No Acts & Articles mentioned in this case
* HON’BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
+ Criminal Revision Case No.806 of 2019
% Dated 17-06-2020.
# Palla Shanthi Kiran
….. Petitioner
Versus
$ 1. The State of A.P. rep. by Public Prosecutor, High Court
Buildings, Amaravati & Anr.
..Respondents
! Counsel for the petitioner : Sri Virupaksha Dattatreya Gouda
^ Counsel for respondent No.1 : Learned Additional Public
Prosecutor
^ Counsel for respondent No.2: Sri V.R. Reddy Kovvuri
<GIST:
> HEAD NOTE:
? Cases referred:
1. 1985 (2) ALT 123 = 1985 (2) APLJ (HC) 305 = 1986 CriLJ 317
2. 2012 CriLJ 1960
3. (2014) 1 SCC 188 = AIR 2014 SC 869
4. (1993) 3 SCC 406
5. AIR 1961 Guj 202
6. AIR 1967 Ori 163 = ILR (1967) Cut 439
7. AIR 1984 Del 1 : 1984 Hindu LR 124
8. AIR 1971 P & H 141 = ILR (1970) 2 Punj 551
9. AIR 1964 Bom 83 = ILR (1963) Bom 63
10. AIR 1979 P & H 206 = (1979) 81 Punj LR 382
11. AIR 1980 Raj 102 = 1980 Hindu LR 454
12. AIR 1988 All 150 = (1987) 1 Hindu LR 558
13. AIR 1990 Mad 1 : (1989) 2 Hindu LR 41
14. (1986) 1 HLR 363
15. AIR 1989 Bom 220 = (1989) 1 Hindu LR 708
16. (1990) 2 D & MC 208
17. (1988) 1 HLR 26 = AIR 1989 AP 8 = (1987) 1 Andh LT 631
18. (2000) 6 SCC 359
19. (2019) 4 SCC 376
20. 2019 SCC OnLine SC 1641
21. (2005) 2 SCC 33
2
CMR,J.
Crl.R.C.No.806 of 2019
IN THE HIGH COURT OF THE STATE OF ANDHRA PRADESH
Criminal Revision Case No.806 of 2019
Palla Shanthi Kiran
….. Petitioner
Versus
1. The State of Andhra Pradesh, rep. by Public Prosecutor, High
Court Buildings, Amaravati. & Anr.
..Respondents
JUDGMENT PRONOUNCED ON: 17-06-2020
HON’BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments?
---
2. Whether the copies of judgment may be
marked to Law Reporters/Journals
-Yes-
3. Whether His Lordship wish to see the fair
copy of the Judgment?
-Yes-
JUSTICE CHEEKATI MANAVENDRANATH ROY
3
CMR,J.
Crl.R.C.No.806 of 2019
HON’BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Criminal Revision Case No.806 of 2019
ORDER:
Challenge in this Criminal Revision Case is to the order
dated 29.04.2019 passed in F.C.O.P.No.32 of 2018 on the file
of the Judge, Family Court-cum-Additional District Judge,
Anantapuramu, whereby the petition filed by the revision
petitioner, whose marriage was annulled by a decree of
nullity passed under Section 12 of the Hindu Marriage Act,
1955, claiming monthly maintenance under Section 125
Cr.P.C., was dismissed on the ground that she cannot be
termed as a wife or a divorcee as contemplated under Section
125 Cr.P.C.
2. The parties will be referred in this revision as they
are arrayed before the trial Court for the sake of
convenience.
3. Compendious statement of facts leading to the lis in
this revision case may be stated as follows:
4. The marriage of the petitioner with the respondent
was solemnized on 13.08.2017 as per Hindu rites and
customs. Prior to the marriage, during the marriage talks,
while fixing the marriage alliance, the respondent and his
parents gave the bio-data of the respondent stating that he
did M.S. and that he is working as a Design and Production
Engineer in Sweden. Therefore, believing that the
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CMR,J.
Crl.R.C.No.806 of 2019
respondent is well-placed in employment that the marriage
alliance was confirmed and the marriage was performed on
13.08.2017. Dowry of Rs.10.00 Lakhs and 76 tolas of gold,
as demanded by the respondent and his parents, were given
to him by the parents of the petitioner.
5. After the marriage, when the nuptial ceremony was
arranged, the respondent has postponed the ceremony on all
the three nights on one pretext or the other without leading
any conjugal life with the petitioner. Therefore, their
marriage was not consummated. When the respondent
proposed to have honeymoon trip, the petitioner readily
accepted for the same with a fond hope that their marriage
would be consummated. So, the couple went to Mauritius
on 17.09.2017 for honeymoon trip and stayed in Mauritius
till 23.09.2017. However, to the utter misfortune of the
petitioner, their marriage was not consummated even during
their honeymoon trip. The respondent threatened the
petitioner not to disclose the said fact to anyone.
6. The petitioner also came to know that the
respondent is not working as a Design and Production
Engineer as stated before the marriage and that he is
working only as a Bartender. Whileso, both the petitioner
and the respondent left for Sweden on 08.10.2017 where he
was working at that time as a Bartender. Later, in the
month of November, 2017, the Sweden Government expelled
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CMR,J.
Crl.R.C.No.806 of 2019
the respondent. Though the couple stayed in Lohalm till
18.11.2017, their marriage was not consummated. The
respondent expressed his inability to consummate the
marriage. Therefore, a panchayat was held in the presence
of the elders. In the said panchayat, the respondent and his
parents demanded Rs.15.00 Lakhs as additional dowry. The
respondent also admitted about the non-consummation of
the marriage. When the parents of the petitioner requested
the respondent to stay for three days at their residence for
nuptial ceremony, the respondent has postponed the same
on one pretext or the other and he did not turn-up for
consummation of the marriage. Therefore, she lodged a
report with the police and the same was registered as a case
in Crime No.4 of 2018 for offences punishable under
Sections 420, 498-A, 506 of IPC r/w. Section 34 of IPC and
Sections 3 and 4 of the Dowry Prohibition Act.
7. As the petitioner has no source of income and as she
is unable to maintain herself, she has also filed a petition
under Section 125 Cr.P.C. against the respondent before the
Family Court claiming maintenance at the rate of
Rs.30,000/- per month.
8. The respondent opposed the said claim. He has filed
his counter denying the allegations made against him in the
petition. It is pleaded by him that the petitioner used to
pickup quarrels with him on trivial matters and she used to
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CMR,J.
