Topic: Banshidhar Jha vs Chhabi Chatterjee - void marriage no maintenance

Banshidhar Jha vs Chhabi Chatterjee
Equivalent citations: AIR 1967 Pat 277, 1967 CriLJ 1176 - Bench: R Singh, A Ahmad - date of Judgment: 6 October, 1966


Ramratna Singh, J.

1. This implication is directed against an order of the Sub-divisional Magistrate of Purnea, by which the petitioner was required to pay Rs. 30 per month for the maintenance of his wife. Chhabi Chatterjee, and Rs. 20 per month for the maintenance of his infant daughter through the mother Chhabi Chatterjee under Section 488 of the Code of Criminal Procedure. The opposite party Chhabi Chatterjee filed an application under that Section on the 26th June 1903. alleging that she had been married with petitioner Banshidhar Jha, by exchanging gar-lands m a temple on the 6th Shravan, corresponding to the 21st July 1962, according to the customary right as also by the petitioner putting vermilion on her forehead. Since then, she claims to have lived with him as his lawfully wedded wife and given birth to the girl on the 23rd May. 1963, at Katihar Hospital, where the petitioner got her admitted. The petitioner denied the allegations and said that the infant girl was not his child, nor was Chhabi Chatterjee his wife. He further pleaded that he had already a lawfully married wife under Hindu law since 1952 and in view of the provisions of the Hindu Marriage Act, 1955, the marriage, if any, with Chhabi Chatterjee was void ab initio and therefore she was not entitled to claim any maintenance under Section 488 of the Code of Criminal Procedure.

2. Having considered the evidence of seven witnesses, besides Chhabi Chatterjee herself, some of whom are competent to speak abouf the marriage some about the birth of the child at Katihar Hospital and some on both the points as also some letters written before and after the marriage by the petitioner and the bed-head ticket of Katihar Hospital, the learned Sub-divisional Magistrate accepted the case of Chhabi Chatterjee that she was legally married to the petitioner and the child was born at Katihar Hospital of that marriage. He also considered the evidence of the petitioner, Banshidhar Jha. and one Bishwanth Sah claiming to be one of the shebaits of the temple in which the marriage is alleged to have been performed and rejected their evidence to the contrary. Some witnesses were examined on behalf of Banshidhar to say that the character of Chhabi Chatterjee was not good and she was a woman of ill-reputation; but he refused to accept their evidence also. We have been taken through the evidence of these witnesses examined on behalf of the parties and we are of opinion that the findings of the learned Magistrate are absolutely justified.

3. Mr. Gajadhar, however, laid stress on the provisions of the Hindu Marriage Act and submitted that this marriage with Chhabi Chatterjee was void ab initio, and, therefore, she was not entitled to claim maintenance under Section 488 of the Code of Criminal Procedure. He conceded, however, that, in law, the girl born to the petitioner of Chhabi Chatterjee is entitled to maintenance under that section even if she were an illegitimate child. He could not point out any material on the record to show that the amount of Rs 20 per month allowed as maintenance to the girl was excessive or unjustified So far therefore, as the maintenance to the girl is concerned the learned Magistrate's order must be uphold. The learned Magistrate has rightly directed that this amount should be paid to Chhabi Chatterjee. in whose custody the girl is to remain

4. The only question now for considera tion is whether Chhabi Chatterjee is entitled to any mainlenance or not. It is well settled that, in order to enable her to claim main-tenance under Section 488, it must be proved that she is the legally married wife of the petitioner There is. of course, the finding to the effect that she was married to him in a temple and both of them lived as husband and wife Mr Gaja dhar submitted that, in view of certain provisions of the Hindu Marriage Act, 1955, the Marriage in 1962 was absolutely void. Section 5 (i) of this Act lays down that the marriage may be solemnised between any two Hindus, if neither party has a spouse at the time of the marriage. This introduces monogamy in the Hindu Law The word 'spouse' used in this section means "lawfully married husband or wife"; and. therefore before a valid marriage can be solemnised after the commencement of this Act, it must be shown that the parties to the marriage must be either single or divorced or a widow or a widower Section 11 of the Act lays down that any marriage solemnised after the commencement of this Act shall be null and void, if it contravenes the condition specified in Section 5 (i) and may, on a petition presented by either party thereto, be so declared by a decree of nullity

