This article is written by Shivani Sharma, from Symbiosis Law School, NOIDA. This article deals with the case study of Ramesh Chandra Rampratapji Daga V. Rameshwari Ramesh Chandra Daga.

Introduction

This case is about the sad story of an Indian lady, who experienced two marriage relationships with two men as both the marriages were not successful. In this case the court gave the wide interpretation of Section 25 of Hindu Marriage Act 1955 which discusses the important issue as mostly seen in all family law cases that is Permanent maintenance and alimony. These are two cross appeals which are filed by the respondent as well as appellant arises out from the matrimonial proceedings.

Facts

The appellant’s (Husband) first marriage was formalized with late smt. Usha, he had three children which were born out of this marriage. The respondent (wife) was also married to another man named Girdhari Lal Lakhotia.

According to the wife, the standard ceremonies of marriage were not finished as her previous in laws squabble about dowry. She had recorded a Divorce Petition in Matrimonial Court at Amravati, however it was not indicted and no pronouncement of separation was passed. In that situation, as per the pervasive custom in Maheshwari people group a Chhor Chithhi or a report of disintegration of marriage was executed between the wife and her past husband, this fact was also disclosed by the wife as she also gave a photocopy of the document to the appellant.

Later they got married and from this marriage they had a child whose name was pooja. She was becoming the victim of domestic violence by her husband as her father did not fulfill all his demands. After getting upset with all this, she left her husband’s house with her daughter and started living with her father. After that, she filed a complaint against her husband in the Family Court of Bombay, where she asked for the decree of judicial separation for cruelty and claimed maintenance of rupees three thousand per month for herself and daughter.

Husband also filed a cross petition stating that at the time of his second marriage, the wife’s first marriage was not completely dissolved and was pending in the court. So as per the provision of Hindu Marriage Act 1955 the marriage should be considered as invalid and void under Section 11 of the act. He also questioned the legitimacy of the child pooja as her daughter.

The Bombay family court dismissed the husband’s petition and granted a decree of judicial separation and awarded one thousand rupees per month in the favor of the wife. Further the husband challenged this decision in the high court and the counter petition was also filed by the wife. The high court upheld the decision of the family court but granted maintenance to the wife. In order to not agree with this decision, both the parties filed a cross appeal against each other in the Supreme Court of India.

Issues

The first issue was put up in front of court that whether or not the marriage solemnized between respondent and appellant is considered to be null and void.

If the above issue is resolved so whether or not the wife is entitled to maintenance  as per section 25 of Hindu Marriage Act 1955, if yes so, this section is applicable on those marriages which are null and void in the eyes of law.

Rules

There are following rules which are applicable in this case which are discussed as follows:

Provisions of Hindu Marriage Act 1955

Section 25 -Permanent maintenance and Alimony

(1) Any court exercising jurisdiction under this Act may, at the time 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, while the applicant remains unmarried, 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 and the conduct of the parties, 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.

Section 5- Conditions for a Hindu Marriage

(i) This section talks about Monogamy that means neither parties of a marriage should not be in polygamy, if it is found them that marriage is considered to be void.

Section 11-Void Marriage

Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.

Section 10-Judicial Separation

(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section(2) therefore, as grounds on which a petition for divorce might have been presented.

Case Reference

Chand Dhawan v/s Jawaharlal Dhawan SC0538 1993

Judgment

In this case the supreme court held that the marriage solemnized between respondent and appellant is considered as null and void because it is against the provision of section 5(i) of the act, the court did not give validity to the Chhor Chithhi as a complete decree of divorce.

In Spite of that the court granted the permanent maintenance to the wife as gave the wide interpretation of the section 25 of the act and stated that section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in marriage relationship and says that any type of decree issued by the court comes under the ambit of Any type of Decree. It is an enabling provision as it empowers the Court in a matrimonial case to consider facts and circumstances of the spouse applying and decide whether or not to grant permanent maintenance. (referred Chand Dhawan v/s Jawaharlal Dhawan SC0538 1993)

Analysis

The court gave a decision in order to resolve the first issue that the marriage between appellant and respondent considered as null and void on the grounds that this is against the provision of Section 5(i) of the act. The court did not give validity to Chhor Chithhi and said that the Hindu marriage can be dissolved only in accordance with the provisions of the act by obtaining the decree of divorce from the court.