Crl.R.C.No.806 of 2019
humiliate him saying that he is a low class, Ex-Bartender
and that she came from a high class and rich family and that
he is not a suitable match to her. He has pleaded that the
petitioner did not allow him to touch her and she always
used to drink alcohol and pickup quarrels with him. It is
pleaded by him that the marriage was not consummated
because of the petitioner as she did not allow him to touch
her. It is also stated that the petitioner and her parents
demanded Rs.50.00 Lakhs in the presence of the elders and
insisted for mutual divorce. As he refused for the same that
she foisted a false criminal case against him and his family
members. He finally pleaded that as the marriage was
performed against the wish of the petitioner and as the
respondent belongs to middle class family that she could not
adjust with him and she herself discarded him voluntarily.
It is his case that at present he lost his job and he has no
source of income and as the petitioner hails from a rich
family and as she studied M.B.A. that she can maintain
herself and thereby prayed for dismissal of the petition.
9. During the course of enquiry, the petitioner alone
was examined as PW.1. No other oral or documentary
evidence was adduced by her. The respondent reported no
evidence and he did not adduce any evidence to substantiate
his case.
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Crl.R.C.No.806 of 2019
10. It appears from the record that the petitioner has
also filed a petition under Section 12 of the Hindu Marriage
Act, 1955, for annulment of her marriage with the
respondent on the ground that the respondent is impotent
and incapable of performing sexual intercourse with her to
fulfill his matrimonial obligations. The said petition in
F.C.O.P.No.33 of 2018 on the file of the said Family Court
was allowed annulling their marriage by a decree of nullity of
marriage passed to that effect.
11. Therefore, before the trial Court, it was contended
on behalf of the respondent that in view of the said decree of
nullity passed under Section 12 of the Hindu Marriage Act,
annulling the said marriage, the petitioner is no more the
wife of the respondent and she cannot claim any
maintenance under Section 125 Cr.P.C. It is also contended
that she does not even come within the inclusive definition of
“wife” as per clause (b) of explanation appended to Section
125(1) Cr.P.C. as it is confined only to a divorced wife. In
support of the said contention, the learned counsel for the
respondent relied on the judgment of this Court rendered in
the case of K. Sivarama Krishna Prasad v. K. Bharathi
1
wherein a learned Judge of this Court held that when the
marriage of the wife was annulled by a decree of nullity
passed under Section 12 of the Hindu Marriage Act in a
petition filed by her to that effect on the ground that the
1
1985 (2) ALT 123 = 1985 (2) APLJ (HC) 305 = 1986 CriLJ 317
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CMR,J.
Crl.R.C.No.806 of 2019
husband is impotent, she cannot claim maintenance under
Section 125(1) Cr.P.C. and she does not come within the
inclusive definition of ‘wife’ under explanation appended to
Section 125 Cr.P.C.
12. The petitioner relied on the judgment of Division
Bench of the Kerala High Court before the trial Court,
rendered in the case of T.K. Surendran v. P. Najima Bindu
2
wherein it is held that a wife, whose marriage was annulled
under Section 12 of the Hindu Marriage Act can be brought
within the sweep of inclusive definition of ‘divorced wife’ as
per clause (b) of explanation appended to Section 125 Cr.P.C.
and that she is entitled to maintenance under Section 125
Cr.P.C.
13. The learned Judge of the Family Court, after
considering the above two judgments of this Court and the
Kerala High Court, held that he is bound by the judgment of
this Court in K. Sivarama Krishna Prasad
1. He further held
that as per the ratio laid down in the said judgment, the
petitioner, whose marriage was annulled under Section 12 of
the Hindu Marriage Act, is not entitled to claim maintenance
under Section 125 Cr.P.C. Therefore, he has dismissed the
petition filed by her under Section 125 Cr.P.C.
2
2012 CriLJ 1960
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Crl.R.C.No.806 of 2019
14. Aggrieved thereby, the present Criminal Revision
Case is preferred by the revision petitioner assailing the
legality and validity of the impugned order.
15. Heard learned counsel for the revision petitioner
and the learned counsel for the 2
nd respondent.
16. The seminal question, in the facts and
circumstances of the case, as narrated supra, that emerges
for determination in this Criminal Revision Case is, whether
a woman, whose marriage was annulled by a decree of
nullity passed under Section 12 of the Hindu Marriage Act,
can be brought within the sweep of the inclusive definition of
“wife” on par with the “divorced wife” as per clause (b) of
explanation to Section 125 Cr.P.C. and whether her claim for
maintenance under Section 125 Cr.P.C. is legally
sustainable? If not, what is the remedy available to her as
per law to prevent herself from vagrancy?
17. The material facts in this lis are absolutely not in
controversy. Admittedly, there was a marriage solemnized
between the petitioner and the respondent on 13.08.2017.
Admittedly, that the said marriage was not consummated.
The petitioner contends that the respondent is impotent and
as such, their marriage was not consummated. While
admitting the said material fact that their marriage was not
consummated, the respondent pleaded in his counter that
their marriage was not consummated as the petitioner did
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CMR,J.
Crl.R.C.No.806 of 2019
not allow him to touch her. Thus, both the parties are
throwing blame against each other for non-consummation of
their marriage. Therefore, without entering into any
controversy to find out as to who is at fault for non-
consummation of their marriage, it is suffice to hold that the
fact that remains established in this case is that their
marriage is not consummated. It is a matter of record that
the petition filed by the petitioner under Section 12 of the
Hindu Marriage Act against the respondent to annul their
marriage by a decree of nullity on the ground that the
respondent is impotent was allowed and a decree of nullity of
the said marriage to that effect was passed. The said decree
also became final as the respondent did not question the
same in the Higher Forum. Therefore, the fact that remains
established in this case is that the said marriage was
annulled by a decree of nullity passed by a competent court
of law under Section 12 of the Hindu Marriage Act on the
ground that the respondent is impotent.
18. Now as noticed supra the paramount point that
arises for determination in this revision case is, whether a
woman, whose marriage was annulled by a decree of nullity
under Section 12 of the Hindu Marriage Act can claim
maintenance under Section 125 Cr.P.C. on par with a
divorced wife and whether her claim under Section 125
Cr.P.C. for maintenance is legally sustainable or not?
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CMR,J.
