''X'' and ''Y'' vs ''Z''

Abhay Shreeniwas Oka, J.

Considering the controversy involved, we direct that the names of the parties shall be blocked in the Judgment. The first Appellant in FCA No. 117 of 2005 shall be referred to as ''X''. The second Appellant shall be referred to as ''Y'' and the Respondent therein shall be referred to as ''Z''.

The controversy is narrow. The claim of X is that her marriage with Z was solemnized on 29th June, 1986 in a temple at Ulhasnagar, District Thane. Though Z is disputing the factum of marriage, he is not disputing his relationship with X. He is not disputing that for a considerably long time, he stayed with X. He is not disputing that Y is his daughter born to X. Apart from the issue regarding the reliefs which can be granted, one of the issues will be whether the alleged marriage was solemnized on 29th June, 1986 as claimed by X. These two Appeals arise out of two Petitions. Petition No. C-215 of 1996 was filed by X and Y and Petition No. A-2082 of 1996 was filed by X. The Petition A-2082 of 1996 was filed by X for a declaration that her marriage with Z is null and void. However, X was permitted to withdraw her Petition. A counter claim was filed by Z in the said Petition for a declaration that no marriage has been performed between him and X and that the marriage purported to have been solemnized on 29th June, 1986 in a Temple at Ulhasnagar in District Thane is null and void. As provided in law, the counter claim proceeded notwithstanding the withdrawal of the main Petition. Petition No. C-215 of 1996 was filed by X and Y under the provisions of the Hindu Adoptions and Maintenance Act, 1956. The first prayer in the Petition was for providing a separate residence with necessary furniture and fixtures. The second prayer was for grant of monthly maintenance of Rs. 25,000/- for X and Rs. 10,000/- for Y. Apart from claiming the said reliefs, injunction was claimed restraining Z from alienating or creating third party rights in respect of the properties described in paragraph 12 of the said Petition.

Both the Petitions were heard together by the learned Judge of the Family Court. Petition No. C-215 of 1996 was partly allowed by directing Z to pay maintenance to Y. The learned Judge of the Family Court noted that during the pendency of the proceedings, Z was ordered to pay interim maintenance at the rate of Rs. 2,500/- per month to Y. The decree was passed directing Z to pay maintenance at the rate of Rs. 5,000/- per month from 9th August, 1999 till the date of the decree. From the date of the decree, Z was directed to pay maintenance at the rate of Rs. 7,500/- per month to Y. A direction was issued to pay fees of X and XII Standard. However, the prayer made by X for grant of maintenance under the provisions of the Hindu Adoption and Maintenance Act, 1956 (for short "the said Act") was rejected. The counter claim filed by Z in Petition No. A-2082 of 1996 was allowed by granting the following declaration:--

"It is hereby declared that no marriage is performed between the petitioner-Reena and the respondent-Krishnakant on 29.06.1986 and hence the purported marriage on 29.06.1986 is hereby declared null and void."

Family Court Appeal No. 117 of 2005 is directed against the decree passed in Petition No. C-215 of 1996 to the extent to which some of the prayers made by X and Y were rejected. Family Court Appeal No. 144 of 2005 has been preferred by Z. The said Appeal has been preferred for challenging the decree passed in Petition No. C-215 of 1996 by which he was directed to pay maintenance to Y.

We have heard the learned counsel representing X and Y as well as the learned counsel representing Z. We must note here that earlier, this Court made an attempt to prevail upon the parties to amicably settle their dispute. Notwithstanding the efforts made by the learned counsel representing the parties, amicable settlement could not arrived at. Only after all attempts for amicable settlement failed that the Appeals were taken up for final hearing. The submission of the learned Counsel for X and Y is that there was sufficient evidence on record to prove that on 29th June, 1986, there was a marriage ceremony in accordance with Hindu rites between X and Z. She invited our attention to the oral testimony of the parties in support of her contention. Her submission is that in fact going by the findings recorded by the learned Judge of the Family Court, what was found established on evidence is that there was a marriage ceremony. She urged that in fact the finding of the Court is that the marriage is nullity as the first marriage of Z was already solemnized prior to 29th June, 1986. She relied upon the decision of the Apex Court in the case of Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga, . She urged that in any event, since the impugned decree passed is the one under Section 11 of the Hindu Marriage Act, 1955 (for short "the said Act of 1955"), as held by the Apex Court in the said decision, even under section 25 of the said Act of 1955, the learned Judge of the Family Court ought to have passed a decree directing payment of permanent alimony to X. Her submission is that as the factum of marriage was duly proved, there was no reason for the Family Court to decline the maintenance to the wife. Her submission is that the evidence on record shows that Z is a very affluent person having a large number of properties, large investments and is in the business of film producing. Her submission is that the maintenance of wife includes a provision for reasonable residence and, therefore, a prayer was made in the Petition filed under the said Act of 1956 for providing residence. Her submission is that even the said prayer ought to have been allowed. The learned counsel invited our attention to various admitted documents on record including the income-tax return of Z.

The learned counsel representing Z pointed out that specific case has been made out by Z in the counter claim that there was never a marriage ceremony as alleged by X. His submission is that in the counter claim, Z has not claimed relief in accordance with section 11 of the said Act of 1955. By invoking section 7 of the Family Courts Act, 1984, Z has claimed a declaration of status under the Specific Relief Act, 1963 that there was never any marriage ceremony. He pointed out that from the evidence, it can be demonstrated that there was never any such ceremony. Inviting our attention to the cross-examination of X made by the Advocate for Z, he pointed out that X admitted that she even does not remember the name of the temple or the location of the temple where the marriage was allegedly solemnized. He pointed out that in fact a suggestion was given by the Advocate for X in the cross-examination that on 28th June, 1986, the parties were in Goa. He urged that the very fact that X is unable to recollect even the name of the temple or the location of temple, is sufficient to disbelieve her claim regarding the solemnization of marriage. He invited our attention to the decision of the Apex Court in the case of Chand Dhawan (Smt) Vs. Jawaharlal Dhawan, . Inviting our attention to the decision of the Full Bench of the Andhra Pradesh High Court in the case of Abbayolla M. Subba Reddy Vs. Padmamma, , he urged that under the provisions of section 18 of the said Act of 1956, a women whose marriage is held to be nullity is dis-entitled to claim any rights under section 18 such as right of maintenance and residence. He also relied upon another decision of the Apex Court in the case of Badshah v. Sou. Urmila Badshah Godse & Anr. (Cri. Misc. Petition No. 1953 of 2013) which is pronounced on 18th October, 2013. Inviting our attention to the decision of the Apex Court in the case of Ramesh Chandra Rampratapji Daga, he pointed out that under section 25, a woman can claim maintenance provided a decree of nullity is passed under section 11 of the said Act of 1955. By referring to section 11, he pointed out that the impugned decree is not under section 11, as Z had never invoked the provisions of section 11. His submission is that the said decision is therefore of no help to X to secure a relief under section 25. He stated that the various orders of this Court show that the maintenance amount to the daughter was paid by Z from time to time and even certain lump-sum amounts have been paid towards the expenses of education. He has tendered across the bar an affidavit of Z affirmed on 24th July 2014 in which he has undertaken to pay a sum of Rs. 30,000/- per month as maintenance to the daughter Y till her marriage or till she gets employment. Today, the learned counsel appearing for Z has handed over to the learned counsel representing X and Y, a cheque in the sum of Rs. 30,000/- dated 21st July, 2014 bearing No. 246600 of Bank of India towards the maintenance amount payable for July, 2014. In the affidavit, Z has stated that he was willing to pay lump-sum amount of Rs. 10 lakhs towards all educational expenses including future expenses and the arrears of educational expenses, if any. Today, the learned counsel representing Z has handed over a cheque No. 246606 dated 31st October, 2014 drawn on Bank of India in the sum of Rs. 5 lakhs as well as cheque No. 246605 dated 1st October, 2014 drawn on Bank of India in the sum of Rs. 5 lakhs. The learned counsel appearing for the X and Y has accepted the said cheques constituting the total amount of Rs. 10 lakhs without prejudice to their rights and contentions. The affidavit tendered today by the learned counsel appearing for Z is taken on record and marked ''X'' for identification. Thus, the statements made in the said affidavit take care of Family Court Appeal No. 144 of 2005 preferred by Z.

Now, we turn to the main issue canvassed by the learned counsel representing the parties. The dispute is regarding the performance of the marriage. As stated earlier, in the Petition under the said Act of 1956 filed by X and Y, it is pleaded that the marriage between X and Z was solemnized on 29th June, 1986 in a temple in Ulhasnagar, District Thane. There is a complete denial of the said averment by Z in his written statement as well as in his counter claim. We must note here that Z in his written statement has contended that X was leading an immoral life earning out of her profession as a call girl till the year 1985. He has set out in the written statement the manner in which he came in contact with X and as to how the relationship developed between him and X. It will be necessary to make a reference to the relevant portion of the written statement filed by Z in the Petition filed by X:--

