolved also. u/s 11 of the Hindu Marriage Act certain marriages are declared to be null and void. Such null and void marriages can be treated as non est by the parties and othe Rs. However, such marriage can be declared to be null and void by the Court by issuing a decree of nullity. A marriage will be null and void and can be declared to be null and void u/s 11 only if the marriage contravenes the conditions specified in Clauses (i), (iv) and (v) of Section 5. This is clear from Section 11.

u/s 12 of the Hindu Marriage Act, certain marriages shall be voidable and may be annulled by a decree of nullity on any one of the four specified grounds u/s 12(1)(a) to (d). Such marriages, it is trite, are valid in accordance with law and will continue to be valid until the Court by a decree annuls the marriage on any one of the specific grounds. In short, the marriage is valid in law and will continue to be valid until it is annulled by a decree of nullity u/s 12. Precedents galore to suggest that such marriages are valid and even assuming that Grounds (a) to (d) of Section 11 exist to vitiate the marriage, parties by their conduct can accept such marriage and in the absence of a decree for annulment such marriage will continue to be valid for all purposes. It is crucial to note that severance of a solemnized voidable marriage can be done only at the instance of the spouses. Such severance is only on their volition. This is crucial while considering the ply of Explanation (b) to Section 125(1), Cr. P.C.

Section 13 of the Hindu Marriage Act deals with divorce. By a decree for divorce, on grounds specified u/s 13, the marriage can be dissolved by the Court The grounds are specified in Section 13. The effect of a decree under Sections 11, 12 and 13 therefore appears to be different. The first u/s 11 is null and void. It can be treated as null and void by the parties and othe Rs. If necessary, the parties can seek the assistance of the Court for declaration of such nullity. In the eye of law such a marriage does not exist.

A decree of annulment brings to termination a marriage which in fact has been solemnized. But for such decree by which such marriage is brought to an end, the marriage would have continued to be valid. Parties have the option to reckon the marriage as valid. They have the option to seek severance by a decree for annulment.

The third category of terminated marriages are valid marriages. They continue to be valid. Their validity is accepted and conceded by the Court when it grants a decree for dissolution. The decree for divorce terminates the marital tie which is valid and accepted to be valid.

What are the consequences of a decree passed under any one of these three Sections--Sections 11, 12 and 13. This question assumes importance when we undertake the specific task of ascertaining whether a decree of annulment u/s 12 would enable the wife in such marriage to claim maintenance u/s 125, Cr. P.C.

For the purpose of the dispute before us it is not necessary to consider whether the wife whose marriage is or has been declared to be null and void u/s 11 of the Hindu Marriage Act would be entitled to claim maintenance u/s 125, Cr. P.C. The decisions in Anatrao, Vimala and Savitaben appear to clearly lay down that such a woman will not be a wife and would consequently not be titled for maintenance u/s 125, Cr. P.C. We await the decision in Chanmuniya v. Virnedra Kumar Singh Gushawa & Another (supra), and it is not necessary for us to express any opinion on the claim of such a woman for maintenance u/s 125, Cr. P.C.

About the claim of a woman whose marriage has been dissolved by a decree for divorce u/s 13 of the Hindu Marriage Act, there is no dispute. She will certainly be included within the sweep of Explanation (b) to Section 125(1), Cr. P.C.

The precise question to be considered is whether a woman whose marriage is annulled u/s 12 of the Hindu Marriage Act can be included within the sweep of Explanation (b) to Section 125(1), Cr. P.C. A reference to the language of Section 12 may be of relevance. A marriage attracting Grounds (a) to (d) of Section 12(1) "shall be voidable and may be annulled by a decree of nullity". This is all that is mentioned in Section 12. The effect or consequence of a marriage annulled u/s 12 is not declared by the Legislature in any provision of the Hindu Marriage Act. The marriage is said to be voidable and may be annulled by a decree of nullity. This is all that is stated. We note again that such a marriage shall remain and continue to be valid for all purposes unless it is annulled by a decree u/s 12 of the Hindu Marriage Act. Parties have the option to treat the marriage as valid. If they do not go to Court and seek a decree annulling the marriage u/s 12 the same shall continue to be valid for all intents and purposes. A marriage duly solemnized gets annulled only if parties in their volition approach title Court to get the same terminated in accordance with the provisions of Section 12 of the Hindu Marriage Act The consequence of such annulment is not specifically declared.

