K SIVARAMA KRISHNA PRASAD Vs. K BHARATHI

JUDGEMENT

(1.) This criminal revision case arising under S. 125, Cr.P.C. is at the instance of the husband. The wife filed a petition for maintenance. Ex parte order was passed by the Court below for maintenance as the husband was absent. The marriage between the parties was performed on 7-2-1977. The petition for maintenance was filed on 8-7-1982. The maintenance order was passed on 18-8-1983. Before the maintenance order was passed, a petition being O.P. No. 17 of 1978 was filed by the wife for a decree for nullity of marriage on the ground of impotency of the husband. A decree for annulment was passed under S. 12 of the Hindu Marriage Act on 30-10-1982.

(2.) The learned counsel for the petitioner contends that, on the date when the application for the grant of maintenance was taken up and the order was passed on 18-8-1983, the marriage was held to be annulled and as such the claim for maintenance does not survive. The learned Counsel for the respondent contends that, by virtue of annulment of marriage under S. 12 of the Hindu Marriage Act, the marriage cannot be considered as void and voidable only any therefore, the petition for maintenance is sustainable in view of the definition of wife under S. 125 of the Code of Criminal Procedure.

(3.) To appreciate the rival contentions, it is necessary to refer to Ss. 11 and 12 of the Hindu Marriage Act and also clause (b) of Explanation to S. 125(1) of the Code of Criminal Procedure. S. 11 and 12 of the Hindu Marriage Act are as follows :- "S. 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, be so declared by a decree of nullity if it contravenes any one of the conditions specified in Cls. (i), (iv) and (v) of S. 5." "S. 12. Voidable Marriages :- (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely :- (a) That the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings; or (b) that the marriage is in contravention of the condition specified in Clause (ii) of S. 5; ... ... ... ... ... ... ... ... ... ... ... Clause (b) of Explanation to S. 125(1) of the Code of Criminal Procedure defines wife as under :- "wife includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried." Section 11 of the Hindu Marriage Act envisages that the marriage is void if the marriage is in violation of any one of the conditions formulated in Cls. (i), (iv) and (v) of S. 5 and a Court can pass a decree declaring the same as a nullity. S. 11 is concerned with marriages which are non est in the eye of law and void ab initio. Section 12 is also concerned with annulment of marriage by a decree of nullity on the grounds enumerated therein and the marriage can be avoided at the initiative by the aggrieved or concerned person. The end-all of both the provisions is a decree of nullity. Nullity postulates a full-fledged cessation of marital tie or connection. S. 16 of the Hindu Marriage Act furnishes a clue to get at the amplitude and connotation of the nullity of the marriage visualised under this provision. S. 16 of the Act is as follows :- "S. 16. Legitimacy of children of void and voidable marriages :- Where a decree of nullity is granted in respect of any marriage under S. 11 or S. 12, any child begotten or conceived before the decree is made who would have been legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity : Provided that nothing contained in the section shall be construed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents." Section 16 of the Act while providing a deeming provision regarding legitimacy of the child notwithstanding decree of nullity clearly postulates that the proceedings either under S. 11 or S. 12 peter out to the same end namely, nullity of marriage. The only distinction is that the marriage referred to under S. 11 is null since inception and should be considered in law as not conceived at all and the marriage under S. 12 can be avoided and the end result of contingencies in both the provisions is a decree of nullity. Further S. 16 visualises a seminal distinction between dissolution of marriage and decree of nullity annulling the marriage. This distinction is appropriate in the context of wife surviving the dissolution or divorce under S. 125, Cr.P.C. The wife as defined under S. 125 of the Code of Criminal Procedure continues to be wife and eligible for maintenance under S. 125 notwithstanding divorce. Dissolution of marriage as a sequel to divorce should not be equated to decree of nullity. S. 13 of the Act is concerned with dissolution of marriage by a decree of divorce on the grounds enumerated therein. S. 15 permits either party to remarry again in the event of there being no right of appeal against decree, or time for appeal expired without any appeal having been presented, or appeal which has been presented has been dismissed. The proviso to S. 15 prohibits performance of marriage within one year from the date of decree for dissolution of marriage or divorce in the Court of the first instance. Therefore, the distinction between dissolution of marriage on divorce and nullity of marriage is clearly discernible. In the event of dissolution of marriage on divorce the remarriage by either party is intertwined by certain strings and conditions and the mere decree for divorce does not result in fanning the wings and getting away from the tie unless the conditions stipulated in S. 15 are fulfilled. In the event of a decree for nullity, the association of marriage is irrevocably terminated with immediate effect. The explanation under S. 125 of the Code relating to wife is solely confined to the situation of divorce only till remarriage and definition aimed at a singular situation cannot be stretched, associated or linked to nullity of marriage envisioned under S. 11 or S. 12 of the Act.