"4. The Respondent states that prior to the year 1985 the 1st Petitioner was residing at Colaba in some hired accommodation. Thereafter, she shifted to a rented accommodation above Sun Restaurant at B. Desai Road, Bombay - 400 026. Subsequently, the 1st Petitioner shifted to another rented accommodation in a prestigious building of South Bombay known as Skyscraper Apartments, on B. Desai Road, Bombay - 400 02-, she thereafter shifted to another rented accommodation at Bhagwan Apartments, at Worli Seaface, Bombay - 400 018. The Respondent states that in areas like Colaba, B. Desai Road, and Worli Sea face the rented accommodation was always expensive and costly ranging from rent of Rs. 4,000/- to 7,000/- per month in the year 1985. The Respondent states that the 1st Petitioner was leading an immoral life earning out of her profession as a call girl in the year 1985. The Respondent came in contact with the 1st Petitioner when the 1st Petitioner narrated her miserable plight her difficulty and unhappiness in life. The 1st Petitioner also informed the Respondent that she had no other means of earning her livelihood, nor any financial support, nor any relatives or well-wishers in Bombay and therefore she had opted for this profession. The Respondent states that the Petitioner also informed that she never had seen or known who her real father was and she was always subjected to insult, humiliation and torture by her step-father whom her mother had married. The Petitioner also informed the Respondent that except sadness, unhappiness, pain and drudgery in life she has had no opportunity to do anything else in her life. This sad story of the Petitioner No. 1 touched the Respondent when the Petitioner No. 1 expressed her desire to see herself in a world where she need not carry on a profession of a call girl. The Respondent was moved to the suffering of the 1st Petitioner which was narrated by her to the Respondent. The Respondent developed a soft corner for the 1st Petitioner. The initial acquaintance developed into friendly relations and subsequently liking for each other. Within a period of one year the 1st Petitioner was introduced by the Respondent to his wife Renuka, his three daughters and a son and his relatives and friends. The 1st Petitioner was very much disappointed to know that the Respondent was married and had a family. In spite of knowing the said fact, the 1st Petitioner continued her association and courtship with the Respondent. The 1st Petitioner proposed to the Respondent that the Respondent should marry her whichever way he wants, to which the Respondent by flatly refused stating that the same was impossible, since he was married and as there was responsibility on him of his family. The 1st Petitioner insisted that she would not mind to accept the status of a companion if she got to stay with the Respondent anywhere in the world. The 1st Petitioner also stated that if the Respondent left her alone, she would have no future and she will continue to remain a call girl. During the end of year 1986 the Respondent went to Zambia in Africa when the 1st Petitioner accompanied him. It was during that time that the Respondent finalized for his employment with one Mr. Rathi of M/s. Killick Nixon Limited. In accordance with the said talks Mr. Rathi agreed to provide a rented accommodation to the Respondent at Band Stand Society, B-21, Bandra (W), Mumbai - 400 050, as a service occupancy. In the month of February 1987 after his return from Zambia the Respondent occupied the said service occupancy flat at Band Stand Society. The said Flat at Band Stand Society belongs to one Mrs. Manglani who has given it on Leave and License to M/s. Killick Nixon Limited and which M/s. Killick Nixon Limited had taken for providing on service occupancy basis to the Respondent. Since the 1st Petitioner had no other accommodation she requested the Respondent to allow her to stay in the flat at Band Stand Society and start a new life to which the Respondent agreed. Since then the Respondent has been residing at Bandra or at Warden Road depending upon a necessity of his work. In the course of staying together the relations between 1st Petitioner and the Respondent grew stronger. The 1st Petitioner requested the Respondent that she would like to bear a child who could be a support to her in her old age. Accordingly the 1st Petitioner gave birth to a child being the 2nd Petitioner to the Respondent. The Respondent states that the Petitioner had to have "curtain" 3 to 4 times before At the request of the 1st Petitioner the Respondent also allowed his name to be used as the husband of the 1st Petitioner and the father of the 2nd Petitioner. During the year 1990 when the 1st Petitioner again conceived she feared that she would not be able to bring up and maintain a second child and hence she herself decided to terminate the pregnancy."

(Emphasis added)

It will be necessary to make a reference to the oral evidence adduced by the parties. X deposed that she married to Z on 29th June, 1986 in a temple at Ulhasnagar according to Hindu Vedic Rights. Her case is that though photographs were taken of the marriage ceremony, the same are in the custody of Z. Z has denied that he is having the custody of the photographs. In paragraph 2 of her deposition, she has stated that she was a resident of Kolkata and she came to Mumbai for the first time in March, 1986. She has described as to how she went to Prithvi Theatre to meet Shri Shafi Inamdar who introduced her to Z as a distributor of overseas Films. Thereafter, she has set out in what manner she developed relationship with Z. Her case appears to be that Z never disclosed to her that he was already married and was having 4 children. She stated that she moved with Z from place to place. She came in contact with Shri Raju Shah, a childhood friend of Z and his wife Reeta Shah from whom she learnt that Z always liked her. She has stated in paragraph 2 of her deposition that though Z agreed to marry her, he imposed a condition that the marriage should not be disclosed to anyone as X was a minor at that time. In paragraph 3 of the deposition, X has stated thus:--

"3. On 29th June, 1986, respondent came to my relatives residence along with his friend Raju and his wife Rita and asked me to accompany them for shooting at film city, in fact we were to go to Ulhasnagar for the marriage. Accordingly all of us went to Ulhasnagar in a temple where marriage between myself and respondent was performed according to Hindu vedic rites. Respondent''s friend Raju performed the Kanyadaan. As the respondent was interested in keeping the marriage secret, he has asked me to change the wedding dress, thereafter all of us came to Bandra residence. After sometime myself and respondent left for honeymoon trip to Goa by plane. We have stayed at hotel Taj at Goa for about 5 to 6 days. I am producing 5 photographs taken during our honeymoon trip at Exh.82 collectively. After we returned from Goa, we started cohabiting at Bandra."

Thereafter, in paragraph 4, X has stated that three months from the date of their return from Goa, she accompanied Z to Zambia where they stayed together for five months. They came back in February, 1987. The case made out by X is that from the date of marriage, they resided in the flat in the Band Stand Co-operative Housing Society, Bandra (W), Mumbai. There is no dispute between the parties that Y was born on 17th May, 1988 to X and that Z is the biological father of Y. There is also no dispute that X conceived again in August, 1990. There is also no dispute that there was medical termination of pregnancy. The case of Z is that as X was of the view that she will not be able to look after the child, she opted for termination of pregnancy. The case made out by X in paragraph 8 of the deposition is that Z himself insisted that X should undergo abortion. It is her case that after she underwent termination of pregnancy, Z stopped regularly visiting her house. However, one month thereafter, he again started residing with her in the flat at Bandra. She has stated that except for the period from April-May 1992 to December 1992 till the end of 1995, they resided together at Bandra. She has stated that in the year 1994, he started his own Production Company by the name "Neeta Films Pvt. Ltd." Thereafter, from October, 1995 onwards, their relationship became strained. The case made out by X is that Z threatened to dispossess her from Bandra flat and hence, there was a proceeding filed by her under section 145 of the Code of Criminal Procedure, 1973 in the Court of Metropolitan Magistrate.

The learned counsel appearing for Z invited the attention a suggestion given to Z during his cross-examination. The suggestion given is found in paragraph 22 of the cross-examination of Z. The same reads thus:--

"22. ....... It is true that myself and petitioner were in Goa during the period 28th June, 1986 to 3rd July 1986."

The submission of the learned counsel appearing for Z was that a specific suggestion has been given on behalf of X to Z that they were in Goa during the period 28th June, 1986 to 3rd July, 1986. Thus, the contention is that there could not have been solemnization of marriage in Ulhasnagar, District Thane on 29th June, 1986. However, in paragraph 29 of her cross-examination, the Advocate for Z gave a specific suggestion to her the correctness of which was denied by her. The said part of the Cross-examination reads thus:--

"29. ........................ It is not true to say that from 28th June 1986 to 3rd July, 1986 myself and the respondent were at Goa. It is not true to say that we have not gone to Goa on 29th June, 86."

The suggestion was that both of them were in Goa on 28th June, 1986. The correctness of the said suggestion was denied by X. She also stated that it was not correct to say that they did not go to Goa on 29th June, 1986. Moreover, it will be also necessary to note what is stated by X in her cross-examination by the Advocate for Z which is in the first part of the paragraph 29, which reads thus:--

"29. On 29th June 1986, respondent came to my relatives residence i.e. at the residence of Poornima Ashish Banerjee was residing at that time. I don''t recollect the temple where my marriage with the respondent was performed, I am not even aware as to the deity to which the said temple was. I am not even aware about the name of the temple or its exact location at Ulhasnagar. I don''t know the name of the priest who has performed the marriage."

The first sentence is stated by X on the basis of the suggestion given by the Advocate for Z wherein she stated that on 29th June, 1986, Z came to her relative''s residence. Thus, the suggestion given by the Advocate for X in the cross-examination of Z cannot be read in isolation. The consistent case of X is that on 29th June 1986, the marriage was solemnized and thereafter on very day, they proceeded to Goa. Much emphasis is laid by the learned counsel appearing for Z on the fact that X stated that she was not even aware of the name of the deity in the temple where the marriage was allegedly performed, she was unable to recollect the name temple where the marriage was solemnized and she was unable to tell the location of the said temple.

