Anil Kumar Sharma, J:
1. The appellant/husband has filed this first appeal under Section 28 of the Hindu Marriage Act, 1955, challenging the judgment and decree dated 20-2-2006 passed in Civil Suit No. 9-A/2005 by learned Additional District Judge, Beohari, District Shahdol (M.P.).
2. The brief facts of the case are that appellant was married to the respondent/wife (Geeta Choudhrey) on 29-4-2004 at Village Masiyari, their marriage has not been consummated owing to the impotency of respondent (Geeta Choudhrey) as her genital parts in the body were absent. On filing petition under Section 12 of the Hindu Marriage Act, challenging the marriage on the ground of contravention of the conditions specified in clause (2) of Section 5, the learned Trial Court, allowed the suit and passed the decree of nullity and granted 500/- per month for maintenance of wife and the appellant has challenged the said order of the learned Trial Court granting awarding maintenance.
3. Learned Counsel for the appellant has submitted that the learned Trial Court is not justified in awarding maintenance amount to the respondent/wife when the marriage was declared null and void. The maintenance can be awarded to legally wedded wife. Where the marriage is void ab initio and the woman cannot get the status of wife nor the male gets the status of husband.
4. Learned Counsel for the appellant has drawn attention towards the judgment passed by Hon'ble Full Bench of Andhra Pradesh High Court in the matter of Abbayolla M. Subba Reddy v. Padamamma,, AIR 1999 AP 19, in which considering the provision of Section 25 of the Hindu Marriage Act, it has been held that where the marriage admittedly is nullity, hence, Section 25 of the Hindu Marriage Act has no application. It is further held that the said relief of maintenance cannot be granted by invoking of Section 151 of C.P.C.
The relevant Para. 27 of the judgment is reproduced below:--
"27. Section 25 of the Hindu Marriage Act as it now stand after amendment by Act 68/76 is reproduced hereunder:--
25. Permanent alimony and maintenance.--
(1) Any Court exercising jurisdiction under this Act may at the time of passing any decree or any time subsequent thereto, on application made to it for the purpose of either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum of 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 (the conduct of the parties and other circumstances of the case), 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.
(2) If the Court is satisfied that there is change in the circumstances of either party at any time after it has made an order under sub-section (1) it may at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just.
(3) If the Court is satisfied that the party in whose favour an order has been made under the section has re-married or if such party is the wife that she has not remained chaste, or if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may, at the instance of the other party, vary, modify or rescind any such order in such manner as the Court may deem just.
It is clear from this provision that it confers a statutory right on the wife and the husband and confers jurisdiction on the Court to pass an order of maintenance and alimony in proceedings under Sections 9 to 14 of the Hindu Marriage Act. At any time before or after the decree is passed in such a proceeding, therefore, the wife or husband could make such a claim and the conditions of Section 25(1) will have to be satisfied. There must be a matrimonial petition filed under the Hindu Marriage Act, then, on such a petition a decree must be passed by the Court concerning the marital status of the wife or husband. It is only when such a decree is passed that the right accrues to the wife or the husband and confers jurisdiction on the Court to grant alimony. Till then, such a right does not take place. Not only that the Court retains the jurisdiction even subsequent to passing of such a decree to grant permanent alimony when moved by an application in that behalf of a party entitled to the Court further retains the power to change or alter the order in view of the changed circumstances. Thus, the whole exercise is within the gamut of a broken marriage. Thus, the legislature while codifying the Hindu Marriage Act, reversed the right of permanent maintenance in favour of the husband or the wife as the case may be depending on the Court passing a decree of the kind as envisaged under Section 14 of the Act. Thus, Section 25 should not 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. In our view, the proper construction of Section 25 would be that where a marriage admittedly is a nullity this 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 Section 25 should be appreciated. Further in the instant case, there are no proceedings between the parties and there is no decree of the kind as envisaged under Section 14 of the Act disrupting the marital status of the respondent with appellant. Hence, the respondent is not entitled to invoke the provisions under Section 25 of the Act. On the other hand, the respondent is seeking maintenance under Section 18 of Hindu Adoption and Maintenance Act. When the marriage of the respondent is void ab initio, she is not entitled to claim maintenance under the said Act. Hence, it is not open to the Court to grant relief of maintenance under Section 25 of Hindu Marriage Act in the proceedings initiated under the provisions of Hindu Adoption and Maintenance Act as held by the Apex Court is Smt. Chand Dhawan v. Jawaharlal Dhawan,, 1993 (3) SCALE 1 : 1993 AIR SCW 2548. As is evident, both these statutes are codified laws on the respective subject and by liberality of interpretation, inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance."
5. Therefore, considering the fact that marriage of appellant with the respondent has been declared null and void on the ground that wife is not only impotent, but she has not been unfortunately blessed with the female genital parts. Learned Trial Court is not justified in awarding the amount of maintenance to the respondent-wife.
6. Therefore, appeal is allowed and the judgment of learned Trial Court, so far as it relates to grant of maintenance of 500/- is hereby set aside. The judgment of learned Trial Court shall remain modified accordingly, decree be prepared accordingly.
No order as to costs.
First Appeal allowed.