S.S. Subramani, J.
1. The only substantial question of law formulated for consideration at the time of admission of second appeal reads thus:
Whether the lower appellate court, while rejecting the claim of 1st respondent for maintenance, has not committed an error of law in granting maintenance to 2nd respondent who is not the legitimate son of the appellant even as per the lower appellate court?
2. Defendant in O.S. No. 595 of 1989 on the file of District Munsif's Court, Gingee, is the appellant herein.
3. Suit was filed by his wife and minor son, claiming maintenance under Section 18 of the Hindu Adoptions and Maintenance Act.
4. In this Judgment, reference to parties will be according to their rank in the suit.
5. First plaintiff claimed that she is the legally wedded wife of defendant, and in their wedlock, second plaintiff was born to them. It is said that the marriage was according to Custom prevalent in their community. It is also said in para 3 of plaint that at the instance of his first wife, defendant is not properly, looking after her affairs and also that of her son, and she has to maintain the second plaintiff only by doing hard labour. It is said that the defendant is bound to maintain them, and it is a moral as well as statutory obligation.
6. In the written statement filed by defendant, he disputed the marriage. He was already married to the elder sister of first plaintiff in which he has got two daughters. When there was a first marriage existing, it was impossible for him to contract another marriage. He denied that section and plaintiff was born to him through first plaintiff. He prayed for dismissal of the suit.
7. Trial court took oral and documentary evidence. Exs.A-1 to A-20 were marked on the side of plaintiffs. Exs.B-1 to B-10 were marked on the side of defendant. 1st plaintiff was examined as P.W.1, and five other witnesses were examined on the side of plaintiffs. Defendant examined himself as R.W.1 and examined another withness namely his wife as D.W.2.
8. Taking into consideration the entire evidence, the trial court held that both the plaintiffs are entitled to maintenance, It further held that there was marriage between defendant and first plaintiff, and second plaintiff was born that wel-lock. Rs. 300 and Rs. 400 were awarded as maintenance to plaintiffs respectively. Arrears of maintenance was also awarded.
9. Defendant preferred A.S. No. 496 of 1994 before Sub Judge, Villupuram. Lower appellate court affirmed the finding that there was marriage between defendant and first plaintiff, but declared the same as null and void since the first marriage was subsisting. Consequently that part of the decree which gave the first plaintiff maintenance was set aside, and the appeal was allowed to that extent. In regard, to second plaintiff, the decision of the trial court was affirmed. It was held that second plaintiff was born in that marriage and though he is an illegimate son of defendant, he is entitled to maintenance, under Section 16 of the Hindu Marriage Act read with Sections 21 and 22 of the Hindu Adoptions and Maintenance Act. It is this finding that is challenged by defendant in this second appeal.
10. At the time of argument, learned counsel for respondent/plaintiff wanted this Court to invoke the power under 0.41, Rule 33, C.P.C. Reason for advancing such an argument is that even though first plaintiff has not preferred first appeal or cross-appeal, denial of maintenance to first plaintiff by lower appellate court is illegal. I will consider this argument at the appropriate stage.
11. While considering the substantial question of law, the only point urged by learned counsel for appellant/defendant is that in the plaint the details of the marriage are not given, nor about the ceremonies, and the allegations are vague. It is further contended by learned counsel that even on the basis of evidence, it cannot be said that any marriage, was performed. Only if there was a marriage, the question whether it is void will arise, and, if there was no marriage, there is no question of any relationship and the question of paying maintenance also, therefore, will not arise.
12. It is true that in the plaint it is only stated that a marriage was performed accordingly to custom of the community. In paragraph 3 of the plaint, this is what is stated:
13. Learned counsel for appellant/defendant relied on certain decisions to contend that unless there is a specific pleading regarding the custom, this question should not have been considered by the lower appellate court. Specific reference was made to the decisions reported in Surjit Kaur v. Garja Singh and Ors. (1994)1 L.W. 38 (S.C.), Kunjithapatham v. Dhrensasoundari 1969 L. W. 257 and Phankari and Ors. v. The State A.I.R. 1965 J.& K. 105,
14. In Surjit Kaur v. Garja Singh and Ors. (1994) 1 L.W. 38, was a case of widow getting remarried and the marriage was based on custom. The Honourable Supreme Court held that unless the custom was pleaded and proved, the marriage cannot be taken as proved. Factually also, the case of marriage was not proved. The other two cases were cases of bigami under Sections 494 and 495 of the Indian Penal Code. I do not think that those decisions have any relevance to the facts or this case.
