Supreme Court Reserves Judgment On Whether Alimony Can Be Granted Under Hindu Marriage Act If Marriage Was Void

The Supreme Court today reserved judgment on the issue of whether alimony can be granted under section 25 of the Hindu Marriage Act, 1955 (HMA) when a marriage has been declared void.

A bench of Justice Abhay S. Oka, Justice Ahsanuddin Amanullah, and Justice Augustine George Masih heard arguments on this question.

During the hearing, the bench criticised the judgment of the Bombay High Court in Bhausaheb @ Sandhu S/o Raguji Magar v. Leelabai W/o Bhausaheb Magar, which used the term "illegitimate wife" in the context of void marriages. Justice Oka criticized this terminology, saying that it is against the right to dignity under Article 21 of the Constitution.

“Can we call wife as an illegitimate wife? This concept is unheard of. This is against the basic right to dignity under 21 of the Constitution…Bombay High Court has gone to the extent of describing wife whose marriage has declared his void as illegitimate wife. This is something very difficult to digest…Such observations cannot be justified. The court says that if we grant maintenance it will encourage bigamous marriage. Now paragraph 24 is more objectionable. What kind of phraseology is used? No constitutional court can use this kind of phraseology. Where does this concept of illegitimacy or legitimacy of wife come from? That concept at the highest will apply to children born out of void or voidable marriage.”

The matter was referred to the three-judge bench in August, after a division bench highlighted conflicting decisions by various courts on the interpretation of Sections 24 and 25 of the HMA.

Section 24 provides for interim maintenance during the pendency of a matrimonial case, while Section 25 deals with permanent alimony and maintenance.

The central issue is whether maintenance can be granted under these provisions when a marriage is declared void under Section 11 of the HMA, which covers marriages involving bigamy, prohibited degrees of relationship, or sapinda relationships.

In September, the Court had allowed the parties to file written submissions. During today's proceedings, the bench heard arguments from both sides before reserving judgment.

Today, the counsel for the appellant-husband argued that an “illegitimate wife” should not be entitled to the same benefits as a legally wedded wife. He argued that the expression "any decree" under Section 25 should not include a decree of nullity.

Justice Oka noted that Section 25 confers upon the court the power to grant maintenance at the time of passing any decree, which includes decrees of nullity. He emphasized that the question before the court was not whether maintenance should be granted, but whether the court has the jurisdiction to do so under Section 25 when passing a decree of nullity.

Justice Oka questioned why the wife in such a situation should be deprived of maintenance, pointing out that a decree of nullity is still a decree under the HMA.

“the marriage is void why the wife should be deprived of maintenance? Decree of nullity is also a decree under Hindu Marriage Act. We are on the power of the court to grant maintenance. The court may or may not grant maintenance, the question is whether the court is deprived of jurisdiction to grant maintenance.”

Justice Oka further said that this does not conflict with the view in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr., which held that under Section 125 of the CrPC, wife in a void marriage is not entitled to maintenance. He pointed out that Section 125 provides a summary remedy for maintenance, while the present issue involves Section 25 of HMA which is a provision under personal law for determining alimony in matrimonial cases.

“There is no conflict at all. Yamunabai's case is not under section 24 and 25, it is under 125 CrPC which is inherently a summary remedy. Under section 125 CrPC, Court can always say you go under the regular personal law which will give you maintenance.”

He added, “Only because there is a decree of nullity, no woman who has got married should remain helpless and no woman should become destitute, that is the object of granting maintenance.”

The appellant's counsel argued that reasoning in cases such as Rameshchandra Daga v. Rameshwari Daga (2005) 2 SCC 33—which stated that a bigamous marriage may be illegal but not immoral, thereby allowing maintenance—was flawed and not supported by law.

Counsel for the respondent-wife argued that the marriage in the present case was not void. However, Justice Oka clarified that the court was proceeding on the assumption that the marriage was void, as this was a reference case aimed at deciding a legal question. The case would be decided by the regular bench after the legal question is settled, the Court said.

The counsel for the wife also referred to the Supreme Court's ruling in Rameshchandra Daga v. Rameshwari Daga (2005) 2 SCC 33, which held that while a bigamous marriage may be illegal, it cannot be declared immoral in order to deny the right to maintenance and alimony to the wife.

Senior Advocate Mahalaxmi Pavani appeared for the respondent.

Case no. – Civil Appeal No. 2536/2019

Case Title – Sukhdev Singh v. Sukhbir Kaur

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