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Wife of void marriage is entitled to get maintenance till

 

Wife is entitled to get all benefits and protection available under the DV Act, 2005 unless her marriage is declared void

 
In the absence of any valid decree of nullity or the necessary declaration the court will have to proceed on the footing that the relationship between the parties is one of marriage and not in the nature of marriage. We would also like to emphasise that any determination of the validity of the marriage between the parties could have been made only by a competent court in an appropriate proceeding by and between the parties and in compliance with all other requirements of law. Mere production of a marriage certificate issued under Section 13 of the Special Marriage Act, 1954 in support of the claimed first marriage of the appellant with Rohit Kumar Mishra was not sufficient for any of the courts, including the High Court, to render a complete and effective decision with regard to the marital status of the parties and that too in a collateral proceeding for maintenance. Consequently, we hold that in the present case until the invalidation of the marriage between the appellant and the respondent is made by a competent court it would only be correct to proceed on the basis that the appellant continues to be the wife of the respondent so as to entitle her to claim all benefits and protection available under the DV Act, 2005.

Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad & ANR.
[Criminal Appeal Nos.2032-2033 of 2012 arising out of SLP (Criminal) Nos. 8076-8077 of 2010]
RANJAN GOGOI, J.


Learning

 10 Replies

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     16 December 2012

nice information 

 

2012 STPL(Web) 731 SC 1

Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad

Supreme Court Judgements @ www.stpl-india.in

2012 STPL(Web) 731 SC

SUPREME COURT OF INDIA

(P. SATHASIVAM & RANJAN GOGOI, JJ.)

DEOKI PANJHIYARA

Appellant

VERSUS

SHASHI BHUSHAN NARAYAN AZAD & ANR.

Respondents

Criminal Appeal Nos.2032-2033 of 2012 (Arising out of SLP (Criminal) Nos. 8076-8077 of

2010)-Decided on 12-12-2012.

Maintenance to Wife – Void marriage

JUDGMENT

Ranjan Gogoi, J.-Leave granted.

2. The appellant, who was married to the respondent in the year 2006, had filed a petition under

Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred

to as ‘the DV Act’) seeking certain reliefs including damages and maintenance. During the

pendency of the aforesaid application the appellant filed an application for interim maintenance

which was granted by the learned trial court on 13.02.2008 at the rate of Rs.2000/- per month.

The order of the learned trial court was affirmed by the learned Sessions Judge on 09.07.2008. As

against the aforesaid order, the respondent (husband) filed a Writ Petition before the High Court

of Jharkhand.

3. While the Writ Petition was pending, the respondent sought a recall of the order dated

13.02.2008 on the ground that he could subsequently come to know that his marriage with the

appellant was void on the ground that at the time of the said marriage the appellant was already

married to one Rohit Kumar Mishra. In support, the respondent – husband had placed before the

learned trial court the certificate of marriage dated 18.04.2003 between the appellant and the said

Rohit Kumar Mishra issued by the competent authority under Section 13 of the Special Marriage

Act, 1954 (hereinafter referred to as ‘the Act of 1954’).

4. The learned trial court by order dated 7.8.2009 rejected the aforesaid application on the ground

that notwithstanding the certificate issued under Section 13 of the Act of 1954, proof of existence

of the conditions enumerated in Section 15 of the Act would still required to be adduced and only

thereafter the certificate issued under Section 13 of the Act can be held to be valid.

5. The aforesaid order dated 07.08.2009 was challenged by the respondent-husband in a revision

application before the High Court which was heard alongwith the writ petition filed earlier. Both

the cases were disposed of by the impugned common order dated 09.04.2010 holding that the

marriage certificate dated 18.04.2003 issued under Section 13 of the Act of 1954 was conclusive

proof of the first marriage of the appellant with one Rohit Kumar Mishra which had the effect of

rendering the marriage between the appellant and the respondent null and void. Accordingly, it

2012 STPL(Web) 731 SC 2

Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad

Supreme Court Judgements @ www.stpl-india.in

was held that as the appellant was not the legally wedded wife of the respondent she was not

entitled to maintenance granted by the learned courts below. It is against the aforesaid order of

the High Court that the present appeals have been filed by the appellant – wife.

6. We have heard Shri Gaurav Agarwal, learned counsel for the appellant and Shri Mahesh

Tiwari, learned counsel for the respondent.

