Case Note & Summary
The appellant-wife filed a petition under Section 11 of the Hindu Marriage Act, 1955 seeking a declaration that her marriage with the respondent-husband, solemnised on 4.3.1982, was void ab initio on the ground that the husband had a previous wife living at the time of marriage. She also sought maintenance for herself and her minor son Subodh, and an injunction restraining the husband from visiting her residence. The Family Court, Bombay, by judgment dated 26.2.2003, declared the marriage void under Section 11 read with Section 5(i) of the Act, but rejected her claims for maintenance and injunction. The wife appealed against the rejection of maintenance and injunction. The husband raised a preliminary objection regarding the maintainability of the appeal, arguing that since the marriage was void, the wife was not entitled to maintenance. The High Court held that Section 25 of the Hindu Marriage Act, 1955 expressly provides for maintenance even in cases of void marriages, and the Family Court erred in rejecting the claim. The court also noted that the son Subodh is entitled to maintenance under Section 26 of the Act. The High Court allowed the appeal in part, setting aside the Family Court's order on maintenance and directing the husband to pay maintenance to the wife and son. The court also granted an injunction restraining the husband from entering the wife's residence.
Headnote
A) Hindu Marriage Act - Maintenance - Section 25 - Even if marriage is void ab initio, a wife is entitled to maintenance under Section 25 of the Hindu Marriage Act, 1955, as the section applies to any marriage solemnised under the Act. The Family Court erred in rejecting the wife's claim for maintenance solely on the ground that the marriage was void. (Paras 1-10) B) Hindu Marriage Act - Nullity of Marriage - Section 11 read with Section 5(i) - A marriage solemnised after the commencement of the Act is void if either party has a living spouse at the time of marriage. The Family Court correctly declared the marriage void ab initio as the husband had a previous wife living at the time of marriage. (Paras 1-5) C) Hindu Marriage Act - Maintenance of Minor Child - Section 26 - The court has power to make interim or permanent orders for the maintenance of minor children, regardless of the validity of the marriage. The Family Court should have granted maintenance for the son Subodh. (Paras 8-10)
Issue of Consideration
Whether a wife whose marriage is declared void ab initio under Section 11 of the Hindu Marriage Act, 1955 is entitled to maintenance under Section 25 of the Act, and whether the Family Court erred in rejecting her claim for maintenance and injunction.
Final Decision
Appeal allowed in part. The Family Court's order rejecting maintenance is set aside. The respondent-husband is directed to pay maintenance to the appellant-wife and her son Subodh. The injunction restraining the respondent from entering the appellant's residence is granted.
Law Points
- Section 25 of Hindu Marriage Act
- 1955 allows maintenance even if marriage is void
- Section 11 read with Section 5(i) of Hindu Marriage Act
- 1955 for nullity
- Section 24 of Hindu Marriage Act
- 1955 for maintenance pendente lite
