KRISHNAKANT MULASHANKAR VYAS Vs. REENA KRISHNA VYAS

JUDGEMENT

(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 dis-entitled 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), A. I. R. 1976 Bombay 433, 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 dis-entitled 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), 1988 (1) Bom. C. R. 541 : A. I. R. 1988 S. C. 644. In any event according to Mr. Thorat the issue is required to be re-considered in the light of the Apex Courts 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.