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Soumyanarayanan Vs. Jayalakshmi Ammal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1975)1MLJ18
AppellantSoumyanarayanan
RespondentJayalakshmi Ammal
Excerpt:
- .....by a decree of nullity and which thereby becomes void, for, according to the learned counsel, a void marriage never existed, at all. the learned counsel further contends that the jurisdiction of the court under section 25 of the hindu marriage act is limited only to marriages which are voidable and not void ab initio. section 25 (1) of the hindu marriage act provides:any court exercising jurisdiction under this 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....therefore, an application under section 25 is maintainable before any court.....
Judgment:

P.S. Kailasam, J.

1. The husband against whom an order for maintenance has been passed on a petition presented by the wife, who succeeded in her petition for annulment of the marriage, is the appellant. The marriage was annulled by a decree on a petition filed by the wife on the ground that the husband was impotent from the date of the marriage. Subsequent to the annulment of the marriage, the wife filed a petition for maintenance under Section 25 of the Hindu Marriage Act. The maintenance was ordered.

2. The point that has been taken by the learned Counsel appearing for the husband is that Section 25 of the Hindu Marriage Act is not applicable to a marriage which has been annulled by a decree of nullity and which thereby becomes void, for, according to the learned Counsel, a void marriage never existed, at all. The learned Counsel further contends that the jurisdiction of the Court under Section 25 of the Hindu Marriage Act is limited only to marriages which are voidable and not void ab initio. Section 25 (1) of the Hindu Marriage Act provides:

Any Court exercising jurisdiction under this 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....

Therefore, an application under Section 25 is maintainable before any Court exercising jurisdiction under the Act, and that application may be filed at the time of passing of any decree or at any time subsequent thereto. The section is wide enough to enable the Court exercising jurisdiction under the Act, that is, under any of the provisions of the Act. Section 12 relates to annulment of a marriage by a decree of nullity on the ground that the respondent was impotent at the time of the marriage. When a Court passes an order under Section 12 (1) of the Act, it is certainly an order passed in exercise of its jurisdiction under the Act. Therefore, there is very little force in the contentions of the learned Counsel for the appellant that it is a void marriage and that the provisions of Section 25 (1) enabling the wife to get maintenance till her remarriage would not be applicable. Void marriages are referred to in Section 11 of the Act. Under that section, a marriage will be declared null and void by a decree of nullity, if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of the Act. Clause (i) of Section 5 relates to cases where a party has a spouse living at the time of the marriage; Clause (iv) relates to marriages within the prohibited decrees of relationship; and Clause (v) relates to marriages between sapindas, which are prohibited. None of these clauses are applicable to the present case. So, the provision relating to void marriage will not apply. Annulment of a marriage by a decree of nullity on the ground of impotency at the time of marriage is stated to be voidable under Section 12 (1) of the Act. The learned Counsel is therefore not right in calling the present marriage as a void marriage. Further, Section 25 does not refer to any remarriage at all. Even if the learned Counsel's contention is accepted and the marriage is treated as void and it is further held that there was no marriage at all, still there can be no objection under Section 25 (1) of the Act to grant maintenance so long as the wife remains unmarried.

3. We feel that this appeal is totally devoid of merits. It is accordingly dismissed with costs.


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