1. This appeal heard at some length raises, as is apparent, some intricate questions of law intermixed with problems of justice and fairness, of legality and of humanity, technical as well as of substance. The controversy centres round the human relations that became recognised by ties of marriage, its legal fallibility and consequential possibilities of avoidance of rights personal and of property. These problems arise this way.
2. Respondent Shantabai filed the present suit seeking reliefs of injunction against the defendants, the present appellants, restraining them from disturbing her possession and enjoyment of the properties and, alternatively, also seeking relief of possession of the properties which may not be found to be in her possession. She also prayed for the partition of C.S No. 372 and possession of one-third share therein.
3. These reliefs were so claimed on the basis that the plaintiff, Shantabai, was the lawfully married wife of deceased Sadashiv and, upon his death, was entitled to inherit all his properties which are described and set out in the schedules attached to the plaint, it is not in dispute that Dagadu and Mahadu (original defendants Nos. 1 and 2), appellants Nos. 2 and 3, are the two brothers of Sadashiv, all being sons of Bayaji.
4. The common defence of these appellants was one of denial of the title of the plaintiff and an assertion to the effect that as per the caste custom applicable to Maratha community of which the parties were members, during the lifetime of Sadashiv the plaintiff was divorced by him and thereafter, Sadashiv had taken Rajeshbai, appellant No. 1, as his wife, who was till his death residing with him as his lawful wife. As the plaintiff was the divorced wife, she was not entitled to any share or any right of possession to the properties of Sadashiv. According to the defence, Rejeshbai was married according to the Hindu religious rites applicable to the community on Nov. 26, 1963 at Nasik and as she was the only lawfully married wife and as such the widow of Sadashiv, she would be entitled to succeed to all the interest of Sadashiv to the exclusion of the divorced wife.
5. The factum of the custom of divorce as well as of the validity of the marriage of Rajeshbai in its turn were all denied by the plaintiff, the first wife of Sadashiv.
6. After trying the contentious questions between the parties, the trial Court found, upon evidence, that the custom was not established, that there was no divorce given by Sadashiv to Shantabai, that, therefore, though Rajeshbai went through the form of Hindu marriage, her marriage was void and as a result of this, it was the plaintiff who as the legally married wife and after her husband's death being his widow, was entitled to succeed to the interest and all the properties of Sadashiv. The trial Court found that the properties were in possession of the defendants and therefore, made a decree directing the defendants to deliver possession of the properties described at serial Nos. 1 to 4 in the schedule attached to the plaint and further made a decree with regard to the one-third share in the house bearing C.S No. 372. That decree is under challenge in the present appeal.
7. During the course of the hearing of this appeal, Civil Application No. 1639 of 1981 was filed by the appellants' learned counsel raising alternate plea in defence as far as appellant No. 1 Rajeshbai is concerned and that is to the effect that in any case upon the finding that Rajeshbai having gone through the form of marriage and her marriage because of law being declared null and void and for no fault on her part, she would be entitled to the relief of maintenance against the admitted estate of her husband Sadashiv. That application was allowed as the same was not opposed.
8. Therefore, in the appeal there is an additional issue raised at the behest of the appellants as to whether upon the finding that the marriage between Sadashiv and Rajeshbai was void as the earlier marriage between Sadashiv and Shantabai was subsisting, Rajeshbai would or would not be entitled to the maintenance from and against the estate of Sadashiv.
9. All the contentious questions involved in the present appeal were argued with considerable concern by the learned Counsel having regard to all the principles applicable to the controversy.
10. As far as the evidence and the factual findings, are concerned, it does not admit of any doubt that the parties belong to Maratha Patil community that would form part of the residuary class amongst “the Marathas”, the other two being the five families and the 96 families (see S. 630 of the Hindu Law by Mulla). Once this finding is supportable, the residuary class would be more or less governed by the principles of customs applicable as such to the Shudras. There is the preponderance of the evidence spoken to by the witnesses examined for the defendants to the effect that in the community to which the parties belong, there exists a long standing, well accepted and ever acted upon custom of divorce. The evidence of Dagadu (D.W 1) is categorical on this aspect. His caste consciousness is exhibited as of other witnesses as he asserts that he himself and others are from Maratha Patil community and are governed by customs as such. He states that the community has an extant custom of divorce based on mutual consent to be worked out at Caste Panchayats. The cross-examination of Dagadu does not affect the truth of these assertions. He has attended the caste panchayats for divorce right from 1935. Tanaji (D.W 2) is of 70 years of age. He is of the same community of Maratha. He too asserts that there is a custom of divorce. Warn an (D.W 3). similarly, states that there exists a custom of divorce in similar terms. Arjun (D.W 4), who is aged 72 years, speaks of customary divorces in the community in similar terms. Pandit (D.W 6) has divorced his own wife according to the caste custom. Daulat (D.W 7) is related to Rajeshbai and is aged about 50 years. He also speaks of the caste custom. Chindha Lala Bachhav (D.W 8) too in the cross-examination speaks of the custom in the community to have divorce. No doubt, the modality of the divorce spoken to by the witnesses is not uniform, but there is no uncertainty about their evidence on the aspect of existence of custom involving divorces by consent through Caste Panchayats. The custom that is spoken to by all these persons is with regard to the divorce permitted and recognised in the community and they also speak about the instances of the divorces taken by the couples and acted upon and as such recognised in the community. As against this, there is no evidence to show that there does not exist any such custom. Therefore, it is apparent on the basis of the evidence that the findings recorded by the learned trial Judge that there is no custom is unsustainable. The evidence consistently shows that by mutual consent and by calling the panchas customary divorce is extant. Minor variations in the testimony of these witnesses on the aspects of actual working out the customary divorces do not affect the proof of the custom itself.
