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Allahabad High Court

Naurang Singh Chuni Singh vs Smt. Sapla Devi on 15 May, 1968
Equivalent citations: AIR 1968 All 412, 1968 CriLJ 1636
Author: R Chandra
Bench: R Chandra, K Puri

JUDGMENT R. Chandra, J.

1. This reference arises out of the proceedings under Section 488 of the Code of the Criminal
Procedure.

2. On 26th March, 1965, Smt. Sapla Devi made an application under Section 488, Cr. P. C.,
for grant of maintenance on the grounds, that she was married to Naurang Singh petitioner
about two years ago and after one year of the marriage the relations between them became
strained and Naurang Singh also married a second wife, namely Smt. Kalpa Devi, that about
8 months ago he (Naurang Singh), dispossessed her of the ornaments and clothes and turned
her out of the house, and thereafter she started to live with her father. It was said that during
this period, Naurang Singh completely neglected to maintain her, so she claimed
maintenance at Rs 30 per mensem from her husband, namely Naurang Singh.

3. Naurang Singh petitioner resisted the claim for maintenance on the grounds that Smt Sapla
Devi was not his legally wedded wife and he was actually married to Kalpa Devi about
fifteen years ago and also had a female issue from her. Smt. Sapla Devi was the cousin-sister
of Smt. Kalpa Devi and frequently visited his house, and he developed illicit connection with
her. She also became pregnant. In law, she was not entitled to get any maintenance.

4. The learned Magistrate found that Smt. Sapla Devi was the wedded wife of Naurang
Singh, so he granted her maintenance at the rate of Rs. 40 per mensem.

5. Naurang Singh being aggrieved with that order went up in revision. The Sessions Judge
agreed with the Magistrate that Smt. Sapla Devi was the married wife of Naurang Singh. It
was also found that Naurang Singh was first married to Smt. Kalpa Devi about 12 years ago,
and that marriage still subsisted, when he (Naurang Singh) took Smt. Sapla Devi as his
second wife. In his opinion, the second marriage in the lifetime of the first wife, was void
under section 5/11 of the Hindu Marriage Act, 1955. In this view, he disagreed with the
Magistrate and held that Smt. Sapla Devi was not entitled to claim any maintenance, as the
first wife of Naurang Singh was alive at the time of her marriage (which took place after the
coming into force of the Hindu Marriage Act, 1955). Accordingly, he made a reference to the
High Court recommending that the order of the Magistrate granting maintenance at the rate
of Rs. 40/- per mensem to Smt. Sapla Devi be quashed, and her petition, under Section 488,
Cr. P. C. be dismissed, vide the order of the Sessions Judge, Bahraich, dated 15th January,
1966.

6. The reference came up for hearing before brother Misra, J. The question that arose for
consideration was formulated as: "Whether the marriage of a Hindu husband, solemnised
with a second wife during the continuance of his marriage with his former wife is void on
account of the provisions of Sections 5(1) and 11 of the Hindu Marriage Act 1955, and is
such a wife by the subsequent marriage prevented from claiming maintenance from him in
accordance with section 488, Code of Criminal Procedure." Since the question raised in the
reference was of some importance, and there was no clear case law on the point, Misra J.,
referred the matter to the Division Bench. In these circumstances, this reference has come up
for hearing before us. We have heard the learned counsel for the parties. Smt. Kalpa Devi
was married to Naurang Singh, sometime in 1952-53. The marriage of Sapla Devi with
Naurang Singh took place sometime in 1963, when his first wife was still alive, and the
earlier marriage subsisted in the eye of law Now, we have to see what was the status of Smt.
Sapla Devi under law and whether she was competent to claim maintenance from her
husband Naurang Singh, under section 488, Cr. P. C.