15. Whether the pleading is-sufficient came for consideration in K. Mathialagan v. Mala Devi (1989) 2 L. W.361. In that case, M. Srinivasan, J. (as he then was), had occasion to consider the pleading in which it was only stated that the parties got married according to Sastric Rites and Customs. Learned Judge held thus:
It has been repeatedly held that any amount of evidence in the absence of pleading is inadmissible. But at the same time, courts have pointed out that the substance of the pleading can be taken into account and not the form thereof. In the present case, the of original petition contained a statement that the respond -- dent was married to the appellant according to Hindu Sastric kites and Customs. That pleading is sufficient to cover the tying of thali and exchanging of garlands as such a custom has developed in this State for quite some time and in fact that is the main cause for Tamil Nadu Act 21 of 1967. It cannot, therefore, be contended that in this case, there was no pleading at all to support the evidence at the time when it was let in. At any rate, the amendment of the petition having been allowed, it is deemed to have been part of the original petition from the inception.
16. The Kerala High Court had occasion to consider a similar question under the Madras Marumakkathayam Act. There also the parties were governed by special statute and the marriage was also to be performed according to statutory conditions. In that decisions reported in Sreekumar v. Prema I.L.R. (1976)1 Ker 644, a Division Bench consisting of Gopalan Nambiar, J. and Balakrishnan Eradi, J. (as he then was) held that the requirement of the law would be satisfied by a statement that the marriage was performed in accordance with the Marukakkathayam Custom.
17. Both the courts below have concurrently held that there was marriage ceremony, and first plaintiff was accepted as wife by defendant. Even though learned counsel for the appellant wanted to take me through the evidence, I did not permit him, since the entire question of law raised is only about the right of the second plaintiff to get maintenance. Apart from the same, learned counsel for respondents placed before me the entire documentary evidence that was adduced before the trial court, to prove that both the first plaintiff and defendant were residing together as man and wife, and society was also recognising them as such, and defendant was also recognising second plaintiff as his son. Voters list, ration card and various other documents, all taken together, show that the first plaintiff was the wife of defendant, and their marriage was celebrated in accordance with the custom. Learned counsel for appellant also placed before me the oral evidence of various witnesses. According to learned counsel, there are various inconsistencies in the depositions. I do not think that I should accept the said contention, since the witnesses were deposing about something which took place more than 20 years back. The inconsistencies, even if there is any, are only minor, and they cannot upset the concurrent findings of fact, Therefore, the concurrent finding of the courts below that first plaintiff was married by defendant is confirmed
18. The further question that arises for consideration is, whether second plaintiff is entitled to maintenance. This question is raised on the basis that even according to first plaintiff, defendant was already married and his first wife is none other than the elder sister of the first plaintiff, and in that marriage they have two daughters, and when that marriage is subsisting, the relationship of defendant, even if any, with first plaintiff cannot be said as legal relationship. Therefore, second plaintiff is not entitled to maintenance. It is only on that basis, the question of law has also been raised in the memorandum of appeal.
19. I do not think that the said contention could be a accepted in view of the specific provision under the Hindu Adoptions and Maintenance Act. Section 21 of that Act defines as to who are the dependants entitled to maintenance. An illegitimate son or daughter is also a dependant under Section 21. Section 20 of that Act also gives a right to an illegitimate son to claim maintenance from his father or mother. So long as these sections enable an illegitimate son also to get maintenance, contention of learned counsel for appellant is only to be discarded. A reference is also to be made to Section 16 of the Hindu Marriage Act. Notwithstanding the fact that a marriage which is null and void under Section 11 of the Hindu Marriage Act, a child born of such marriage shall be deemed to be legitimate for the said purpose. So, the second plaintiff, even though illegimate, by the provisions of Section 16 of the Hindu Marriage Act, he must be considered as a legitimate son and, therefore, he is entitled to maintenance. The substantial question of law is, therefore, found against the appellant.
20. Now I will come to the contention of learned counsel for respondent whereby he wanted this Court to exercise its powers under Order 41, Rule 33, C.P.C.