Apart from the voluminous documentary evidence on record, there is a categorical statement on oath of Z in the form of his affidavit-in-reply dated 23rd September, 1997 filed in Interim Application No. 711 of 1996 in Petition No. C-215 of 1996. What is relevant is paragraph 3 of the said affidavit. The relevant portion of paragraph 3 reads thus:--

"3. .............. Thus the Petitioner married me inspite of having knowledge of my previous marriage and the Petitioner cannot now be allowed to take advantage of this fact. The Petitioner was always aware that her marriage to me was a second marriage and thus she is not entitled to any maintenance as alleged or at all."

(emphasis added)

We must note here that though an affidavit is filed by way of a reply to the interim application in the said Petition, by virtue of section 14 of the Family Courts Act, 1984, the said affidavit can be always considered by this Court as a piece of evidence. In the said affidavit, Z has clearly stated that X married to him in spite of having knowledge of his previous marriage. He has reiterated that as his marriage with X was a second marriage, she is not entitled to any maintenance. Thus, there is a categorical admission by Z about the performance of his marriage with X. Before we go to the documentary evidence on record, the admitted position between the parties is that from June, 1986 till the year 1995, they stayed together in the flat at Bandra. For a few months, they resided at Zambia. In the year 1990, X conceived on second occasion. In the light of this factual background, now we must make a reference to the documentary evidence on record. While we are dealing with the documentary evidence, we must also note the admitted fact that while admitting X in a hospital for delivery of Y, Z admittedly accepted that he was the husband of X. Now, we turn to the documentary evidence on record. There is a document at Exhibit 57 which is the passport of X dated 25th May, 1987 wherein Z is shown as her husband and the address of the flat in Band Stand Co-operative Housing Society, Bandra has been mentioned as her residential address. We must note that Exhibit 58 is the passport of X standing in her maiden name. The passport of Y is at Exhibit 59 which is dated 14th June, 1989 in which the name of Z appears as her father. Along with Exhibit 60, there are several bills of purchase of household and electrical goods at the address of the flat at Bandra which contains the name of Z as the husband of X. The said bills show that X has been described as the wife of Z. Exhibit 61 is the demand note issued by the Mahanagar Telephone Nigam in which name of X appears as wife of Z. The date of said note is 11th July, 1988. Exhibit 60 is a copy of agreement for sale dated 14th December, 1995 executed by Shri J.B. Seth Kanth in favour of X and Z wherein both of them have been referred to as the purchasers of Flat 50, ''A'' Wing in building known as "Blue Heaven" Kandivali (E). Even in the said agreement, X has been described as wife of Z. At Exhibit 66, there is a greetings post card sent by Z to X and Y from Bangladesh. The name written on the said card shows that X is described as the wife of Z. Exhibit 67 is the report card of Y on which it appears that Z has signed as the father of Y. Exhibits 83 are admitted photographs of X and Z taken during their visit to Goa in June, 1986. Exhibit 93 is the ration card standing in the name of Z at the Bandra address wherein X and Y are shown as his wife and daughter respectively. Even in the annexures to the income-tax returns which are part of Exhibit 108, the name of X appears as the wife of Z. There is a General Power of Attorney dated 18th December, 1995 executed by Z in which X is described as his wife. On the same date, there is an affidavit-cum-undertaking executed by Z in which X is described as his wife. There is a deed of internal arrangements executed on the same day by and between X and Z in which X is described as his wife.

Thus, for a considerably long period of time, X and Y stayed together as wife and husband. They have a child. The voluminous documentary evidence on record shows that in all official records, the name of X appears as wife of Z. Z has always shown that X is his wife and Y is his daughter. Thus, apart from the categorical admission of Z in his affidavit to which we have made a reference earlier, in the light of the voluminous documentary evidence on record and the admitted position of Z and X staying together for a long time as the husband and wife, the admission of X that she is unable to remember the name and address of the temple, becomes insignificant.

A decision of the Full Bench of the Andhra Pradesh Court in the case of Abbayolla M. Subba Reddy v. Padmamma AIR 1999 Andhra Pradesh 19 holds that a woman who marries with a male who has a subsisting marriage with another woman cannot claim maintenance under Section 18 of the said Act of 1956. In the case of Tulsa and Others Vs. Durghatiya and Others, , in paragraphs 11 to 16, the Apex Court held thus :

"11. At this juncture reference may be made to Section 114 of the Evidence Act, 1872 (in short "the Evidence Act"). The provision refers to common course of natural events, human conduct and private business. The court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sections 50and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.

A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. In first of them i.e. Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy Their Lordships of the Privy Council laid down the general proposition that: (AIR p. 187)

"...where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage."