Crl.R.C.No.806 of 2019
19. The legal position in this regard has been dealt with
by this Court in K.Sivarama Krishna Prasad
1 way back in
the year 1985 itself. A similar question on identical facts
came up for consideration before the learned Single Judge of
this Court in the above case. The facts of the said case are
also that wife filed a petition under Section 12 of the Hindu
Marriage Act for annulment of marriage on the ground that
the husband is impotent. The said petition was allowed
annulling the marriage by a decree of nullity. Thereafter,
wife filed a petition under Section 125 Cr.P.C. claiming
maintenance against the respondent therein on the ground
that she is unable to maintain herself. It is sought to be
contended in the said case also that as per clause (b) of
explanation to Section 125 Cr.P.C. “wife includes a woman
who has been divorced by, or has obtained a divorce from
her husband and has not remarried” and as such a woman
whose marriage was annulled under Section 12 of the Hindu
Marriage Act also falls within the sweep of the inclusive
definition of “wife” as per clause (b) of explanation to Section
125 Cr.P.C. for the limited purpose of claiming maintenance
and as such she is entitled to claim maintenance under
Section 125 Cr.P.C.
20. This Court did not accept the said contention.
After considering the legal effect of the decrees passed under
Sections 11 and 12 of the Hindu Marriage Act and also
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CMR,J.
Crl.R.C.No.806 of 2019
considering the inclusive definition of “wife” under clause (b)
of explanation to Section 125 Cr.P.C., this Court held as
follows: “Dissolution of marriage as a sequel to divorce
should not be equated to decree of nullity”. It is further held
that 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 Section 15 are fulfilled. In the
event of a decree for nullity, the association of marriage
is irrevocably terminated with immediate effect. The
explanation under Section 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 Section 11 or
Section 12 of the Act.
21. It is finally held that in view of the decree of nullity
of the marriage that was passed, the Court below is not
competent to grant maintenance under Section 125 Cr.P.C.
22. However, the learned counsel for the revision
petitioner while relying on the judgment of the Division
Bench of the Kerala High Court in the case of T.K.
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CMR,J.
Crl.R.C.No.806 of 2019
Surendran
2 and also particularly relying on Section 25 of the
Hindu Marriage Act, vehemently contended before this Court
that a narrow interpretation to clause (b) of explanation to
Section 125 Cr.P.C. cannot be given and it cannot be
restricted only to divorced wife and the benefit of the
explanation has to be extended even to the woman whose
marriage was annulled by a decree of nullity under Section
12 of the Hindu Marriage Act to prevent her from vagrancy
and to alleviate her distress as a destitute woman by way of
granting maintenance to her. He would submit that despite
passing of decree of annulment of marriage that Section 25
of the Hindu Marriage Act still preserves the right of a
woman to claim maintenance and the statute also retained
the jurisdiction of the Court passing the said decree for the
purpose of granting maintenance either at the time of
passing the said decree or even subsequent thereto and as
such, the same benefit conferred on such woman of annulled
marriage under Section 25 of the Hindu Marriage Act is to be
extended to her to enable her to claim maintenance even
under Section 125 Cr.P.C. by bringing her within the sweep
of the inclusive definition of “wife” on par with a divorcee
under clause (b) of explanation to Section 125 Cr.P.C. In
other words, it is his contention that Section 25 of the Hindu
Marriage Act is to be read into Section 125 Cr.P.C. and also
into clause (b) of explanation to Section 125 Cr.P.C. He also
submits that this Section 25 of the Hindu Marriage Act was
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CMR,J.
Crl.R.C.No.806 of 2019
not considered by this Court in K.Sivarama Krishna
Prasad’s
1 case. So, the said judgment requires
reconsideration.
23. He would also contend that the judgment of the
Division Bench of the Kerala High Court in T.K. Surendran
2
was challenged before the Supreme Court by way of filing a
petition for Special Leave to Appeal and the Apex Court
dismissed the said S.L.P. in view of the judgment of the
Supreme Court in Badshah v. Urmila Badshah Godse
3
stating that the Supreme Court is not inclined to interfere
with the impugned judgment and thereby affirmed the law
laid down by the Division Bench of the Kerala High Court
granting maintenance under Section 125 Cr.P.C. to the wife
of annulled marriage and as such, the judgment of the
Division Bench of the Kerala High Court received the seal of
approval of the Supreme Court. He contends, therefore, that
the ratio laid down in the judgment of the Division Bench of
the Kerala High Court which is affirmed by the Supreme
Court is to be now followed and preferred to the judgment of
the learned Single Judge of this Court. So, placing strong
reliance on the Division Bench judgment of Kerala High
Court and the dismissal of S.L.P. preferred thereagainst by
the Supreme Court and relying on Section 25 of the Hindu
Marriage Act, he would submit that petition under Section
3
(2014) 1 SCC 188 = AIR 2014 SC 869
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CMR,J.
Crl.R.C.No.806 of 2019
125 Cr.P.C. filed by the petitioner is maintainable and her
claim under Section 125 Cr.P.C. is legally sustainable.
24. I have meticulously gone through the ratio laid
down in T.K. Surendran
2 and also meticulously considered
the scope and object of Section 25 of the Hindu Marriage Act.
A perusal of the judgment of the Kerala High Court in T.K.
Surendran
2 shows that considering the prime object of
Section 125 Cr.P.C. which is to prevent a destitute woman
from vagrancy and also considering the fact that provision of
Section 125 Cr.P.C. is a measure of social justice, specifically
enacted to protect woman and children which falls within the
constitutional sweep of Article 15(3) reinforced by Article 39
of the Constitution of India, the Kerala High Court held that
a narrow interpretation cannot be given to the inclusive
definition of wife under clause (b) of explanation to Section
125 Cr.P.C. and a wide and broad definition is to be given to
it so as to include even a woman whose marriage was
annulled by a decree of nullity passed under Section 12 of
the Hindu Marriage Act within the sweep of the said
explanation of a divorced woman to enable her to claim
maintenance under Section 125 Cr.P.C. to prevent such
destitute woman from vagrancy. In a way, in arriving at the
said conclusion, the Kerala High Court mainly relied on
Section 25 of the Hindu Marriage Act which enables the
Court to grant maintenance to a woman while passing any
16
CMR,J.
Crl.R.C.No.806 of 2019
decree under the Hindu Marriage Act and taking a clue from
Section 25 of the Hindu Marriage Act, held that when
maintenance to such woman of annulled marriage can be
granted under Section 25 of the Hindu Marriage Act, that the
said maintenance can also be granted under Section 125
Cr.P.C. to the said woman. Therefore, the Division Bench of
the Kerala High Court held that such a woman whose
marriage was annulled under Section 12 of the Hindu
Marriage Act can be brought within the sweep of inclusive
definition of “wife” in clause (b) of explanation to Section 125
Cr.P.C. on par with the divorced woman and her claim for
maintenance under Section 125 Cr.P.C. is maintainable.