21. In a recent decision of the Honourable Supreme Court reported in K. Muthuswami Gounder v. N. Palaniappa Gounder A.I.R.1998 S.C.W. 3031, this question was considered. The argument advanced by learned senior advocate appearing for appellant before the Honourable Supreme Court is given in paragraph 8 of that decision, and it is similar to the one raised in the case on hand. Paragraph 8 reads thus:
Shri K. Parasaran, learned Senior Advocate appearing for the appellant contended that the judgment of the trial court granting a decree for redemption became final and operated as res judicata by not having been appealed against and the High Court could not dismiss the suit by setting aside the decree for redemption in the absence of an appeal by the defendant in the redemption suit; that the decree for redemption passed by the trial court having attained finality in the absence of an appeal to the first appellate court by the defendant, the High Court even in exercise of powers under Order 41, Rule 33 could exercise its powers only against the judgment of the first appellate court and not as against the judgment of the trial court and destroy the finality of that part of the trial court judgment which was not appealed against; that Order 41, Rule 33 was not attracted to the facts arising in the present case.
Repelling the argument extracted above, the Honourable Supreme Court held as follows, in paragraph 12:
Order 41, Rule 3 enables the appellate court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be in favour of all or any of the parties even though, (i) the appeal is as to part only of the decree; and (ii) such party or parties may not have filed an appeal. The necessary condition for exercising the power under the Rule is that the parties to the proceeding are before the court and the question raised properly arises one (out) of the judgment of the lower court and in that event the appellate court could consider any objection to any part of the order or decree of the court and set it right. We are fortified in this view by the decision of this Court in Dhangir v. Madan Mohan : [1988]1SCR679 . No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under 0.41, Rule 33, C.P.C., and each case must depend upon its own facts. The Rule enables the appellate court to pass any order/decree which ought to have been passed. The general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings, ordinarily, the appellate court must not vary or reverse a decree/order in favour of a party who has not preferred any appeal and this rule holds good notwithstanding Order 41, Rule 33, C.P.C. However, in exceptional cases the rule enables the appellate court to pass such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal. The power though discretionary should not be declined to be exercised merely on the ground that the party has not filed any appeals. We are not impressed with argument that the finding as to the nature of Ex.A-6 the Security Deed has become final as the finding operates as res judicata. When the entire matter was still in appeal and any part of the finding could be varied by the appellate court, it is idle to contend that the same had become final. So also when the matter had not attained finality and still in dispute, the principle of res judicata could not arise. In some case finding recorded at an earlier stage will operate as res judicata if such finding has become final. In the present case, that was not the position. The High Court has to find out the rights of the parties arising out of the deed under Ex.A-6 and necessarily had to give a finding one way or the other to determine the status of the appellant as puisne mortgagee. In doing so, the High Court decided that the document Ex.A-6 did not amount to a charge and, therefore, the appellant did not derive any rights of puisne mortgagee thereunder. The High Court having so held, proceeded further to upset the decree as otherwise if the decree for redemption remained in the face of the finding of non-existence of a charge with the consequent right as puisne mortgagee, the position would be anomalous if not absurd. And so, the High Court in the special circumstances arising in this case exercised the discretion vested in it under Order 41, Rule 33, C.P.C. It cannot be said that such a question was not germane to the determination of the matter in issue. To defend the finding in his favour, the respondent could contend that the appellant could not claim to be a puisne mortgagee as no charge arises from Ex.A-6. In that event, it cannot be said that there is any inconsistency in the stand of the respondent. Therefore, we find that there is no merit in the contention of the appellant and the same is rejected.
[Italics supplied]
In view of the aforesaid decision of the Honourable Supreme Court, contention of learned counsel for respondent that there is power under Order 41, Rule 33, C.P.C. to consider the question of maintenance to first plaintiff, is justified. The question regarding the status of the first plaintiff has not become final when the same question is agitated by appellant in second appeal. When legitimacy or illegitimacy of second plaintiff is raised in this second appeal, naturally, the legal status of the first plaintiff has to be considered. If that be so, whether there was marriage between defendant and first plaintiff also requires consideration. Merely because the first plaintiff has not filed an appeal or cross-appeal, that will not debar her from agitating the same before this Court and to claim maintenance. But the question is, whether she is entitled to maintenance. That is a different question unconnected with the powers of the appellate court. Even according to first plaintiff, she is the second wife. Her marriage took place after the Hindu Marriage Act came into force. At that time, defendant was having a wife living with him. It is also admitted that they have got two daughters in that marriage. First wife is none other than the elder sister of first plaintiff. When these facts are admitted, what will be the legal right of first plaintiff to claim maintenance? Under Section 18 of the Hindu Adoptions and Maintenance Act, maintenance is given to a Hindu wife, whether married before or after the commencement of the Act..