What are the consequences in fact and in law? This has to be considered. The learned Counsel for the respondent/husband contends that once a marriage is annulled u/s 12 as a voidable marriage, it ceases to exist in the eye of law. Thereafter it is impermissible to reckon such voidable marriage as valid for any purpose. A decree of annulment u/s 12 will have the effect of obliterating and annihilating the marriage solemnized. Therefore it is not a case of a marriage being terminated as in the case of a decree for divorce /dissolution u/s 13. It is a case of there being no marriage at all. No rights or liabilities can stem or emanate from such a marriage which is annulled u/s 12 of the Hindu Marriage Act, contends Counsel.

We find it difficult to persuade ourselves to accept this contention. The learned Counsel for the claimant/wife contends that a decree of annulment cannot certainly restore the parties to their position prior to marriage, in fact. The solemnized marriage is a reality. Law cannot close its eyes to such solemnized marriage. Law cannot ignore the fact that the spouses had lived as husband and wife in such matrimony for some period of time. Law cannot afford to ignore the fact that it is the volition of the parties which had led to the annulment of the marriage u/s 12 of the Hindu Marriage Act. They could have treated the same to be valid. Conduct of parties has a crucial bearing in a decree of annulment u/s 12.

We find force in this submission. In the Indian context where the virginity of a woman is given utmost importance, she can never, in fact, re-claim her status as a spinster after annulment of her marriage u/s 12 of the Hindu Marriage Act. She has lost her maidenhood. In the eye of society she has lost her virginity. Whatever be the law, on declaration of nullity or voidness of the marriage, in fact, she will continue to be the woman in a terminated marriage. Her maidenhood is lost. If she wants to enter matrimony again, society will reckon the same only as a re-marriage with all its inadequacies and inconveniences. One cannot wish away a solemnized marriage merely because such marriage has been annulled at the volition of parties by a Court by passing a decree u/s 12. What we intend to note is that there is undoubted transformation of the status of a woman from a maiden to the woman in a terminated marriage. In fact, consistent with the societal norms she ceases to be a maiden. Her re-marriage will ordinarily be a difficult and uphill task. She would be left in the lurch without any one to support until her remarriage takes place. We are only attempting to satisfy and convince ourselves that such a woman certainly falls within the target group of unfortunate women in whose favour the legislative compassion gets eloquent expression by the enactment of Explanation (b) to Section 125, Cr. P.C.

It is not as though the law assumes that such an annulled marriage can be ignored, overlooked or forgotten for all purposes. We shall now look into the eventualities pointed out by the learned amicus curiae and the learned Counsel for the claimant/wife where the law realistically takes into account the different status of spouses in an annulled marriage. The law also does not reckon or accept that because of a decree for annulment, such marriage can be ignored, overlooked or forgotten for all purposes.

Before considering the specific instances under the Hindu Marriage Act, we take note of the submissions of Dr. Sebastian Champappilly, the learned amicus curiae on how other jurisprudential systems have considered the issue. The learned amicus curiae points out that in England u/s 23 of Matrimonial Causes Act, 1973 it has been made clear that in respect of financial provisions orders, a decree for divorce and a decree for nullity stand on the same footing. The learned Counsel points out that in White v. White (2000) the House of Lords (decision dated 26.10.2000) has instructed Courts to assume an equal split of matrimonial assets on divorce or nullity. All systems are realistically accepting progressively the need to have identical proprietary consequences following a decree for nullity and divorce, argues Counsel. We take note of these submissions, though we do not want to found any conclusions on such submissions.

