ASHOK RATTI LAL TRIVEDI Vs. ANJANI MADHUSUDAN OZA

JUDGEMENT

(1.) This Civil revision petition filed under section 115, Civil Procedure Code, raises an important question regarding the construction of section 25 of the. Hindu Marriage Act, 1955 (Central Act 25 of 1955). The petitioner married the respondent herein in May, 1864. On a petition filed by the respondent herein in January, 1965, the marriage was annulled uner section 12(1)(a) of the Hindu Marrriaga Act, 1965 (hereinafter referred to as the Act by a decree of mullity passed by learned Additional District Judge, Delhi, on 26th April, 1966. On. 9th June, 1966, the respondent herin applied for an order for payment of permanent alimony to her. That application of the respondent wa resisted by the petitioner herein on the ground that the marriage having been declared to be a nullity, the relationship of husband and wife never existed between the parties and hence, in any event, it ceased with the passing of the said decree and in consequence 237. the petition filed by the respondent was not maintainable. It was contended by the petitioner herein, in the alternative, that the petition filed by the respondent herein for permanent maintenance would not lie because it was made after the passing of the decree of nullity. This being a question regarding the maintainability of the petition itself, the questions were tried as preliminary issues by the learned Additional District judge, Delhi; they being- 1. Whether the present petition is maintainable in view of the objection raised in paragraph 1 of the written statement? 2. Whether the petition does not lie because it was filed after the final decree of nullity?

(2.) Before the learned Additional District Judge the present petitioner herein, in support of his contention as to the petition filed by the respondent for the award of permanent alimony not being maintainable, relied on a decision of the Gujarat High Court in Guntantrary v. Baim Prabha, and certain observations of the Madres High Court in the decision in Narayanasuami v Padmanabhan. The learned Additional District Judge, after carefully considering the contentions raised on behalf of the petitioner herein, by his order dated 22nd February, 1967,overruled the objetions of the petitioner herein and held that the petition was maintainable. It is against this order of the learned Additional District Judge Delhi, that the petitioner herein has filed the present civil revision petition before this Court.

(3.) Before me the learned counsel repeated the contentions put forward before the Court below and relied upon the same two decisions. The contention of the learned counsel is that sectiont 25 of the Hindu Marriage Act, 1955, contemplates an application being filed by the husband or the wife, as the case may be, for the grant of maintenance and that necessarily indicates that the person applying for the grant of maintenance must have the status of the husband or the wife. 'In the case of a marriage which has been declared to be a nullity it is as If no marriage has taken place at all and consequently the parties to that marriage could not have been described as the husband and the wire. In the alternative, he conferded that with reference to an application filed after the passing of the decree of nullity the parties to the marriage, which was the subject-matter of that decree, could not be described as continuing to be husband and wife and consequently the description of husband or wife will not be applicable to the man or woman whose marriage has been annulled, subsequent to the decree of nullity and, therefore,an application for the award of maintenance cannot be made by such person after the decree. Belore considering the validity and soundness of these contentions, it is necessary to have regard to the saliant features of the Hindu Marriage Act, 1955. The Act to the extent to which it makes provisions for anything overrides all text, rules or interpretation of Hindu law or any law in force immediately prior to the Act. Section 5 enumenates the essential conditions which have to be fulfilled before a marriage cab be solemnized between any two Hindus. Section 9 of the Act provices for passing of a decree for restitution of conjugal rights. Section 10 of the Act enumerates the grounds on which a decree for judicial separation can be obtained. Section 11 of the Act stipulates that a marriage solemnized in contravention of certain conditions enumerated in section 5 shall be null and void and be so declared by a decree of nullity on a petition presented by any party to the marriage. section 12 enumerates the grounds on which a marriage is voidable and provides that the marriage can be annulled by a decree of nullity. Section 13 of the Act provides for the grounds on which a marriage can be dissolved by a decree of divorce. After certain provisions regarding procedure and jurisdiction there occur the following two sections, namely, sections 24 and 25, which are as follows -