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Ravi   22 April 2016

Maintainance for annulled marriage

My marriage is annulled/dissolved by the court on the basis of impotence. Can my ex-wife now file a case for maintainance ?



Learning

 10 Replies

Vijay Raj Mahajan (Advocate)     23 April 2016

Yes she can seek permanent alimony and maintenance under section 25 of the Hindu Marriage Act,1955 even if the marriage was annulled on the ground of non consummation of marriage because of your impotency.

(Guest)

After marriage annuled, no maintenance, as marriage itself dissolved by court.  

"

MAINTENANCE:

Another significant question that now arises is whether the wife whose marriage is void under section 11 of the Act can claim maintenance from her husband of that void marriage. The Supreme Court has held that where a marriage is void, wife cannot claim maintenance under sec. 488 CrPC

"

BHRIGU DATTA 9475352677 (PRIVATE PRACTICE)     23 April 2016

How could she calim maintenance where she is not your wife . But she can get monetory relief by applying PWDV act.

Dr J C Vashista (Advocate)     24 April 2016

Since the marriage has been dissolved/annulled on the ground of impotency of husband and marriage itself as void, after passing a decree of annullement of marriage the ex-wife has no right to seek maintenance.

 

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     24 April 2016

I agree with advocate Mahajan.

 

There is deff between VOID marriage and annuled marrige.

 

The spouse of annuled marriage has all the rights of alimoney and maintenance.

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     24 April 2016

My reply is not limited to HMA act only and even DV act, CRPC are also applicable.

 

The basic issue is whether she can get maintenance and the legal position now is YES..

 

There is no question of advocates or non advocates , the issue is whether a destotute woman can get releif under various legal provisions HMA is only one of them.

Kumar Doab (FIN)     02 December 2018

The court may decide by various factors

For permanent and periodic maintenance, Maintenance pendente lite and expenses of proceedings

GO thru;

The Hindu Marriage Act, 1955

25 Permanent alimony and maintenance .—

 

24 Maintenance pendente lite and expenses of proceedings. —Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable

 

(i) During the pendency of the divorce proceedings at any point of time if the wife establishes that she has no sufficient independent income for her support, it is open to her to claim maintenance pendente lite

 

 

`Wife' or `Husband' ; Words should be liberally construed and wife or husband under void or voidable marriage may be entitled to claim maintenance under Section 25(1) of the Act.

The Apex Court has decided and citation is already posted above i.e.

Supreme Court of India

Rameshchandra Rampratapji Daga vs Rameshwari Rameshchandra Daga on 13 December, 2004

Author: Dharmadhikari

Bench: D. M. Dharmadhikari, H. K. Sema

           CASE NO.:

Appeal (civil)  1774-1775 of 1775

 

 

Kumar Doab (FIN)     02 December 2018

To pick up relevant points, be properly informed and to have 1st hand feel of the views of courts and Presiding Officers GO thru;

 

Rajasthan High Court

Madan vs The State Of Rajasthan And Anr. on 28 August, 1992

Equivalent citations: I (1993) DMC 71, 1992 WLN UC 322

Author: N Tibrewal

Bench: N Tibrewal

 

7. The marriage may be void, voidable or valid. In case of void marriage, it is void ab initio, but, in a case of voidable marriage, it stands annulled from the date of the decree of nullity which can be passed Under Section 12 of the Act on any of the grounds enumerated therein. If the' marriage is valid, then, the marriage can be dissolved on the petition by the husband or the wife on any of the grounds mentioned Under Section 13 of the Act.

9. It has been contended by the learned counsel for the wife that a term 'wife' in Section 125 Cr. P.C. should be given a wider meaning so as to include therein not only a lawfully wedded wife but also a woman married in fact. It was also contended, that in any case, the marriage in the instant case was not void ab initio and the wife and the non-petitioner may be treated as a divorcee even after the marriage was declared void Under Section 12 of the Act by a decree of nullity. If a divorcee is held to be entitled to the benefits of the section, the wife in the instant case should also be brought under the purview to be entitled to maintenance Under Section 125 Cr. P.C. In my view, this argument cannot be accepted. The right of the wife to maintenance depends upon the continuance of her marriage status and once the status of husband and wife is declared to be null and void, the effect would be the same as in (he case of void marriage Under Section 11 of the Act.

