The maxim no one can take advantage of his own wrong comes into full play. The appellant in the first instance refuses to maintain his wife and provide her a shelter. He marries another woman and walks out of the respondent's life. He does not give her maintenance or provides for separate residence to which she is lawfully entitled to thereby forcing her to live separately on her own. She is forced to resort to litigation and the husband comes out with the plea that the wife is not entitled to maintenance for the period during the pendency of the suit as she had allegedly not spent any such amount on her maintenance or on separate residence. This is wholly unjust. Section 18 is a beneficial provision for the purpose of securing a decent living for a Hindu wife and to ameliorate the sufferings of a deserted wife. They are to be construed in a manner which better serves the ends of fairness and justice. When such laws are made, it is proper to assume that law makers enact laws which the society considers as honest, fair and reasonable and thus justice and reason constitute the great general legislative intent in such a piece of legislation. The courts must lean towards an interpretation which is just, reasonable and fair. If the interpretation suggested by the appellant is accepted, it would offend the very sense of justice. The appellant cannot avoid his obligation under the law by taking shelter of such ingenious pleas.
Delhi High Court
Suresh Khullar vs Sh. Vijay Kumar Khullar on 27 August, 2007
Equivalent citations: AIR 2008 Delhi 1, 148 (2008) DLT 685
1. The appellant is the second wife of the respondent. The respondent had put up an advertisement for marriage stating that he is a divorcee and extremely well-to-do and have a thriving business. He made the appellant believe that his salary is in four figures and that he held a diploma in Industrial and Marketing Management. It was under this impression that the appellant, who was survived by a widowed mother, married the respondent in accordance with Hindu rites and rituals on 14.10.1988. Within a few days of the marriage, the respondent threw the appellant out of the matrimonial home and filed a petition for divorce. The appellant also filed petition under Sections 18, 20 & 22 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as the 'Act') for grant of separate residence and maintenance before the trial court being suit No. 3/96.
2. It was only during the course of the divorce proceedings that it was disclosed to the appellant that the respondent had obtained a decree of divorce from his first wife from a Court in Una, Himachal Pradesh - a Court that had no jurisdiction whatsoever to adjudicate upon the divorce matter according to the first wife. As alleged by the first wife, no valid service of the divorce proceedings had been affected on the first wife. The said ex-parte decree was set aside by the Court which passed the decree on the ground that there was no valid service of summons on the first wife of the respondent herein.
3. The appellant alleges that the respondent intentionally did so, so that he could take the plea that the effect of setting aside the decree was that the first marriage revived as if there was never any divorce and consequently, the marriage of the appellant with the respondent is not a valid marriage. Accepting the plea of the respondent that the appellant is not his legally wedded wife, the said maintenance petition has been dismissed. Challenging that judgment, the present appeal is preferred.
4. The contention of the appellant is that
(a) the respondent played fraud upon the appellant and he cannot take advantage of his own wrong. Submission is that he took ex-parte decree of divorce from his first wife fraudulently on the basis of which he represented to the appellant that he was a bachelor again, being a divorcee and, therefore, competent to solemnise the marriage again.
(b) As far as the appellant is concerned, on the day when she got married with the respondent, it was a valid marriage because the respondent had divorced his first wife and was in possession of decree of divorce. Therefore, there cannot be any doubt concerning the validity of appellant's marriage to the respondent. The events which followed thereafter could not be attributed to the appellant and, therefore, the appellant cannot be denied the rights given to legally wedded wife.
(c) The respondent is estopped from refusing to give the maintenance on the ground of nullity of marriage as it is the respondent who is a wrongdoer. The appellant is a victim of cheating and fraud. The appellant even alleges that when the first wife filed the application for setting aside of ex-parte decree, the respondent ensured that the said application is allowed so that marriage between the respondent and the appellant is vitiated. This intention of the respondent was clear from the fact that the respondent had already filed a petition for divorce against the appellant by that time. Therefore, he did so with the objective of avoiding of payment of maintenance to the appellant. The appellant is, thus, a victim of cheating and fraud and though it is the respondent who is the wrongdoer, he has been given the benefit of his wrong.
5. The plea of the appellant is that in a case like this, the provision of Section 18 of the Hindu Marriage Act are to be construed liberally when on the date of marriage the respondent was a divorcee and legible to enter into matrimonial alliance afresh, the status of the appellant should be treated as that of legally wedded wife for the purpose of awarding her the maintenance. It is the contention of the appellant that otherwise the very purpose of enacting provision like this, which entitles a destitute woman to get maintenance from her husband, would be defeated. In support of liberal construction, the learned Counsel referred to the following judgments:
3. Shiv Kumar Singh son of Late Surendra Pal Singh v. State of U.P. and Ors. decided by Allahabad High Court on 30.1.2007 and available on Manupartra with the citation as Manu/UP/0040/2007.