7. Section 488, Cr. P. C. read: "488 (1) If any person having sufficient means neglects or
refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself,
the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or a Magistrate
of the first class may, upon proof of such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or such child, at such monthly rate, not
exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the
same to such person as the Magistrate from time to time directs... "

The object of a proceeding for maintenance is to prevent vagrancy by compelling the

husband or the father to support his wife or child unable to support itself. These provisions
are not in the nature of penal provisions but are only intended for the enforcement of a duty,
a default in which may lead to vagrancy. The real object is to provide food, clothing and
shelter to deserted wife and children. A plain reading of the section indicates that only a
legally wedded wife or a legitimate or illegitimate child could claim maintenance from the
husband or the father, as the case may be, when he having sufficient means neglects or
refuses to maintain them. It is clear that a child whether he is legitimate or illegitimate is
entitled to claim maintenance from the father, if other conditions required under law are
satisfied. But, against a husband, maintenance could be claimed only by his wife. It only
means a legally wedded wife. No specific provision has been made in the case of a wife
whose marriage has not been solemnised according to the requirements of law. Though an
illegitimate child is entitled to claim maintenance, but no illegitimate wife has been given
any such right under law. In the law Lexicon of British India, by P.R. Aiyar. 'wife' has been
defined as 'a married woman' For conferring the status of 'wife' on a woman, marriage must
be valid under law. In A.T. Lakshmi Ambalam v. Andimmal, 39 Crl. LJ 228 :(AIR 1938
Mad 66), it was held:
"Under Section 488, Criminal Procedure Code a woman is not entitled to maintenance even
if she has lived with a man as his wife for 12 years and has also borne him a child. Only
legally married women are entitled to maintenance under Section 488, Criminal Procedure
Code."

In Smt. Savithramma v. N. Ramanarasim-haih, 1963 Crl LJ 131 (Mys). It was held:

'The term "wife" in Section 488 includes only a legitimate wife and excludes any illegitimate
one. If the intention of the legislature was that provision is to be made for even the
illegitimate wife just as in the case of children where the expression 'legitimate' or
'illegitimate' is used similar expression would have been employed.

Section 488 Criminal Procedure Code has got a restricted scope. Its object is to prevent
vagrancy of wife or of the legitimate or illegitimate children. It affords speedy remedy for
the aggrieved party."

So, there could be no doubt that Smt. Sapla Devi could claim maintenance from Naurang
Singh, only if her marriage in the lifetime of his first wife was valid under law.

8. It was not disputed before us, that the Hindu Marriage Act (Act XXV of 1955) would be
applicable to the instant case. That Act came into force on 18th May, 1955. It extends to the
whole of India except the State of Jammu and Kashmir, and applies also to a Hindu
domiciled in the territories to which the Act extends outside the said territories. The
Act applies to any person who is a Hindu by religion in any of its forms or developments,
including a Virashaiva, a Lingayat or a follower of the Brahma, Prarthana or Arya
Samaj. Section 4 of the Act reads:

"Save as otherwise expressly provided in this Act,--

(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in
force immediately before the commencement of this Act shall cease to have effect with
respect to any matter for which provision is made in this Act.

(b) any other law in force immediately "before the commencement of this Act shall cease to
have effect in so far as it is inconsistent with any of the provisions contained in this Act."

So, it is clear that the present case would be governed by the provisions of the  Hindu
Marriage Act. Section 5 of the Act lays down:

". - A marriage may be solemnised between any two Hindus, if the following conditions are
fulfilled, namely:

(i) neither party has a spouse living at the time of the marriage: Section 11 further provides:
"Any marriage solemnised after the commencement of this Act shall be 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."

This section clearly lays down that if the marriage is not performed in accordance with the
provisions of Section 5(i) of the Act, it would be null and void fiither party to such marriage
may also get a declaration by a decree of nullity from a court of law. It, however, could not
be the intention of the legislature that such a marriage would be valid till it was declared a
nullity by the Court For a marriage which was void ab initio no such declaration was at all
necessary. If the intention of the legislature had been to the contrary, specific provisions
must have been made in the Act. But the section referred to above is perfectly silent on that
point. So, it was clear that the marriage which had been performed in contravention of the
condition mentioned in Clause (i) of Section 5 of the Act would be null and void.

9. Section 12 of the Act deals with cases in which the marriage would be voidable. Such a
marriage could be annulled by a decree of nullity on any of the grounds mentioned in that
section. Section 16 deals with legitimacy of children of void and voidable marriages.
Under Sections 17 and 18 bigamy and contravention of other conditions for a Hindu
marriage have been made punishable under law. So, from the scheme of the Act it is clear
that void and voidable marriages have been dealt with separately. In Mohd. Ikram Hussain v.
State of Uttar Pradesh, AIR 1964 SC 1625 the Hon'ble Judges held:

"Under Sections 5 and 11 of the Hindu Marriage Act (XXV of 1955) a second marriage with
a previous married wife living, is null and void."