10. The next question that may arise is from what date the order of cancellation should be effective.

 

Kumar Doab (FIN)     02 December 2018

 

Wife under a void or voidable marriage is also entitled to maintenance and alimony under Section 25 of the Hindu Marriage Act 1955..

Delhi High Court

Kuldip Chand Sharma vs Geeta Sharma on 25 February, 1976

Equivalent citations: AIR 1977 Delhi 124, ILR 1976 Delhi 854

Author: B Misra

Bench: B Misra

14… At the present time nobody can be expected to live and make his or her two ends meet on this paltry sum. The court below awarded the amount in view of "potentiality of the respondent to earn" and so she was indeed expected to earn and maintain herself, if she were not to be left to starve to death. The appellant can, therefore, not derive any advantage from the alleged earning of the respondent after he has had the alimony fixed at a low figure. The finding of the court below is affirmed and the contention of the appellant is rejected.

 

 

Illustrated Allahabad High Court judgment to defeat the claim of OP;

 

Smt.Kiran Dhar vs Alok Berman on 14 May, 2014

Bench: Arvind Kumar (Ii)

 

 

 

 

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

 

 

 

AFR

 

Reserved

 

 

 

Case :- CRIMINAL REVISION No. - 623 of 2007

7. Learned counsel for the opposite party argued that second marriage is void ab initio on the ground of subsistence of first marriage, then this wife is not entitled for maintenance as marriage is void.

 

 29.      In view of Sections 5 (1) and 11 of Hindu Marriage Act and also in view of decision of Apex Court in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another (supra) the marriage between Smt. Kiran Dhar and Alok Berman is void ab initio, and she is not entitled to maintenance.

 

30.       It is also clear from the decision of Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another (supra) that even if the second wife (Smt. Kiran Dhar) was not aware of first marriage of her husband with another woman, she is not entitled to any maintenance.

 

31.       In view of the above discussions, this criminal revision is liable to fail, and is hereby dismissed.

 

Order Date :- 14.5.2014 Anupam (Justice Arvind Kumar Tripathi - II)   

 

 

Revisionist :- Smt. Kiran Dhar

 

Opposite Party :- Alok Berman

Kumar Doab (FIN)     02 December 2018

And latest Judgment;

Man has to maintain wife till nullity of their marriage: Delhi court

Updated: May 15, 2017

 

“A married woman is entitled to benefits and protection under the domestic violence law until her husband gets a decree of nullity of their marriage, a Delhi court has said.

The sessions court made the law clear to a man, who had challenged a magisterial court’s order directing him to pay an interim maintenance of Rs 5,000 to his estranged wife on the grounds that the woman was already married before marrying him.

“I am of the view that until and unless the man did not get decree of nullity of marriage with the woman, as divorce petition under the Hindu Marriage Act has already been filed, she is entitled for benefits and protection under Domestic Violence Act as the Act is benevolent in favour of a woman,” additional sessions judge Jagdish Kumar said.

The court dismissed the man’s appeal, saying there was no illegality, infirmity or impropriety in the order of trial court and it was an interim order of maintenance which could be modified at the time of final disposal of main petition.

The man challenged the trial court order, saying it had not considered the fact that his marriage with the woman was null and void from the beginning as she was already married to some other person.

To this, the sessions court said even if this fact was accepted for the sake of an argument, the marriage of the woman with the other person “may be nullity ab-initio” under the provisions of the Hindu Marriage Act as she asserted that he was her cousin brother.

“Then the marriage between the appellant man and the woman may subsist. Though, it is not within the jurisdiction of this court to give any opinion regarding the nullity or subsisting of marriage between the man and the woman but I am giving the observation only on the basis of averment in pleading, if same is admitted to be correct and same are only for the sake of argument,” the judge said.

The woman, in her petition seeking maintenance from her husband, had said that she got married to him in March 2013 and alleged that the man and his parents started harassing her just after few days of marriage.

She also alleged that her husband and in-laws started demanding dowry and she was thrown out of her matrimonial house two months after marriage, i.e. in May 2013 after which she approached the court.

The man, in his appeal, also placed on record a marriage certificate of the woman with the other person purportedly issued by the registrar of Hindu marriages in Ghaziabad.

The court, however, said mere production of a marriage certificate issued under the Special Marriage Act in support of her claimed first marriage was not sufficient.

 


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