25. As strong reliance is placed on the ratio laid down
in the judgment of the Kerala High Court in T.K. Surendran
2
and on Section 25 of the Hindu Marriage Act, to buttress the
contention raised by the learned counsel for the petitioner,
this Court has given its anxious and thoughtful
consideration to the said contention raised by the learned
counsel for the revision petitioner. I am unable to persuade
myself to countenance the said contention in view of the
specific, clear and unambiguous legal phraseology used both
in Section 125 Cr.P.C. and in Section 25 of the Hindu
Marriage Act and the interpretation given to Section 25 of the
Hindu Marriage Act by the Supreme Court. For better
appreciation of the same, it is expedient to extract
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CMR,J.
Crl.R.C.No.806 of 2019
explanation to Section 125 Cr.P.C. and Section 25 of the
Hindu Marriage Act for a comparative study.
26. Explanation to Section 125 Cr.P.C. reads thus:
“Explanation.- For the purposes of this Chapter, -
(a) ….
(b) “wife” includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not
remarried.”
27. Chapter-IX of Cr.P.C. deals with grant of
maintenance to a wife. It starts with Section 125 Cr.P.C.
“Wife” for the purposes of Chapter-IX means a legally wedded
wife of a subsisting marriage. The intention of the legislature
under Section 125 Cr.P.C. is to provide maintenance to a
legally wedded wife who was neglected by her husband. The
only exception is a divorced wife as per explanation (b) of
Section 125 Cr.P.C. The intention of the legislature to
confine the said inclusive definition only to a divorced wife
for the purpose of granting maintenance under Section 125
Cr.P.C. is very much clear from the language used in Section
125 Cr.P.C. It is not the intention of the legislature to
include any other woman viz., wife of a void marriage, or a
wife of an annulled marriage, under Sections 11 and 12 of
the Hindu Marriage Act, within the ambit of the said
explanation.
28. Section 25 of the Hindu Marriage Act reads thus:
“25. Permanent alimony and maintenance .- (1) Any
court exercising jurisdiction under this Act, may, at the time
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Crl.R.C.No.806 of 2019
of passing any decree or at any time subsequent thereto, on
application made to it for the purpose by either the wife or
the husband, as the case may be, order that the respondent
shall pay to the applicant for her or his maintenance and
support such gross sum or such monthly or periodical sum
for a term not exceeding the life of the applicant as, having
regard to the respondent's own income and other property, if
any, the income and other property of the applicant, the
conduct of the parties and other circumstances of the case, it
may seem to the court to be just, and any such payment may
be secured, if necessary, by a charge on the immovable
property of the respondent.
(2) If the court is satisfied that there is a change in the
circumstances of either party at any time after it has made an
order under sub-section (1), it may at the instance of either
party, vary, modify or rescind any such order in such manner
as the court may deem just.
(3) If the court is satisfied that the party in whose
favour an order has been made under this section has re-
married or, if such party is the wife, that she has not
remained chaste, or, if such party is the husband, that he
has had sexual intercourse with any woman outside wedlock,
it may at the instance of the other party vary, modify or
rescind any such order in such manner as the court may
deem just.”
29. A reading of this Section makes it manifest that
either at the time of passing any decree under the said Act or
at any time subsequent thereto that the Court which passed
the said decree on an application made to it either by the
wife or the husband as the case may be order the respondent
to pay to the applicant for her or his maintenance which the
Court deems just in the circumstances of the case.
Therefore, when a decree under Section 12 of the Hindu
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CMR,J.
Crl.R.C.No.806 of 2019
Marriage Act is passed, the wife of such annulled marriage
can claim maintenance under Section 25 of the Act. It is
only the said Court, which passed the decree alone is
competent to grant maintenance under Section 25 of the
Hindu Marriage Act. The said power under Section 25 of the
Hindu Marriage Act cannot be exercised by a Court
exercising jurisdiction under Section 125 Cr.P.C.
30. It is significant to note that the very opening words
of the Section starts with the expression “any Court
exercising jurisdiction under this Act” which clearly indicates
that it is only the Court which passed any decree while
exercising the jurisdiction under the Hindu Marriage Act
alone is competent to exercise the power conferred under
Section 25 of the Hindu Marriage Act to grant any such
maintenance either at the time of passing such decree or
subsequent thereto on an application made to that effect
either by the wife or the husband as the case may be.
Therefore, it is a special provision which is an enabling
provision which conferred exclusive jurisdiction only on the
Court exercising jurisdiction under the Hindu Marriage Act
while passing any decree under the Hindu Marriage Act or at
any time subsequent thereto to grant maintenance to the
deserving party to the marriage which was annulled. The
expression “at the time of passing any decree” again makes
it clear that it is wide enough to include all decrees which
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Crl.R.C.No.806 of 2019
may be passed under the Hindu Marriage Act i.e., a decree
under Section 9 for restitution of conjugal rights; a decree
under Section 10 for judicial separation; a decree under
Section 11 declaring the marriage null and void ab initio; a
decree under Section 12 annulling the marriage by a decree
of nullity; and a decree of divorce under Section 13 of the
Hindu Marriage Act etc. It is not confined to only one or any
particular decree that may be passed under the Act. It
encompasses all decrees that may be passed under the Act
which includes a decree passed under Section 12 of the
Hindu Marriage Act of annulling the marriage by way of a
decree of nullity.
31. Now, the crucial question that needs to be
considered, in the light of the submissions made by the
learned counsel for the revision petitioner, is owing to the
fact that the statute enables the wife of annulled marriage to
claim maintenance under Section 25 of the Hindu Marriage
Act either at the time of passing of the decree or subsequent
thereto, whether it is to be held that she is also entitled to
claim maintenance under Section 125 Cr.P.C. To put it
differently, by virtue of such right conferred on a woman of
annulled marriage to claim maintenance under Section 25 of
the Hindu Marriage Act, whether she can be brought within
the sweep of inclusive definition of “divorced wife” as per
clause (b) of explanation to Section 125 Cr.P.C. or not?
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Crl.R.C.No.806 of 2019
32. In the considered view of this Court, the answer
must be emphatic no. In this regard, it is relevant to note
that the proceedings under Section 25 of the Hindu Marriage
Act and the proceedings under Section 125 Cr.P.C. are
independent and distinct proceedings. They are not
complementary to each other. They do not go together.
Section 125 Cr.P.C. is also not supplementary to Section 25
of the Hindu Marriage Act, except for a divorced wife. As
already noticed supra, the very opening words of Section 25
starts with “any Court exercising jurisdiction under this Act
may at the time of passing any decree or any time
subsequent thereto”. So, it clearly indicates that the said
power to grant maintenance under Section 25 is exclusively
conferred on the Court exercising jurisdiction under the
Hindu Marriage Act. So, the said exclusive power conferred
on the said Court exercising jurisdiction under the Hindu
Marriage Act cannot be extended to the Judicial Magistrate
of First Class or to the Court, which is exercising jurisdiction
under Section 125 Cr.P.C.
