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Basappa Vs. Siddagangamma - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberR.S.A. No. 564 of 1981
Judge
Reported inII(1992)DMC167; ILR1992KAR1798; 1992(2)KarLJ357
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 18 and 18(2); Hindu Marriage Act, 1955 - Sections 5 and 11
AppellantBasappa
RespondentSiddagangamma
Appellant AdvocateMirle L. Krishnamurthy and ;H.S. Rama Rao, Advs.
Respondent AdvocateT.N. Arakeswara, Adv. for R-1
Excerpt:
hindu adoptions & maintenance act, 1956 (central act no. 78 of 1956) section 18: hindu marriage act, 1955 (central act no. 25 of 1955) section 11 - claim for maintenance - conspectus of provisions - provisions in pari materia construed together to harmonise & give effect to - judgment, order & decree under matrimonial jurisdiction, decision in rem - section 18 of ham act contemplates valid marriage, not marriage of nullity under section 11 of hm act, marriage non est, not 'wife' entitled to maintenance - where marriage nutiity under section 5(i), (iv) & (v) of hm act, wife's claim for maintenance under section 18 of ham act does not arise: civil court's power to adjudicate not legally sustainable.;whether section 18 of the adoptions & maintenance act could be so.....vasantha kumar, j. 1. this regular first appeal is directed against the judgment and decree dated 1-3-80 passed by the court of the civil judge, madhugiri, in r.a.no.183/78 while dismissing the appeal the first appellate court has confirmed the judgment and decree passed in o.s. no. 58/76 try the court of the munsiff, madhugiri, wherein the appellant was directed to pay maintenance in a sum of rs. 25/- per month and another sum of rs. 50/- per annum towards separate residence.2. this court at the stage of admission formulated the following proposition of law for consideration:-'whether section 18 of the adoptions and maintenance act could be so construed as to hold that notwithstanding the nullity of a marriage under section 11 of the hindu marriage act the wife claiming maintenance,.....
Judgment:

Vasantha Kumar, J.

1. This Regular First Appeal is directed against the Judgment and Decree dated 1-3-80 passed by the Court of the Civil Judge, Madhugiri, in R.A.No.183/78 while dismissing the appeal the first appellate Court has confirmed the Judgment and Decree passed in O.S. No. 58/76 try the Court of the Munsiff, Madhugiri, wherein the appellant was directed to pay maintenance in a sum of Rs. 25/- per month and another sum of Rs. 50/- per annum towards separate residence.

2. This Court at the stage of admission formulated the following proposition of law for consideration:-

'Whether Section 18 of the Adoptions and Maintenance Act could be so construed as to hold that notwithstanding the nullity of a marriage under Section 11 of the Hindu Marriage Act the wife claiming maintenance, retains her status as wife for the purposes of applying for maintenance?

3. The few facts to briefly state are;

The plaintiff by name Siddagangamma, the third wife of one Basappa filed Original Suit against her husband, who is arrayed as first defendant and against another Sakamma, who is a transferee of the portion of the suit schedule properties on which the plaintiff sought a charge for her maintenance.

4. The undisputed facts of the case are that at the time of marriage of the plaintiff Siddagangamma with the first defendant Basappa, the first wife by name Hanumakka was alive. In the suit, the plaintiff sought for maintenance and for a charge on the properties belonging to the first defendant. The husband-appellant while admitting the subsistence of his marriage with one Hanumakka denied his marriage with the plaintiff and also the factum of a child having been born to their wedlock. Further, he contested the suit mainly on the ground that the suit as being not maintainable in view of his marriage with the plaintiff as being null and void by virtue of the provisions of Section 11 of the Hindu Marriage Act, 1955, which came into force on 18-5-1955 disentitling her claim for maintenance. Both the Courts have come to the conclusion that the plaintiff's suit for maintenance under the provisions of the Hindu Adoptions and Maintenance Act, 1956, which came into force on 21-12-1956 as being maintainable inspite of affirmation of the issue that her marriage with the first defendant as being null and void. This Court in KISHAN v. SAKHARABAI AND ANR., 1987(2) KLJ 357 has discussed the scope and ambit of Sections 11 and 25 of the Hindu Marriage Act and as well as the scope and ambit of Section 18 of the Hindu Adoptions and Maintenance Act. The relevant observations are as follows:

