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Sisir Kumar Kundu Vs. Smt. Sabita Rani Mandal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberF.M.A. No. 195 of 1970 and C.R. No. 4136 (w) of 1969
Judge
Reported inAIR1972Cal4,75CWN932
ActsHindu Marriage Act, 1955 - Sections 12, 12(1), 13 and 25
AppellantSisir Kumar Kundu
RespondentSmt. Sabita Rani Mandal
Appellant AdvocateDipak Sengupta, Adv.
Respondent AdvocateSib Sankar Sarkar, Adv.
Cases ReferredHarilal v. Lilavati
Excerpt:
- .....in the section. clause (i) requires that neither party should have a spouse living at the time of marriage, clause (iv) lays down that the parties must not be within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two, and clause (v) enjoins that the parties are not to be sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. section 9 provides for a decree for restitution of conjugal rights when either the husband or the wife has unreasonably withdrawn from the society of the other. section 10 provides for a decree for judicial separation on any of the gounds specified in the section. section 11 states that a marriage 'shall be null and void and.....
Judgment:

Gupta, J.

1. As S.K. Chakravarti and S.K. Datta, JJ. composing a Division Bench were divided in their opinion on a point of construction of Section 25(1) of the Hindu Marriage Act, 1955, the case was assigned to me for hearing on that point. The point ia stated by their Lordships as follows)

'Whether a wife who got her marriage with her husband annulled by a decree of nullity on the ground of im-potency of the husband under Section 12(1)(a) of the Hindu Marriage Act, is entitled to get any maintenance on her application under Section 25 of the Hindu Marriage Act, 1955. subsequent to the passing of the decree of nullity'.

2. The point arises for decision in this way. On August 1, 1968 a decree of nullity was passed by the learned District Judge of 24-Parganas on a petition under Section 12(1)(a) of the Hindu Marriage Act, 1955 presented by Sabita Rani Mondal, the opposite party in this Revisional Application, alleging that Sisir Kumar Kundu with whom she was married was impotent at the time of the marriage and continued to be so until the institution of the proceeding. On May 3, 1969 she applied to the Court of the District Judge under Section 25(1) of the Hindu Marriage Act, 1955 for an order on the said Sisir Kumar Kundu to pay to her a monthly sum of Rs. 75/-for her maintenance and support Contesting this application Kundu raised a preliminary objection that an application under Section 25(1) was not maintainable after a decree of nullity had been made. This objection was overruled by the court below, Kundu preferred an appeal to this Court from the order and also filed an alternative application in revision. S.K. Chakravarti and S.K. Datta, JJ. before whom the matter came up for hearing held that the appeal was not maintainable but entertained the revi-sional application taking different views on the point stated above. S.K. Chakravarti, J. was of opinion that Section 25 would not apply to a case where a decree of nullity has been passed declaring a marriage as null and void under Section 11 of the Act or where a marriage has been annulled under Section 12 and 'would apply only to Section 13 and Sections 9 and 10'. S.K. Datta. J. on the other hand took the view that 'Section 25 is applicable to all decrees including decrees for nullity of marriages .....'

3. Section 25(1) of the Hindu Marriage Act, 1955 is in these terms :

'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 and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant and the conduct of the parties, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent'.

Section 25(1) thus provides inter alia that either the wife or the husband can apply to the Court at the time when it passes any decree under the Act or subsequently for an order on the other side to pay a gross or periodical sum for the applicant's maintenance and on such an application the Court may make an order as prayed for but an order for payment of a periodical sum can only be for a term not exceeding the life of the applicant and shall be in force only so long as the applicant remains unmarried. We are concerned here with an application made subsequent to the passing of the decree. To find an answer to the question that arises in this case it will be necessary to refer to certain other provisions of the Act which may be done conveniently at this stage.

4. Section 5 of the Hindu Marriage Act, 1955 lays down the conditions that must be fulfilled before a marriage may be solemnized between two Hindus. Of the six conditions specified in the section. Clause (i) requires that neither party should have a spouse living at the time of marriage, Clause (iv) lays down that the parties must not be within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two, and Clause (v) enjoins that the parties are not to be sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. Section 9 provides for a decree for restitution of conjugal rights when either the husband or the wife has unreasonably withdrawn from the society of the other. Section 10 provides for a decree for judicial separation on any of the gounds specified in the section. Section 11 states that a marriage 'shall be null and 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 Section 5'. Section 12(1) dealing with voidable marriages provides that a marriage may be annulled by a decree of nullity if,--

(a) the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding; or

(b) the marriage Is in contravention of the condition specified in Clause (ii) of Section 5; or

(c) the consent of the petitioner, or where the consent of the guardian in marriage of the petitoner is required under Section 5. the consent of such guardian was obtained by force or fraud; or

(d) the respondent was at the time of the marriage pregnant by some person other than the petitioner. Clauses (b), (c) and (d) are not relevant for the present purpose. Section 13(1) specifies the grounds upon which a marriage may be dissolved by a decree of divorce. Section 16 provides that children of marriages in respect of which a decree of nullity has been passed under either Section 11 or Section 12 shall be deemed to be legitimate children of the parties to the marriage notwithstanding such decree.