22. Learned counsel for respondent relied on a decision of the Andhra Pradesh High Court reported in C. Obula Konda Reddy v. C. Pedda Venkata Lakshmamma : AIR1976AP43 , wherein a learned Judge of the Andhra Pradesh High Court held that the Hindu Adoptions and Maintenance Act does not make a distinction between first wife or second wife, and the learned Judge further went on and said that a wife whose marriage is valid according to the provisions of the Hindu Marriage Act, is entitled to maintenance. But I do not think that I should accept the said decision as correct.
23. In Yamunabai v. Anantrao : 1988CriLJ793 , the question that came for consideration was, whether second wife whose marriage took place while the first marriage was subsisting, was entitled to maintenance under Section 125 of the Criminal Procedure Code, and what is her legal status. We must note that under Section 125 of the Code also, maintenance is granted to a wife who is unable to maintain herself. In Yamunabai's case this question was considered in detail. Paragraphs 3 and 4 are relevant for our purpose. They read thus:
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 marriage: Any marriage resolemnisied 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 or 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 overriding 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 in concerned, it is confined to other categories of marriages and is not applicable to open 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 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 and whether or not the marriage is held to be void otherwise than on a petition under this Act.
(2) Where 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 legitimate child of the parties of the marriage if at the date of the decree if 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 upto 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.
[Italics added]
Sub-section. (l), 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.
The question then arisen as to whether the expression 'Wife' used in Section 125 of the code should be interpreted to mean only a legally wedded wife not covered by Section 11 of the Act. The word is not defined in the code except indicating in the Explanation its inclusive character so as to cover a divorce. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must, therefore, be given the meaning in which it is understood in law applicable to the parties, subject to the Explanation (b), which is not relevant in the present context.
24. It is further argued by learned counsel that in the case of maintenance, it is a human problem of subsistence and the personal law applicable to parties has to be eschewed from consideration. Of course, some support for such argument is found in the decision reported in Rajeshbhai v. Shantabai A.I.R. 1982 Bom. 231. wherein in para 30, a learned Judge has held thus:.it would not be permissible to include in the terms 'wife' or 'widow' that relation . which is not recognised by law. However, it is implicit in the judgment of this Court in Govindarao's case that there can be class of persons who, as I propose to call, are 'illegitimate wives or widows' who can be the subject of benefaction of law of maintenance, notwithstanding that eventually their legal status is annulled. Undoubtedly a female spouse united by marriage enters upon a status and is conferred with immediate as well as inchoate rights attached to such status by virtue of her marriage and that is because of the gift and conferment of law. When that status is shaken and found to have no sanction, it does not follow that even the inchoate rights of such person are totally eclipsed. As distinct from succession or inheritance, the right of maintenance can be treated to be a separate one, the first two arising upon the natural or civil death of the husband. Maintenance thus is a personal right. In its character it can be treated to be a secular right recognised by almost all the systems of personal laws in various decrees and under varying conditions, though, therefore, for the purpose of the Succession Act and the Maintenance Act the terms 'wife' and 'widow' would have a restricted articulate legal meaning, that by itself would not be the position when the matter arises for the purpose of providing the measures of sustenance on consideration of justice and fair play involved and basic to all human and social relations.
According to me, the aforesaid decision also cannot be held to be good law in view of the decision of the Honourable supreme court in Yamunabai's case : 1988CriLJ793 wherein, in paragraph 6, their Lordships have held thus: (relevant portion extracted):
The attempt to exclude altogether the personal law applicable to the parties from consideration also has to be repelled. The section has been enacted in the interest of a wife, and one who intends to take benefit under Sub-section.(1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes her status on (or) relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. The issue whether the section is attracted or not cannot be answered except by the reference to the appropriate law governing the parties...