'The argument of Sri V. Krishna Murthy is based on the principle that in the case of a wife pre-existing right to claim and receive maintenance is a must in law. He argued that when Section 5 of H.M.Act declares the marriage between plaintiff-1 and the defendant void, the marriage is ipso jure void. Hence, even if the requisite Hindu ceremonies had been performed, the marriage became honest and did not secure legal status of a wife to plaintiff-1 and she had no right to claim and receive maintenance. He further argued, proceeding on these lines, that such a right must be existing till a decree under the provisions of H.M.Act is passed and because of the decree so passed the status as wife must get extinguished and then only the ingredients of Section 25 of the H.M.Act would be satisfied. According to him, the use of the words 'husband and wife' in Section 25 of the H.M.Act supported this argument and conclusion and therefore on a decree being passed in a petition under Section 11 of the H.M.Act, the so-called wife would not be entitled to claim and receive maintenance. When that is so, no question of such a so-called wife being conferred with a right to claim and receive maintenance under Section 25 of the H.M.Act can arise and much-less in any other proceeding or suit. He strongly relied on A.P.K. Narayanaswami Reddiar v. Padmanabhan (minor) and Ors. : AIR1966Mad394 and disagreed with the views expressed in the decisions in Dayal Singh v. Bhajan Kaur . Govindrao Ranoji Musale v. Sou.Anandibai and Anr. : AIR1976Bom433 . Smt.Rajeshbai and other v. Smt.Shanthabai : AIR1982Bom231 and Shantaram Tukaram Patil and Ors.. !t may be stated here that he is supported by the decision in A.P.K. Narayanaswami Reddiar.

(underlining by me)

Sri N.A.Mandgi, learned Counsel, argued that H.A. & M.Act codifies the Hindu Law on Adoption and Maintenance and makes the provisions in that Act over-ride 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 the Act, by stating so in Section 4 of H.A. & M. Act. Therefore, Section 18 of the H.A. & M, Act would necessarily mean that only a wife who continues to have that legal status has the right to claim and receive maintenance provided she satisfies the conditions laid down therein. He made it clear by stating that Section 18 of the H.A. & M. Act does not permit a divorced wife or a wife whose marriage has been annulled by a decree of nullity or declared void by a decree of nullity to claim and receive maintenance. According to Sri N.A.Mandgi, the H.M. Act codifies the law on Hindu Marriage and therefore deals with all aspects about the Hindu Marriage and its incidents. His exposition is that Section 25 of the H.M.Act not only deals with passing of all the decrees under the provisions of the Act, but also makes provision regarding the incidents arising on the passing of the decrees. The words 'any decree' occurring in Section 25 of the H.M.Act cannot be given a restricted meaning so as to exclude a decree of nullity either contemplated under Section 11 or Section 12 of the H.M.Act. Plain reading of Section 25 of the H.M.Act, according to him, shows that at the time of passing of a decree or at any time subsequent thereto, the spouse concerned (stated as husband or wife in the Act) is given a right to make an application claiming maintenance, for adjudication by the Court exercising jurisdiction under that Act (hereinafter referred to as Matrimonial Court). Sri. N.A.Mandgi's argument further is that this is a special provision in the Act. It provides, for a specific right which arises under the conditions enumerated in the provision, the remedy and the forum to grant relief. When that is so, such a spouse has to claim such a relief in accordance with the provisions of Section 25 of the H.M.Act and it is not open to such spouse to claim maintenance in any other proceeding even if the question of declaring the marriage void in view of Section 5{i) of the H.M.Act arises for consideration in that proceeding i.e., in the ordinary Court.

One more aspect is available for consideration as expressed by V.B.Raju J., in State of Gujarat v. Chandramani Shankar Jadhavalal Sanghi and Ors. : AIR1963Guj243 . This decision is cited in Dayal Singh's case and Narayanaswami Reddiar's case, in support of the proposition that Section 25 of the H.M.Act applies to all actions and proceedings under the Act, whether they be for judicial separation or dissolution of marriage or for decree or nullity. Through reading of this decisions shows that if an application is given subsequent to the passing of the decree for divorce or decree of nullity annulling of marriage or decree of nullity declaring the marriage void, an order for payment of alimony would be outside the scope of Section 25 of the H.M.Act, as, to be entitled to maintenance even after a decree under the provisions of the H.M.Act a wife has to have existing legal status as a wife. Therefore, maintenance under Section 25 of the H.M. Act can in law be granted only on the passing of a decree for judicial separation or for restitution of conjugal rights. It may be remembered in this connection that the aspect argued by Sri V.Krishnamurthy is slightly different in as much as it is based on the principle that but for the passing of the decree under the Act the parties ought to have been husband and wife. The view point would make granting of alimony possible even when a decree for divorce is granted while the same is ruled out by the decisions of the Gujarat High Court.

