ORDER
A.P. Shah, J.
1. Whether the wife can be denied maintenance pendente lite under section 24 of the Hindu Marriage Act, 1955 only on the ground that her marriage with her husband is the second marriage during the subsistence of the first marriage and the same is void under section 11 read with section 5(i) of the Hindu Marriage Act and whether such a wife is also disentitled from claiming interim maintenance in proceedings under section 18 of the Hindu Adoption and Maintenance Act, 1956 are the questions which fell for consideration in this review petition.
2. Very few facts are necessary for appreciation of the controversy arising in this petition. Both the principal parties namely the petitioner and the respondent No. 1 are Hindus governed by Hindu law. The case of the respondent No. 1 is that she was married to the petitioner according to the Hindu vedic rites on 29th June, 1986 in a temple at Ulhasnagar and that the respondent No. 2 is their daughter born from the marriage. The respondent No. 1 has filed matrimonial petition bearing No. A-2082 of 1996 in the Family Court, Bombay, under section 11 of the Hindu Marriage Act for declaration that the. marriage between her and the petitioner is void on the ground that the petitioner was already married and his first wife was living at the time of the second marriage and hence the second marriage was a nullity. She has also filed maintenance Petition No. C-215 of 1996 under section 18 of the Hindu Adoption and Maintenance Act, 1956, claiming maintenance for herself and the minor daughter. The respondent No. 1 took out Interim Application No. 711 of 1997 claiming interim maintenance of Rs. 25,000.00 and Rs. 10,000.00 respectively for herself and her daughter. The application was resisted by the petitioner mainly on the ground that even according to the respondent No. 1 marriage is a nullity and therefore she is not entitled to claim interim maintenance. The petitioner also denied the factum of marriage though he accepted the paternity of the daughter. By an order dated 5th February, 1998 the Family Court awarded interim maintenance of Rs. 5000.00 and Rs. 2500.00 per month to the respondent Nos. and 2 respectively. The Family Court relying upon the decision of this Court in Govindrao v. Sou. Anandibai, : AIR1976Bom433 , held that even though the marriage between the petitioner and the respondent No. 1 was null and void in view of the provisions of section 11 of the Hindu Marriage Act, as the condition imposed by Clause (i) of section 5 thereof was not fulfilled, she is not disentitled from claiming interim maintenance. This order was challenged by the petitioner by filing Writ Petition No. 1946 of 1998 which came to be dismissed summarily on 15th June, 1998. Thereupon the petitioner has taken out this petition seeking review of the order of dismissal. It is required to be stated that the challenge in the review petition is restricted to the award of interim maintenance to the respondent No. 1 alone and the order awarding interim maintenance to the daughter is not challenged.
3. Mr. Thorat, learned Counsel appearing for the petitioner strenuously contended that the words 'wife' and 'husband' used in section 24 of the Hindu Marriage Act, must be construed in their strict grammatical sense and, so construed would mean a lawfully wedded Hindu wife and a lawfully wedded Hindu husband. It was submitted by him that in the present case the marriage between the petitioner and the respondent No. 1 was null and void ab initio. It never created the relationship of husband and wife between the petitioner and the respondent No. 1. They were never husband and wife in the strict legal sense and hence the provisions of section 24 cannot apply to them at all. It was urged by Mr. Thorat that even under section 18 of the Hindu Adoption and Maintenance Act, the word wife is required to be given restrictive meaning which imply the relation that results from a recognised legal mode of marriage and therefore a second wife whose marriage is void is not entitled to claim maintenance under section 18 of the said Act. Mr. Thorat urged that the decision of this Court in Govindrao v. Sou. Anandibai (supra) is no longer good law in view of the law laid down by the Apex Court in Smt. Yamunabai v. Anantrao, : 1988CriLJ793 . In any event according to Mr. Thorat the issue is required to be re-considered in the light of the Apex Court's decision in Yamunabai v. Anantrao. Mr. Thorat therefore contended that the order of interim maintenance passed by the Family Court in favour of the respondent No. 1 wife is not sustainable in law.
