Spouse to a void marriage entitled to seek permanent alimony: Supreme Court

New Delhi, Feb 12 (IANS) The Supreme Court on Wednesday ruled that a spouse whose marriage has been declared void under the Hindu Marriage Act is entitled to seek permanent alimony or maintenance from the other spouse.

Even if a court comes to a prima facie conclusion that the marriage between the parties is void or voidable, pending the final disposal of the proceeding under the Hindu Marriage Act, the matrimonial court is not precluded from granting maintenance pendente lite, added the apex court.

In view of the conflicting views on the applicability of Sections 24 and 25 of the Hindu Marriage Act, 1955, the question as to whether alimony can be granted where marriage has been declared void was referred to a 3-judge Bench in August last year.

Apart from the above question, the 3-judge Bench also dealt with the question as to whether in a petition filed under the Hindu Marriage Act seeking nullity of marriage, a spouse is entitled to seek maintenance pendente lite (pending the litigation).

The appellant’s counsel contended that a marriage declared void under Section 11 is void ab initio (which does not exist) and therefore, after a marriage is declared void, a spouse cannot claim permanent alimony and maintenance under Section 25 of the Hindu Marriage Act.

Under the Hindu Marriage Act, the marriages are void if one or both the parties to the marriage have a living spouse at the time of marriage, the parties to the marriage are within the degrees of prohibited relationship or the parties are sapindas of each other unless the custom or usage governing each of them permits of a marriage between the two.

The above categories of marriages are void at the inception (void ab initio) and such a marriage does not exist at all in the eyes of the law. Section 25 confers a power on the matrimonial court to grant permanent alimony “at the time of passing any decree or at any time subsequent thereto” and a cause of action arises for the spouses to apply for permanent alimony and maintenance when any decree is passed by any family court.

“While enacting Section 25(1), the legislature has made no distinction between a decree of divorce and a decree declaring marriage as a nullity. Therefore, on a plain reading of Section 25(1), it will not be possible to exclude a decree of nullity under Section 11 from the purview of Section 25(1) of the 1955 Act,” ruled the 3-judge Bench headed by Justice Abhay S Oka.

The Bench, also comprising Justices Ahsanuddin Amanullah and AG Masih, differentiated the remedy under Section 25 of the Hindu Marriage Act and under Section 125 of the CrPC (equivalent to Section 144 of the Bharatiya Nagrik Suraksha Sanhita, 2023).

“It (Section 25) confers rights on the spouses of the marriage declared as void under Section 11 of the 1955 Act to claim maintenance from the other spouse. The remedy is available to both husband and wife. The principles which apply to Section 125 of the CrPC cannot be applied to Section 25 of the 1955 Act. The relief under Section 125 of the CrPC can be granted to wife or child and not to husband,” added the Justice Oka-led Bench.

Further, the apex court deprecated the judgment of the Full Bench of the Bombay High Court, calling the wife of a marriage declared void as an “illegitimate wife” and describing her as a “faithful mistress”.

Terming the use of such words as “misogynistic”, the SC said: “Under Section 21 of the Constitution of India, every person has a fundamental right to lead a dignified life. Calling a woman an ‘illegitimate wife’ or ‘faithful mistress’ will amount to a violation of the fundamental rights of that woman under Article 21 of the Constitution of India.

“Describing a woman by using these words is against the ethos and ideals of our Constitution. No one can use such adjectives while referring to a woman who is a party to a void marriage. Unfortunately, we find that such objectionable language is used in a judgment of the Full Bench of a High Court. The use of such words is misogynistic.”

The Supreme Court did not accept the submission that granting permanent alimony in cases of void marriages would lead to a “ridiculous result”, saying that the grant of a decree under Section 25 is discretionary and if the conduct of the spouse who applies for maintenance is such that the said spouse is not entitled to discretionary relief, the matrimonial court can always turn down the prayer for the grant of permanent alimony.

After analysing the entire scheme of the Hindu Marriage Act, it said that a matrimonial court may grant interim maintenance in pending proceedings for a grant of a decree under Sections 9 to 13 if a court comes to a conclusion that either the wife or the husband has no independent income sufficient for her or his support and the necessary expenses of the proceeding.

“Even if, prima facie, the matrimonial court finds the marriage between the parties is void or voidable, the court is not precluded from granting maintenance pendente lite,” the apex court ruled.

While deciding the prayer for interim relief under Section 24 of the Hindu Marriage Act, the court will always consider the conduct of the party seeking the relief, it added.

Further, it said: “A spouse whose marriage has been declared void under Section 11 of the 1955 Act is entitled to seek permanent alimony or maintenance from the other spouse by invoking Section 25 of the 1955 Act. Whether such a relief of permanent alimony can be granted or not always depends on the facts of each case and the conduct of the parties. The grant of relief under Section 25 is always discretionary.”

–IANS

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