5. The Act thus contemplates five classes of decrees, for restitution of conjugal rights under Section 9, for judicial separation under Section 10, for nullity of marriage under Section 11 or Section 12, and for divorce under Section 13. A decree declaring a marriage as null and void under Section 11 is made in a case where the marriage was solemnized in contravention of any of the essential conditions for a Hindu marriage. Such a marriage is automatically void or void ipso jure and is regarded as never having taken place; a decree of nullity passed in such a case only serves to put that fact on record. A voidable marriage may also be annulled by a decree of nullity under Section 12. However, the distinction between a void and a voidable marriage is well known. A voidable marriage is valid marriage until annulled, though a decree of nullity passed in such a case purports to put the parties retrospectively to the position as if the marriage had been void from its inception. A voidable marriage however remains valid if not annulled during the lifetime of the parties to it, and cannot be impeached after the death of either of them,

6. Turning now to the point at Issue, Chakravarti, J., seems to have reached his conclusion on the following steps of reasoning. The effect of a voidable marriage being annulled by a decree of nullity is that the marriage Is to be regarded as null and void from its inception. Thus there is no difference between a void marriage and a voidable marriage annulled by a decree of nullity, in both cases the marriage is to be regarded as never having taken place. Section 25(1) entitles only the 'wife' or the 'husband' to apply under the section. If the position after a decree of nullity has been passed is that no marriage had ever taken place between the parties, the relationship of husband and wife cannot be said to have ever subsisted between them; in any event, in case of a voidable marriage the relationship cannot be said to be subsisting after a decree of nullity has been passed. His Lordship finds support for the view taken by him from the difference in language employed in Sections 11 and 12 dealing with void and voidable marriages respectively, and in Section 13 which provides for the dissolution of marriage by a decree of divorce. His Lordship points out that Section 13(1) describes the parties who can apply under the section as the 'husband' or the 'wife' whereas this description is absent in Section 11 and Section 12. Chakravarti, J. also refers to a decision of the Guiarat High Court, Mehta Gunavantray v. Bai Prabha, : AIR1963Guj242 in support of his view. This decision which is of a learned single Judge holds that 'under Section 25 no application for permanent alimony or maintenance can be made subsequent to the passing of the decree for dissolution or annulment of marriage in proceedings for dissolution of marriage by divorce or for annulment of marriage by a decree for nullity' because 'after the decree the parties cease to be related as husband and wife'. I shall come back to this case later but it may be pointed out here that the decision does not altogether support the view taken by Chakravarti, J. in holding that Section 25 has no application where a decree for divorce under Section 13 has been passed.

7. The reasons given by S.K. Datta. J. in support of his opinion that 'Section 25 is applicable to all decrees which a Court under the Hindu Marriage Act is entitled to pass including decrees of nullity of voidable or void marriages' may be summarised as follows :

(i) Section 25 gives to the Court the power to grant permanent alimony and maintenance at the time of passing any decree or at any time subsequent thereto. The expression 'any' has been used in the widest connotation without any limitation and the provisions of the section would, therefore, apply to all the various kinds of decrees permissible under the Act.

(ii) As a matter of public policy. In the context, of social condition prevailing in a Hindu society. Section 25 ought to be made applicable to cases where decrees of nullity have been passed.

(iii) It is a cardinal rule of interpretation that a statute should be given a meaning which is in harmony with its relevant provisions and consistent with the object which it seeks to achieve. Applying this principle of interpretation and having regard to the 'intended object' of the Hindu Marriage Act which was to secure to the parties to a marriage 'rights which are beneficial to them in the present context of social relations', the provisions of Section 25 must be held to apply to the wife or the husband as the case may be.

8. Section 25(1) of the Hindu Marriage Act 1955 empowers a Court exercising jurisdiction under the Act to make an order under the section at the time of passing 'any decree' or at any time subsequent thereto. 'Any decree' would apparently include all possible decrees under the Act. The provision, however, has to be read as a whole to see if it contains any other word or expression limiting the application of the provision. One apparent qualification seems to be that an order passed under the section directing payment of alimony or maintenance shall remain in force 'while the applicant remains unmarried'. This would seem to suggest that the operation of the section was restricted to cases where a party was in a position to contract another marriage and would exclude decrees for restitution of conjugal rights and judicial separation from the scope of the section. It has however been held by a Division Bench of the Guiarat High Court in the case of Harilal v. Lilavati, : AIR1961Guj202 , that it would not be correct to read in the expression 'while the applicant remains unmarried' the legislature's intention to restrict the operation of the section only to decrees of nullity of marriage and for divorce but that the operation of the expression should be confined to those cases only where it is applicable, that is, to cases where the applicant is in a position to contract a lawful marriage. In coming to this conclusion their Lordships observed : 'The intention was not to restrict the powers of the Court in granting permanent alimony and maintenance to an extremely limited class of cases, namely where the Court had passed a decree for divorce or of nullity of marriage .....