4. As the arguments in this petition turn, to a large extent, on some of the provisions of the Hindu Marriage Act, which came into force on 18th May, 1955, it may not be out of place to take notice of the same at this stage. Section 5 of the Act lays down the conditions of a valid Hindu marriage and one of the conditions is that it should be a marriage between two Hindus where neither party has a spouse living at the time of marriage. Under section 9 of the Act, parties to the marriage may obtain decree for restitution of conjugal rights from the Court. Section 11 of the Act permits a party to approach the Court for a decree of nullity if the marriage contravenes any of the conditions specified in section 5 including Clause 9 (i) thereof where one of the parties had a spouse living at the time of marriage. Section 13 of the Act contains grounds on the basis of which divorce can be obtained. Under section 16 of the Act children of void and voidable marriage are deemed to be legitimate. Section 17 of the Act makes a bigamous marriage punishable in accordance with section 494 and 495 of the Indian Penal Code, Under section 23(2) of the Act, the matrimonial Court at the first instance is required in every case to make an endeavour to bring about reconciliation between the parties.
5. Under section 23-A of the Act, in a proceeding instituted by one spouse the other spouse as respondent can claim any of the reliefs available to him under the Act. Section 23-A of the Act may be quoted:
'23-A. Relief for respondent in divorce and other proceedings:--In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented any petition seeking such relief on that ground.'
6. Under section 24 of the Act, the Court can fix interim maintenance for payment to the one spouse by other where one of them is unable to maintain him or her and the other has means to do so. Section 24 uses the expression 'wife' or 'husband' as also 'petitioner' and the 'respondent'. The provisions contained in section 24 which needs construction in the context of the case is also quoted:
'24. Maintenance pendente lite' and expenses of the proceedings:--Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable.'
7. The provision contained in section 25 of the Act empowering the Court to grant permanent alimony to either of the parties at the time of passing of the decree is also relevant and is also quoted:
'25. Permanent alimony and maintenance.---(1) 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, 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 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.'
8. Under section 26 of the Act, the Court has power to pass suitable orders for custody, maintenance and education of children. Under section 27 of the Act, the Court has power to pass orders in respect of the property presented at the time of marriage.
9. From the entire scheme of the Act as stated above, it is seen that it is a piece of social welfare legislation regulating the marital relations of Hindus consistently with their customary law, i.e., Hindu law. The object behind section 24 of the Act providing for maintenance pendente lite to a party in matrimonial proceedings is obviously to provide financial assistance to the indigent spouse to maintain herself or himself during the pendency of the proceedings and also to have sufficient funds to carry on the litigation so that the spouse does not unduly suffer in the conduct of the case for want of funds. When considering such a piece of legislation, it would not be right to adopt a narrow pedantic approach. On the other hand if the Court desires to gather the legislative intention from the provisions of such an Act, it must adopt a liberal and progressive approach keeping in mind that it was the liberal and progressive approach of the legislature which led to the enactment being passed. It may be seen from the abovementioned provisions of the Act that even in a case of bigamous marriage one of the parties can seek a decree of nullity of marriage by way of petitioner or respondent which is permissible under section 23-A of the Act. It may also be seen that in pending proceedings even at the instance of the second wife in a void bigamous marriage, the Court is empowered to make an attempt for re-conciliation, to pass necessary orders with regard to the custody of children and disposal of the property exchanged at the time of marriage. The Court has also power in such proceedings to make an order of permanent alimony or maintenance under section 25 of the Act. The Act confers wide powers on the matrimonial Court so as to regulate matrimonial relationship between the parties and such powers are to be exercised by the Court even in a case of alleged or proved bigamous marriage. In enacting section 24 a special provision is made for ordering interim maintenance and the expenses of litigation to be provided for the contesting husband or wife if he or she had no independent sufficient income. I therefore see no reason why the words 'wife' or 'husband' used to section 24 should not be interpreted so as to include a man and woman who have gone through a ceremony of a Hindu marriage which would have been valid but for the provisions of section 11 read with Clause (i) of section 5 of the Hindu Marriage Act. These words have been used as convenient terms to refer the parties who have gone through a ceremony of marriage whether or not that marriage is valid or subsisting, just as the word 'marriage' has been used in the Act to include a purported marriage which is void ab initio.