We now take into consideration Section 16 of the Hindu Marriage Act. We extract Section 16(2) which deals with the fate of children begotten in a marriage annulled u/s 12. Section 16(2) reads as follows:

Legitimacy of children of void and voidable marriages--(1) xxxxxx

(2) Where a decree of nullity is granted in respect of a voidable marriage u/s 12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if on the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

A child born in such marriage annulled u/s 12 is equated with a child born in a marriage dissolved by a decree for dissolution u/s 13. All that we intend to take note is that the Legislature itself has equated the consequences of a decree annulling marriage u/s 12 to a decree for dissolution (divorce) u/s 13 of the Hindu Marriage Act for a specified purpose. Depending on the purpose to be served /achieved it is possible, it is evident that the annulled marriage can be reckoned to have the same effect as a dissolved marriage. So far as the legitimacy of children born, Section 16(2) declares that there is no distinction between a marriage annulled u/s 12 and a marriage dissolved u/s 13. That to our mind is of crucial relevance.

Another instance is pointed out in Section 25. Even the wife of a marriage annulled u/s 12 is entitled for permanent alimony and maintenance. We extract Section 25(1) below:

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.

The section comes into operation "at the time of passing any decree or at any time subsequent thereto". A question arose whether for the purpose of grant of permanent alimony and maintenance wife of a marriage annulled u/s 12 can be reckoned as identical to a wife in a marriage dissolved u/s 13. It is now trite after the decision in Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga, , that the wife in an annulled marriage is also entitled for permanent alimony and maintenance u/s 25 of the Hindu Marriage Act. A reference to the following observations in paragraph-17 of Rameshchandra does appear to us to be crucially relevant:

In the present case, on the husband''s petition, a decree declaring the second marriage as null and void has been granted. The learned Counsel has argued that where the marriage is found to be null and void--meaning non-existent in eye of law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance. We have critically examined the provisions of Section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in Chand Dhawan''s case (supra), the expression used in the opening part of Section 25 enabling the ''Court exercising jurisdiction under the Act'' ''at the time of passing any decree or at any time subsequent thereto'' to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation u/s 10 or divorce u/s 13. When the Legislature has used such wide expression as ''at the time of passing of any decree'', it encompasses within the expression all kinds of decrees such as restitution of conjugal rights u/s 9, judicial separation u/s 10, declaring marriage as null and void u/s 11, annulment of marriage as Voidable u/s 12 and divorce u/s 13.

The learned Judges proceeded to consider the purpose and the rationale underlying the statutory stipulations and proceeded to hold in paragraph-19 as follows:

It is with the purpose of not rendering a financially dependant spouse destitute that Section 25 enables the Court to award maintenance it the time of passing any type of decree resulting in breach in marriage relationship.

Rameshchandra (as also the earlier decisions on which reliance is placed in that decision) is reckoned by us as authority for the proposition that an annulled marriage does not altogether deprive a financially dependent destitute wife of her right to claim maintenance/alimony on the basis of such annulled relationship of marriage. For the purpose of Section 25, it is crucial that the wife in an annulled marriage u/s 12 is reckoned as identical to a wife whose marriage is dissolved by a decree for dissolution of marriage u/s 13. Under the civil (personal law) the woman in an annulled marriage is entitled to claim permanent alimony and maintenance. That must carry us far in the journey to ascertain whether such a woman in an annulled marriage is entitled to claim maintenance under the secular law (Code of Criminal Procedure) where the accent is to prevent destitution and vagrancy. If she can claim such permanent alimony and maintenance under the personal law under certain conditions, we can locate no valid reason to deny such maintenance under the secular law if she satisfies the conditions specified in such law.

It is of course true that Section 25 permits even the wife whose marriage is declared to be null and void by a Court under a decree passed u/s 11 to be eligible to claim maintenance. We need not delve deeper into the claim of a wife whose marriage is declared null and void by a decree u/s 11. What we need note is only that no such right is seen conceded to a woman in respect of whose marriage no decree whatsoever is claimed and the marriage is reckoned to be null and void and ab initio by the declaration u/s 11. We take note of Section 25 only to satisfy ourselves that annulment of marriage u/s 12 does not obliterate or annihilate the solemnized marriage for the purpose of granting permanent maintenance/alimony u/s 25. For the purpose of Section 25, there is equation of the wife in an annulled marriage u/s 12 with the wife in a dissolved marriage u/s 13.