6. Learned Counsel for the respondent, on the other hand, submitted that as per the provisions of Section 5 of the Hindu Marriage Act, the marriage of the appellant with the respondent was void inasmuch as first wife of the respondent had been living. A void marriage was no marriage in the eyes of law and, therefore, the appellant was not entitled to any maintenance or separate residence under Sections 18, 20 & 22 of the Act. As the maintenance under Section 18 of the Act could be given only to a 'Hindu wife' which means legally wedded wife. For application of Section 18 of the Act, the condition precedent is the status of woman as Hindu wife which means a subsisting marriage at the time of filing of the petition and pre supposes its continuity. He argued that the status of a woman could be either as the wife of a man or his concubine, there could not be intermediary class picturesquely described as an "illegitimate wife".
7. Before we embark on this discussion, we may take note of some more facts. When the respondent had filed divorce petition against the appellant herein under the Hindu Marriage Act, the appellant moved application under Section 24 of the Hindu Marriage Act for grant of maintenance and litigation expenses. The matrimonial court granted maintenance @ Rs. 500/- per month vide dated 24.9.1991 with effect from August, 1989. The respondent paid maintenance at that rate for some time but after that stopped making payment. The appellant also moved application under Sections 18, 20 and 22 of the Act for interim maintenance. She claimed maintenance @ Rs. 3000/- per month with effect from 5.1.2001 with adjustment of Rs. 500/- per month being received by her in the matrimonial proceedings. The application for interim maintenance was rejected by the learned trial court. The appellant filed appeal which was also dismissed by this Court. The appellant filed SLP which was granted and converted into Civil Appeal No. 184/2003. This appeal was allowed and interim maintenance @ Rs. 2000/- per month beginning from the month of May, 2005 till the decision in the main case was granted by the Supreme Court. While doing so, following order was passed:
Heard learned Counsel for the parties.
By the impugned orders, the High Court rejected the prayer for grant of interim maintenance in favor of the alleged second wife. It appears that the question as to whether the appellant is a second wife and if that is so, she is entitled to claim maintenance under the Hindu Adoptions and Maintenance Act, 1956, is hotly contested issue in the main proceeding, as such at this juncture, we refrain ourselves from expressing any opinion on merits of the claims and contentions of the parties. For the time being, we are of the view that without deciding the question, the appellant should be allowed interim maintenance at the rate of Rs. 2,000/- per month beginning from the month of May, 2005 till the decision of the main case.
Accordingly, the appeal is allowed, impugned orders are set aside and the question which was raised in the present appeal is left open to be decided in the main case. The respondent is directed to pay Rs. 2,000/- per month by way of interim maintenance to the wife, who is the appellant, beginning from the month of May, 2005 till the decision of the main case pending before the trial Court. The quantum of maintenance for the month of May, 2005 shall be paid by seventh day of the succeeding month i.e. 7th June, 2005 and likewise for succeeding months till the disposal of the main case, which shall be paid by bank draft in favor of the appellant and sent to the appellant by registered post at her address so that the same may be received on or before the aforesaid date. No costs.
8. The appellant was receiving maintenance at the aforesaid rate which the respondent has stopped paying after the impugned judgment dated 29.7.2005. Perusal of the impugned judgment would show that following three issues were framed by the learned trial court:
1. Whether the petition is not maintainable in view of preliminary objection No. 1 to 3 in the written statement?
2. To what amount and for which period the plaintiff is entitled to as maintenance from the defendant? OPP
3. Relief.
9. Issue No. 1 was treated as preliminary issue which has been decided against the appellant and consequently the petition was dismissed. In the argument raised by the learned Counsel for the respondent, since he has relied upon the reasoning given by the learned trial court, we reproduce the relevant portion of the judgment to understand the reasons why the petition is dismissed as not maintainable:
Now the question arises whether the second wife is entitled to maintenance from the husband. In Khemchand Om Prakash Sharma v. State of Gujrat and Anr. relied upon by Ld.
Counsel for respondent, the Apex Court has held that the second wife is not entitled to maintenance. However children of second marriage are entitled to maintenance. Reliance is also placed on Vimala (K.) v. Veeraswamy (K.) wherein the Apex Court has
again held that the Second Wife is not entitled to maintenance under Section 125 Cr.P.C. The Apex Court has thus held that:
However, under the law a second wife whose marriage is voidon account of the survival of the first marriage is not a legally wedded wife and is, therefore, not entitled to maintenance under this provision. Therefore, the law which is disentitles the second wife from receiving maintenance from her husband under Section 125 Cr.P.C., for the sole reason that the marriage ceremony though performed in the customary form lacs legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is a measure of social justice intended to protect women and children.