Similar view was expressed in Ishwar Sineh v. Smt. Hukam Kaur. AIR 1965 All 464. It was
held:--

"So long as such a divorce has not been obtained, the previous marriage subsists and,
therefore, the second marriage cannot be contracted by a Hindu so long his spouse is
living Section 5 of the Hindu Marriage Act provides that a marriage may be solemnized
between any two Hindus, if neither party has a spouse living at the time of the marriage. In
the instant case the previous husband of the opposite party is still alive and, therefore a
second marriage with the applicant even if it is held to have taken effect was wholly illegal
and cannot give her any right to get a maintenance from the applicant."

In another case Banshidhar Jha v. Chhabi Chatterjee, 1967 Cri LJ 1176=(AIR 1967 Pat 277)
it was held:

"A marriage which contravenes the conditions referred to in Section 11 is in law no marriage
at all being void ipso jure and it is open to the parties even without recourse to the court to
treat it as a nullity. Neither party is under any obligation to seek a declaration of nullity under
this section though such a declaration may be asked for the purpose of precaution or record.
A marriage which is void ab initio does not alter or affect the status of the parties nor does it
create between them any rights and obligations which must normally arise from a valid
marriage except such rights as are expressly recognised by the Act. There is a distinction
between this section and Section 12 which speaks of voidable marriages as distinguished
from void marriages. A voidable marriage remains valid and binding and continues to subsist
for all purposes unless a decree is passed by the Court annulling the same on any of the
grounds mentioned in Section 12. These distinctions in the effect of void and voidable
marriages are well settled . . . . the distinction is further indicated by Section 17 which makes
the parties to void marriage criminally liable, while there is no such penalty for the parties to
a voidable marriage. Of course, both Sections 11 and 12 speak of a decree of nullity;
but Section 11 speaks of only declaration of the marriage as null and void by such a decree,
while Section 12 speaks of the annulment of a voidable marriage by a decree. As a void
marriage is non-existent in the eye of law, only a declaration is sufficient; but an annulment
of a voidable marriage is necessary because such a marriage shall be deemed to be valid until
it is annulled by a decree of nullity. The effect of a decree of nullity in case of a void
marriage or annulment of a voidable marriage, is to render the marriage null and void from
its inception for all intents and purposes. Hence, it is provided in Section 16 of this Act that
in no case should children of parents whose marriage is solemnised but is void or voidable
under Section 11 or 12 be regarded as illegitimate. Such children, accordingly to Section 16,
shall be deemed to be the legitimate children of their parents, until a decree of nullity or a
decree of annulment as the case may be, is passed by a court. It is well settled that a woman
can claim maintenance under Section 488, only if she is a legally wedded wife of the man
from whom she claims maintenance. . . .The claim for maintenance under Section 488,
however, has nothing to do with the personal law, and it entitles a lawfully married wife only
to maintenance. Further, the personal law regarding maintenance has been changed by the
Hindu Adoptions and Maintenance Act, 1956; and there is no provision in this Act entitling a
woman to claim maintenance from person with whom she entered into a void marriage
(see Section 18 of this Act of 1956). This section speaks of the maintenance of a Hindu wife
by her husband. As pointed out earlier, a bigamous marriage contracted after the coming into
force of the Act of 1955 shall be null and void."

We are in respectful agreement with the above observations of the Hon'ble Judges.

10. For all these reasons, we agree' with the learned Sessions Judge that the! marriage of
Smt. Sapla Devi with Naurang Singh in the lifetime of his first wife was null and void under
the Hindu Marriage Act (Act XXV of 1955). So, she was not entitled to claim maintenance
from her husband Naurang Singh under Section 488, Cr. P. C.

11. Accordingly, the reference made by the Sessions Judge is accepted, and the order of the
Magistrate directing the petitioner to pay Rs. 40/- per mensem as maintenance to the opposite
party is set aside. The petition for maintenance shall stand dismissed.