7. Learned counsel for the appellant has strenuously urged that the allegation of the earlier

marriage between the appellant and Rohit Kumar Mishra had been denied by the appellant at all

stages and the said fact is not substantiated only by the Marriage Certificate dated 18.04.2003.

Even assuming the marriage between the appellant and the respondent to be void, the parties

having lived together, a relationship in the nature of marriage had existed which will entitle the

appellant to claim and receive maintenance under the DV Act, 2005. Placing the legislative

history leading to the aforesaid enactment, it is urged that in the Bill placed before the Parliament

i.e. Protection from Domestic Violence Bill, 2002 an “aggrieved person” and “relative” was,

initially, defined in the following terms :

“Section 2……… (a) “aggrieved person” means any woman who is or has been relative

of the respondent and who alleges to have been subjected to act of domestic violence by

the respondent; (b)… ( c )… (d)…. (e)…. (f)… (g)… (h)…. (i)”relative” includes any

person related by blood, marriage or adoption and living with the respondent.”

Thereafter, the different clauses of the Bill were considered by a Parliamentary Standing

Committee and recommendations were made that having regard to the object sought to be

achieved by the proposed legislation, namely, to protect women from domestic violence and

exploitation, clause (2)(i) defining “relative” may be suitably amended to include women who

have been living in relationship akin to marriages as well as in marriages considered invalid by

law. Pursuant to the aforesaid recommendation made by the Standing Committee, in place of the

expression “relative” appearing in clause 2(i) of the Bill, the expression “domestic relationship”

came be included in clause (f) of Section 2 of the Act. Learned counsel by referring to the

definition of “aggrieved person” and “domestic relationship” as appearing in the DV Act, 2005

has urged that the legislative intent to include women, living in marriages subsequently found to

be illegal or even in relationships resembling a marriage, within the protective umbrella of the

DV Act is absolutely clear and the same must be given its full effect. It is submitted that having

regard to the above even if the marriage of the appellant and the respondent was void on account

of the previous marriage of the appellant, the said fact, by itself, will not disentitle the appellant to

seek maintenance and other reliefs under the DV Act, 2005.

8. Before proceeding further it will be appropriate to notice, at this stage, the definition of the

expressions “aggrieved person” and “domestic relationship” appearing in Section 2(a) and (f) of

the DV Act, 2005. “Section 2….. (a) “aggrieved person” means any women who is, or has been,

in a domestic relationship with the respondent and who alleges to have been subjected to any act

of domestic violence by the respondent; (b) …… (c) …… d) …… (e) …… (f) “domestic

relationship” means a 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, adoption or are family members living together

as a joint family.”

9. Learned counsel, in all fairness, has also drawn the attention of the court to a decision rendered

by a coordinate Bench in D. Velusamy vs. D.Patchaimmal [(2010) 10 SCC 469] wherein this

court had occasion to consider the provisions of Section 2(f) of the DV Act to come to the

2012 STPL(Web) 731 SC 3

Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad

Supreme Court Judgements @ www.stpl-india.in

conclusion that a “relationship in the nature of marriage” is akin to a common law marriage

which requires, in addition to proof of the fact that parties had lived together in a shared

household as defined in Section 2(s) of the DV Act, the following conditions to be satisfied: a)

The couple must hold themselves out to society as being akin to spouses. b) They must be of

legal age to marry. c) They must be otherwise qualified to enter into a legal marriage, including

being unmarried. d) They must have voluntarily cohabited and held themselves out to the world

as being akin to spouses for a significant period of time…….” [Para 33]

10. Learned counsel has, however, pointed out that in Velusamy (supra) the issue was with regard

to the meaning of expression “wife” as appearing in Section 125 Cr.P.C. and therefore reference

to the provisions of Section 2(f) of the DV Act, 2005 and the conclusions recorded were not

required for a decision of the issues arising in the case. Additionally, it has been pointed out that

while rendering its opinion in the aforesaid case this Court had no occasion to take into account

the deliberations of the Parliamentary Standing Committee on the different clauses of Protection

of Women from Domestic Violence Bill, 2002. It is also urged that the equation of the expression

“relationship in the nature of marriage” with a common law marriage and the stipulation of the

four requirements noticed above is not based on any known or acceptable authority or source of

law. Accordingly, it is submitted that the scope and expanse of the expression “relationship in the

nature of marriage” is open for consideration by us and, at any rate, a reference of the said

question to a larger bench would be justified.