My opinion is totally divergent from the point of view of the court because the primary sources of Hindu marriage is based on the custom’s Holy books, Shastra, Vedas. As it gives prominence to every custom and tradition and it is also seen under the provision of the act as well. The Section 7 which talks about seven steps which has to be followed in order to make marriage valid along with fulfillment Section 5, but it also give exception to the fact that if any custom or community do not permitted or not followed then the marriage should be solemnized as per the custom and tradition of that community. If that much leverage is given in order to make the marriage valid so why is this not extended to attain the decree of divorce? It is proved from the fact of the case that it is duly acknowledged to the husband by wife and the photocopy of the document is given to him before the second marriage. The court should accept those documents as well. So, the marriage between the appellant should not be considered as null and void.

But I agree with the court in order to grant permanent maintenance to the wife. In Spite of the fact that the court declared the marriage null and void and give the wide interpretation of Section 25 of the act which confers jurisdiction on the matrimonial court to grant permanent maintenance to any of this spouses during the passing of any decree whether it is the decree for considering the marriage as null and void. In the present case the husband argues that when the marriage is considered as null and void which means it has no validity in the eyes of law, so why should the court grant maintenance to the wife?

But after giving the wide interpretation of Section 25 the court come into the conclusion that itself the opening part of the section which says the court has power to grant maintenance under Section 25 while passing any type of decree during the court proceedings. So, this is not restricted to the decree which is given only in the cases of judicial separation or divorce. If the lawmakers themselves expand the expression as the time of passing any decree so why it is restricted to limited extent. Inspite of the fact that the polygamy was prevalent in all Hindu families but after the codification of the act and against the Section 5(i) and becomes illegal but not immoral.

In my opinion the decision of the court in relation to this issue is totally admissible as it is commonly seen in many situation that if the court declared marriage is invalid and the wife is financially weak then it is very difficult for her to maintain herself and the condition got worse when the husband is questioned on the legitimacy of the child born out of that marriage. So, this section enables the court to give maintenance to the spouse who is financially dependent. In the present case, it is proved that the wife was financially dependent on her husband and when she left his home, it is very difficult for her to survive. The husband also did reasonable enquiries about the first marriage of the wife and then came into the new relationship with her. The general presumption of the court and the society is that if two persons lived as a husband and wife and they had a considerably long married life of about nine years then it is the duty of the respective courts to grant maintenance to the wife. As it is seen in most cases that during this long-married life, generally the wife becomes totally dependent on the husband for her survival.

So far as the pooja’s parentage is concerned, the husband has failed to prove the same and as per the wife’s version it is proved that pooja is a child of appellant and respondent, so the permanent maintenance is given to wife as well as to the daughter by the appellant.

Conclusion and Suggestions

As far as the matter of divorce is concerned the court should also allow and give validity to all those documents which are enable to dissolve the marriage, but the court should also take into consideration that these documents are reasonable and both the parties have complete knowledge about that same. As the ultimate aim of the divorce is to provide relief to the struggling party. In the given case both the parties have the complete knowledge about the document and the husband argued because the wife’s father was not able to fulfil all his conditions and, on that ground, he wanted a decree of invalid marriage from the court and also questioned the legitimacy of the child. So, isn’t it an injustice to the wife?

In order to see the circumstances of the above case i would suggest the court should scrutinize all the customs and traditions which are followed in the Hindu society as are many customs and practices which are performed in the Indian society and if the court leaves on the people that if there are some customs which are practicing in that particular community by the people, then . to avoid any kind of ambiguity. If these customs and traditions are continuing in the same way then these kinds of situations will arise very frequently. There In order to make the custom valid and accordance with the provisions of the act, the court should follow all the requirements to make the custom perfectly valid. This will help in comparing the customs which are valid and invalid in the eyes of law. The bottom line of this complete analysis of the case is the court should validate the customary practices in relation to the divorce.

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