Section 5 of the Hindu Marriage Act reads as follows:

Section 5 Conditions for a Hindu Marriage; A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-

(i) neither party has a spouse living at the time of the marriage, (ii) at the time of marriage, neither party-

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity or epilepsy.

(iii) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage;

(iv) the parties are not within the decrees of prohibited, relationship, unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not SAPINDAS of each other, unless the custom or usage governing each of them permits of a marriage between the two.

Section 11 of the Hindu Marriage Act reads as follows:

Section 11 Void marriages. - Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by the party thereto against the other party 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.'

So. it is very clear that the marriage solemnized between two Hindus when one of the parties has a spouse living at the time of the marriage is concerned, Section 11 of the H.M.Act clearly renders the marriage void. There can also be no doubt that such a marriage is void. It is relevant to refer to a decision reported in YAMUNABAI ANANTRAO ADHAV v. ANANTRAO SHIVRAM ADHAV, : 1988CriLJ793 wherein the Supreme Court has observed:

'For appreciating the status of a Hindu woman marrying a Hindu male with a living spouse some of the provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) have to be examined. Section 11 of the Act declares such a marriage as null and void in the following terms:- '11.Void marriages.- Any marriage solemnized after the commencement of this 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 specified in Clauses (i), (iv) and (v) of Section 5.'

Clause (i) of Section 5 lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage. A marriage in contravention of this condition, therefore, is null and void. It was urged on behalf of the appellant that a marriage should not be treated as void because such a marriage was earlier recognised in law and custom. A reference was made to Section 12 of the Act and it was said that in any event the marriage would be voidable. There is no merit in this contention. By reason of the over riding effect of the Act as mentioned in Section 4, no aid can be taken of the earlier Hindu Law or any custom or usage as a part of that Law inconsistent with any provision of the Act. So far as Section 12 is concerned, it is confined to other categories of marriages and is not applicable to one solemnised in violation of Section 5(i) of the Act. Sub-section (2) of Section 12 puts further restrictions on such a right. The cases covered by this Section are not void ab initio, and unless all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it, the same continues to be effective. The marriages covered by Section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. Although the Section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a Court in a proceeding specifically commenced for the purpose. The provisions of Section 16, which is quoted below, also throw light on this aspect:-

' 16. Legitimacy of children of void and voidable marriages.-Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act andwhether or not the marriage is held to be void otherwise than on a petition under this Act.

2) Whether a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties of the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

3) Nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, 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.'

Sub-section (1), by using the words underlined above clearly implies that a void marriage can be held to be so without a prior formal declaration by a Court in a proceeding. While dealing with cases covered by Section 12, Sub-section (2) refers to a decree of nullity as an essential condition and Sub-section (3) prominently brings out the basic difference in the character of void and voidable marriages as covered respectively by Sections 11 and 12. It is also to be seen that while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage, it has not extended a similar protection in respect of the mother of the child. The marriage of the appellant must, therefore, be treated as null and void from its very inception.'

Referring once again to The Decision reported in 1987(2) Kar.L.J. page 357, paragraph 22 reads as under:-

'The consequence that follows from the preceding paragraphs is that Section 25 of the H.M. Act entitles the woman who calls herself a wife, even in a petition under Section 11 of the Act, to claim maintenance by filing an application and empowers the Matrimonial Court to consider that claim and grant the relief to which she may be entitled to. This is a right which was and is not at all available to her under any other provision of law. This is a specific relief given to her. In this context, ft is to be particularly noted that this relief is available to a husband also. This is an entirety new concept to the Hindu law as in force prior to 21-12-56, the date H.A. & M. Act came into force and also existing after coming Into force of the said Act as there is no provision in H.A. & M. Act entitling a husband to claim and receive maintenance from his wife. Hence, ft must be concluded that such relief is given for the first time to such persons by Section 25 of the H.M.Act.