There are other conditions also referred to in Section 11, on account of which a marriage shall be null and void; but they are not relevant in the instant case. Section 12 contains the grounds on account of which any marriage solemnised whether before or after the commencement of the Act, shall be voidable and it further provides that such a marriage shall be annulled by a decree of nullity. Section 17 further provides that any marriage between two Hindus solemnised after the commencement of the Act is void, if at the date of such marriage, either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code shall apply accordingly. In other words this section imposes punishment for the offence of bigamy. It will be noticed that a clear distinction is made in those sections between a void marriage and a voidable marriage. A marriage which contravenes the conditions referred to in Section 11 is in law no marriage at all being void ipsojure and it is open to the parties even without recourse to the court to treat it as a nullity Neither party is under any obligation to seek a declaration of nullity under this section though such a declaration may he asked for the purpose of precaution or record.

A marriage which is void ab initio does not alter or affect the status of the parties nor does it create between them any rights and obligations which must normally arise from a valid marriage except such rights as are expressly recognised by the Act There is distinction between this section and Section 12 which speaks of voidable marriages as distinguished from void marriages. A voidable mar riage remains valid and binding and continues to subsist for all purposes unless a decree is passed by the court annulling the same on any of the grounds mentioned in Section 12. These distinctions in the effect of a void and voidable marrage are well settled and it will he sufficient to refer in this connection to the decision in De Reneville v De Reneville (1948) Probate Division 100 The statements of objects and reasons in respect of Sections 11 and 12 of the Act also point out the distinction and read as follows:

"Sections 11 and 12 deal with cases where a marriage is null and void nnd cases where a marriage is voidable at the option of either of party to the marriage Until so avoided a voidable marriage should be regarded as good for all purposes Where a marriage is a bigamous marriage or contravenes the rule relating to prohibited degreesthe marriage is regarded as null and void from the very beginning. In other cases the marriage is rendered voidable at the option of the parties as in many other systems of law."

Mr. B. K. Bose, who appeared on behalf of the opposite party, submitted that the word 'void' in Section 11 should also be read to mean 'voidable' otherwise there might be unfortunate consequences. But in section I1. the expression used is "null and void" while the word Voidable' is used in Section 12. This indicates the intention of the Parliament that the wanted to make a distinction between a void marriage and a voidable marriage The distinction is further indicated by Section 17 which makes the parties to void marriage cri minally liable, while there is no such penalty for the parties to a voidable marriage Of course, both sections 11 and 12 speak of a decree of nullity; but. Section 11 speaks of only declaration of the marriage as null and void by such a decree, while Section 12 speaks of the annulment of a voidable marriage by a decree. As a void marriage is non-existent in the eye of law, only a declaration is sufficient; but an annulment of a voidable marriage is necessary because such marriage shall be deemed to be valid until 11 is annulled by a decree of nullity. The distinction is also shown in Section 16 of the Act Under general law a legitimate child is one born in lawful wedlock; and except in the cases, where a special provision to the contrary is made by any enactment, marriage which v null and void ipso jure or declared to be null and void by the court or annulled by the court on the ground of its voidability, has the effect of bastardising any child born of the parties to such marriage.

The effect of a decree of nullity in case of a void marriage or annulment of a void-able marriage, is to render the marriage null and void from its inception for all intents and purposes. Hence, it is provided in Section 16 of this Act that in no case should children of parents whose marriage is solemnised but is void or voidable under Section 11 or 12 be regarded as illegitimate Such children, according to Section 16. shall be deemed to be the legitimate children of their parents, until a decree of nullity or a decree of annulment, as the case may be. is passed by it court.

