Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga - Court Judgment

Excerpt:
[a] hindu marriage act 1955 - section 11 r/w section 5(1) - null and void marriage - second marriage of wife when first marriage was in subsistence - null and void.;it is well settled position of law that the marriage between two hindus can be dissolved only by a decree of divorce in the absence of custom to the contrary. the respondent did not plead and lead any evidence to show that in her community divorce in such a manner is permissible. admittedly the divorce petition was withdrawn with the result there was no decree of divorce in the said petition. under these circumstances it is difficult to accept the contention of the respondent that her marriage with girdharilal lakhotia was not in subsistence at the time when she married the appellant. consequently the contention of the appellant that his marriage with the respondent is null and void since it is in contravention of the provision of section 11 read with 5(1) of the hindu marriage act will have to be accepted. ;[b] hindu marriage act, 1955 - section 16 - maintenance allowance to daughter - marriage of her parents null and void - still daughter born of the couple entitled to maintenance.;the question whether the marriage between the appellant and the respondent is valid or not, cannot have any effect on the question of grant of maintenance allowance to the minor daughter pooja and she will be entitled to get maintenance allowance in view of the provisions of section 16 of the hindu marriage act. ;[c] hindu marriage act, 1955 - section 25 - maintenance allowance to wife - her second marriage null and void - wife not disentitled to claim maintenance from her second husband.;it is true that respondent wife's marriage with the appellant is a nullity and void as pointed out above. however, that does not disentitle her to claim maintenance allowance from the appellant. - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - he further directed the appellant to return to the respondent the articles mentioned in exhibit a to the petition and in case of his failure to return the same, he directed the appellant to pay to the respondent a sum of rs. it is well settled position of law that the marriage between two hindus can be dissolved only by a decree of divorce in the absence of custom to the contrary. 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.j.a. patil, j.1. this appeal by the original respondent is directed against the judgment and decree dated 9.10.1995 passed in m.j. petition no. a-756 of 1990 by the learned judge of the family court at mumbai. the learned judge allowed the petition filed by the present respondent under section 10 of the hindu marriage act for judicial separation and other reliefs, the learned judge, however, dismissed the appellant's counter-claim for a declaration of nullity of marriage. feeling aggrieved thereby the original respondent-husband has filed this appeal. the original petitioner-wife has also filed cross-objections. the relevant facts necessary for deciding this appeal and the cross-objections are, in brief, as under.2. the parties belong to maheshwari community and both of them were married on 11.7.1981 at mumbai as per the hindu vedic rites. at the time of marriage the respondent was a divorcee since she had previously married with one shri girdharilal lakhotia in 1973 but there was subsequently divorce as per the registered divorce deed dated 15.5.1979, the appellant was a widower with three children; his first wife usha having died some time in 1979. the marriage between the parties was settled marriage. after the marriage the respondent started residing with the appellant in their matrimonial home at ratlam in madhya pradesh. the appellant is an income tax practitioner. according to the respondent she gave a birth to a still born male child on 12.4.1982. thereafter she again remained pregnant and delivered a female child on 14.7.1983. the baby was named as pooja. the respondent alleged that since after her marriage with the appellant, the latter was treating her with cruelty and he was pressurising her by making demand for money. she further alleged that the appellant used to abuse, insult and assault her. in this way the parties lived together for a period of 8 years but finally in 1989 the respondent was forced to leave her matrimonial house along with her daughter pooja and since then she has been residing with her father at vikhroli, mumbai. the appellant did not make any provision for maintenance of the respondent and the minor daughter pooja. he also retained with him the gold ornaments and silver articles which were given to the respondent at the time of her marriage. finally the respondent filed the above mentioned petition on 11.6.1990 praying for a decree of judicial separation on the ground of cruelty. in addition she prayed for an order of maintenance at the rate of rs. 3,000/- p.m. for herself and her daughter pooja. the respondent also made a prayer for return of her ornaments described in the list exhibit a to the petition. alternatively she claimed a sum of rs. 3,25,655/- being the price of the ornaments and the articles in case the same were not restored to her.3. the appellant resisted the claim of the respondent by filing written statement and denied the factum of marriage with the respondent. according