At this stage, the question arises whether the said right available to a party to a decree gassed, even under Section 11 read with Section 25 of the H.M.Act can lawfully be agitated in any other proceeding wherein a declaration that a marriage is void is called for. This question did arise for consideration in Narayanaswami's case. But as already pointed out, the Division Bench took the view that Section 25 of the H.M.Act did not confer any such right in that view of the matter, the question was not decided.

In the decision in Govindarao's case an application claiming maintenance was filed under Section 25 of the H.M.Apt after a decree of nullity declaring the marriage void, was passed, Maintainability of the application was questioned. Kania, J,, as he then was, held it was maintainable. This decision is approved in Rajeshbai's case, white considering the question of conferment of right by Section 25 of the H.M.Act, The Division Bench of the Bombay High Court has in Shantaram's case also accepted, with approval, the decision in Govindrao's case, In, Smt. Rajeshbai's case Maaodkar, J., has held that the right conferred under Section 25 of the H.M.Act entitles the party concerned, in any proceeding wherein there has to be a declaration of the marriage was void and the Court has the power under Section 151 of the Code of Civil Procedure to grant the reliefs. The very same question was considered by the Division Bench in Shantaram's case. The Division Bench has approved the conclusion of Masodkar. J., but has observed as follows:-

'The inherent powers of a Court are in addition to and complementary to the powers expressly conferred upon it by other provisions of the Civil Procedure Code, They are not intended to enable a Court to create rights in the parties, but they are meant to enable the Court to pass such orders for the ends of justice as may be necessary considering the rights which are conferred upon the parties by substantive law. Judicial activism does not permit a Court to do what in effect is legislation.'

The Division Bench has ultimately laid down as follows:

'In regard to a woman whose marriage is void or declared void under the provisions of the Hindu Marriage Act:

(1) Section 25, Hindu Marriage Act, confers upon a woman, whose marriage is void or is declared to be void, a right of maintenance against her husband;

(2) This right of maintenance can be enforced by her not only in proceedings under Section 25, Hindu Marriage Act, but also in any other proceedings where the validity of her marriage is determined;

(3) This right can be enforced by her not only during the lifetime of her husband but also after his death against the property of her husband after his death;

(4) Of course, this right of maintenance is available only during her life time and ceases if she remarries.'

In C.ObuIa Konda Reddy's case Gangadhara Rao, J., while dealing with the matter arising under Section 18 of the H.A. & M.Act has observed as follows:-

'The 'Hindu wife' contemplated by Section 18 means a Hindu wife whose marriage is solemnised, though void under the Hindu Marriage Act. She will therefore be entitled to claim maintenance from the husband.'

With due respect, I am unable to agree for the reasons contained in the preceding paragraphs. Further, it has been concluded that even under the provisions of the H.M.Act such a wife would be entitled to an order of maintenance under Section 25 of the H.M.Act and therefore her claim under Section 18 of the H.A.& M.Act is maintainable. Here again, with due respect, I am unable to agree that the right available to her under Section 25 of the H.M.Act can be adjudicated by her in a proceeding under Section 18 of the H.A & M.Act as it strictly contemplates a proceeding by a wife during the subsistence of her status as a wife.

The object of the Hindu Marriage Act as its preamble points out is to amend and codify the law of marriage among Hindus. Section 4 of the H.M.Act states that the provisions of the Act have overriding effect on 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 and any other law already in force and so on. It is hence clear that this Act is the Code governing Hindu marriages. All other laws and concepts in this behalf in so far as they are inconsistent with any of the provisions of this Act shall cease to have effect on the coming into force of this Act, namely 18-5-1955. Section 5 and Section 6 lay down conditions for a Hindu Marriage and ceremonies for a Hindu Marriage. Thereafter, the Act proceeds to deal with law relating to restitution of conjugal rights (Section 9} and judicial separation (Section 10). Further on nullity of marriage and divorce is provided for in Sections 11 to 13B. Section 14 lays down the period of limitation for presenting a petition for divorce. Section 15 deals with the question as to when divorced persons can marry again. Punishment of bigamy (Section 17) is provided vis-a-vis Section 494 and Section 495 of the Indian Penal Code. Contravention of certain other conditions for a Hindu Marriage is made penal (Section 18). What is the effect of contravention of the conditions of marriage in Section 5 is found in Sections 11 and 12 of the H.M.Act. Rights of the children born out of marriages which are null and void under Section 11 of H.M.Act are taken care of and provided in Section 16 of the H.M.Act. As already stated in some of the preceding paragraphs, the H.M.Act provides for the following four types of decrees: (i) Resv 'tion of conjugal rights, (2) Judicial separation, (3) Divorce and (4) Nullity A decree of nullity may be classified because of Sections 11 and 12 of the H.M.Act, as (a) a decree of nullity declaring a marriage null and void (Section 11) and decree of nullity annulling a marriage (Section 12). How one should proceed to obtain the decrees is specifically prescribed in Sections 19 and 20 of the H.M.Act. Provision for counter claim in any proceeding for divorce or judicial separation or restitution of conjugal rights is made in Section 23A of the H.M.Act. It is tu be noted here that procedure to obtain decrees for nullity of marriage either under Section 11 or under Section 12 of the H.M.Act are not included in Section 23A. Thereafter, provisions regarding maintenance pendente lite, permanent alimony and maintenance, custody of children and disposal of property are found in Sections 24, 25, 26 and 27 respectively. Provisions for appeals and for enforcement of decrees and orders are also made in Sections 28 and 28A of th9 H.M.Act.

