Jagdish Vs. Kiran - Court Judgment

A.K. Gohil, J.

1. Appellant-husband has filed this appeal Under Section 28 of the Hindu Marriage Act 1955 (for short 'the Act') against the judgment and decree dated 19.4.2002 passed by I ADJ, Ratlam in Hindu Marriage Case No. 35-A/1999.

2. By the impugned judgment and decree, the Trial Court has declared the marriage between the appellant and the respondent as void Under Section 11 of the Act and has granted permanent alimony to the respondent @ Rs. 1,500/- per month and also awarded damages of Rs. 30,000/-. The appellant in this appeal has only challenged the decree of permanent alimony and the decree for damages. He has not challenged the decree of nullity of marriage. The sole submission of the Counsel for the appellant is that when the marriage is declared null and void Under Section 11 of the Act, no relationship exits between the husband and wife, therefore, the Trial Court could not have granted damages and decree for permanent alimony and maintenance Under Section 25 of the Act.

3. After hearing the Counsel for the parties, the sole question arises before me for consideration is whether the impugned judgment and decree passed by the Trial Court comes within the definition of a decree Under Section 25 of the Act or not. Section 11 of the Act provides as under :

'11. Void marriages - Any marriage solemnized 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 of nullity if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5.'

4. On a plain reading of Section 11 of the Act, it is clear that any marriage solemnized after the commencement of this Act, shall be null and void and may on a petition presented by other party thereto, be so declared by a decree of nullity, if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of the Act. This section itself clearly provides that a marriage may be declared null and void by a decree of nullity. Therefore, if any decree is granted Under Section 11 to declare marriage a nullity, it can only be by a decree and when a decree is passed the Court may Under Section 25 of the Act order for the permanent alimony and maintenance and may also pass order for grant of damages. This order of damages is also nothing but to order some lump-sum amount as a compensation for maintenance and marriage expenses. This Court in F.A. No. 246/93 Prakash Chandra v. Rajkumari @ Jyoti, decided on 9.9.2002, has considered the judgment of the Supreme Court in the case of Chand Dhawan v. Jawaharlal Dhawan, reported in II (1993) DMC 110 (SC)=1994 MPLJ 1, in which it has been held that:

'Under the Hindu Marriage Act, 1955 the claim of a Hindu wife to permanent alimony or maintenance is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. When her marital status is to be affected or disrupted, the Court does so by passing a decree for or against her. On or at the time of the happening of that event, the Court being seisin of the matter invokes its ancillary or incidental power to grant permanent alimony. The Court also retains the jurisdiction as subsequent stages to fullfil this incidental or ancillary obligation when moved by an application on that behalf by a party entitled to relief. The Court further retains the power to change or alter the order in view of the changed circumstances. The whole exercise is within the ambit of a diseased or a broken marriage. In order to avoid conflict of perceptions the Legislature1 while codifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or wife, as the case may be, dependent on the Court passing a decree of the kind as envisaged Under Sections 9 to 14 of the Act. Without the marital status being affected or disrupted by the matrimonial Court under the Hindu Marriage Act, the claim of permanent alimony was not to be valid as ancillary or incidental to such affection or disruption The wife's claim to maintenance necessarily has then to be agitated under the Hindu Adoption and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus'

5. Thus, in view of the aforesaid judgment of the Supreme Court, a decree towards permanent alimony and maintenance can be granted by a Court while passing a decree for nullity of marriage Under Section 11 of the Act. In this case the Court has declared the marriage null and void on the ground that at the time of marriage with the respondent, the appellant-husband was already married. Thus, as per Section 5(i) of the Act the Court has declared the marriage between the parties null and void. This was the only submission made on behalf of the Counsel for the appellant for setting aside the part of the decree and no other ground was argued. Therefore, looking to the provisions of Section 25 of the Act as well as the decision of the Supreme Court, the Court below has rightly decreed the suit and granted damages and has rightly granted a decree for permanent maintenance in favour of the respondent. Looking to the evidence of marriage expenses, the amount of compensation of. Rs. 30,000/- is on lower side, but the respondent also has not filed any cross-objection or separate appeal for enhancement of the same. Thus, I do not find any ground for interference in the aforesaid judgment and decree passed by the Trial Court. Accordingly, this appeal being devoid of any merit and substance is hereby dismissed with no order as to costs.