11. Now, once it is found that in the community to which Sadashiv. Shantabai and Rajeshbai belonged, there could be customary divorce, the more important question is whether actually before Rajeshbai was married with Sadashiv there was in fact a divorce between Sadashiv and Shantabai. The trial Court has given the negative finding on this aspect and the evidence goes to show that finding is well-merited. The evidence does not carry any conviction at all that Shantabai was duly divorced by Sadashiv according to the caste custom. On the other hand, Shantabai's evidence and the photographs produced during the trial, and particularly at Ex. 138, clearly go to show that Shantabai was in the family even after Rajeshbai was married with Sadashiv. The evidence of Shantabai on this aspect is preferable to the contrary evidence coming through the witnesses examined in support of the defence. According to Shantabai, as she was not getting the child, her mother-in-law suggested that Sadashiv should take a second wife and she (Shantabai) agreed to that suggestion. She states that she never was divorced nor did she agree to put her thumb impression on a stamp paper which Sadashiv wanted her to give. She denies that any Caste panchayat was held. She states that one notice was published by Sadashiv in “Gavkari” newspaper, but as soon as the notice came to her knowledge, she sent a reply through her lawyer, Mr. Kotnis, and also published the same in newspaper, asserting that there was no divorce. Sadashiv thereafter came and took her to his own house and they were all living together till he died. The photograph at Ex. 138 shows that she is sitting near the head of the dead body of Sadashiv and Rajeshbai is sitting behind her. According to her, Rajeshbai was just brought 2-3 years before his death and was not married at all. The undisputed and proved facts go to show that there is no writing that evidences any divorce. The evidence of the so-called panchas alleged to have been called for the purpose of giving divorce is far from satisfactory. As far as the documentary evidence shows, it is inconsistent with the fact of divorce. As soon as Sadashiv published the notice in the “Gavkari” newspaper. Shantabai denied the fact of divorce. Not only that, but thereafter at the time of the death of Sadashiv, she is very much seen sitting by the side of the head of the deceased Sadashiv. Her evidence on this aspect deserves to be accepted.
12. The evidence on record is indicative that though there is a caste custom under which the consenting parties can take a divorce, it does not go further to establish that actually Shantabai consented to or was actually divorced by Sadashiv. Her marriage with Sadashiv, being not in dispute, continued till he died.
13. The evidence of Rajeshbai goes to show that she was taken in marriage by Sadashiv and all the forms and the rituals necessary for the marriage were gone through. So is the evidence of Daulat who states that Rajeshbai is his sister's daughter. He speaks about the marriage that was performed in the temple of Kala Ram by the Bralirnin priest. He speaks about the sacrament of Saptapadi and Homa. This evidence can hardly be doubted. In fact, Rajeshbai is seen also in the photograph on which reliance is placed by the plaintiff herself. The plaintiff's assertion that she was brought without marriage does not appear to be true nor consistent. Thus, during the lifetime and before the death of Sadashiv, he had married by going through the form of Hindu Marriage with Rajeshbai and till his death, Rajeshbai was residing with him.
14. Under the provisions of the Hindu Marriage Act, which was applicable to the marriage of Rajeshbai, it is obvious that in view of the first subsisting marriage of Sadashiv with Shantabai, the marriage of Sadashiv with Rajeshbai would be void, being in breach of S. 5(i) of that Act. Such marriage, S. 11 of the H.M Act declares to be null and void.
15. Two questions were argued by the contesting Counsel in this appeal with regard to the application of Section 5(i) of the H.M Act read with S. 11 thereof so as to find out the entitlement of Shantabai to succeed and to possess the property of Sadashiv. It was contended that S. 11 is a remedial section and, therefore, in a suit of the present kind, no declaration can be entered against the marriage of Sadashiv with Rajeshbai, particularly when it is admittedly shown that the plaintiff must have been the consenting party to such a marriage. It is submitted that it is only in special proceedings under the H.M Act and at the behest of the parties to the marriage that such an issue can arise and can be adjudicated upon. Because there was no annulment of the marriage under S. 11 of the Act, it is contended that Rajeshbai would continue to be “the widow” of Sadashiv and as such entitled to succeed and inherit his properties and she cannot be excluded from possession at the behest of a co-widow.