The scheme of the Hindu Marriage Act as noted in the preceding paragraph, the subjects dealt with by the different provisions and the effect of Section 4 of the H.M.Act leaves no doubt in my mind that the Act not only amends and codifies the law relating to marriage but also of the incidences arising out of the marriage among Hindus. As already noted, rights regarding claim of maintenance which were not hitherto available to either of the spouses have been made available on a decree being passed under the Act (Section 25). An entirely new right, i.e., a husband being enabled to claim maintenance on a decree under the Act being passed, is created (Section 25). What should be the contents of the petition for obtaining a decree under the Act (Section 20), the forum to which such petition is to be presented, special provision relating to trial and disposal of the petition under the Act (Section 21B) and the decree to be passed in the proceedings (Section 23) are specifically prescribed. Hence, it can be stated without any hesitation that the whole gamut of law relating to marriages and the incidences arising out of marriages amongst Hindus is covered by the Hindu Marriage Act to the exclusion of all the pre-existing texts, rules, customs or usages or interpretation of Hindu law and other laws in force prior to 18-5-1955. Even a new right for claiming maintenance by a husband is for the first time, created by Section 25 of the H.M.Act. This right of the husband will be available to him only on a decree under the Act being passed. Therefore, it is impossible to hold that such husband could agitate this right, as if it is a substantial right conferred on him, in an ordinary Court of law. When that is so, there would be no understandable reasoning available to hold otherwise in case of a wife whose claim for maintenance arises, in view of Section 25, on a decree of divorce or nullity being passed.

In view of all the aforesaid reasons, I hold that the right of maintenance provided in Section 25 of the H.M.Act is a right created under the Act and therefore the remedy for its enforcement will have to be as provided in the Act itself.'

5. It is relevant to note the observations of the Supreme Court reported in THE PREMIER AUTOMOBILES Ltd. v. KAMLAKAR SHANTARAM WADKE, : (1975)IILLJ445SC . Paragraphs-9, 10, 11 and 12 read as follows:

'In Doe v. Bridges, (1831) 1 B & Ad. 847 at page 859 are the famous and oft quoted words of Lord Tenterden, C.J., saying:

'where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner.' This passage was cited with approval by the Earl of Halsbury, L.C. in Pasmore v. The Oswaldtwistle Urban District Council 1898 AC 387 and by Lord Simonds at P.407 in the case of Cutler v. Wandsworth Statium Ltd. 1949 AC 398. Classic enunciation of the law and classification of the cases in three classes was done by Willes. J.,.'with the prevision which distinguished the utterances of that most accomplished lawyer, in the case of Wolverhampton New Waterworks Co. v. Hawkesford' (1859) 6 C. B (NS) 336 [vide the speech of Viscount Haldane at Page 391 in the case of Neville v. London 'Express' Newspaper, Ltd., 1919 AC 368 (HL)]. The classes are enumerated thus:

'There are three classes of cases in which a liability may be established by statute. There is that class where there is a liability existing at common law, and which is only re-enacted by the statute with a special form of remedy; there, unless the statute contains words necessarily excluding the common law remedy, the plaintiff has his election of proceeding either under the statute or at common law. Then there is a second class, but has given no special remedy for it; there the party may adopt an action of debt or other remedy at common law to enforce it. The third class is where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it.......' With respect to that class it has always been held, that the party must adopt the form of remedy given by the statute.' The Judgment of the Court of Appeal which was affirmed by the House of Lords in Pasmore's case 1898 AC 387 (supra) is reported in Peables v. The Oswaldtwistle Urban District Council. (1897) 1 QB 625. It was pointed out that the duty of a local authority, under Section 15 of the Public Health Act, 1875 to make such sewers as may be necessary for effectually draining their district for the purposes of the Act, cannot be enforced by action for a mandamus, the only remedy for neglect of the duty being that given by Section 299 of the Act by complaint to the Local Government Board. Lord Esher M.R. pointed out that the liability to make sewers was imposed by the statute. There was no such liability before it. The case, therefore, comes within the canon of construction that if a new obligation is imposed by statute, and in the same statute a remedy is provided for non-fulfillment of the obligation, that is the only remedy. Lopes, L.J. further succinctly pointed out that Section 15 did not create any duty towards any particular individual, and Section 299 gives a specific remedy for the benefit of the locality at large. Thus, it should be noticed, that the obligation imposed by the statute did not result in creation of any right in favour of any particular individual. Earl of Halsbury, L.C, pointed out in his speech at page 394:

'The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar and which runs through the law.' The matter would be different if the obligation imposed under the statute brings into existence a right in favour of an individual but provides no remedy for its enforcement. Supposing after providing for awarding of certain compensation in Chapter VA of the Act there was no provision made in it like Section 10 or Section 33C the mere penal provision for violation of the obligation engrafted in Section 29 or Section 31 would not have been sufficient to oust the jurisdiction of the Civil Court for enforcement of the individual right created under Chapter VA.

The decision of the House of Lords in the case of Barraclugh v. Brown, 1897 AC 615 is very much tc the point. The special statute under consideration there gave a right to recover expenses in a Court of Summary Jurisdiction from a person who was not otherwise liable at common law. It was held that there was no right to come to the High Court fora declaration that the applicant had a right to recover the expenses in a Court of Summary Jurisdiction. He could take proceedings only in the latter Court. Lord Herschell after referring to the right conferred under the statute 'to recover such expenses from the owner of such vessel in a Court of Summary Jurisdiction' said at page 620:

'I do not think the appellant can claim to recover by virtue of the statute, and at the same time insist upon doing so by means other than those prescribed by the statute which alone confers right.' Lord Watson said at page 622:

'The right and the remedy are given uno flatu, and the one cannot be dissociated from the other.' In other words if a statute confers a right and in the same breath provides for a remedy for enforcement of such right the remedy provided by the statute is an exclusive one. But as noticed by Lord Simonds in Cutler v. Wandsworth Stadium Ltd., 1949 AC 398 (supra) at page 408 from the earlier English cases, the scope and purpose of a statute and in particular for whose benefit it is intended has got to be considered. If a statute:

'intended to compel mine owners to make due provision for the safety of the men working in their mines, and the persons for whose benefit all these rules are to be enforced are the persons exposed to danger.' there arises at common law: 'a correlative right in those persons who may be injured by its contravention.'

Such a type of case was under consideration before Lord Goddard, C.J., in the case of Solomons v. R.Gertzenstein Ltd., (1954) 2WLR 823 vide page 831. Lord Denning M.R. relied upon the principles enunciated by Lord Tenterden in Doe v. Bridges, (1831) 1 B & Ad 847 approved in Pasmore's case 1898 AC 387 (supra) at page 743 in the case of Southwark London Borough Council v. Williams, (1971) 1 Ch 734. The celebrated and learned Master of the Rolls said at page 743:

Likewise here in the case of temporary accommodation for those in need. It cannot have been intended by Parliament that every person who was in need of temporary accommodation should be able to sue the local authority for it: or to take the law into his own hand for the purpose.'

6. It is now relevant to consider the scope of Section 4 of the Hindu Marriage Act, 1955 which deals with over riding effect of the Act. It reads as under:-

'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.'

Section 18 of the Hindu Adoptions and Maintenance Act, 1956 reads as under:-

(1) Subject to the provisions of this Section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance -

(a) if he is guilty of desertion, that is to say, of abandoning her without her consent or against her wish, or of wilfully neglecting her;

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c) if he is suffering from a virulent of leprosy;

(d) if he has any other wife living;

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f) if he has ceased to be a Hindu by conversion to another religion;

(g) if there is any other cause justifying her living separately.'