25. Our High Court has occasion to consider a similar question in the decision reported in A.P.K. Narayanaswami Reddiar v. Padmanabhan (Minor) and Ors. : AIR1966Mad394 . Relevant portion of para 11 reads thus:
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 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 wifebood 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.
26. This principle was reiterated by another Division Bench in the decision reported in Natesan Chettiar v. Achiyayee Ammal : AIR1975Mad202 , wherein their Lordships said that, 'in law a woman can be given recognition either as the wife of a man or as his concubine and there cannot be an termediary class picturesquely described as an 'illegitimate wife'....'
27. If this is the legal position, I am of the view that an argument on the ground of sympathy or humanitarian consideration will not arise for determination.
28. Learned counsel for respondent also argued that under Section 25 of the Hindu Marriage Act, a wife whose marriage is declared void is also entitled to permanent alimoncy. If that principle is accepted, maintenance also will have to be granted. In this case, I am only considering Section 18 of the Hindu Adoptions and Maintenance Act. If any proceeding is initiated by either party to the marriage for declaration of the marriage on the ground of nullity, it is for that court to decide the scope of Section 25 of the Hindu Marriage Act. This decision will not bar the first palintiff from agitating that question. Subject to this observation, the second appeal is dismissed, however, without any order as to costs.
29. C.R.P. No. 802 of 1998: The revision arises out of O.S. No. 86 of 1998, on the file of District Munsif's Court, Ginjee, filed by the two daughters of the defendant, for partition, against the second plaintiff, defendant and others. In that suit, they also moved an application for injunction restraining the second plaintiff herein from proceeding with the execution of decree for maintenance by bringing the properties of defendant for sale. An ad interim injunction was also granted. The same is challenged by second plaintiff (who is ranked as 1st defendant in O.S. No. 86 of 1998), under Article 227 of the Constitution of India.
30. It is clear from the narration of facts that the two daughters have filed the said suit only at the instigation of the defendant (Gopal Gounder) who has refused to pay maintenance to his son second plaintiff (Sivakumar), and also to the first plaintiff (second wife).
31. Along with the second appeal, appellant filed C.M.P. No. 12697 of 1996, for stay of execution. This Court, on 5.11.1996, passed an order to the effect that interim stay already granted is made absolute on condition that the petitioner pays directly to the second respondent (Minor Sivakumar) 50% of the decree amount within six weeks from that date, and also continue to pay a sum of Rs. 300 per month towards the future maintenance. That order has not been complied with. It was thereafter, O.S. No. 86 of 1998 has been filed by the two daughter of the defendant, making their father also as a party, and they have also moved for an injunction not to proceed with the execution. Narration of facts shows that the defendant did not get an interim order. So, he wanted to stall the execution by setting up his daughters to file the suit O.S. No. 86 of 1998. According to me, the institution of that suit is not bona fide and it is only an attempt to prevent the execution of the decree validly obtained by plaintiffs in O.S. No. 595 of 1989. Even if a suit for partition may be maintainable, there is no necessity for an injunction since the property that could be brought to sale is only the right, title and interest of defendant. Over the same, the two daughters may not have any right. In spite of the same, when they have moved for an injunction, it can only be said that the court machinery is being used for an illegal purpose and it is used as a means of vexation and oppression in the process of litigation. As was held by Their Lordships of the Supreme Court in the decision re-ported in K.K. Modi and K.N. Modi A.I.R.1998 S.C.1166, the process of court must be used for bona fide purpose and the same should not be abused. If it is intended for some oblique purpose, the court will have to interfere in such cases.
32. That part, the order impugned in the revision also does not satisfy the legal requirements under Order 39, Rule 1, C.P.C. It simply says: 'Injunction and notice'. It is per se illegal.
33. Taking into consideration the above facts, I.A. No. 389 of 1998 in O.S. No. 86 of 1998, on the file of District Munsif's Court, Gingee is dismissed, and the interim order granted by the lower court is vacated. The civil revision petition is allowed. No costs.
34. In the result, the second appeal is dismissed, however, without any order as to costs, as indicated above. C.R.P. is allowed. No costs. Connected C.M.Ps. in both the second appeal and C.R.P. are closed.