5. In view of the foregoing discussion. there can be no doubt that the words 'void' and 'voidable' have been used in this Act in two distinct senses and if it is found in the instant cast that the petitioner had really been married lawfully before 1955. and if the wife of that marriage was alive or had not been divorced under the Hindu Marriage Act. 1955 by the petitioner prior to the date of the marriage with Chhabi Chatlerjee in 1962, the latter marriage would be hit by Section 5 (i) read with Sections 11 and 17 of the Act If that be the position, then Chhabi Chatterjee cannot be said to be the legally wedded wife of the petitioner It is well settled that a woman can claim maintenance under Section 488, only if she is a legally wedded wife of the man, from whom she claims maintenance. The learned Magistrate has referred to a bench decision of this court in Kamani Devi v Kameshwar Singh AIR 1946 Pat 316. While dealing with the law of maintenance under the Hindu law as it was then, their Lordships observed:

".. ..instances are not wanting in Hindu law when a particular tural relationship is created contrary to the Shastric injunctions the relationship so created is not null and void for all purpose however invalid they be for certain purpose only For instance, in the case of an invalidly adopted son he may not be entitled to succeed as a validly adopted son but he is all the same entitled to maintenance. Similar is the case of an illegitimate son of a twice born caste who though excluded from inheritance is entitled to be maintained out of the estate of his father So is the case of concubine of a twice born caste under the Hindu law The best illustration is the case of a wife married from within the prohibited degrees Though the marriage is void she is nevertheless entitled to be maintained by her husband (vide Trevelyan, Hindu Law, p49)."

But that was the position under the personal law of Hindus in force at that time. The claim for maintenance under Section 488, however has nothing to do with the personal law; and it entitles a lawfully married wife only to maintenance. Further, the personal law regarding maintenance has been changed by the Hindu Adoptions and Maintenance Act, 1956: and there is no provision in this Act entitling a woman to claim maintenance from a person with whom she entered into a void marriage (see Section 18 of this Act of 1956). This sections speaks of the maintenance of a Hindu wife by her husband. As pointed out earlier, a bigamous marriage contracted after the coming into force of the Act of 1955 shall be null, and void.

6. In view of the aforesaid provisions of she Hindu Marriage Act, it is necessary in this case to decide whether the petitioner had a legaly wedded wife existing on the date he contracted the marriage with the opposite party. Unfortunately the learned Magistrate did not give any finding about the earlier marriage of the petitioner which the pleaded and in support of which he examined has father, Jogeshwar Jha and one Rudra Narayan Thakur, said to be the father-in-law of the petitioner from his previous marriage, as also Mahesh Thakur, the priest said to have performed the marriage of the petitioner with the daughter of Rudra Narayan Thakur The learned Magistrate has summarised the evidence of these witnesses as also the evidence of the petitioner on this point; but unfortunately he has not given any finding in respect of the same.

The case has therefore to go back to the court below for a finding on the question whether the petitioner had any lawfully wedded wife living on the date of the marriage of Chhabi Chatterjee with him in 1962. If the answer to this question be in the affirmative, then the petitioner's marriage with Chhabi Chatterjee was void and she would not be entitled to any maintenance as wife under Section 488 of the Code of Criminal Procedure; but the petitioner will he liable for prosecution under Sections 494 and 195 of the Indian Penal Code as provided in Section 17 of the Hindu Marriage Act of 1955. If however, the answer to the said question be in the negative, then the marriage of the petitioner with Chhabi Chatterjee in 1962 was valid and she will be entitled to maintenance at the rate allowed by the Magistrate In either case the order allowing maintenance to the minor girl, through her mother Chhabi Chatterjee shall not be affected.

7. In the result the impugned order of the Magistrate dated the 9th June 1965. is set aside only so far as it relates to the maintenance allowed to Chhabi Chatterjee and the case is remanded to the Magistrate to determine the question referred to in the preceding paragraph and to pass such consequential order as may be necessary, in accordance with law on the basis of the materials alrealy on the record.

Anwar Ahmad, J.

8. I agree.

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