The Hindu Adoptions and Maintenance Act, 1956 came into force on 21-12-1956. Clause(d) of Sub-section (2) of Section 18 of the Hindu Adoptions and Maintenance Act, entitles the wife to claim maintenance if the husband has any other wife living. It is relevant to note that the statutes which are not inconsistent with one another which relate to the same subject are in parimateria and they should be construed together and effect should be given to them although they contain no reference to one another and were passed at different times. Acts and provisions which are in pari materia should be construed together so as to harmonise and give effect to the various provisions.

7. In the instant case, both the Courts have arrived at a finding that the marriage of the plaintiff with the first defendant as null and void. It is to be noted that the Judgment, order or decree in exercise of matrimonial jurisdiction which confers upon or takes away from any person any legal character or which declares any person to be entitled to any such character not as against any specified person but absolutely could be rendered only by a competent Court having jurisdiction and it is a decision in rem and not in personam alone. The Supreme Court in Smt. Yamunabai Anantrao Adhav v. Anantram Adhav, while dealing with the scope of Section 11 of H.M.Act, has declared law to the effect that the marriage in contravention of Clauses (i), (iv) and (v) of Section 5 of the Hindu Marriage Act as null and void. Further, it has been observed that the marriages covered by Section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. (since EX. NIHILO NIHILFIT out of nothing comes nothing). In the instant case, both the Courts have adverted to the contentions raised by the husband-defendant-1 to the factum of his marriage with the plaintiff as being null and void and in view of the contravention of Clause (i) of Section 5 of the Hindu Marriage Act. But the findings of the Courts that the petition under Section 18 of the Hindu Adoptions and Maintenance Act as being maintainable cannot be legally sustained in view of the fact that the plaintiff whose marriage is a nullity cannot be construed as a wife under Section 18 of the H.A. & M.Actfor the purpose of seeking maintenance. Section 18 contemplates a valid marriage solemnized under the Act and not a marriage of nullity as envisaged under Section 11 of the H.M.Act. In view of that the precondition for the plaintiff to claim maintenance under Section 18 of the H.A. & M.Act is that her marriage should be a marriage dehors Section 11 of the H.M.Act. The question of any further declaration by the plaintiff that her marriage as being null and void would not arise since her marriage is non est as in the eye of law and she could not be characterised as a wife for the purpose of entitlement to the maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. So, the findings of the Courts that her petition rather the plaintiff's petition for maintenance under Section 18 of the H.A. & M.Act after coming into conclusion that her marriage with the first-defendant as being null and void cannot be a proper approach to the problem in question. Even the Decision rendered by this Court in 1987(2) Kar. L.J., Page 357 (supra) the above approach gets support. The relevant portion of the Judgment reads as under:

'In the case on hand, the Court will have jurisdiction and power to grant maintenance to plaintiff-1 only if her marriage is not void in view of Section 5(1) of the H.M. Act. The trial Court has, on facts, found that her marriage is void. The lower appellate Court has not gone into that aspect as made clear earlier. Therefore, plaintiff-1 cannot be non-suited unless her marriage is void being hit by Section 5(i) of the H.M.Act to hold that her remedy would be under the provisions of the Hindu Marriage Act and not by way of a suit in the ordinary Civil Courts.'

8. As far as the facts of this case are concerned, in view of the specific finding that the question of marriage of the plaintiff with the first-defendant as being null and void the Civil Court's power to adjudicate factum of maintenance under Section 18 of H.A. & M.Act, 1956 cannot be legally sustained. So, it is made very clear that in all the cases, where marriage is a nullity as envisaged under Clauses (i), (iv) and (v) of Section 5 of the H.M.Act the question of a wife claiming maintenance under Section 18 of the H.A. & M.Act, 1956 would not arise. As such, the finding of both the Courts below regarding entitlement to claim maintenance by the plaintiff under Section 18 of H.A. & M.Act, 1956 are set aside.

9. The substantial question of law formulated by this Court is answered as above.

10. The directions issued by both the Courts below to the appellant-first defendant to pay a sum of Rs. 25/- per month to the wife-plaintiff towards her maintenance and another sum of Rs. 50/- by way of annual payment towards her separate residence, are hereby set-aside.

11. With the above observations, this Regular Second Appeal is allowed in part. No costs.


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