Our attention has now been brought to Section 15 of the Hindu Marriage Act. We extract Section 15 below:

Divorced persons when may marry again--When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.

(Emphasis supplied)

This section deals with the right of a spouse in a marriage dissolved by a decree for divorce to marry again. By the plain language of Section 15 the section can apply only "when a marriage has been dissolved by a decree for divorce". Even though the Hindu Marriage Act speaks of declaration of nullity of a void marriage u/s 11, annulment of a voidable marriage u/s 12 and the dissolution of a valid marriage by a decree for divorce u/s 13, Section 15 specifically refers only to an instance when a marriage has been dissolved by a decree for divorce. The question arose whether the spouse in an annulled marriage u/s 12 is also subject to the same restriction/disability in respect of re-marriage. Going by the plain and express words of Section 15, it was possible to contend that it applies only to a person whose marriage has been dissolved by a decree for divorce u/s 13. The Supreme Court in Smt. Lata Kamat Vs. Vilas, , unambiguously came to the conclusion that spouses in an annulled marriage u/s 12 or in a dissolved marriage u/s 13 would fall within the sweep of the expression "dissolved by a decree for divorce". The following observations in paragraph-7 of Smt. Lata Kamat does appear to us to be crucial:

It is no doubt true that these two Section have different phraseology. In Section 12 it is said that the marriage be annulled by a decree of nullity whereas in Section 13, the phraseology used is "dissolved by decree of divorce" but in substance the meaning of the two may be different under the circumstances and on the facts of each case but the legal meaning or the effect is that by intervention of the Court the relationship between two spouses has been severed either in accordance with the provisions of Section 12 or in accordance with the provisions of Section 13. Probably it is because of this reason that the phrase ''decree of nullity'' and ''decree of divorce'' have not been defined.

(Emphasis supplied)

Later in the same judgment in paragraph-7 the learned Judges proceeded to make the following observations:

This phrase ''marriage has been dissolved by a decree of divorce'' will only mean where the relationship of marriage has been brought to an end by the process of Court by a decree.

The above observations in paragraph-7 of Smt. Lata Katnat do appear to us to be crucially relevant as we are considering these issues for the purpose of deciding whether the expression "a woman who has been divorced by, or has obtained a divorce from her husband" in Explanation (b) to Section 125(1) would include the wife in an annulled marriage u/s 12. The dictum in Smt. Lata Kamat supports the claimant/wife.

We may straightaway refer to the provisions of the DVA. The wife in the annulled marriage was certainly living in a relationship with her spouse in a shared household through a relationship in the nature of marriage. The marriage may have been voidable. It may have been annulled by a decree u/s 12. That does not take away or detract from the fact that the spouses had lived together in a shared household in a relationship "in the nature of marriage" though that relationship, on account of volition of the parties has subsequently been declared to be voidable and annulled. The spouses have gone through a ceremony of marriage. Their marriage has been duly solemnized. Consequent to such relationship created by such solemnization, they have lived together as husband and wife for some period of time. They did so live together in a shared household also. The mere fact that such relationship has subsequently been annulled by a decree u/s 12 cannot militate against the status of parties as persons in a domestic relationship and of their having lived in a shared household. In these circumstances, notwithstanding the subsequent decree u/s 12 annulling the marriage, the wife must be held to be entitled for monetary relief of maintenance u/s 20(1)(d) of the DVA. We are conscious of an earlier reported decision by a learned Single Judge in Surendran Vs. State of Kerala, , between the same parties where it has been held that such a wife in an annulled marriage cannot be held to have shared a domestic relationship. As rightly pointed out by the learned amicus curiae, the said decision cannot any more be held to be valid in the light of the decision in D. Velusamy v. D. Patchaimmal (supra). Considering the social purpose which the DVA has to serve and considering the specific language employed in the definition of Section 2(f) ("domestic relationship") and Section 2(s) ("shared household"), it has got to be held that a woman who lives with the spouse in a solemnized marriage or had so lived with him after such solemnized marriage must be held to be an aggrieved person u/s 2(a) and she can claim against her spouse who falls within the sweep of the definition "respondent" in Section 2(q). Notwithstanding the subsequent annulment of marriage by a decree u/s 12 of the Hindu Marriage Act, the status of the parties as aggrieved person and the respondent is not affected and their past residence (prior to annulment) in the shared household on the strength of such solemnized marriage must certainly be held to entitle the wife/woman to the monetary relief of maintenance u/s 20(1)(d) of the DVA. Annulment of marriage u/s 12 of the Hindu Marriage Act cannot altogether obliterate or annihilate the solemnized marriage. Sections 16, 25 and 15 as interpreted in binding precedents accept this position. Even if the marriage is annulled u/s 12 of the Hindu Marriage Act the decree of annulment cannot militate against this fact--that the man and woman had lived together in a shared household and were related to each other though a relationship in the nature of marriage. The marriage may have been voidable. It may have been annulled as a voidable marriage by a decree of annulment u/s 12 of the Hindu Marriage Act. But all these cannot militate against the fact that their relationship was (at least) in the nature of marriage. The spouses who lived together for sometime in an annulled marriage can certainly be held to have shared a domestic relationship as defined u/s 2(f) of DVA. In this view of the matter, we are unable to agree with the dictum in Surendran (supra). It has hence got to be held to be not valid. We do specifically overrule the said decision Surendran T.K. v. State of Kerala (supra).

