GOVINDRAO RANOJI MUSALE Vs. SOU ANANDIBAI

JUDGEMENT

(1.) This is an appeal by the husband, who has been unsuccessful in both Courts below. Very few facts are necessary for appreciation of the controversy arising in the appeal. Both the principal parties viz. the appellant and respondent No. 1, as well as respondent No. 2, are Hindus governed by the Hindu Law. In 1934 the appellant was married to respondent No. 2 according to Hindu rites and they lived as husband and wife. The appellant did not have any child by respondent No. 2. On 24th May 1959 the appellant went through a ceremony of marriage according to Hindu rites with respondent No. 1. A the time when this ceremony was gone through by the parties, respondent No. 2 was alive and she is still alive; and the marriage between the appellant and respondent No. 2 was subsisting then the is still subsisting. There is no dispute at this stage that the fact found show that in March 1963 the appellant and respondent No. 2 drove away respondent No. 1 and since then she has been residing with her parents. The averments in the pleadings and the evidence on record show that respondent No. 1 continued for five or six years to live with her parents in the hope that she would be again taken back by the appellant. In 1969 respondent No. 1 gave a notice to the appellant and demanded maintenance and thereafter filed a suit, being Regular Civil Suit No. 1 gave a notice to the appellant and demanded maintenance and thereafter filed a suit, being Regular Civil Suit No. 204 of 1970, in forma pauperis, for maintenance under the provisions of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as "the Act of 1956"). The appellant resisted the suit and, inter alia, disputed the factum of marriage and status of respondent No. 1 as his wife and contended that the said marriage being void she was not entitled to any maintenance under the Act. Sometime in 1972 the appellant adopted a son and there after, on 11th December 1972, respondent No. 1 filed a petition being Hindu Marriage Petition No. 17 of 1972 in the Court of Civil Judge, Senior Division, Kolhapur, for a declaration that the marriage between her and the appellant was null and void and for maintenance at the rate of Rs. 150/-p.m. The appellant resisted the claim for maintenance made in this petition on the ground that the marriage purported to have been performed between him and respondent No. 1 was void as at the time when the said marriage was performed, respondent No. 2, who was his suppose, was living and contended that, in view of this, respondent No. 1 could not be said to be his wife and was not entitled to any maintenance. He also contended that the petition was barred by limitation.

(2.) The learned Civil Judge held that the marriage between the appellant and respondent No. 1 was null and void as contravening the provisions of Section 5 (1) of the Hindu Marriage Act, 1955. He further held that respondent No. 1 was entitled to permanent alimony at the rate of Rs. 125/-p. m. He rejected the contention of the appellant that respondent No. 1 had disentitled herself to relief on the grounds mentioned in Cls. (a) or (d) of sub-section (1) of Section 23 of the Hindu Marriage Act, 1955. IN view of this petition having been allowed the learned Civil Judge dismissed the aforesaid suit No. 204 of 1970. Being aggrieved by the judgment and order of the learned Civil Judge in aforesaid petition, the appellant preferred an appeal in the District Court at Kolhapur being Civil Appeal No. 338 of 1973. This appeal was disposed of by the learned Assistant Judge, Kolhapur, who confirmed the decree and order passed by the learned trial Judge with a slight modification with which I am not concerned in this appeal. The present appeal is directed against the said judgment of the learned Assistant Judge.

(3.) As the arguments in this appeal turn, to a large extent, on some of the provision 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 11 of this Act runs as follows: