(1) This is an appeal by the first defendant from a decree of the Additional Subordinate Judge, Mayuram, granting maintenance at the rate of Rs. 15 per mensem to each of the first three plaintiffs, at Rs. 30 per mensem to the fourth plaintiff, and a further payment to the plaintiffs of Rs. 10 per mensem towards their residence. The decree also directed the first defendant to pay plaintiffs past maintenance for a period of three years at the said rate. The properties described in the plaint B schedule were charged with the maintenance so decreed. The suit was instituted in forma pauperis for partition and separate possession of the first plaintiffs one fifth share in the suit properties and for right of residence of the fourth plaintiff in item 1 of the plaint A schedule and for maintenance at Rs. 100 per mensem from 1-4-1958, and for past and future maintenance at the same rate for the plaintiffs. The plaintiffs' case was that the first defendant, who had a spouse living, married the fourth plaintiff on 9-5-1951 at Mayuram. It is not in dispute that the fourth plaintiff is a Malayalee lady and that she has been a permanent resident of Travancore State. After the marriage, the first defendant took the fourth plaintiff to his native place at M. Adanur near Kattumannargudi, and lived there as husband and wife and begot through her plaintiffs 1 to 3, who are all minors. From 1953, however, misunderstandings arose as a result of, that is the plaint case, ill-treatment meted out by the first defendant to the fourth plaintiff. The last child, the third plaintiff, was born on 16-5-1955, and the first defendant and the 4th plaintiff separated sometime in September 1954. The first defendant resisted the suit and denied the status of the 4th plaintiff as also the other plaintiffs. He pleaded that he had married one Janaki Ammal in 1921, who gave birth to defendants 2 to 4 and died in 1956. There could, therefore, be no lawful marriage, in any case, of a second wife during the lifetime of Janaki Ammal. In fact, the first defendant went to the extent of suggesting that the 4th Plaintiff was the wife of one Madhavan Nair and plaintiffs 1 to 3 were born to him. The properties described in the schedules A and C to the plaint, according to the first defendant, had been bequeathed by one Balarama Reddiar for charitable purposes and the properties covered by plaint B schedule alone are his self acquisitions. The first defendant asserted that, in the circumstances, the plaintiffs had no cause of action either for partition and separate possession or for maintenance.
(2) The Additional Subordinate Judge framed appropriate issues and found that the marriage pleaded by the 4th plaintiff was true but invalid in law, because of the provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act 1949, that plaintiffs 1 to 3 were the children of the first defendant born during the wedlock with the 4th plaintiff and that the plaintiffs were entitled to maintenance, past and future. The Subordinate Judge also found that he plaint A and C schedule properties were trust properties not answerable to the claims of the plaintiffs and that the B schedule properties were the self acquisitions of the first defendant. Nevertheless, he determined the quantum of maintenance on the basis of the income from and the extent of, the entire properties in the three schedules.
(3) In our view, the decree of the learned Subordinate Judge is correct except in regard to the maintenance, past and future, decreed in favour of the fourth plaintiff. Before us, no attempt was made by the learned counsel for the first defendant to contend that as a matter of fact there was no marriage at all and that the finding of the court below in this regard is in anywise erroneous. But his contention is that the 4th plaintiff's marriage with the first defendant having been found to be invalid as a bigamous one, the court below was not justified in granting maintenance to her. The view of the Subordinate Judge on this point is not quite clearly expressed in his judgment. But it would appear to have been argued before him that when the 4th plaintiff's marriage with the 1st defendant was rendered invalid by law, she should be equated to the position of a concubine and maintenance given to her. Whether the Subordinate Judge accepted this position and gave maintenance, it is not obvious. Under Hindu law, a concubine of a Hindu will not be entitled to maintenance against him during his lifetime. Nor can it be said that the status of the 4th plaintiff, in the circumstances, is that of concubine, for a ceremony of marriage, as required by the personal law, was gone through and the 4th plaintiff and the first defendant lived for a fairly long time as husband and wife and brought forth children through that union. But, when the marriage, as a bigamous one, is rendered void by S. 4(1) of the Madras Hindu (Bigamy Prevention and Divorce) Act 1949, what exactly is her status? For the appellant the contention is that when the marriage is invalid, whatever might be the status of the 4th plaintiff, she will not be entitled to any maintenance. On the other hand, it is strongly urged before us that the law should not fail to take note of the factual position, namely, that the 4th plaintiff and the first defendant did go through a form of marriage in accordance with their personal law and that even if by the said Act the marriage is void, she should nevertheless, be held to be entitled to maintenance.
(4) In Kamani Devi v. Kameshwar Singh, AIR 1946 Pat 316, a Division Bench of the Patna High Court, was dealing with a revision petition under S. 115 C.P.C. arising out of an application for leave to sue in forma pauperis, in which the question was, whether the plaint disclosed a cause of action. The suit was for maintenance by a lady on the basis of an alleged marriage. The court of first instance found that the marriage being in Gandharva form, it was not valid amongst Brahmins governed by the Mithila School of Hindu law. In disposing of the revision petition in favour of the petitioner, the Division Bench observed:
"............... he (Subordinate Judge) has not brought his mind to bear upon deciding what is the scope of the cause of action in the suit before him. He should have borne in mind that instances are not wanting in Hindu law when a particular jural relationship is created contrary to the Shastric injunctions, the relationship so created is not null and void for all purposes however invalid they be for certain purposes only. For instance, in the case of an invalidly adopted son, he may not be entitled to succeed as a validly adopted son, but he is all the same entitled to maintenance. Similar is the case of an illegitimate son of a twice born caste, who, though excluded from inheritance, is entitled to be maintained out of the estate of his father. So is the case of a concubine of a twice born caste under the Hindu law. The best illustration is the case of a wife married from within the prohibited degrees. Though the marriage is void, she is nevertheless entitled to be maintained by her husband (Vide Trevelyan, Hindu law, page 49)".
We think that we should extract also the further observations, which reflect the view of the Patna Division Bench:
"At any rate, the relationship of husband and wife created by such marriage is binding against each other and the husband cannot escape his liability of maintaining the wife married in this form, whatever be the consequences upon the children born of such wedlock with regard to their right of inheritance and succession and whatever be her status in relation to her husband's agnatio and cognatio relations......... The learned Subordinate Judge is also wrong in observing that the plaintiff was not entitled to claim maintenance even on the ground that she is the illegitimate wife of the opposite party. I do not find any inconsistency in the claim. The plaintiff's case is that she was married to the opposite party in a particular form and it is quite open to her to say that if according to law this marriage is not valid for all purposes, it at least has created in her the right to be maintained by the opposite party."
These observations are pressed into service by learned counsel for the respondents and it is contended that whatever may be the status of the 4th plaintiff in law, she undoubtedly, on the facts of this case, possessed at least the status, which would entitle her to maintenance. The question so raised is of importance, and we have given our careful thought to it. It seems to us that marriage being a status regulated and recognised by law, not merely the factum of marriage or union that matters, but also whether it is in accordance with the requirements of the law in order that it may be a valid marriage. The obligation to pay maintenance, flows from marital relationship. But, if under the personal law, which governs the parties, the marriage is not valid, we are unable to assign a status to the unfortunate woman in between that of a concubine and that of a wife. We are not inclined to the view, with respect, that there is such a thing as an 'illegitimate wife', though the phrase picturesquely portrays the real state of affairs. But, in law, as we think, there is no such status as that of an illegitimate wife.
(5) Apart from that, S. 4(1) of the Madras Hindu (Bigamy Prevention and Divorce) Act 1949 is explicit that notwithstanding any rule of law, custom or usage to the contrary, any marriage solemnised after the commencement of the Act between a man and a woman, either of whom has a spouse living at the time of such solemnisation, shall be void, whether the marriage is solemnised within or outside the State of Madras. When, by law, therefore, such a marriage is declared void, it should be taken to be of no effect from the inception. Sec. 4(1) makes no exception and does not say that the marriage is void only for certain purposes and not for others. The whole object of the Act is to prevent bigamous marriages and for that purpose the Act has enacted that a bigamous marriage is void and has constituted such a marriage as a crime, for which punishment is provided. It does not appear to us to be the intention of the Act that while such a marriage is rendered void, nevertheless, the bigamous relationship should be recognised for purposes of maintenance.
(6) Learned counsel for the respondents argue, with reference to Ss. 5(1), 11 and 25 of the Hindu Marriage Act, 1955 and S. 18(1) of the Hindu Adoptions and Maintenance Act 1956, that although a woman may not be a wife, in the context of a valid marriage, still she may be so regarded for certain purposes. Sec. 5 of the former Act enacts that a marriage may be solemnised between any two Hindus, if the conditions stated thereafter are fulfilled. Sec. 11 of this Act says that any marriage solemnised after the commencement of the 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 S. 5. Sec. 25 provide for permanent alimony and maintenance. Sub-sec. (1) is to the effect that any court exercising jurisdiction under the Act, may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband as the case may be, order that the respondent shall, while the applicant remains unmarried, pay to the applicant for her or his maintenance and support. The argument for the respondents is that the words "any court exercising jurisdiction under this Act" would take in also Sec. 5(i) and S. 11 and that even where a marriage is null and void by reason of the first part of S. 11, inasmuch as S. 25 provides for permanent alimony and maintenance at the instance of either the wife or husband, it follows that the Hindu Marriage Act 1955 recognises that, notwithstanding the fact that the marriage is null and void, the wife has that status at least for the limited purpose of applying fort permanent alimony and maintenance. This statutory intention, according to learned counsel, should be borne in mind, in considering the claim of the 4th plaintiff in this case to maintenance. Learned counsel supports his contention by relying on Gunvantray v. Bai Prabha, . There, a learned single Judge of the Gujarat High
Court was of the view that S. 25 applied to all kinds of proceedings under the Act, whether they were proceedings for judicial separation or for restitution of conjugal rights or for dissolution of marriage by divorce or for annulment of marriage by a decree of nullity. Though it is not necessary, for purposes of the present appeal, to decide the question, for, this is not a case of an application under S. 25 of the Hindu Marriage Act, nevertheless, we may express our view, having regard to the argument at the bar, that S. 25 cannot be construed in such a manner as to hold that notwithstanding the nullity of the marriage, the wife retains her status for purposes of applying for alimony and maintenance. The proper construction of S. 25, in our view, would be that where a marriage is admittedly a nullity, the section will have no application. But where the question of nullity is in issue and is contentious, the court has to proceed on the assumption until the contrary is proved, that the applicant is the wife. It is in that sense that S. 25 should be appreciated. A reference to the other provisions of the Act, as we think, supports the construction we are inclined to place on the section. It is true, the opening words of sub-sec. (1) of S. 25, as the Gujarat High Court pointed out, are of wide amplitude, so as to attract all the provisions of the Act under which the Court exercises jurisdiction, including Section 11. But it does not follow from it, that we can read the opening words in sub-sec. (1) de hors the context of the other provisions, which declare a particular kind of marriage, which does not conform to the conditions mentioned in S. 5 as null and void.
(7) The argument for the respondents based on S. 19(1) of the Hindu Adoptions and Maintenance Act, does not take them very far, for sub-sec. (2) of that section obviously refers to cases of a wife who has been validly married.