11. Opposing the contentions advanced on behalf of the appellant learned counsel for the

respondent – husband has submitted that the object behind insertion of the expression

“relationship in the nature of marriage” in Section 2(f) of the DV Act is to protect women who

have been misled into marriages by the male spouse by concealment of the factum of the earlier

marriage of the husband. The Act is a beneficial piece of legislation which confers protection of

different kinds to women who have been exploited or misled into a marriage. Learned counsel has

pointed out that in the present case the situation is, however, otherwise. From the marriage

certificate dated 18.04.2003 it is clear that the appellant was already married to one Rohit Kumar

Mishra which fact was known to her but not to the respondent. The second marriage which is

void and also gives rise to a bigamous relationship was voluntarily entered into by the appellant

without the knowledge of the husband. Therefore, the appellant is not entitled to any of the

benefits under the DV Act. In fact, grant of maintenance in the present case would amount to

conferment of benefit and protection to the wrong doer which would go against the avowed

object of the Act. Learned counsel has also submitted that the conduct of the appellant makes it

clear that she had approached the court by suppressing material facts and with unclean hands

which disentitles her to any relief either in law or in equity. In this regard the decision of this

court in S.P. Changalvaraya Naidu vs. Jagannath and others [AIR 1994 SC 853] has been

placed before us.

12. Having considered the submissions advanced by the learned counsels for the contesting

parties, we are of the view that the questions raised, namely, whether the appellant and the

respondent have/had lived together in a shared household after their marriage on 4.12.2006; if the

parties have/had lived together whether the same gives rise to relationship in the nature of

marriage within the meaning of Section 2(f) of the DV Act, 2005; whether the decision of this

Court in Velusamy (supra) is an authoritative pronouncement on the expression “relationship in

the nature of marriage” and if so whether the same would require reference to a larger Bench,

may all be premature and the same need not be answered for the present. Instead, in the first

instance, the matter may be viewed from the perspective indicated below.

2012 STPL(Web) 731 SC 4

Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad

Supreme Court Judgements @ www.stpl-india.in

13. The Respondent before us had claimed (before the trial court as well as the High Court) that

the marriage between him and the appellant solemnised on 4.12.2006, by performance of rituals

in accordance with Hindu Law, was void on account of the previous marriage between the

appellant with one Rohit Kumar Mishra. In support thereof, the respondent relied on a marriage

certificate dated 18.4.2003 issued under Section 13 of the Special Marriage Act, 1954. Acting

solely on the basis of the aforesaid marriage certificate the learned trial court as well as the High

Court had proceeded to determine the validity of the marriage between the parties though both the

courts were exercising jurisdiction in a proceeding for maintenance. However, till date, the

marriage between the parties is yet to be annulled by a competent court. What would be the effect

of the above has to be determined first inasmuch as if, under the law, the marriage between the

parties still subsists the appellant would continue to be the legally married wife of the respondent

so as to be entitled to claim maintenance and other benefits under the DV Act, 2005. Infact, in

such a situation there will be no occasion for the Court to consider whether the relationship

between the parties is in the nature of a marriage.

14. Admittedly, both the appellant and the respondent are governed by the provisions of the

Hindu Marriage Act, 1955. Section 11 of the Hindu Marriage Act makes it clear that a marriage

solemnised after the commencement of the Act “shall be null and void and may, on a petition

presented by either party thereto against the other party, be so declared by a decree of nullity if it

contravenes any one of the conditions so specified in clauses (i), (iv) and (v) of Section 5.”

15. While considering the provisions of Section 11 of the Hindu Marriage Act, 1955 this Court in

Yamunabai v. Anantrao [AIR 1988 SC 645] has taken the view that a marriage covered by

Section 11 is void-ipso-jure, that is, void from the very inception. Such a marriage has to be

ignored as not existing in law at all. It was further held by this Court that a formal declaration of

the nullity of such a marriage is not a mandatory requirement though such an option is available

to either of the parties to a marriage. It must, however, be noticed that in Yamunabai (supra) there

was no dispute between the parties either as regards the existence or the validity of the first

marriage on the basis of which the second marriage was held to be ipso jure void.