33. In this context it is relevant to consider the law
enunciated by the Supreme Court in the case of Chand
Dhawan v. Jawaharlal Dhawan
4. It is held by the Apex
Court in no uncertain terms that relief under one statute
cannot be claimed in proceedings under another statute. It
is further held at the end of para.25 of the judgment as
4
(1993) 3 SCC 406
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CMR,J.
Crl.R.C.No.806 of 2019
follows: “The court is not at liberty to grant relief of
maintenance simpliciter obtainable under one Act in
proceedings under the other. As is evident, both the statutes
are codified as such and are clear on their subjects and by
liberality of interpretation inter-changeability cannot be
permitted so as to destroy the distinction on the subject of
maintenance.”
34. At para.28 of the said judgment, it is held as follows:
“On the afore-analysis and distinction drawn
between the fora and perceptives, it is difficult to come to
the view that a claim which is ancillary or incidental in a
matrimonial court under the Hindu Marriage Act could
be tried as an original claim in that court; a claim which
may for the moment be assumed as valid, otherwise
agitable in the civil court under the Hindu Adoptions and
Maintenance Act, 1956. As said before, these two
enactments keeping apart, the remaining two, i.e., Hindu
Succession Act, 1956 and Hindu Minority and
Guardianship Act, 1956 are a package of enactments,
being part of one socio-legal scheme applicable to
Hindus. When distinctive claims are covered
distinctly under two different statutes and agitable in
the courts conceived of thereunder, it is difficult to
sustain the plea that when a claim is otherwise valid,
choosing of one forum or the other should be of no
consequence. These are not mere procedural
technicalities or irregularities, as termed by one line
of reasoning by some of the High Courts. These are
matters which go to the root of the jurisdiction.”
23
CMR,J.
Crl.R.C.No.806 of 2019
35. Thus, the Apex Court rejected the contention of the
appellant therein that if the claim of the wife for maintenance
was otherwise justified on fact and law, the procedures and
the fora should not stand in her way of claiming
maintenance.
36. Therefore, the legal position is now clear that a
power conferred on the Court under one statute cannot be
exercised by the Court under different statute. To elucidate
more clearly, the incidental power conferred on the Court
exercising jurisdiction under the Hindu Marriage Act under
Section 25 of the Act either at the time of passing decree
under the said Act or subsequent thereto, cannot be
extended to the Court exercising its jurisdiction under
Section 125 Cr.P.C. So, also the benefit or legal right
conferred under Section 25 of the Hindu Marriage Act cannot
be claimed under Section 125 Cr.P.C. The right to claim
maintenance under Section 125 Cr.P.C. by a woman of
annulled marriage cannot be derived from Section 25 of the
Hindu Marriage Act. Even the power of the Court exercising
jurisdiction under the Hindu Marriage Act to grant
maintenance to woman of annulled marriage under Section
25 is ancillary and incidental power. The said power can be
exercised by the said Court only at the time of passing decree
disrupting the marital status of the spouses or subsequent
24
CMR,J.
Crl.R.C.No.806 of 2019
thereto. Therefore, the said contention of the learned
counsel for the revision petitioner is legally unsustainable.
37. The important legal aspect to be considered in the
present context is the scope, extent and the field of operation
of Section 25 of the Hindu Marriage Act. The phrase “at the
time of passing any decree under this Act” used in Section
25 of the Hindu Marriage Act, has a different connotation.
38. Several High Courts have taken a view that the
expression “passing a decree” used in Section 25 of the
Hindu Marriage Act means granting a relief by allowing the
petition disrupting the marriage and held that maintenance
under Section 25 of the Hindu Marriage Act can be claimed
only when petitions are allowed by passing decrees and the
said power under Section 25 of the Hindu Marriage Act
cannot be invoked when the petitions are dismissed and the
releifs sought for are not granted. A few High Courts have
taken a different view and held that passing a decree means
either allowing the petition or dismissing the petition and as
such, the power under Section 25 of the Hindu Marriage Act
can be invoked even when the petitions are dismissed. The
Division Benches of Gujarat High Court in Kadia Harilal
Purshottam v. Kadia Lilavati Gokaldas
5, Orissa High Court
in Akasam Chinna Babu v. Akasam Parbati
6, Delhi High
5
AIR 1961 Guj 202
6
AIR 1967 Ori 163 = ILR (1967) Cut 439
25
CMR,J.
Crl.R.C.No.806 of 2019
Court in Sushama (Smt) v. Satish Chander
7, a three-Judge
Full Bench of Punjab and Haryana High Court in Durga Das
v. Tara Rani (Smt)
8, a single Judge Benches of Bombay
High Court in Shantaram Dinkar Karnik v. Malti
Shantaram Karnik
9, Punjab and Haryana High Court in
Gurcharan Kaur v. Ram Chand
10, Rajasthan High Court in
Darshan Singh v. Mst Daso
11, Allahabad High Court in
Vinod Chandra Sharma v. Rajesh Pathak (Smt)
12 and the
Madras High Court in Ranganatham v. Shyamala
13 have
taken a view that only when the petitions filed under
Sections 9 to 13 of the Hindu Marriage Act are allowed that
Section 25 of the Hindu Marriage Act can be invoked for
grant of maintenance and when such petitions are
dismissed, Section 25 of the Hindu Marriage Act cannot be
invoked, whereas a single Judge Bench of the Punjab and
Haryana in Swaran Lata (Smt) v. Sukhvinder Kumar
14,
Bombay High Court in Sadanand Sahadeo Rawool v.
Sulochana Sadanand Rawool
15, Madhya Pradesh in
Surendra Singh Chauhan v. Mamta Chauhan
16 and
Andhra Pradesh High Court in Silla Jagannadha Prasad
7
AIR 1984 Del 1 : 1984 Hindu LR 124
8
AIR 1971 P & H 141 = ILR (1970) 2 Punj 551
9
AIR 1964 Bom 83 = ILR (1963) Bom 63
10
AIR 1979 P & H 206 = (1979) 81 Punj LR 382
11
AIR 1980 Raj 102 = 1980 Hindu LR 454
12
AIR 1988 All 150 = (1987) 1 Hindu LR 558
13
AIR 1990 Mad 1 : (1989) 2 Hindu LR 41
14
(1986) 1 HLR 363
15
AIR 1989 Bom 220 = (1989) 1 Hindu LR 708
16
(1990) 2 D & MC 208
26
CMR,J.