Ld. Counsel for respondent has relied upon the authority Bakulabai v. Gangaram 1988 RLR (SC) 171 wherein, it was held by the court that second or the third wife during the subsistence & life of first wife under the Hindu Marriage Act 1955 is void and not legal, hence cannot claim maintenance. Reliance is further placed upon the authority Mrs. Sayarabi v. Mrs. Ayodhya Bai and Ors. 1 (2005) CLT 54 (MP) Wherein it was held that a women who marries a man already married after advent of Hindu Marriage Act does not acquire a right for inheritance.
Reliance is further placed upon Smt. Yamuna Bai Anant Rao Adhav v. Anantrao Shivram and Anr.wherein it was held that marriage with a person having living spouse is null and void.
It is pertinent to note that Hindu wife is entitled to maintenance from her husband under Section 18 of the Act, in the circumstances as indicated in the said provision of law exist. The term wife or Hindu wife is not defined under the Act. Hindu wife is the one whose marriage is solemnised with Hindu husband in accordance with the provision of Hindu Marriage Act and is not void or dissolved by a decree of divorce. The conditions under Section 5 and 7 of Hindu Marriage Act are also relevant for this purpose. The marriage of petitioner with the respondent being void on account of setting aside the exparte decree of divorce obtained by the respondent from his first wife, the petitioner thought is victim of circumstances cannot be said to be legally entitled to the claim of maintenance or invoke the provision of Section 18, 22 & 23 of the Act.
10. All the judgments on which reliance is placed by the learned trial court deal with the issue that second wife is not entitled to maintenance as her marriage is void on account of survival of first marriage and, therefore, she is not legally wedded wife. However, while giving this decision, learned trial court has not considered the matter in the perspective in which the appellant has placed her case before us. Primarily, the two-folded submission which is made is not adverted to in the impugned judgment. The learned trial court has not dealt with the situation viz. on the date when the appellant married the respondent, he had divorced his first wife and was in possession of a decree of divorce granted by a competent court of law. Therefore as on that date, he was a divorcee and could enter into the matrimonial alliance again. The learned trial court has also not considered as to what would be the effect of husband playing fraud with the second wife while solemnizing marriage with her. Therefore, we deem it proper to decide these two aspects in this appeal on which we heard the counsel for the parties.
Re: Validity of the marriage on the day it was solemnised and its effect
11. The respondent had filed the petition for dissolution of marriage against his first wife on 7.11.1983 in the Court of District Judge, Una, Himachal Pradesh. Ex-parte decree of divorce was obtained on 29.10.1984. The respondent married the appellant on 14.10.1988 i.e. almost four years after the respondent had taken divorce from his first wife. In these circumstances, when the respondent represented the appellant that he was a divorcee and divorce was granted four years ago, the appellant could legitimately presume that there was no legal impediment in getting married to the respondent. She could not even foresee that the ex-parte decree of divorce granted in favor of the respondent could be challenged by the first wife in future when four years' time had already elapsed. All the judgments referred to by the learned trial court proceed on the premise that first marriage is subsisting when the second marriage is solemnized and, therefore, such a marriage is void on account of survival of the first marriage. Reason is simple. When the first marriage exists, there is a prohibition from contracting/solemnizing second marriage and, therefore, such a marriage is void and consequently, second wife is not legally wedded wife. However, in the instant case, when the appellant got married with the respondent on 14.10.1988, first marriage was not subsisting but had been dissolved by a court of law. In fact, as pointed out above, ex parte decree of divorce was granted to the respondent on 29.10.1984, which decree had not been set aside by that time. This decree was in operation. Therefore, on that date the respondent was a divorcee and marriage between the appellant and the respondent on 14.10.1988 was a valid marriage on the date it was solemnised.
12. Having regard to the purpose and rationale with which Section 18 of the Act is enacted, namely, to put obligation upon the husbands to grant maintenance to their destitute wives etc., such a provision needs to be given wider connotation so that the purpose behind enacting this provision is not lost. Definitely, in those cases where first marriage is subsisting and thus second marriage is void, the second wife would not be entitled to claim maintenance as she is not a legally wedded wife. However, it should not be the case where as on the date of marriage there was no impediment. More so when the second wife is innocent and oblivious of the circumstances in which ex parte decree of divorce is obtained by the husband against first wife.
13. In this case, it has been established that the respondent had committed fraud with the appellant from which it can safely be inferred that the appellant had no role in colluding with the respondent in obtaining ex parte decree of divorce against the first wife. Position would be different when in a given case the husband fraudulently obtains ex parte decree of divorce against his first wife to get rid of the first wife so that he is able to marry another woman and the other woman with whom he wants to marry has knowledge of the fraud and in that sense she is privy to his acts.
