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Marriage is void under Section 11 of Hindu Marriage Act, if spouse is living

Esheta Lunkad ,
  21 September 2020       Share Bookmark

Court :

Brief :
The marriage of a woman in accordance with the Hindu rites with a man having legal spouse, after coming into force of HMA is a complete nullity in the eye of law and she is not entitled to the benefit of Section 125 of CrPC.
Citation :
Petitioner: Smt. Yamunabai Anantrao Adhav Respondent: Anantrao Shivram Adhav and Another Citation: 1988 AIR 644


  1. Sharma L M (J)
  2. Mishra Rangnath


Can a woman married under Hindu rites claim maintenance, if her husband has a wife, whom he married before and lawfully?


• The appellant was married to the first-respondent by observance of rites under Hindu Law in June, 1974, while the respondent's earlier marriage was subsisting and the wife was alive.

• After living with the respondent for a week, she left the house alleging ill-treatment and filed an application for maintenance in 1976.

• The application was dismissed by the Trial Court, her appeal to the High Court was also dismissed by a Full Bench. The appeal was later filed in the Supreme Court.

Appellant' Arguments:

• A marriage should not be treated as void because such marriage was earlier recognized in law and customs and in any event, the marriage would be voidable under Sec.12 of HMA, that the term 'wife' in Sec.125 of the CrPC should be given a wider and extended meaning.

• So as to include in it not only legally wedded wife but also a woman married, in fact, by performance of necessary rites or following the procedure laid down under the law.

• The personal law of the parties proceeding under Section.125 of the CrPC should be excluded from consideration, and since a divorce has been held to be entitled to the benefits of the section, a woman in the same position as the appellant should also be brought within the sweep of the section.

• The appellant was not informed about respondent's earlier marriage, when she married him, who treated her as his wife, her prayer for maintenance should be allowed.

Respondent's Contention:

• The term 'wife' used in Section 125 of the CrPC, meant only a legally wedded wife, and as the appellant was not legally wedded, the marriage must be held null and void by reason of the provisions of HMA. The appellant was not entitled to any relief under the section.


• The marriage of a woman in accordance with the Hindu rites with a man having legal spouse, after coming into force of HMA is a complete nullity in the eye of law and she is not entitled to the benefit of Section 125 of CrPC.

• Sec 5 (1)(i) of HMA, lays down necessary conditions for a lawful marriage, that neither party should have a spouse living at the time of the marriage, a marriage in contravention to this condition is null and void, under Sec.11 of HMA. No aid can be taken of the earlier Hindu law or any custom or usage as a part of that law, inconsistent with any provisions of the Act. Section 12 is confined to other categories of marriage, and is not applicable to one solemnized in violation of Sec.5 (1)(i) of HMA. Cases covered under Section.12 is not void ab initio.

• The marriage covered under Sec.11 are void-ipso-jure and have to be ignored as not existing in law at all if and when such a question arises.

• The marriage of the appellant is therefore to be treated as null and void from its very inception. Sec.125 of CrPC is enacted in the interest of a wife, one who intends to take benefit under sub-section (1)(a) has to establish the necessary conditions mentioned in the Act.

• The 'word' is not defined in the CrPC except indicating in the explanation of Sec.125, its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eyes of law. The expression must be used, giving the meaning which is understood by law.

• Principle of estoppel cannot be relied upon to defeat the provisions of the Act.

• As far as, the respondent treating the appellant as wife is concerned, it is of no avail, as the issue has to be settled under the law. It is the intention of the legislature which is important and not the attitude of parties.

• The prayer of the appellant for maintenance cannot, therefore, be allowed even if the appellant was not informed, at the time of her marriage with the respondent, about his earlier marriage.

Hindu Laws


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Published in Family Law
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