In Mohabbat Ali Khan v. Mohd. Ibrahim Khan Their Lordships of the Privy Council once again laid down that: (AIR p. 138)

"The law presumes in favour of marriage and against concubinage, when a man and a woman have cohabited continuously for a number of years."

It was held that such a presumption could be drawn under Section 114 of the Evidence Act.

Where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy. (See Badri Prasad v. Dy. Director of Consolidation.)

This Court in Gokal Chand v. Parvin Kumari observed that continuous cohabitation of (sic man and) woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the court cannot ignore them."

(Underline added)

At this stage, we must make a reference to the findings recorded by the learned Judge of the Family Court. In paragraph 56, a categorical finding has been recorded that Z had willingly accepted X without hesitation and she has been given the status of his wife in various documents. Thus, the finding recorded by the learned Judge of the Family court is that there was evidence on record to show that a marriage was solemnized between X and Z. In paragraph 60, the learned Judge has referred to section 5 of the said Act of 1955 and observed that the marriage between X and Z, though voluntary, is in the breach of coitions incorporated in clauses (i), (iv) and (v) of section 5, and therefore, it is not a marriage in the eyes of law.

However, while passing the decree, the learned Judge has granted a declaration that there is no marriage performed between X and Z. Apart from the fact that we have recorded a categorical finding that the factum of marriage between X and Z has been duly proved, we find that even the learned Judge of the Family Court has virtually come to the same conclusion. However, while formulating the operative part of the order, the learned Judge seems to have committed an error. The error committed by the learned Judge will have to be corrected. There are abundant powers vested in this Court under Rule 33 of Order XLI of the Code of Civil Procedure, 1908 for correcting such errors. Considering the voluminous evidence on record, both oral and documentary, the said error will have to be corrected. It will have to be held that though there was a marriage solemnized between X and Z, such marriage is void in accordance with section 11 being in violation of the said Act of 1955. The reason is that at the time of solemnization of the marriage, Z had a subsisting marriage.

As far as the maintenance and the provision for residence of X is concerned, considering the finding which we have recorded that the marriage is nullity in accordance with section 11 of the said Act of 1955, X is disentitled to any relief under the said Act of 1956 and in particular section 18 thereof.

However, the submissions have been canvassed by the learned counsel appearing for X that she is entitled to maintenance under section 25 of the said Act of 1955. The submissions have been countered by the learned counsel appearing for Z that the decree is not under section 11 of the said Act of 1955 and therefore, maintenance under Section 25 cannot be granted. However, we have already held that the decree will have to be under section 11 of the said Act of 1955. Now, the question is whether X is entitled to claim a relief under section 25 of the said Act. Before we make a reference to the decision of the Apex Court in the case of Ramesh Chandra Daga, it will be necessary to make a reference to a decision of the learned Judge of this Court which arose out of the same parties ( Mr. Krishnakant Mulashankar Vyas Vs. Mrs. Reena Krishna Vyas and another, as the said decision is between X and Z. The said Petition arose out of an order passed by the Family Court on an application under section 24 of the said Act of 1955. The learned Single Judge took a view that there is no reason why words "wife" or "husband" used in section 24 should not be interpreted so as to include "man" and "woman" who have gone through a ceremony of Hindu marriage which ought to be valid but for the provisions of section 5 of the said Act of 1955. This Court took a view that under section 24 of the said Act, maintenance can be granted to the second wife whose marriage was otherwise void in accordance with section 11 of the said Act of 1955. This narration will not be complete unless we make a reference to the decision of the Full Bench of this Court in the case of Bhausaheb @ Sandu S/o Raghuji Magar v. Leelabai W/o Bhausaheb Magar 2001(4) All MR 278. The matter was referred to the Full Bench considering the conflicting decisions of the Division Benches. We must note here that the Full Bench came to the conclusion that the decisions of this Court upholding the right of maintenance of the alleged wife described therein by the Full Bench as "illegitimate wife" (or "faithful mistress") by giving liberal construction to the word "wife" as contained in section 25 of the said Act of 1955, cannot be said to be laying down a good law. Thus, the decision rendered by the learned Single Judge of this Court between the same parties i.e. in the case of Mr. Krishnakant Mulashankar Vyas Vs. Mrs. Reena Krishna Vyas and another, was held as not laying down a good law. However, we must hasten to add that the decision of the Full Bench was delivered on 27th July, 1998 and the decision of the Apex Court in the case of Ramesh Chandra Daga was pronounced on 13th December, 2004. It will be necessary to make a reference to paragraph 18 of the said Decision in the case of Ramesh Chandra Daga which reads thus:--

"18. 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 fond to be null and void meaning nonexistent 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 25in 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 under Section 10 or divorce under Section 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 under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13."