16. A similar view has been expressed by this Court in a later decision in M.M. Malhotra v.

Union of India [2005 (8) SCC 351] wherein the view expressed in Yamunabai (supra) was also

noticed and reiterated.

17. However, the facts in which the decision in M.M. Malhotra (supra) was rendered would

require to be noticed in some detail: The appellant M.M. Malhotra was, inter alia, charged in a

departmental proceeding for contracting a plural marriage. In reply to the charge sheet issued it

was pointed out that the allegation of plural marriage was not at all tenable inasmuch as in a suit

filed by the appellant (M.M. Malhotra) for a declaration that the respondent (wife) was not his

wife on account of her previous marriage to one D.J. Basu the said fact i.e. previous marriage was

admitted by the wife leading to a declaration of the invalidity of the marriage between the parties.

The opinion of this court in M.M. Malhotra (supra) was, therefore, once again rendered in the

situation where there was no dispute with regard to the factum of the earlier marriage of one of

the spouses.

18. In the present case, however, the appellant in her pleadings had clearly, categorically and

consistently denied that she was married to any person known as Rohit Kumar Mishra. The

legitimacy, authenticity and genuineness of the marriage certificate dated 18.4.2003 has also been

questioned by the appellant. Though Section 11 of the aforesaid Act gives an option to either of

the parties to a void marriage to seek a declaration of invalidity/nullity of such marriage, the

exercise of such option cannot be understood to be in all situations voluntarily. Situations may

2012 STPL(Web) 731 SC 5

Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad

Supreme Court Judgements @ www.stpl-india.in

arise when recourse to a court for a declaration regarding the nullity of a marriage claimed by one

of the spouses to be a void marriage, will have to be insisted upon in departure to the normal rule.

This, in our view, is the correct ratio of the decision of this Court in Yamunabai (supra) and M.M.

Malhotra (supra). In this regard, we may take note of a recent decision rendered by this Court in

A. Subash Babu v. State of Andhra Pradesh & Anr. [2011 (7) SCC 616] while dealing with

the question whether the wife of a second marriage contracted during the validity of the first

marriage of the husband would be a “person aggrieved” under Section 198 (1)(c) of the Code of

Criminal Procedure to maintain a complaint alleging commission of offences under section 494

and 495 IPC by the husband. The passage extracted below effectively illuminates the issue:

“Though the law specifically does not cast obligation on either party to seek declaration

of nullity of marriage and it may be open to the parties even without recourse to the Court

to treat the marriage as a nullity, such a course is neither prudent nor intended and a

declaration in terms of Section 11 of the Hindu Marriage Act will have to be asked for,

for the purpose of precaution and/or record. Therefore, until the declaration contemplated

by Section 11 of the Hindu Marriage Act is made by a competent Court, the woman with

whom second marriage is solemnized continues to be the wife within the meaning of

Section 494 IPC and would be entitled to maintain a complaint against her husband.”

19. In the present case, if according to the respondent, the marriage between him and the

appellant was void on account of the previous marriage between the appellant and Rohit Kumar

Mishra the respondent ought to have obtained the necessary declaration from the competent court

in view of the highly contentious questions raised by the appellant on the aforesaid score. It is

only upon a declaration of nullity or annulment of the marriage between the parties by a

competent court that any consideration of the question whether the parties had lived in a

“relationship in the nature of marriage” would be justified. In the absence of any valid decree of

nullity or the necessary declaration the court will have to proceed on the footing that the

relationship between the parties is one of marriage and not in the nature of marriage. We would

also like to emphasise that any determination of the validity of the marriage between the parties

could have been made only by a competent court in an appropriate proceeding by and between

the parties and in compliance with all other requirements of law. Mere production of a marriage

certificate issued under Section 13 of the Special Marriage Act, 1954 in support of the claimed

first marriage of the appellant with Rohit Kumar Mishra was not sufficient for any of the courts,

including the High Court, to render a complete and effective decision with regard to the marital

status of the parties and that too in a collateral proceeding for maintenance. Consequently, we

hold that in the present case until the invalidation of the marriage between the appellant and the

respondent is made by a competent court it would only be correct to proceed on the basis that the

appellant continues to be the wife of the respondent so as to entitle her to claim all benefits and

protection available under the DV Act, 2005.