We do, in these circumstances, have no hesitation to come to the conclusion that the expression "woman who has been divorced by or has obtained a divorce from her husband" in Section 125(1)(b), Cr. P.C. must receive a liberal and expansive interpretation to include a destitute woman in distress whose marriage has been annulled by a decree u/s 12 of the Hindu Marriage Act. To us, the core or the crux of the ingredients specified under Explanation (b) is that, the woman must be one whose matrimonial relationship stands severed by acts of spouses--including intervention of Court at their instance, and who has not re-married. Going by the object purpose and rationale of the deemed inclusion of certain non-wives in the category of wives by Explanation (b) it would be impermissible to deny the benefit of the legislative compassion to wives whose marriages have been annulled by Court at the volition of parties, on grounds available u/s 12.

A contention has been advanced with great fervor by the learned Counsel for the respondent/husband that such interpretative expansion would make innocent husbands also liable u/s 125, Cr. P.C. A husband whose marriage has been annulled on account of contumacious conduct on the part of his wife offering a ground u/s 12(1)(a) to (d) will also be made liable to pay maintenance to his wife u/s 125, Cr. P.C. This is not justified. Such a consequence must be alertly avoided, contends the learned Counsel for the respondent/husband.

We have taken note of this contention anxiously. Section 125, according to us, has nothing to do with contumaciousness--except perhaps in the refusal or neglect to pay maintenance. If the relationship specified u/s 125, Cr. P.C. exists and a husband having sufficient means is refusing and neglecting to pay maintenance to his wife unable to maintain herself, Section 125 mandates payment of maintenance and the purpose simply is to avoid vagrancy and destitution. Moral contumaciousness is evidently irrelevant. It is more so in respect of a deemed wife under Explanation (b) to Section 125(1), Cr. P.C.

That it is not so is evident. We quote one example. A wife in matrimony who is living in adultery may not be entitled to claim maintenance u/s 125, Cr. P.C. But the moment her husband secures divorce on the ground of adultery he becomes liable to pay maintenance to her in her capacity as a divorced wife. It is trite that the mere fact that divorce has been obtained by the husband on account of matrimonial contumaciousness of the wife is no reason for the divorced husband to claim absolution from the liability to pay maintenance to his divorced wife u/s 125, Cr. P.C. A husband who has obtained divorce on the ground of moral contumaciousness of his wife is also liable to pay maintenance to his divorced wife if she is unable to maintain herself and he has sufficient means. In this view of the matter, we are unable to attach any crucial significance to the arguments advanced on the basis of moral contumaciousness of the wife which may have led to the passing of a decree for annulment u/s 12 of the Hindu Marriage Act. As in the case of a marriage dissolved u/s 13 of the Hindu Marriage Act whatever be the ground of annulment the wife continues to be 6 deemed wife under Explanation (b).