(emphasis added)

Thereafter, in paragraph 19, the Apex Court noted the argument canvassed on behalf of the husband that extending the benefit of section 25 to the wife of marriages which have been found null and void under section 11 would be against the very object and purpose of the Act to ban and discourage bigamous marriages. This contention was specifically overruled by the Apex Court in paragraph 20 of the said decision. The relevant portion of paragraph 20 reads thus:--

"20. Keeping into consideration the present state of the statutory Hindu Law, a bigamous marriage may be declared illegal being in contravention of the provisions of the Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent. It is with the purpose of not rendering a financially dependent spouse destitute that Section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in marriage relationship."

(emphasis added)

Thus, the categorical view taken by the Apex Court is that the wife whose marriage has been declared as void under section 11 is entitled to relief under section 25 of the said Act of 1955. In view of the said subsequent decision of the Apex Court, the view taken by the Full Bench of this Court in the case of Bhausaheb cannot be read as binding precedent and what binds the Court is the law laid down in the case of Ramesh Chandra Daga.

As far as Y is concerned, the issue is concluded by the stand taken by Z in his affidavit dated 24th July 2014. The said affidavit of Z records his solemn statement that he shall pay maintenance to Y at the rate of Rs. 30,000 pm till the time specified in the said affidavit. We accept the statements therein.

We must note that even according to the case of Z, going by his version on oath recorded in the year 2003, at the relevant time, he was earning Rs. 13,000/- pm by way of salary and Rs. 10,000/- by way of rent of the premises jointly owned by him along with other family members. He admitted that he himself, his first wife and daughter of the first wife are directors of Neeta Films Private Limited. He did not dispute that he was residing in a flat No. A-1/17 at Prithvi Apartments, Co-op. Housing Society, 21 Altamount Road, Mumbai - 400 026. X has stated the area of the flat as 1600 sq. ft. Though the case of Z was that he is not the exclusive owner of the said flat, we find that the share certificate issued by the Society in relation to the said flat which is on record shows that Z is the only member of the Society. It will be also necessary to make a reference to an important exhibited document on record which is an application for membership made by Z to the Indian Motion Picture Producers'' Association. The said application has been made on 21st May, 1994 in the name of Neeta Films Private Limited (Proposed). Name of Z and his first wife appears as Proprietors/Partners/Directors. The name of one Dinesh Dhirajlal Thacker also appears as a Proprietor/Director. At this stage, we must note that the learned counsel appearing for Z has made some submissions by pointing out certain statements in the cross-examination of X about one Dinesh Thacker and the manner in which the said Dinesh was extending monetary help to X. As stated earlier, the name of the said Dinesh appears as Proprietor/Director in the said form. What is also material is that in the said form, in the year 1994, Z has disclosed his net income as Rs. 7,56,000/- after paying the income-tax. The said Dinesh who has allegedly helped X, appears to be acquaintance of Z in the year 1994 itself. Apart from that at Exhibit 71, there is an affidavit of said Dinesh which was filed in proceedings under section 145 of the Criminal Procedure Code, 1973 in the Court of the learned Metropolitan Magistrate in which the said Dinesh has described Z as his maternal uncle (mamaji). We must note here that an application was made before the Family Court by X for issuing witness summons. Three witnesses were sought to be summoned including the said Dinesh. However, the said application was rejected by Family Court. Suffice it to say that the fact that some monetary help was made by Dinesh to X will have to be considered in the light of this fact situation.

Thus, his yearly income after deduction of tax shown by Z in the year 1994 was more than Rs. 7.50 lakhs. We must note that income-tax returns of Z on record do not reflect the income to the said extent. But the statement made in the application for membership made by Z to Indian Motion Picture Producers'' Association is the own statement of Z. Thus, there is more than sufficient material on record to show that the income reflected from the income-tax returns may not be the correct income. However, In the Balance Sheet of the Assessment Year 1999-2000 which a part of the income-tax return, Z has shown that he was holding a flat in Prithvi Apartments apart from an office premises. It also refers to a flat at Kandavali which was acquired by Z even according to his own case out of his own funds in the joint names of himself and X. The shareholding of Z in Neeta Films is shown to be of an amount more than Rs. 22 lakhs.