(8) It is next argued for the respondents that the term "wife", as is generally understood should be taken as including one whose marriage is invalid but who is not a concubine. It is also said that in matters like this, the court should make a liberal approach both in the matter of consideration of the claim for maintenance as also interpretation of the law bearing on the question. We agree that there should be a liberal approach as stated by the Punjab High Court in Jal Kaur v. Pala Singh, . It was there stated that all the recent
enactments which have, as their fundamental purpose, the removal of Hindu women's disabilities and conferment on them of better rights for maintenance and property, may be legitimately and with advantage referred to and harmoniously construed for the purpose of ascertaining the real manifest intention and the underlying cardinal purpose of the Parliament in enacting the Hindu Adoptions and Maintenance Act, in relation to the needs and demands of a progressive society and that these legislative measures clearly reflect and modern liberal tendency of the Hindu society to confer on Hindu woman much larger rights than they had heretofore been enjoying. It is true that the medieval conservative approach in progressive times should be avoided, with reference to laws which purport to make reforms and introduce innovations in personal laws in order that womenfolk particularly are invested with more rights and better freedom. But the fact remains that any approach to the question, though it should be liberal, has necessarily to be within the four corners of the relative legislative measures. While a legislative enactment may be liberally construed, the liberality cannot overstep the legitimate limits of interpretation and put into the legislation something which is not there. We do not think that Sivakamiammal v. Bangarusami Reddi which is
relied on by learned counsel for the respondent, is of any assistance to him. There, this court held that the word "wife" in Sec. 5(7) of the Madras Hindu (Bigamy Prevention and Divorce) Act 1949 must mean a person who would have been a wife but for the decree of divorce or dissolution passed by the trial court. Obviously, that is so, because the appeal is but a continuation of the petition for a decree of divorce or dissolution and, therefore, notwithstanding a decree of divorce or dissolution, for purposes of the appeal, it must be taken that the wife continues to be so for the limited purpose contemplated by the section. Reference also was made by learned counsel for the respondents to the definition of "wife" in Words and Phrases Judicially Defined by Roland Burrows, Vol. 5 page 490. But there the question was entirely different from the one we are called upon to decide here. Where a person by his will made a device in favour of one whom the testator had married and later on it is found that the marriage is not valid, reference by the testator to the legatee as wife must be taken, as it was held there, to the person whom he described as his wife.
(9) Lastly, on this question, learned counsel for the respondents contended that Sec. 4(1) of the Madras Hindu (Bigamy Prevention and Divorce Act is ultra vires the State Legislature. He says that the 4th plaintiff being a Malayalee and a permanent resident of the Travancore State, the Madras Legislature would have no power to enact a law which could affect her, and that since S. 4(1) had that effect, it must be held to be extra-territorial in operation and therefore in excess of the powers of the Madras State legislature. In support of this contention, strong reliance is placed on State v. Narayanadas, (FB) Sec. 99 of the Government of India Act 1935,
defines the extent of the Federal and Provincial legislature may make laws for the Province or for any part thereof. Entries 1 and 6 of List III of the VII Schedule to that Act, invested Provincial Legislatures with concurrent powers to enact laws in respect of criminal law, marriage and divorce. The argument for the respondents is that under these Entries the Provincial legislature can make laws only for the Province or a part thereof and not make laws which will have operation either extra-territorially or in personam outside the territorial limits of the province. As a proposition of law, it is generally correct and that is what was laid in (FB). In that
case, a resident of Bombay married a woman in Bikaner at that place. The marriage was found to be a bigamous one and a bigamous marriage would be invalid and would constitute also a crime under the Bombay Prevention of Hindu Bigamous Marriages Act, 1946. The Full Bench of the Bombay High Court held that there could be no prosecution under the provisions of S. 4(b), as the sub-section was ultra vires the Bombay legislature. The reason for the decision is stated thus:
"Now, in this case the subject matter of the legislation is firstly marriage and secondly crime. With regard to marriage, the legislature has attempted to legislate with regard to marriages contracted beyond the limits of the Province or the State. If, therefore, the subject matter is marriage, it can only legislate with regard to that marriage which is contracted within the limits of the Province or the State. If it legislates with regard to marriages contracted beyond those limits, a territorial nexus has got to be discovered between the State and the marriage contracted outside the limits with regard to which the Legislature is attempting to legislate. Now, it is difficult to understand what territorial connection there is between a marriage contracted in Bikaner and the State of Bombay".
A further argument for the State would appear to have been based on domicile in the Bombay State of one of the parties to the marriage and sought to be supported on the nexus provided by that fact. But the learned Judges negatived that contention on the view that the word "domicile" as understood in International Law, was not to be equated to the fact of a person permanently residing in the State and should be understood in the context of permanent habitation in the country as a whole.
(10) We are of the view that no question of extra-territorial operation of S. 4(1) of the Madras Hindu (Bigamy Prevention and Divorce) Act 1949, arises so far as the facts of this case are concerned. Unlike the Bombay case, the marriage here took place within the limits of the State of Madras and one of the parties to the marriage belonged to that State, in which he permanently resides. The fourth plaintiff, no doubt, came from Travancore State, where she resided permanently before the marriage. But, that undoubtedly provides a territorial nexus between the subject matter and the object of legislation by the Madras Legislature. It is well established now that the powers of either the State Legislature or of the Central Legislature under the 1935 Act or the Constitution, are of a sovereign character and of the fullest amplitude both in respect of territorial operation as well as jurisdiction over persons who are at the relevant time within the limits of the State. When the State Legislature had powers under the Concurrent List in the Government of India Act, 1935, to legislate on marriage and divorce, and to create connected crimes, in exercise of such powers, it would undoubtedly be competent to prevent marriages of bigamous nature and constitute such a marriage as a crime, providing punishment therefor. Where such a marriage takes place outside the territorial limits of the State and one of the spouses, who is a Hindu, belongs to this State, whether, with reference to such a marriage, Sec. 4(1) operates extra-territorially and, if so, it is invalid, does not arise for consideration in this case. We are not concerned with the effect of a marriage which took place outside the State of Madras and the constitutional validity of S. 4(1) in regard to the prevention of such bigamous marriages outside the territory of Madras State.
(11) We come back, therefore, to the question whether, where the factum of marriage is established and the form of it is in accordance with the personal law, but because it is bigamous, it is void, the woman, who is a contracting party, could still be regarded as a wife or something in between a wife and a concubine, with a right to claim maintenance from the man. Apart from considerations of morals or sympathy, we are unable to say that there is a status of wifehood for such a woman intermediate between the legitimate wife, so to speak, and a concubine. There is no textual authority or statutory authority to be found for such a position; nor do we feel justified that we can recognise such a status, especially when the policy of the law is to declare a bigamous marriage as void, and, in fact, constitute it as a crime, which is liable to be punished. We are of the view, therefore that the 4th plaintiff has no right to maintenance, and the court below was not justified in granting her any maintenance.
(12) Two other questions have been argues for the appellant. One is, whether the 3rd plaintiff was born to the first defendant. There can be no doubt about it. The Birth extract shows that the 3rd plaintiff is the third child of the first defendant and from the date given in the birth extract, there can be no doubt that the third plaintiff should have been conceived when the fourth plaintiff and the first defendant were living together. The other point is that the court below was not justified in taking into account the properties covered by schedules A and C in the plaint, in fixing the quantum of maintenance. We have been taken through the will relating to these properties. It appears to us that the will merely created a charge on the properties for performance of certain named charitable objects. We are of opinion, therefore, that the court below was not in the wrong in taking these properties into account for fixing the maintenance for plaintiffs 1 to 3. In any case, it cannot be said that the quantum of maintenance, both past and future, decreed in favour of plaintiffs 1 to 3 is excessive.
(13) The appeal is allowed and the decree is set aside so far as the fourth plaintiff is concerned, but in other respects the appeal is dismissed. No costs. Inasmuch as the fourth plaintiff has failed, the liability to pay court fee in respect of her claim in the plaint should be borne by her in the court below.
(14) Appeal partly allowed.