Crl.R.C.No.806 of 2019
alias Ram v. Silla Lalitha Kumari (Smt)
17 have taken a
different view that whether the relief is granted or not, it
culminates in a decree and the wife can claim maintenance
under Section 25 of the Hindu Marriage Act irrespective of
the fact that whether the main petition is allowed or
dismissed. Thus, in view of the divergent views expressed by
various High Courts, the Supreme Court in Chand
Dhawan’s
4 case, after considering all these judgments of
various High Courts, ultimately, authoritatively held that the
expression “at the time of passing any decree”, in the
context, refers to only any decree passed under Sections 9 to
13 of the Hindu Marriage Act affecting or disrupting the
marital status by allowing the said petitions, but does
not include any order dismissing the petition under any
of those Sections, thereby sustaining the marital status.
The Supreme Court overruled the judgments of the High
Courts which have taken the contrary view.
39. Therefore, it is clear as per the ratio laid down in the
above judgment of the Apex Court that in case of dismissal of
petition filed under Sections 9 to 13, no maintenance can be
granted to wife petitioning under Section 25 of the Hindu
Marriage Act. However, she can claim maintenance under
Section 18(1) of the Hindu Adoptions and Maintenance Act
or under Section 125 Cr.P.C.
17
(1988) 1 HLR 26 = AIR 1989 AP 8 = (1987) 1 Andh LT 631
27
CMR,J.
Crl.R.C.No.806 of 2019
40. In this context, it is also relevant to note that the
Rajasthan High Court in the case of Darshan Singh
11
explained the distinction between the expressions “passing
any decree” occurring in Section 25 and the expression
“decree made” used in Section 28 of the Hindu Marriage Act.
The Rajasthan High Court has noticed that the expression
“passing any decree” is used in Section 25, whereas the
expression “decree made” is used in Section 28 of the Hindu
Marriage Act and held that passing of any decree as
mentioned in Section 25 means granting any relief of the
nature stated in Sections 9 to 13 of the Hindu Marriage Act
and the words making any decree used in Section 28 of the
Act means granting or refusing any relief.
41. A Division Bench of the Delhi High Court in
Sushama (Smt.)
7 affirmatively took the view that passing of
the decree in Section 25 means the passing of a decree of
divorce, nullity, restitution of conjugal rights or judicial
separation and not the passing of a decree dismissing the
petition. It is further held that if the petition fails then no
decree is passed, i.e., the decree is denied to the applicant
and therefore, alimony cannot be granted in a case where a
decree is refused because in such a case the marriage
subsists. The word “decree” in matrimonial cases was held
to have been used in a special sense different from that in
which it is used in the Civil Procedure Code.
28
CMR,J.
Crl.R.C.No.806 of 2019
42. Thus, having noticed the two different expressions
used in Sections 25 and 28 of the Hindu Marriage Act i.e.,
“passing any decree” and “making any decree”, it was
interpreted that the expression “passing any decree” under
Section 25 means granting the relief of the nature specified
in Sections 9 to 13 of the Hindu Marriage Act disrupting the
marital status and it does not include the dismissal of the
petitions refusing to grant the said reliefs. These judgments
are quoted with approval by the Supreme Court in the above
Chand Dhawan’s
4 case and the Supreme Court after detailed
survey of law, authoritatively held that Section 25 of the
Hindu Marriage Act can be invoked only when the petitions
are allowed granting reliefs under Sections 9 to 13 of the
Hindu Marriage Act disrupting the marital status of the
parties and the same cannot be invoked when the petitions
are dismissed sustaining the marital status between the
parties to the marriage.
43. The logic is simple that if the petition of the spouse
to declare the marriage as null and void under Section 11 or
to annul the marriage under Section 12 of the Hindu
Marriage Act is dismissed then the wife retains her status as
legally wedded wife and she can claim maintenance as per
the right conferred on her under various enactments like
Section 18 of the Hindu Adoptions and Maintenance Act,
Section 125 Cr.P.C. and even under the Protection of Woman
29
CMR,J.
Crl.R.C.No.806 of 2019
from Domestic Violence Act etc. It is only in the event of
allowing the petition for declaring the marriage as null and
void or annulling the marriage by a decree of nullity under
Sections 11 or 12 of the Hindu Marriage Act, she loses her
status as the wife of the respondent therein. So, in the said
situation, when a woman loses her status as wife consequent
upon passing decrees under Sections 11 and 12 of the Hindu
Marriage Act, to prevent such woman, whose marriage is
terminated by such decrees, from vagrancy and from being a
destitute woman, Section 25 of the Hindu Marriage Act, a
special provision is incorporated in the Hindu Marriage Act
to enable such woman of annulled marriages to claim
maintenance notwithstanding the decree that was passed
annulling the marriage or declaring the marriage as void ab
initio.
44. The legal position in this regard has been also
authoritatively held and clearly enunciated by the Supreme
Court in the above Chand Dhawan’s
4 case. It is held, in the
said judgment, while dealing with scope and field of
operation of Section 25 of the Hindu Marriage Act in detail,
as follows:
“…the legislature while codifying the Hindu
'Marriage Act preserved the right of permanent
maintenance in favour of the husband or the wife, as the
case may be, dependent on the court passing a decree of
the kind as envisaged under Sections 9 to 14 of the Act. In
other words without the marital status being affected or
disrupted by the matrimonial court under the Hindu
30
CMR,J.
Crl.R.C.No.806 of 2019
Marriage Act the claim of permanent alimony was not to be
valid as ancilliary or incidental to such affectation or
disruption. The wife's claim to maintenance necessarily
has then to be agitated under the Hindu Adoptions and
Maintenance Act, 1956 which is a legislative measure later
in point of time than the Hindu Marriage Act, 1955,
though part of the same socio-legal scheme revolutionizing
the law applicable to Hindus.”
45. At para.25 of the judgment, the Supreme Court
held as follows:
“We have thus, in this light, no hesitation in coming
to the view that when by court intervention under the
Hindu Marriage Act, affectation or disruption to the
marital status has come by, at that juncture, while
passing the decree, it undoubtedly has the power to grant
permanent alimony or maintenance, if that power is
invoked at that time. It also retains the power
subsequently to be invoked on application by a party
entitled to relief. And such order, in all events, remains
within the jurisdiction of that court, to be altered or
modified as future situations may warrant. In contrast,
without affectation or disruption of the marital status,
a Hindu wife sustaining that status can live in
separation from her husband, and whether she is living
in that state or not, her claim to maintenance stands
preserved in codification under Section 18 (1) of the
Hindu Adoptions and Maintenance Act.”