The contention is laboriously raised that u/s 25 of the Hindu Marriage Act (we have already extracted Section 25(1)) the Court can take note of "the conduct of the parties and other circumstances of the case". But when it comes to a claim u/s 125, Cr. P.C of the wife in an annulled marriage, the Court will not be able to take note of the contumacious conduct of the parties. This would work out injustice, it is impassionately contended by the learned Counsel for the respondent/husband.

We had adverted to Section 25 only to satisfy ourselves that the liability to pay permanent alimony and maintenance to the wife in an annulled marriage is recognized by law as per the personal law applicable to the parties. Under the personal law certain circumstances have to be taken into consideration. Under the secular law--Section 125, Cr. P.C. the right to claim maintenance can be enforced if the circumstances mentioned u/s 125 are satisfied. The mere fact that while granting relief u/s 25 of the Hindu Marriage Act the Court may be entitled to take note of certain other circumstances also (i.e., the conduct of the parties) cannot in any way entitle the respondent/husband to contend that such wife in an annulled marriage should not be included in the expansive interpretation of "wife" u/s 125(1)(b), Cr. P.C.

The learned Counsel for the respondent/husband places reliance on certain precedents to contend that Explanation (b) cannot be expanded to include the wife in an annulled marriage. We shall now consider these precedents to decide whether these precedents should deter us from including the woman in an annulled marriage u/s 12 within the sweep of the deemed wife u/s 125(1)(b), Cr. P.C.

A learned Single Judge of the Rajasthan High Court had taken the view that such inclusion is impermissible in Madan v. State of Rajasthan & Another, 1993 (3) Cri 372. For the reasons that we have already given in detail in this judgment we respectfully disagree with the learned Single Judge of the Rajasthan High Court.

Reliance is placed in the decision in K. Sivaranta Krishna Prasad v. K. Bharath, 1986 (1) All India Hindu Law Reporter 59. A Division Bench of the Andhra Pradesh High Court had taken a similar view as the learned Single Judge of the Rajasthan High Court. We are unable to accept the reasoning in the said decision. We have already given our reasons for inclusion. We respectfully disagree with the learned Judges of the Andhra Pradesh High Court.

The learned Counsel for the petitioner points out that a learned Single Judge of this Court in Thulasi Bai v. C.V. Manoharan, 1989 (2) KLT SN 18 (C. No. 24), had taken the view that the woman in an annulled marriage cannot claim maintenance under Explanation (b) to Section 125(1), Cr. P.C. We note that the question was not gone into in detail by the learned Single Judge. The relevant discussion appears in paragraph-14 of Thulasi Bai which we extract below:

The wife initiated proceedings u/s 125 of the Code of Criminal Procedure claiming maintenance from her husband. After trial the learned Magistrate directed the husband to pay maintenance at the rate of Rs. 150 per month. Husband challenged that order before the Sessions Court in revision. During the pendency of that Revision Petition, the District Court passed a decree annulling the marriage which is the subject matter of the Second Appeal. That judgment was produced before the learned Sessions Judge. In view of the decree annulling the marriage, the Revision Petition was allowed and claim of maintenance was negatived. That order is under challenge by the wife in the Criminal M.C. filed u/s 482 of the Code of Criminal Procedure. Actually, she ought to have preferred a Revision Petition against the order of the Sessions Court. Be that as it may. I do not find any ground to award maintenance to her because of the decision in Second Appeal confirming the decree passed by the lower Appellate Court annulling the marriage.

(Emphasis supplied)

We are unable to agree that the said observations in paragraph 14 constitute any reasons for us to take a different view. The Court had not gone into the question in detail. The observations therein will have to be held to be not representing the correct law in the light of our observations above.