to him he never married with the respondent. he also denied that pooja was born to the respondent from him. the appellant contended that after the death of his wife usha, it became necessary to have some person to look after his three children and, therefore, he employed the respondent as a 'caretaker' or governess. the appellant alleged that the respondent's behaviour became cruel and harsh towards his children and that finally the respondent of her own accord left the house along with her valuable articles and cash amount of rs. 10,000/-. the appellant further contended that the respondent was not entitled to any maintenance since she herself was earning by doing business of l.i.c. agency. the appellant also made a counter-claim and prayed for the decree of nullity on the ground that in case it was held that, that he had married with the respondent, the same was void since the respondent's marriage with girdharilal lakhotia was subsisting and same was not dissolved. therefore, according to him, his marriage, if any, with the respondent, was in contravention of section 5(1) of the hindu marriage act and, hence, it was null and void.4. in support of her case, the respondent examined herself at exhibit 60, her father nandlal rathi at exhibit 126, neighbour by name shrinivas kalantri at exhibit 155 and a close relative ashok mundada at exhibit 185. the appellant on the other hand examined himself at exhibit 157. both parties led some documentary evidence also. the learned judge upon consideration of the evidence on record came to the conclusion that the factum of marriage between the parties was proved and that pooja was born out of the said wedlock. the learned judge accepted the contention of the respondent about the ill-treatment at the hands of the appellant and held that on that ground she was entitled to a decree of judicial separation. the learned judge negatived the contention of the appellant about the nullity of the marriage and declined to grant relief of declaration as prayed for by the appellant. he held that the earlier marriage between the respondent and her husband girdharilal lakhotia was dissolved by a decree of divorce. the learned judge further held that the petitioner was entitled to get maintenance allowance at the rate of rs. 1,000/- p.m. for herself and rs. 2,000/- p.m. for the minor daughter pooja from the date of the petition. he further directed the appellant to return to the respondent the articles mentioned in exhibit a to the petition and in case of his failure to return the same, he directed the appellant to pay to the respondent a sum of rs. 3,25,655/-. the learned judge also gave a direction to the appellant to give his no objection for encashment of fixed deposit receipt dated 13.4.1984. the learned judge directed the appellant to pay the cost of rs. 5,000/- to the petitioner and created a charge upon the residential house of the appellant being security of the amount which was payable to the respondent under the decree.5. we have heard mr. a.p. gupte, learned counsel for the appellant-husband and mr. manudhane, learned counsel for the respondent-wife. we have also gone through the evidence on record. it may be noted that the appellant has disputed the factum of marriage with the respondent and alternatively he has contended that the same is null and void in case it is held to be proved.6. so far as the factum of marriage is concerned, it is found that there is voluminous evidence to prove that the same was solemnized as averred by the petitioner. besides the oral evidence of the respondent, her father and neighbour about the solemnization of the marriage, there is documentary evidence in the form of marriage invitation card, photographs and series of correspondence between the parties. moreover, it is not in dispute that since 1981 the respondent was residing, with the appellant at his house at ratlam for a period of not less than 8 years. the evidence on record further shows that the appellant treated her as his wife and he was conducting her as such in the community; he attended with her several social functions. according to the appellant he had employed the respondent as a governess of his three children and that she was provided with food and shelter. it is, however, difficult to accept this contention of the appellant for various reasons. it is pertinent to note that the respondent was residing with the appellant in the same house and that during the course of their co-habitation she first gave birth to a stillborn child on 12.4.1982 and thereafter she delivered a female child on 14.7.1983, who was later on named as pooja. the appellant has also alleged in his written statement that the respondent was living an adulterous life. if that was true then there is no explanation by him as to why he allowed her to stay with him and look after his minor children. in that event he would have driven her out of the house at the first available opportunity. however, it is material to note that when pooja was admitted in a school, the appellant styled himself as her father. the evidence on record further shows that there, is fixed deposit receipt dated 13.4.1985 in the name of the respondent wherein the appellant's name is shown as her husband. the learned trial judge has taken into consideration all this evidence and rightly arrived at the conclusion that there