46. Thus, from the ratio laid down in the above
judgment, while interpreting Section 25 of the Hindu
Marriage Act, it is made clear that Section 25 of the Act for
the purpose of granting maintenance can be invoked only
when the petition is allowed granting a decree of declaring
the marriage as void or annulling the marriage which would
have the effect of affectation or disruption of the marital
31
CMR,J.
Crl.R.C.No.806 of 2019
status. But, it does not include order dismissing the petition
under any of those Sections thereby sustaining the marital
status. Therefore, when the petitions under Sections 11 and
12 of the Hindu Marriage Act are dismissed, no maintenance
can be granted to the wife under Section 25 of the Hindu
Marriage Act. However, she can claim maintenance under
Section 18(1) of the Hindu Adoptions and Maintenance Act
or under Section 125 Cr.P.C. as her marital status is not
disrupted and her status as legally wedded wife continues.
47. So, this analogy clearly shows that Section 25 of
the Hindu Marriage Act is enacted for a specific purpose and
with a laudable object to enable the wife whose marriage was
disrupted by way of passing such decrees to claim
maintenance notwithstanding passing of such decrees
terminating the marriage, to prevent herself from vagrancy
and being a destitute. Therefore, Section 25 of the Hindu
Marriage Act completely operates in a different field, sphere
and in a different situation. Its application completely
depends on disrupting the marital status by a decree of the
Court, whereas, Section 18 of the Hindu Adoptions and
Maintenance Act and Section 125 Cr.P.C. etc, operates in a
different sphere where the wife still enjoys her status as a
legally wedded wife. Divorced wife is only an exception
under Section 125 Cr.P.C. This is the dichotomy which lies
between the two provisions i.e. between Section 25 of the
32
CMR,J.
Crl.R.C.No.806 of 2019
Hindu Marriage Act on one hand and Section 125 Cr.P.C.
and Section 18 of the Hindu Adoptions and Maintenance Act
on the other hand. Thus, it is clear that they are distinct
and independent provisions of law completely operating in
two different situations.
48. At the first blush on a superficial examination of
the scope, extent and the field of operation of the said
provisions it may appear that there is no distinction between
these two provisions, but, in fact, on a deeper examination, it
would be clear that there is a vast difference which can be
clearly perceived from the law laid down by the Apex Court in
the above Chand Dhawan’s
4 case. Therefore, when Section
125 Cr.P.C. and Section 25 of the Hindu Marriage Act are
two independent provisions of law, with different scope and
extent and when they operate in two different fields i.e. one
operates when the wife enjoys the status as legally wedded
wife and the other operates when the wife loses her status as
legally wedded wife, it is legally impermissible to bring such
category women whose marriages are annulled by decree of
nullity under Section 12 of the Hindu Marriage Act within
the sweep of inclusive definition of “wife” in clause (b) of
explanation to Section 125(1) Cr.P.C.
49. Thus, after examining the matter from all possible
angles, the only irresistible conclusion that can be arrived at
in the facts and circumstances of the case is that a woman of
33
CMR,J.
Crl.R.C.No.806 of 2019
annulled marriage cannot claim maintenance under Section
125 Cr.P.C.
50. The legal quandary prevailing in this regard prior to
the judgment of the Supreme Court in Chand Dhawan ’s
4
case now stands completely cleared by the ratio laid down by
the Apex Court in the said case.
51. To sum-up the legal position, it is made clear that
Section 25 of the Hindu Marriage Act is specifically meant to
enable the women whose marriages are terminated and
disrupted by way of decrees passed under the Hindu
Marriage Act to claim maintenance, whereas, Section 18(1) of
the Hindu Adoption and Maintenance Act and Section 125
Cr.P.C. are meant to enable woman who enjoys the status as
legally wedded wife to claim maintenance. However, divorced
wife is the only exception under Section 125 Cr.P.C. These
provisions completely operate in two different fields and in
two different situations. Both statutes are codified as such
and are clear on their subjects and by liberality of
interpretation interchangeability cannot be permitted so as
to destroy the distinction on the subject of maintenance.
52. As regards the other judgment relied on by the
learned counsel for the revision petitioner of the Apex Court
in the case of Badshah
3, it is a case where the husband
played fraud by suppressing the material fact of his previous
34
CMR,J.
Crl.R.C.No.806 of 2019
marriage and married a woman for the second time. He
resisted the claim of the second wife for maintenance under
Section 125 Cr.P.C. on the ground that his second marriage
with her during the subsistence of his first marriage is a
nullity and void ab initio. The Supreme Court held that the
husband cannot take advantage of his own fault and defeat
the claim of the innocent woman who married him without
the knowledge of his first marriage and that her claim under
Section 125 Cr.P.C. is maintainable.
53. This judgment, in my considered view, does not
throw any light on the present controversy to resolve the
same. This case is not dealing with the effect of annulling
the marriage by a decree of nullity under Section 12 of the
Hindu Marriage Act on the claim made under Section 125
Cr.P.C. It was a straight case where wife claimed
maintenance under Section 125 Cr.P.C. and husband
without obtaining any decree of nullity sought to defeat the
claim of his second wife on the ground that his second
marriage is a void marriage. The Supreme Court did not
accept his contention on the ground that he cannot take
advantage of his own fault and defeat the claim of innocent
second wife who married him without the knowledge of his
first marriage. It is significant to note that the right of wife,
whose marriage was annulled under Section 12 of the Hindu
Marriage Act, to claim maintenance under Section 125
35
CMR,J.
Crl.R.C.No.806 of 2019
Cr.P.C. is not the issue involved in the said case. Therefore,
this case is clearly distinguishable on facts and law. So, this
judgment cannot be considered as an authority of laying
down any law relating to the actual controversy involved in
this case.
54. Learned counsel for the revision petitioner would
further submit that when the judgment of the Division
Bench of Kerala High Court in T.K. Surendran
2 was
challenged before the Supreme Court by way of preferring
Special Leave Petition, the same was dismissed by the
Supreme Court relying on the ratio laid down in the above
Badshah’s
3 case
and as such, it shall be construed that the
ratio laid down in the judgment of T.K. Surendran
2 case
received the seal of approval by the Apex Court and T.K.
Surendran
2 case is to be considered as a binding precedent
on the point of law. The said contention is again legally
unsustainable.
55. It may be seen here that the Supreme Court did not
grant leave in the said S.L.P. and it was not converted into
appeal and the case is not considered by the Supreme Court
on merits and no reasoned order was passed affirming the
ratio laid down by the Division Bench of the Kerala High
Court in T.K. Surendran
2. It is now well settled law that
when S.L.P. was dismissed without granting leave as sought
for, it does not amount to accepting the findings or ratio laid
36
CMR,J.