The learned Counsel for the petitioner further relies on certain observations in a Division Bench ruling of this Court in Jose v. Alice, 1988 (2) KLT 890. The question that arose for consideration specifically in that case was only whether dissolution of a marriage by the Eparchical Tribunal can affect the legal rights and obligations of the parties. Such a dissolution by an Eparchical Tribunal was held to be not valid and binding on the Criminal Court. Notwithstanding such dissolution by the Eparchical Tribunal the husband was held liable to pay maintenance u/s 125, Cr. P.C. Certain observations are there in the said judgment which suggest that the effect of a valid decree of declaration of nullity is to render the marriage null and void ab initio. At any rate, the learned Judges of the Division Bench had not gone into the question whether woman in an annulled marriage can fall within the ambit of deemed wife under Explanation (b) to Section 125(1), Cr. P.C. The observations in a totally different context appearing in Jose v. Alice (supra), cannot be reckoned as the dictum. The Hon''ble Judges in that case did not consider and were not called upon to consider the precise question raised before us at present.

The learned Counsel for the respondent/husband places reliance on the decision in Amina v. Hassan Koya, 1985 KLT 596. A two-Judge Bench of this Court had occasion to consider whether the Muslim wife who had become pregnant prior to the marriage on account of her licentious life can claim maintenance u/s 125, Cr. P.C. On the peculiar facts and circumstances of that case, the learned Judges had taken the view that the marriage in that case has to be treated as if it was never in force. The relevant discussion appears in paragraphs-44 to 47 which we extract below:

The marriage in this case has to be treated as if it has never been in force. The result is that in law there was no marriage between the petitioner and the respondent. Since there was no marriage between the petitioner and the respondent the petitioner was at no time remained as a wife of the respondent and the respondent was never a husband of the petitioner. So there, was no occasion for the petitioner to be a ''wife'' by the inclusive definition of Section 125, Criminal Procedure Code.

We now disclose the process of decision employed by us in this case. We have remembered that aphorism that in the decision process, the Courts are dominantly coerced not by the essays of their predecessors but by a surer thing by an intuition of fitness of solution to the problem. Vide Oliphiant A Return to stare decisis. General propositions do not decide concrete cases and the life of the law has not been logic, it has been experience. Lord Eldon has said that it is better that the law should be certain than that every Judge should speculate upon improvements in it. A just solution for the particular case is the crucial factor in the decision process. We have tried to remember that equitable rule of decision that considerations of justice are directly relevant to the justification of any decision.

Justice we mean justice according to law the justice that stems from the application of sure and settled principles and law to proved or admitted facts. We also share the root belief of Lord Denning in this case. He said: "My root belief is that the proper role of the Judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is in the province of the Judge to do all that he legitimately can to avoid that rule or even to change it so as to do justice in the instant case before him......I would emphasise however the word legitimately. The Judge is himself subject to the law and must abide by it".

It is extremely difficult for us to fasten a liability u/s 125, Cr. Procedure Code (a liability in the language of the Supreme Court founded upon the individual''s moral obligation to the society to prevent vagrancy and destitution) on an unfortunate victim of a marital fraud solely on account of the misfortune that he had undergone a ritualistic process of a contract of marriage without least anticipating that he was contracting a marriage with a lady who had five months anti nuptial illicit pregnancy. We find it difficult to direct a person who has innocently gone through the process of a contract of marriage with a lady pregnant by whoredom to pay maintenance allowance to her.

(Emphasis supplied)

A careful perusal of the observations in paragraphs 44 to 47 must convince this Court that the decision in that case was so rendered because of the very peculiar fact scenario in that case without intending to lay down any rigid principle of law. It deserves to be noted that in Amina (supra), it was an admitted case of divorce and not a case of declaration of nullity of marriage. In spite of that, in the peculiar facts and circumstances of the case, such a divorced Muslim wife was held to be not entitled to maintenance on the ground that she had conceived in whoredom prior to her marriage. As seen from paragraphs 44 to 47 above the learned Judges were only taking a just decision on the peculiar facts and circumstances of that case. The case of a wife like the claimant/wife whose solemnized marriage was annulled by a decree of nullity u/s 12 was not considered by Their Lordships. The said observations also do not persuade us to take any different view than the one which we have come to on the basis of the reasons given already.