was a marriage between the appellant and the respondent on 11.7.1981. we do not find any fault with the said finding.7. the next question which requires to be considered is about the validity of the said marriage. it is pertinent to note that the respondent in her petition initially described herself as a spinster. it was only after the appellant pointed out in his written statement that she had previously married with one girdharilal lakhotia, that she got her petition amended suitably by admitting that she had undergone a sort of marriage with the said girdharilal lakhotia but the same was not as per the customary rites and it was not a valid marriage. she further averred that she has also filed divorce petition against the said girdharilal lakhotia and in that petition there was a settlement, pursuant to which a divorce deed was prepared and got registered. hence, according to her the marriage between her and the said girdharilal lakhotia was not subsisting at the time when she married with appellant on 11.7.1981. we are of the opinion that the respondent ought not to have suppressed the fact of her marriage with the said girdharilal lakhotia and it would have been fair on her part if she had, in the first instance, disclosed all the true facts in her petition.8. it is not now disputed that the respondent had married the said girdharilal lakhotia on 19.2.1973 at amravati. but she has tried to contend that the requisite ceremonies were not performed at the time of the said marriage and there was only garlanding by her and girdharilal to each other. she further stated that at the time of the said marriage, there was a quarrel between her father and the brother of girdharilal lakhotia and as such the rest of the rites could not take place. the respondent, therefore, stated that there was no valid marriage and that she did not admit the same. there is, however, no substance in the contention for the simple reason that if there was no solemnisation of marriage as alleged by her, she would not have gone to the house of the said girdharilal lakhotia and stayed with him for about one and half months. it is, therefore, quite obvious that the theory that her marriage with said girdharilal was not a valid marriage, is only an after-thought with a view to see that the validity of her marriage with the appellant is not in any way affected.9. the respondent further stated that she had filed a petition for divorce being petition no. 76 of 1978 against the said girdharilal lakhotia in the district court at amravati. she explained that she had filed the said petition in order to prevent said shri girdharilal from causing obstructions to her marriage with the appellant. according to her there was a compromise and a deed was signed in the office of the sub-registrar at amravati. the said deed was a divorce deed and thereafter she claims to have withdrawn her petition. however, the original divorce deed was not produced before the court but only the xerox copy of the index no. 4, exhibit 142 showing that a deed of divorce was registered in the office of the sub-registrar on 15.5.1979 was produced. it is well settled position of law that the marriage between two hindus can be dissolved only by a decree of divorce in the absence of custom to the contrary. the respondent did not plead and lead any evidence to show that in her community divorce in such a manner is permissible. admittedly the divorce petition was withdrawn with the result there was no decree of divorce in the said petition. under these circumstances it is difficult to accept the contention of the respondent that her marriage with girdharilal lakhotia was not in subsistence at the time when she married the appellant. consequently the contention of the appellant that his marriage with the respondent is null and void since it is in contravention of the provision of section 11 read with section 5(1) of the hindu marriage act will have to be accepted.10. in jairam v. sindhubai learned single judge of this court has held that once the parties are married, the said marriage cannot be dissolved except by a decree of divorce passed under the provisions of the hindu marriage act, 1955. it was further held that marriage between the parties cannot be dissolved by a deed of divorce unless customary divorce between the parties is pleaded and proved. the learned trial judge has, however, not adverted himself to the aspect of validity of the marriage between the appellant and respondent and fallen in error to hold that there was a valid divorce between the respondent and girdharilal and that, therefore, the subsequent marriage between the appellant and respondent is a valid marriage.11. the net result of the foregoing discussion is that the respondent's marriage with the appellant being in contravention of the provisions of section 11 read with section 5(1) of the hindu marriage act, is null and void. consequently the learned judge of the family court was in error in granting the decree of judicial separation in favour of the respondent wife. however, so far as the appellant husband is concerned his counter-claim for a declaration of nullity of his marriage with a respondent will have to be allowed for the same reasons and to that extent the decree passed by the trial court requires to be modified.12. this takes us to the question about the maintenance granted to the