In the Petition filed by X, she has alleged that Z was the owner of two cars. The response of Z is that he is the owner of only one 118 NE Car metallic blue colour (air conditioned) bearing No. MH-01-7425. In the cross-examination, Z has admitted that he was the owner of a Mercedes car which was sold subsequently. Apart from shareholding to the extent of Rs. 22 lakhs, other investments are also shown in the balance sheet of Z as of 31st March, 1999. Therefore, this Court will have to proceed on the footing that in the year 1994, the annual income of Z was certainly more than Rs. 7.50 lakhs. The case of Z shows that he was holding a high position in a well known Company. Apart from the fact that the Respondent was shown to be in the film industry, from the answer given by him in the cross-examination, it appears that Z is highly educated. An inference can be easily drawn that from the year 1994 the income of Z must have steadily increased. Thus, we find that the stand taken by Z in his affidavit tendered today regarding the payment of maintenance of Rs. 30,000/- per month to Y appear to be consistent with his financial status. While accepting the said statement in the affidavit, we must hasten to add that Y was always entitled to higher maintenance than what was awarded under the impugned degree and, therefore, after dismissal of his Appeal, Z would not be entitled to seek refund of all the amounts paid during the pendency of the Appeal for the benefit of Y. As far as Y is concerned, even in his evidence, Z has come out with the case that he was always willing to pay maintenance to Y as he has accepted that Y is his daughter.

A submission was sought to be made across the bar that Y wants to take education abroad which will involve a very high expenditure. As of today, admittedly Y has not secured admission to any University in any foreign country and she is doing MBA in India. Therefore, as of today, taking overall view of the matter, an amount of Rs. 10 lakhs offered by Z as lump sum amount towards the cost of expenditure of education of Y is reasonable. There is some submission canvassed regarding the entitlement of the X and Y to marriage expenses of Y. The orders regarding grant of maintenance are never final in a sense that in case of change of circumstances, the parties can apply to appropriate Court for setting aside and/or for variation and/or for the enhancement of the maintenance granted earlier.

Now, the only issue which survives is about the reliefs which can be granted to X. As held earlier, under the provisions of the said Act of 1956, no relief can be granted to X. However, X is certainly entitled to benefits under section 25 of the said Act. However, we find that there is no Appeal preferred by X for challenging the decree passed in the counter claim. The Appeal is preferred only against the decree passed in the Petition filed under the provisions of the said Act of 1956.

It will be necessary to make a reference to section 25 of the said Act of 1955 which reads thus:--

"25. Permanent alimony and maintenance.-

(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried, 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 and the conduct of the parties, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

(3) If the court is satisfied that the party in whose favor an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it shall rescind the order."

In view of sub-section (1) of section 25, even after passing a decree within the meaning of the said Act of 1955, the wife can seek permanent alimony as well as support by making an application to the appropriate Court. We have already held by relying upon decision of the Apex Court that such a decree of nullity is a decree for the purpose of section 25 of the said Act of 1955. X will be entitled to reliefs under section 25. Therefore, we clarify that it will be open for X to file appropriate application in accordance with sub-section (1) of section 25 before appropriate Court. If such application is made, the same will be decided on its own merits in the light of what is held in this Judgment.

Hence, we dispose of the Appeals by passing the following order:--

ORDER

"(i) We clarify that the decree of declaration passed by the learned Judge of the Family Court in Petition is a decree of declaration in accordance with section 11 of the Hindu Marriage Act, 1955;

(ii) As far as the maintenance granted by the Family Court to Y is concerned, the said decree stands modified in terms of the affidavit of Z tendered today;

(iii) Hence, Z is ordered and decreed to pay maintenance of Rs. 30,000/- pm to Y till solemnization of her marriage or till she gets employment, whichever is earlier. Z is ordered and decreed to pay a sum of Rs. 10 lakhs by way of lump sum educational expenses to Y. We must record here that two post dated cheques of Rs. 5 lakhs each have been already handed over to the Advocate for X and Y by the Advocate for Z in the Court;

(iv) As far as the maintenance amount and expenditure on educational expenses payable to Y are concerned, it is obvious that in the event of change of circumstances, the parties can always apply to the concerned Court for variation or for enhancement as the case may be, in accordance with the provisions of the Hindu Adoption and Maintenance Act, 1956;

(v) In the light of the findings recorded by this Court, it will be open for the X to make an application under sub-section (1) of section 25 of the Hindu Marriage Act, 1955 to the appropriate Court. If such application is made, the same shall be disposed of expeditiously;

(vi) Considering the findings of fact recorded, we fix the costs of the proceedings quantified at Rs. 50,000/-. We direct Z to pay the costs quantified at Rs. 50,000/- to X and Y within a period of 12 weeks from today;

(vii) Civil Applications Nos. 239 of 2005, 221 of 2008, 197 of 2011, 234 of 2012, 35 of 2013 do not survive and the same are disposed of accordingly. The Appeals are disposed of on the above terms."