We must note in this context that all the precedents cited above relate to the pre-DVA era. Revolutionary changes have been brought about and entrenched concepts prevalent in society have been shaken by the enactment of the DVA. Subsequent statutory instruments must certainly persuade the Courts to understand contemporary meaning of expressions in statutes enacted in a bygone era. It would be myopic for a Court to attempt to understand the meaning of the expression "wife" in the inclusive definition u/s 125(1)(b), Cr. P.C. today without imbibing the current legal norms prevalent in society in respect of the claim of maintenance by a woman sharing a domestic relationship with the respondent. The endeavour of all Courts at all times must be to innovate and understand the language of legislations in tune with the norms currently prevalent in society ushered in and accepted by subsequent pieces of legislations. In this view of the matter, we are satisfied that in the post DVA era attempt cannot be made to understand Explanation (b) to Section 125, Cr. P.C. divorced of the current context in societal and legal development.

To conclude, we hold that Explanation (b) to Section 125(1), Cr. P.C. must receive an interpretation consistent with the laudable legislative purpose, object and rationale--to prevent vagrancy and avoid destitution. We take the view that "the wife" under Explanation (b) must include any woman whose marriage has been brought to severance by acts of spouses--including a decree passed by Court at their instance u/s 12 or Section 13 of the Hindu Marriage Act. The accent is that such wife in a terminated marriage-- unilaterally or by intervention of Court, must remain unmarried to claim inclusion within the ambit of deemed wife under Explanation (b). The realistic acceptance of the fact that the wife in an annulled marriage cannot in fact, be placed by law to her position of maidenhood/spinstership prior to marriage demands and warrants such an expansive interpretation of the expression "wife" in Explanation (b). The fact that consequences of an annulment are not declared in the Hindu Marriage Act specifically and the fact that for the purpose of Sections 16, 25 and 15 the law realistically accepts that such marriage cannot be ignored, overlooked or forgotten and has to be equated to a marriage dissolved u/s 13 does also help us to accept the wider meaning for the expression "wife" in Explanation (b). The fact that under the personal law applicable to the parties, there is a liability for the husband in an annulled marriage to pay permanent alimony and maintenance to the wife under certain circumstances does also embolden us to include the wife in an annulled marriage also within the ambit of a deemed wife under Explanation (b). We take the view that such a woman falls within the sweep of the definition of "wife" under Explanation (b).

Needless to say that wives belonging to other religious denominations whose voidable marriages have been annulled by a decree for nullity passed by Court at the instance of either spouse shall all fall within the inclusive definition of "wife" in Explanation (b) to Section 125(1). However, so far as wives whose marriages are expressly declared by law to be null and void without intervention of Courts as in Section 11 of the Hindu Marriage Act we do not express any final opinion in the light of the decisions in Anatrao, Vimala and Savitaben (supra), though we are certainly of the opinion that in view of Section 20 and Section 26 of the DVA they also deserve to be included. We do also await the decision in Chanmuniya (supra), on that aspect.

The conclusion is, in these circumstances, evident that the claimant/ wife in this case is entitled to enforce Ext. P2 order passed u/s 125, Cr. P.C. notwithstanding the decree (Ext. P1) for annulment of her marriage with the respondent/husband whether such annulment is prior to or subsequent to Ext. P2. Consequently the wife is entitled to prosecute Ext. P3 petition for execution of Ext. P2 order for the relevant period. The same does not deserve to be quashed.

In the result:

(a) This Writ Petition is dismissed.

(b) We make it clear that Ext. P2 can be enforced. We direct the Family Court, Kannur, to proceed to dispose of Ext. P3 in accordance with law.

(c) Lest there be any confusion, we make it clear that the claimant/ wife shall be at liberty to proceed to execute Ext. P2 order for the subsequent periods. In view of the interim stay granted by this Court on 14.1.2009, the respondent/husband shall not be entitled to resist the claim for amounts due for the subsequent periods on the ground of limitation for the period 14.1.2009 to this date.