20. Our above conclusion would render consideration of any of the other issues raised wholly

unnecessary and academic. Such an exercise must surely be avoided.

21. We, accordingly, hold that the interference made by the High Court with the grant of

maintenance in favour of the appellant was not at all justified. Accordingly, the order dated

09.04.2010 passed by the High Court is set aside and the present appeals, are allowed.

------

1 Like

Shantanu Wavhal (Worker)     17 December 2012

jald hee naya kanoon aayega ...

Shadi ki baat-cheet karne par bhi maintenance dena padega !!

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     17 December 2012

very  nice amit,

Shantanu Wavhal (Worker)     17 December 2012

yes Nadeem Ji

discussion of marriage with bride family would be considered as - Luring the Bride & her parents for marriage.

May be there would be an enactment in near Future ...


If boy patricipates in  a discussion over a marriage proposal, THERE WILL BE A PRESUMPTION OF MARRIAGE.

Tajobsindia (Senior Partner )     17 December 2012

@ Amit you missed reading down the “punch line to somehow protect a abala” view of Lordship in reference Judgment; one side same Apex Court made Registration of Marriage compulsory saying what these Octogenarian have to then say (2006) and today just after 6 years they themselves say (hey he has just shown some Registration of Marriage certificate of his present wife with somebody else married earlier to which we donot our self believe in 2012 so go back to Trail Court and till then pay maint. and once clear award from trial Court that she committed fraud means she was earlier married to someone else and in her subsisting marriage she married you the maint. will then stop till that time pay her).

I mean now the poor chap has to run all over
India just to find where his wife's previous husband is as well as that priest who conducted her marriage to that chap and produce both of them before trail Court that ha ji yehi hai iska pati jiska Registration Certificate SC mei dikhaya tha aur unhoney isko nahi mana aur yeh hai in logo ka priest jisney inki marriage karvayi thi aab toh mujhe maint. dene se mukti do J

 

I feel really sorry for this chap there has to be some limit when Rules are made otherwise people (aam adamai) will loose trust in Registration of Marriage adn what value such Certificate will have too in days to come?

2 Like

Shantanu Wavhal (Worker)     17 December 2012

Poor chap (Just like me) !

though the marriage is VOID ab initio, we have to face all the consequenses of a VALID marriage

 

4. The learned trial court by order dated 7.8.2009 rejected the aforesaid application on the ground that notwithstanding the certificate issued under Section 13 of the Act of 1954, proof of existence of the conditions enumerated in Section 15 of the Act would still required to be adduced and only thereafter the certificate issued under Section 13 of the Act can beheld to be valid.

 

 

Registration of Marriage Celebrated in other forms 

15. Registration of marriages celebrated in other forms.- 

Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage 

solemnized under the Special Marriage Act, 1872 or under this Act, may be registered under this 

Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions 

are fulfilled, namely: 

(a) a ceremony of marriage has been performed between the parties and they have been living together 

as husband and wife ever since 

(b) neither party has at the time of registration more than one spouse living; 

(c) neither party is an idiot or a lunatic at the time of registration: 

(d) the parties have completed the age of twenty-one year at the time of registration; 

(e) the parties are not within the degrees of prohibited relationship: 

Provided that in case of a marriage celebrated before the commencement of this Act, this condition 

shall be subject to any law, custom or usage having the force of law governing each of them which 

permits of a marriage between the two; and 

(f) the parties have been residing within the district of the Marriage Officer for a period of not less than 

thirty days immediately preceding the date on which the application is made to him for registration of 

Shantanu Wavhal (Worker)     17 December 2012

now the wife will say :

i was idiot or a lunatic at the time of registration

 

funny funny funny

Hiten (Executive)     19 December 2012

Please Reply,

   If marriage is being declare Null and Void ? Then too one have to pay maintancne ?

Shantanu Wavhal (Worker)     19 December 2012

Hiten, 

maint. depends upon the facts of the case & conduct of the parties.

in some cases maint. is granted even in void ab initio marriages.

Sameer12345 (SSE)     25 July 2013

Although, This is old thread But I would like to add my own observation on the Supreme Court view.

 

Supreme Court has awarded maintenance because the women throughout Supreme Court has denied allegation of her first marriage with Rohit Kumar Mishra.

 

 

If women had admitted that she married earlier than maintenance may not be awarded by Supreme Court.

 


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