Court:ANDHRA PRADESH HIGH COURT
Bench: JUSTICE Rama Rao
K. SIVARAMA KRISHNA PRASAD Vs. K. BHARATH AND ANOTHER On 25 April 1985
Section 125(1) and Explanation (b) — Hindu Marriage Act, 1955 — Sections 11, 12 and 16 — At wife’s insistence a decree of annulment of marriage was passed u/s 12 of Hindu Marriage Act — Such wife whether entitled to maintenance u/s, 125 Cr.P.C. ? (No).
This criminal revision case arising under section 125 Cr.P.C. is at the instance of the husband. The wife filed a petition for maintenance. Ex-parte order was passed by the court below for maintenance as the husband was absent. The marriage between the parties was performed on 7-2-1977. The petition for maintenance was filed on 8-7-1982. The maintenance order was passed on 18-8-1983. Before the maintenance order was passed, a petition being O.P. No. 17 of 1978 was filed by the wife for a decree for nullity of marriage on the ground of impotency of the husband. A decree for annulment was passed under section 12 of the Hindu Marriage Act on 30-10-1982.
2. The learned counsel for the petitioner contends that, on the date when the application for the grant of maintenance was taken up and the order was passed on 18.8-83, the marriage was held to be annulled and as such the claim for maintenance does not survive. The learned counsel for the respondent contends that, by virtue of annulment of marriage under section 12 of the Hindu Marriage Act, the marriage cannot be considered as void and voidable only and therefore the petition for maintenance is sustainable in view of the definition of ‘wife’ under section 125 of the Code of Criminal Procedure.
3. To appreciate the rival contentions, it is necessary to refer to sections 11 and 12 of the Hindu Marriage Act and also clause (b) of Explanation to section 125(1) of the Code of Criminal Procedure. Sections Hand 12 of the Hindu Marriage Act are as follows :
“Section II. Void Marriage—Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.
Section 12. Voidable Marriages : —(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely :
That the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings ;
that the marriage is in contravention of the condition specified in clause (ii) of section 5.”
Clause (b) of Explanation to section 125(1) of the Code of Criminal Procedure defines ‘wife’ as under :
“Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.”
Section 11 of the Hindu Marriage Act envisages that the marriage is void if the marriage is in violation of any one of the conditions formulated in clauses (i), (iv) and (v) of section 5 and a court can pass a decree declaring the same as a nullity. Section 11 is concerned with marriages which are non est in the eye of law and void ab initio.
4. Section 12 is also concerned with annulment of marriage by a decree of nullity on the grounds enumerated therein and the marriage can be avoided at the initiative by the aggrieved or concerned person. The end-all of both the provisions is a decreee of nullity. Nullity postulates a full-fledged cessation of marital tie or connection. Section 16 of the Hindu Marriage Act furnishes a clu to get at the amplitude and connotation of the nullity of the marriage visualised cinder this provision.
5. Section 16 of the Act is as follows :
“Section 16. Legitimacy of children of void and voidable marriages— Where a decree of nullity is granted in respect of any marriage under section It or section 12, any child begotten or conceived before the decree Is made who would have been legitimate child of the parties to the marriage if it had be dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity :
Provided that nothing contained it this section shall be construed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.”
Section 16 of the Act while providing a deeming provision regarding legitimacy of the child notwithstanding decree of nullity clearly postulates that the proceedings either under section 11 or section 12 peter out to the same end namely, nullity of marriage. The only distinction is that the marriage referred to under section 11 is null since inception and should be considered in law as not conceived at all and the marriage under section 12 can be avoided and the end result of contingencies in both the provisions is a decree of nullity. Further section 16 visualises a seminal distinction between dissolution of marriage and decree of nullity annulling the marriage. This distinction is appropriate in the context of wife surviving the dissolution or divorce under section 125 Cr. P.C. The wife as defined under section 125 of the Code of Criminal Procedure continues to be wife and eligible for maintenance under section 125 notwithstanding divorce. Dissolution of marriage as a sequel to divorce should not be equated to decree of nullity. Section 13 of the Act is concerned with dissolution of marriage by a decree of divorce on the grounds enumerated therein. Section 15 permits either party to remarry again in the event of there being no right of appeal against decree, or time for appeal expired without any appeal having been presented, or appeal which has been presented has been dismissed. The ptcmso to section 15 prohibits performance of marriage within one year from the date of decree for dissolution of marriage or divorce in the court of the first instance. Therefore the distinction between dissolution of marriage on divorce and nullity of marriage is clearly discernible. In the event of dissolution of marriage on divorce the remarriage by either party is intertwined by certain strings and conditions and the mere decree for divorce dees not result in fanning the wings and getting away from the tie unless the conditions stipulated in section 15 are fulfiled, In the event of a decree for nullity, the association of marriage is irrevocably terminated with immediate effect. The explanation under section 125 of the Code relating to ’wife’ is solaly confined to the situation of divocce only till remarriage and definition aimed at a singular situation cannot be stretched, associated or finked to nullity of marriage envisioned under section 11 or section 12 of the Act.
6. The learned counsel for the respondent relied upon the decision of the Supreme Court in Sirajmohmed Khan v. Hafizunnisa Yasin Khan, AIR 1981 SC 1972, wherein the issue is whether a woman obtaining decree for dissolution of marriage under the Dissolution of Muslim Marriage Act is the wife within clause (b) of Explanation to section 125 of the Code of Criminal Procedure. It is held that the wife in the eye of law continues to be wife despite a decree for dissolution of marriage. In the context of considering the legal effect of divorce and dissolution of marriage on divorce, the Supreme Court held as follows :
“In fact the fundamental basis of the ground of maintenance under section 488 analogous to section 125 of 1973 Code is conjugal relationship and once conjugal relationship is divorced from the ambit of this special provision, then the very purpose and setting of the statutory provision vanishes. A persual of this provision manifestly shows that it was meant to give a clear instance of circumstances which may be treated as a just ground for refusal of the wife to live with her husband. By virtue of this provision, the proviso takes within its sweep all other circumstances similar to the contingencies contemplated in the Amending provision as also other instances of physical, mental or legal cruelty not excluding the impotence of the husband. These circumstances, therefore clearly show that the grounds on which the wife refuses to live with her husband should be just and resonable as contemplated by the proviso.”
The Supreme Court is concerned with the situation of divorce only under the Dissolution of Muslim Marriage Act and held that wife is entitled to maintenance in view of section 125 Cr.P.C. The definition of wife under section 125 for the purpose of eligibility to maintenance is confined to the situation of divorce and cannot be divorced or disassociated from the context of set up of section 125 Cr. P.C. and cannot be applied to other situations.
7. In view of the decree of nullity of the marriage passed on 30-10-1982 the Court below is not competent to pass a decree for maintenance on 18-8-1983.
8. The orders of both the courts below are set aside. Criminal revision case allowed.
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