respondent wife and her daughter pooja. as already pointed out the trial court has granted maintenance allowance at the rate of rs. 2,000/- p.m. for pooja and rs. 1,000/- p.m. for the respondent wife. the question whether the marriage between the appellant and the respondent is valid or not, cannot have any effect on the question of grant of maintenance allowance to the minor daughter pooja and she will be entitled to get maintenance allowance in view of the provisions of section 16 of the hindu marriage act.13. as far as the respondent wife is concerned, it is true that her marriage with the appellant is a nullity and void as pointed out above. however, that does not disentitle her to claim maintenance allowance from the appellant. in the case of govindrao v. anandibai 1977 ali hlr 465 (bom.), kania, j. (as his lordship then was) upheld the claim of a wife, whose marriage was declared null and void, for the maintenance under section 25 of the hindu marriage act. the learned judge refused to give a restrictive meaning to the words 'wife or husband' used in section 25 and pointed out that if the said words were to be construed in their strict grammatical sense, then they would refer only to parties to a subsisting marriage and not even a divorced wife or divorced husband. the learned judge, therefore, construed the words 'wife or husband' used in section 25 liberally and held that they 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 out for the provisions of section 11 read with clauses (i), (iv) and (v) of section 5 of the hindu marriage act.14. in rajeshbhai v. shantabai 1981 mh. lj 820, masodkar, j. considered the case of a widow who claimed maintenance from the estate of her deceased husband and 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... 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.'the view taken by the learned single judges in cases of govindrao and rajeshbhai and approved by a division bench of this court in shantaram v. dagubai 1987 (2) aihlr 343 (bom.), a similar view was taken by the m.p. high court in laxmibai v. ayodhya prasad, ii : air1991mp47 . recently in krishnakant v. reena : air1999bom127 , one of us (a.p. shah, j.) considered the same question in connection with the right of maintenance pendente lite, under section 24 of the act, of a wife whose marriage was sought to be declared null and void on the ground that the husband was already married and his first wife was living when the disputed marriage took place. referring to the abovementioned decisions, it was observed :'the hindu marriage act 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. the words 'wife' or 'husband' used in section 24 of the act include a man and a woman who have gone through the ceremony of 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 who have gone through a ceremony of marriage whether or not that marriage is valid or subsisting just as word 'marriage' has been used in the act to include a purported marriage which is void ab initio.'in view of this settled position in law, there can be no dispute that the respondent, despite her marriage being null and void, is entitled to claim maintenance from the appellant.15. as regards the quantum of maintenance, we find that the learned trial judge has taken into consideration the facts that the appellant is a income tax consultant, his income, the status of the respondent and the needs of the respondent and her daughter and after taking all these factors into consideration he has fixed the quantum of maintenance for the respondent and her daughter pooja at rs. 1,000/- p.m. and rs. 2,000/- p.m. respectively, which, in our opinion is proper and needs no modification. consequently we are not inclined to accept the cross-objections filed by the respondent for enhancing the said quantum.16. as regards the claim of the respondent for return of her ornaments and other valuable articles, we find that the trial court has taken into consideration both oral and documentary evidence in that respect and arrived at the conclusion that the respondent-wife is entitled to get back all the ornaments and articles mentioned in list exhibit a to the petition or in the alternative price thereof. we do not see arty reason to interfere with that, except the fact that in case the said ornaments or articles are not returned by the appellant to the respondent, he will have to pay interest on the price thereof which has been quantified at rs. 3,25,655/-. in our opinion interest at the rate of 9% p.a. on the said amount from the date of the decree of the trial court i.e. 9.10.1995 will be proper and reasonable interest.17. in view of the above discussion we partly allow the appeal and set aside the decree of the trial court granting relief of judicial separation to the respondent wife. we allow the counter-claim of the respondent husband and declared that his marriage with respondent wife solemnized on 11.7.1981 at mumbai is null and void. we, however, maintain the decree of the trial court in all other respects. we further partly allow the cross-objections of the respondent wife to the extent of granting interest at the rate of 9% p.a. on the price of re. 3,25,655/- from the date of the decree of the trial court i.e; 9.10.1995. in the circumstances of the case we direct the parties to bear their respective costs of this appeal.certified copy expedited.