14. In the instant case, we find that unfortunately, the matrimonial relations between the appellant and the respondent also were not smooth and the appellant was allegedly turned out of the matrimonial home soon after the solemnization of marriage between them. The respondent even filed divorce petition in the year 1989. The first wife of the respondent moved the application under Order 9 Rule 13 CPC for setting aside the ex-parte decree on 12.3.1990. This happened much after the respondent had married the appellant. Nay, curiously enough this application came to be filed by the first wife only after the relations between the appellant and the respondent soured and the respondent filed divorce petition against the appellant. Who knows, this move was stage managed by the respondent himself!
15. After all, the appellant had also filed suit for damages against the respondent and first wife of the respondent on the ground of fraud and cheating which has been decreed by Sh. G.N. Pandey, Civil Judge, Delhi, vide judgment and decree dated 16.9.2005. Therefore, we can proceed on the basis that the appellant was defrauded by the respondent. jThe nebulous conduct of the respondent is thus manifest. A Division Bench of this Court in G.C. Ghosh v. Sushmita Ghosh 2001(4) AD (Delhi) 700, which was also an appeal arising out of maintenance petition filed under Section 18 of the Act, though involved some other issue but considered the blameworthy conduct of the husband, had the occasion to make the following observations:
The maxim no one can take advantage of his own wrong comes into full play. The appellant in the first instance refuses to maintain his wife and provide her a shelter. He marries another woman and walks out of the respondent's life. He does not give her maintenance or provides for separate residence to which she is lawfully entitled to thereby forcing her to live separately on her own. She is forced to resort to litigation and the husband comes out with the plea that the wife is not entitled to maintenance for the period during the pendency of the suit as she had allegedly not spent any such amount on her maintenance or on separate residence. This is wholly unjust. Section 18 is a beneficial provision for the purpose of securing a decent living for a Hindu wife and to ameliorate the sufferings of a deserted wife. They are to be construed in a manner which better serves the ends of fairness and justice. When such laws are made, it is proper to assume that law makers enact laws which the society considers as honest, fair and reasonable and thus justice and reason constitute the great general legislative intent in such a piece of legislation. The courts must lean towards an interpretation which is just, reasonable and fair. If the interpretation suggested by the appellant is accepted, it would offend the very sense of justice. The appellant cannot avoid his obligation under the law by taking shelter of such ingenious pleas.
16. In a case like this, if the interpretation we are suggesting is not given, it would amount to giving premium to the respondent for defrauding the appellant. Therefore, we feel that in a case like this, the appellant, at least for claiming maintenance under Section 18 of the Act, be treated as legally wedded wife.
17. In the decisions of the Supreme Court, which are referred to by the learned trial court, such a situation did not crop up and, therefore, in these peculiar circumstances, we hold that when the appellant had conspired with the respondent in obtaining divorce by the respondent from the first wife or even had any knowledge about the manner in which the respondent succeeded in obtaining ex parte decree of divorce from the first wife, the appellant should not be made to suffer.
18. It is trite that while interpreting the statute, courts not only may take into consideration the purpose for which the same has been enacted, but also the mischief it seeks to suppress (See Sneh Enterprises v. Commissioner of Customs ). We may also, with advantage apply the maxim construction ut res magis valeat quam pereat, namely, where alternative constructions are possible the court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than the one which would put hindrances in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result (See Nokes v. Doncaster Amalgamation Collieries Ltd. 1940 AC 1014 [Maxwell pg. 45]). Where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, fiction or confusion into the working of the system (Shannon Realities Ltd. v. Ville de St. Michel (1924) A.C. 185 [Maxwell pg. 45]). We hasten to add that this interpretation we are giving only in deciding the question of entitlement of the appellant to claim maintenance from the respondent under Section 18 of the Act. Therefore, in coming to this conclusion we can also take some support from the provisions of the Protection of Women from Domestic Violence Act, 2005 and particularly, Section 2(a) as well as Sections 18, 20 and 26 of the said Act, which are to the following effect:
2. Definitions.-In this Act, unless the context otherwise requires,-
(a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;
18. Protection orders.-The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favor of the aggrieved person and prohibit the respondent from-
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependents, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.
20. Monetary reliefs.-
(1) While disposing of an application under Sub-section (1) of Section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,-
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.(4) The Magistrate shall send a copy of the order for monetary relief made under Sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under Sub-section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under Sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
26. Relief in other suits and legal proceedings.-
(1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.
(2) Any relief referred to in Sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.
19. We, therefore, allow this appeal and set aside the impugned judgment. Issue No. 1 is decided in favor of the appellant/petitioner and against the respondent holding that the petition filed by the appellant under Sections 18, 20 and 23 of the Hindu Adoption and Maintenance Act is maintainable. We remand the case back to the learned trial court for decision on other issues. We also make it clear that the interim maintenance of Rs. 2,000/- per month, which the appellant was getting earlier pursuant to the interim order shall stand revived. No costs.
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