The words 'any decree' would not have been used if it was the intention of the legislature to restrict the operation of the section only to cases where a decree for divorce or of nullity of marriage was passed. The power was intended to be exercised at the time of the passing of any of the decrees referred to in the earlier provisions of the Act or at any time subsequent thereto'.

9. The expression 'while the applicant remains unmarried' does not arise for consideration in the present case; I referred to it so that the observations of the Gujarat High Court in : AIR1961Guj202 quoted above may appear in the proper context. This decision supports the view taken by S.K. Datta, J. that Section 25 should be held to apply to all kinds of decrees permissible under the Act. The case of : AIR1963Guj242 , relied on by S.K. Chakravarti, J., does not appear to have noted this earlier and contrary decision of a larger bench of the same High Court.

10. It remains to be seen whether the words 'wife' or the 'husband' used in Section 25 refer to persons who can apply under the section were deliberately chosen to exclude parties to a voidable marriage that has been annulled under Section 12. The other classes of decrees do not arise for consideration in this case except incidentally. Whether the words have a significance as found by Chakravarti, J. and as held in Gunvantray's case, : AIR1963Guj242 can be tested by reference to the point of time when an application under Section 25 is made. Section 25 permits an application to be made at any time subsequent to the passing of any decree under the Act. If it were essential that the person applying must be the 'wife' or the 'husband' in the sense that marital ties must be subsisting between the parties when the application is made, then persons whose marriage has been dissolved by a decree of divorce under Section 13 of the Act would also be excluded from the coverage of the section because at that point of time the parties no longer remain husband and wife. This is a position which follows logically if the terms 'wife' and 'husband' are read as indicative of an existing marital relationship and this is what has been held in Gunvantray's case. But the view that the benefit of the section is available when a marriage has been dissolved by a decree of divorce under Section 13 but not when the marriage has been annulled by a decree of nullity under Section 12 seems to be somewhat inconsistent if the words 'wife' and 'husband' are read in the sense in which Chakravarti, J. thinks they should be read. A voidable marriage must be regarded as good and valid until annulled and there does not seem to be any difference between a decree passed under Section 12 and another under Section 13, so far as the availability of the benefit under Section 25 is concerned if it depends upon an existing marital relationship between the parties. In the context of Section 25 the terms 'wife' and 'husband' occurring therein do not seem to have been chosen to signify an existing relationship at the point of time when an application under the section is made. If the terms are to be interpreted as Chakravarti, J. suggests, the section would apply only to two classes of decrees, decrees for judicial separation and restitution of conjugal rights. Such an interpretation which excludes from the scope of the section the majority of the five different classes of decrees that may be passed under the Act, does not appear to me to be a reasonable way of reading the section which states that it would apply to 'any decree' under the Act. It seems to me that the words 'the wife or the husband' in Section 25 have been used as convenient terms to refer to the parties to a marriage whether or not the marriage is valid or subsisting, just as the word 'marriage' has been used in the Act to include a purported marriage which was void ab initio. No special significance also seems to attach to the fact that unlike Section 13, Sections 11 and 12 of the Act do not use the description 'husband' or 'wife' to refer to persons entitled to apply under these sections; the description is also absent from Section 10 under which 'either party to a marriage' can present a petition for judicial separation. In the English matrimonial statutes also persons whose marriage has been dissolved by a decree for divorce or annulled or declared a nullity have been frequently described as the husband and the wife. Section 1 (1) of the Matrimonial Causes Act, 1907 states that the Court may on any decree for dissolution or nullity of marriage order that 'the husband shall ..... secure to the wife' such gross sum or annual sum of money as it may deem reasonable. A similar provision with the same description of the parties occurs in Section 190 of the Supreme Court of Judicature (Consolidation) Act, 1925 and Section 19 (2) of the Matrimonial Causes Act, 1950. Section 16 (1) of the Matrimonial Causes Act, 1965 provides that in granting a decree of divorce or at any time thereafter, the Court may make an order requiring the husband to secure to the wife a lump or periodical sum and Section 19 of the Act states that Section 16 (1) shall apply in relation to nullity of marriage as it applies in relation to divorce.

11. Giving the words of Section 25 the meaning which they appear to bear in the context, I agree with S.K. Datta, J. that the benefit of the section is available to either party to a marriage that has been annulled by a decree of nullity under Section 12; whether it also extends to all other kinds of decree under the Act is not a matter on which it is necessary to express a concluded opinion in this case, I would not however like to rest my conclusion on the supposed public policy or the 'intended object' of the Act which appear to have weighed with Datta, J. The Court is not concerned with public policy except so far as such policy is apparent from the provisions of the statute, and the object of the Hindu Marriage Act, 1955 manifested in its various sections did not disclose to me any special clue to the construction of Section 25.

12. Let the case be placed before the Chief Justice so that it may now be disposed of by the appropriate Bench.


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