10. In the case of Govindrao v. Sou. Anandibai (supra), Kania, J., (as he then was), upheld the claim of a wife, whose marriage was declared null and void by making a decree of nullity, for the maintenance under section 25 of the Hindu Marriage Act, where the marriage was found void de jure and consequent decree followed under section 11 of the Act. The learned Judge found that section 25 of the Act not only provided for a remedy but also confers a right upon such a wife and refused to give literal meaning to the word 'wife or husband' 'used by that section'. In his view :
'In the present case, it could not possibly have been the intention of the legislature that even in a case where a Hindu woman had been used into contracting a bigamous marriage with a man without knowing that there was already a subsisting marriage to which he was a party, even though, she should be deprived of her right to claim maintenance on obtaining a decree for nullity. If the construction propounded by Mr. Pendse were to be accepted, this result would necessarily follow, because whether the woman knew that the marriage she was entering into was bigamous or not, it would still be equally void. Lastly, one cannot lose sight of the fact that if the words 'wife' or 'husband' used in sub-section (1) of section 25 were to be construed in their strict grammatical sense, then they would refer only to parties to a subsisting marriage. A woman who has obtained a decree for dissolution of her marriage cannot, strictly speaking, be described as a wife. Similarly, a husband who has obtained a decree for divorce cannot be described as a husband. A Hindu male and a Hindu female who have entered into a marriage which is voidable and which has been annulled by a decree of nullity under section 12 of the Hindu Marriage Act, also cannot strictly be described as a husband and wife. Mr. Pendse had to concede that in case of divorced persons and persons who have obtained decree of annulment of marriage they would be included within the scope of the words 'wife' and 'husband' used in sub-section (1) of section 25 of the Act. This makes it clear that these words have not been used in this sub-section in their strict grammatical sense. This only shows that the said section has been a little carelessly drafted and if this be so, it needs a liberal interpretation. If the words 'wife' and 'husband' used in sub-section (1) of section 25 have to be construed liberally so as to include a divorced wife or a divorced husband or those who have obtained a decree of annulment of a voidable marriage, I see no reason why these words should not be interpreted so as to include a man and a woman who have gone through the ceremony of a Hindu marriage which would have been valid but for the provisions of section 11 read with Clauses (i), (iv) and (v) of section 5 of the Hindu Marriage Act. In other words, in my view, the words 'wife' and 'husband' used in sub-section (1) of section 25 of the Act would include within their scope a woman and a man professing the Hindu faith who have gone through a ceremony of marriage which would, in law have conferred the status of a wife or husband on them but for the provisions of section 11 read with Clauses (i), (iv) and (v) of section 5 of the Act.'
11. In the case of Rajeshbai v. Smt. Shantabai, : AIR1982Bom231 , Masodkar, J., considered the right of second wife to claim maintenance in the context of section 18 of Hindu Adoption & Maintenance Act. That was a case of a widow who claimed maintenance from the estate of her deceased husband and it was held that her marriage was void on account of Clause (i) of section 5 of the Hindu Marriage Act. Masodkar, J., held that the term wife or widow in the context of section 18 is of restrictive legal character which imply the relation that results from a recognised legal mode of marriage but the learned Judge further held that there can be a class of persons who may be called 'illegitimate wives or widows who can claim maintenance, notwithstanding that eventually their legal status is annulled'. The learned Judge observed:
'But there can be a class of persons who may be called '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, while the latter always available during the lifetime and even depending upon the contingent conditions after the 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 degrees 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 considerations of justice and fair play involved and basic to all human and social relations.'