Crl.R.C.No.806 of 2019
down by the Court in the judgment under challenge and it
also does not amount to giving stamp of approval by the
Supreme Court to the ratio laid down in the judgment under
challenge. It is only when leave is granted in the S.L.P. and
it is converted into appeal and the Supreme Court while
dealing with the merits of the case in detail, passes a
reasoned order affirming the ratio laid down in the judgment
under challenge, then the said Judgment merges into the
judgment of the Supreme Court in the appeal and it can be
treated as a binding precedent. The legal position in this
regard is not an undecided question of law and it is well-
settled.
56. In Kunhayammed v. State of Kerala
18 the Apex
Court held that an order refusing special leave to appeal may
be a non-speaking order or a speaking one, in either case, it
does not attract the doctrine of merger. An order refusing
special leave to appeal does not stand substituted in place of
the order under challenge. All that it means is that the
Court was not inclined to exercise its discretion so as to
allow the appeal being filed. It is also held in the said case
that the said view has been adopted in plethora of judgments
of the Supreme Court. In Khoday Distilleries v. Sri
Mahadeshwara Sahakara Sakkare Karkhane Ltd .
19, the
Apex Court held that “there has been no pronouncement by
18
(2000) 6 SCC 359
19
(2019) 4 SCC 376
37
CMR,J.
Crl.R.C.No.806 of 2019
this Court constituting the law of the land as to the
interpretation. In such a situation, it is open for us to
proceed to decide the instant appeals uninfluenced by the
prior orders of this Court dismissing SLPs against the grant
of relief to drivers placed similarly as the appellants herein.”
57. Relying on the aforesaid earlier judgments of the
Supreme Court, the Supreme Court in the case of P.
Singaravelan v. District Collector, Tiruppur & D.T.
20, held
that it is well-settled that the dismissal of an SLP against an
order or judgment of a lower forum is not an affirmation of
the same. If such an order of the Supreme Court is non-
speaking, it does not constitute a declaration of law under
Article 141 of the Constitution of India, or attract the
doctrine of merger.
58. Therefore, the legal position is now made very clear
that the mere fact that the Supreme Court dismissed the SLP
preferred against the Division Bench judgment of the Kerala
High Court, cannot be taken as affirming the ratio laid down
in the judgment of the Kerala High Court as has been
contended by the learned counsel for the petitioner.
59. In view of the legal position discussed supra in
detail, this Court is of the view that the object of preventing
woman of annulled marriage from vagrancy and from being
20
2019 SCC OnLine SC 1641
38
CMR,J.
Crl.R.C.No.806 of 2019
destitute stands fulfilled in the circumstances of the case on
account of making a provision for the said purpose by way of
incorporating Section 25 of the Hindu Marriage Act to enable
a woman who obtained a decree for annulment of marriage
to claim maintenance under Section 25 of the Hindu
Marriage Act. She can as well claim maintenance under
Section 25 of the Hindu Marriage Act. It is not as though
that she is left with no remedy even after granting a decree of
annulment of the marriage and thereby terminating her
marriage. An efficacious remedy to claim maintenance
under Section 25 of the Hindu Marriage Act either at the
time of passing the decree or even subsequent thereto is
made available to her. When such efficacious remedy is
made available to her, in my considered view, the said wide
interpretation to the word “wife” under clause (b) of
explanation to Section 125 Cr.P.C. is not warranted in the
given facts and circumstances of the case. When efficacious
legal remedy is available under Section 25 of the Hindu
Marriage Act, no effort need be made to widen the scope of
the definition of “wife” under clause (b) of explanation to
Section 125 Cr.P.C.
60. The Apex Court also in Rameshchandra
Rampratapji Daga v. Rameshwari Rameshchanra Daga
21
held that permanent alimony and maintenance can be
21
(2005) 2 SCC 33
39
CMR,J.
Crl.R.C.No.806 of 2019
granted to spouse whose marriage has been declared as null
and void under Section 25 of the Hindu Marriage Act. The
words “any decree” in sub-section (1) of Section 25 of the
Hindu Marriage Act encompasses within the expression all
kinds of decrees as contained under Sections 9, 10, 11, 12
and 13 of the Hindu Marriage Act. It is also held that
Section 25 of the Hindu Marriage Act is an enabling
provision whereunder the Court can grant relief to spouse
having regard to the facts and circumstances of the case.
61. Therefore, in the light of the above discussion, this
Court has correctly interpreted the explanation to Section
125 Cr.P.C. and laid down the correct proposition of law in
K. Sivarama Krishna Prasad
1. It is rightly held that the
explanation under Section 125 Cr.P.C. 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 Sections 11 or 12 of the Hindu Marriage
Act. It is also rightly held in the said case that dissolution of
marriage as a sequel to divorce should not be equated to
decree of nullity. So, it does not require reconsideration as
contended by the learned counsel for the petitioner.
62. Therefore, the petitioner herein whose marriage
was annulled by a decree of nullity under Section 12 of the
Hindu Marriage Act on her application can as well claim
40
CMR,J.
Crl.R.C.No.806 of 2019
maintenance either at the time of passing the said decree or
even subsequent thereto under Section 25 of the Hindu
Marriage Act. Without invoking the said specific provision
which enables her to claim maintenance under Section 25 of
the Hindu Marriage Act, for the reasons best known to her,
she has erroneously invoked Section 125 Cr.P.C. to claim
maintenance.
63. So, still it is open to the revision petitioner herein,
who obtained a decree of annulment of marriage under
Section 12 of the Hindu Marriage Act to approach the same
Court under Section 25 of the Hindu Marriage Act to claim
maintenance as the Court even subsequent to the grant of
decree is empowered to grant maintenance under Section 25
of the Hindu Marriage Act. The point is answered
accordingly.
64. In the light of the above discussion, the impugned
order of the lower Court is perfectly sustainable under law
and it warrants no interference in this Criminal Revision
Case. Therefore, the Criminal Revision Case is liable to be
dismissed.
65. Resultantly, the Criminal Revision Case is
dismissed. However, the revision petitioner is at liberty to
approach the Court which passed the decree of annulment of
marriage under Section 12 of the Hindu Marriage Act and file
41
CMR,J.
Crl.R.C.No.806 of 2019
an application under Section 25 of the Hindu Marriage Act to
claim maintenance against the 2
nd respondent herein.
Consequently, miscellaneous applications, pending if
any, shall also stand closed.
________________________________________________
JUSTICE CHEEKATI MANAVENDRANATH ROY
Date:17-06-2020.
Note:
L.R. copy to be marked.
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