12. In the case of Shantaram v. Dagubai, : AIR1987Bom182 , the Division Bench comprising of Jahagirdar and Agarwal, JJ., agreed with the law laid down in Govindrao and followed by Rajeshbai. The Division Bench observed:
'We now turn to the question of the right of a wife whose marriage is found to be void under the provisions of the Hindu Marriage Act. As mentioned above, for the purpose of brevity and convenience, and not meaning anything by way of a moral judgment, we refer to her in this judgment as the 'illegitimate wife' a phrase which has been used by Masodkar, J., in Rajeshbai's case. Masodkar, J., held in the first place that a female, whose marriage is void de jure and surviving the death of the husband, would not be covered by the term 'widow' either in Class I of the Schedule or anywhere such reference occurs. Though noticing that the provisions of the Hindu Adoptions and Maintenance Act, could not be treated as exhaustive on matters for awarding maintenance the learned Judge held that the right to maintenance of such a wife namely the illegitimate wife, is recognised by section 25 of the Hindu Marriage Act. Such a right could be worked out in any civil proceedings. While so holding the learned Judge necessarily made a reference to Govindrao v. Anandibai 79 Bom. L.R. 73. In Govindrao Kania, J., held that section 25(1) of the Hindu Marriage Act, confers a discretion upon the Court exercising jurisdiction under that Act at the time of passing any decree or thereafter on application made to it to order the husband to pay maintenance to the wife. Kania, J., expressly rejected the contention advanced before him that section 25 of the Hindu Marriage Act, merely provided a remedy and did not confer any right. It was held therein that the power which has been conferred upon the Court to award maintenance created a corresponding right in the wife to get maintenance, provided the conditions laid down for the grant of the same were satisfied. We are in agreement with this law laid down in Govindrao and followed by Rajeshbai. We are also in agreement with Masodkar, J., when he has held that the right recognised by section 25 of the Hindu Marriage Act, can be worked out in any civil proceeding.'
13. For the view that I have taken in construing section 24 of the Act, I find support from the decision of Punjab and Haryana High Court in Dayal Singh v. Bhajan Kaur, and the decision of Madhya Pradesh High Court in Laxmibai v. Ayodhya Prasad alias Ramadhar, : AIR1991MP47 . In Dayal Singh's case (supra) it was commented as follows:
'The Act has not been very carefully drafted and the language of section 25 has to be liberally construed. Even if the marriage was void ipso jure as the lady had been made to go through a mock marriage and to lose her maidenhood under the belief brought out by false pretences that she was a lawfully wedded wife she should be treated as a wife for the purpose of making an application under section 25.'
14. The decision of the Madhya Pradesh High Court which has been rendered by Dharmadikari, J,, is directly on the point. It was held in that case that the applicant wife was not dis-entitled from claiming maintenance pendente lite under section 24 of the Act even on prima facie case having been found in favour of the husband that her marriage with her husband was the second marriage during the subsistence of the first marriage and the same was void under section 11 read with section 5(i) of the Act. The learned Judge held that the expression 'wife' and 'husband' 'used in section 24' should not be given strict literal meaning so as to convey only legally married wife and husband. The expression 'wife and husband' in the context of the section and scheme of the Act should mean a 'person claiming to be a wife or husband'. It was held that the Act confers wide powers on the Matrimonial Court so as to regulate the matrimonial relationship between the parties and such powers are to be exercised by the Court even in a case of alleged or proved invalid bigamous marriage. It is for the purpose of exercise of those powers by the Court that the Court has been further empowered to fix some interim maintenance to one of the needy spouse so as to sustain herself/himself during the pendency of the proceedings in the Court and to meet the expenses of a litigation. It is with this benevolent object to assist the parties and the Court for passing adequate reliefs under the Act that section 24 has been enacted providing for maintenance pendente lite.
15. In my opinion, reliance placed by Mr. Thorat on the decision of the Apex Court in Yamunabai v. Anantrao (supra) is completely misconceived. In that case the only point involved was whether a Hindu woman who is married after coming into force of the Hindu Marriage Act to a Hindu male having a living lawfully wedded wife can maintain an application for maintenance under section 125 of the Code of Criminal Procedure, 1973. The Supreme Court held that the word 'wife' is not defined in the Code except indicating in the explanation its inclusive character so as to cover a divorcee. 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 a meaning in which it is understood in law applicable to the parties. It was held that section 125 has been enacted in the interest of a wife and one who intends to take benefit under section 5(i) has to establish the necessary condition, namely, she is the wife of the first husband. This issue can be decided only by reference to personal law of the parties. It is only where an applicant establishes her status or relationship with respect to the personal law that an application for maintenance can be maintained. The decision mainly turns on the interpretation of section 125 of the Criminal Procedure Code and is not of any assistance in deciding the question as to the right of the second wife to claim interim alimony under the Hindu Marriage Act or Hindu Adoption and Maintenance Act.
16. In view of the foregoing discussion, the review petition is dismissed. The petitioner is directed to pay costs of this petition quantified at Rs. 5000/-.
17. On the request made by Mr. Thorat, the petitioner is given four weeks time to deposit arrears of maintenance.
18. Petition dismissed.