16. It is difficult to accept any of these propositions. The object of enacting the H.M Act is to amend and codify the law relating to marriages amongst the Hindus, though no doubt the provisions of that Act provide for the special remedies with regard to specific reliefs through marital courts. It does not follow from the provisions, like S. 11, that when the legality of marriage in any other proceeding is in issue, the same cannot be answered by reference to the provisions of the h.m act. On the other hand, as far as the conditions with regard to the Hindu Marriages are concerned, S. 5 would be of universal application to all those persons who are subject to it, and with reference to those provisions the validity of any marriage, when in issue, in any collateral proceedings, can well be adjudicated upon, it is only when a special relief of the kind mentioned in S. 11 is being sought so as to annul the marriage solemnised after the commencement of the Act that the special remedial procedure will have to be followed. It will be too narrow a construction to hold that in, every case whenever an issue of validity of marriage arises, having reference to the conditions of S. 5, the matter must be referred or the matter must arise only in the special jurisdiction under the H.M Act. The declaratory parts and the remedial parts of the statute need not be intermixed. It is apparent that some of the provisions of the h.m act are definitive and declaratory. These could be applied as and when an occassion arises to apply the same and in any proceedings. As far as the marriage is concered, S. 5 enacts the conditions of the legal Hindu Marriage, S. 6 deals with guardianship in marriage matters and S. 7 deals with ceremonies necessary for performance of a Hindu marriage. All these three sections are definitive and declaratory in character and well apply to every marriage amonst the Hindus subject to the Act. Special remedial provisions available in Ss. 9 to 13 of the Act, permitting marital reliefs, are not exhaustive nor compulsively universal so as to exclude powers of ordinary civil courts to find out legality of marital relations. When reliefs of the kind mentioned in Ss. 9 to 13 are sought, those provisions are exhaustive and compulasive and exclude the jurisdiction of other courts. Marriage, being a legal relation involving matters of status and title of persons, whenever the same is in issue the definitive provisions will have to be applied.
17. It follows that it would be competent in any suit of such a kind to consider whether Rajeshbai was legally married or not with Sadashiv and for that purpose, it is not necessary that during the lifetime of Sadashiv any proceedings under S. 11 should have been resorted to. It may be indicated that Section 11 of the H.M Act itself is in two parts, the first being declaratory while the other remedial in character. It is not a general or universal remedy available to each and everyone related to either of the spouses. Remedial aspect enables either of the spouses to present a petition for declaration and get a decree of nullity with regard to the marriage solemnised in contravention of Cls. (i), (iv) and (v) of S. 5. From this, it does not follow that in any other action, the legal validity of marriage cannot be set up. If such a construction is preferred, it would cut down the universal jurisdiction of civil courts to consider matters of civil status and title. If marriage involves matters of civil and legal status and consequent matters of personal and proprietary titles, jurisdiction available to courts cannot be deemed to be excluded.
18. The effect of the declaratory and definitive provisions in law is that legal results follow provided conditions thereof are satisfied. In matters of marriage amongst Hindus, if the enacted conditions laid down by cls. (i), (iv) and (v) of S. 5 are not satisfied, then, as the first part of S. 11 enacts, the marriage is void ipso jure. Marriage, no doubt is a voluntary union of one man with one woman to the exclusion of all others. Alien it is not to law, in public and social interest, to enact compulsive conditions for such a union. The three statutory conditions enacted by S. 5 are of that compulsive nature and unless satisfied do not confer legal validity upon such union of persons by marriage. Such union by marriage even though voluntary but in breach of these conditions is not marriage in the eye of law. It would be null and void from its inception. The injunctive rule that neither party should have a spouse living at the time of the marriage is enacted to prohibit polygamy and to institute measures of monogamy. Enquiry on this aspect cannot ensue on mere ethical notions but has to be strictly legal, that represents public and social interest. Such injunctive character of law can always be set up in any legal proceedings when questions of status and title arise, whether during or after the lifetime of either of the spouses or both. I do not find any impediment either because of any principle or policy not to permit such issues being raised and adjudicated upon after the death of either or both of the spouses to such a marriage.
19. The competency of Court in such matters being so concluded, the result is inevitable, in that the marriage between Sadashiv and Rajeshbai while Sadashiv's first wife Shantabai was living at the time of their marriage, is void ipso jure. No doubt, they united by going through the form of marriage as the evidence shows, but mere form does not make it a marriage in law. For the purpose of law, Rajeshbai cannot be treated as “wife” of Sadashiv during his lifetime, nor his “widow” after his death. ‘Wife’ denotes a legal and juridical relation resulting from a valid and legal marriage, while “widow” a state after the death of the husband till such person remains unmarried. It is possible to state in the context of the law that the term ‘wife’ is connotative of the legal as well as the legitimate status. There may be cases where that status is not available to a woman because of injunctive process of law. Though such woman, therefore, might have undergone the formal process of marriage, her status would be that of illegitimate wife. For the purpose of distinction, she can be so termed as “illegitimate wife”. Such wife is not conferred with status which is available to a legitimate wife nor has any entitlement as the lawful heir of her husband to take the property under the provisions of the Hindu Succession Act.
20. Both by virtue of status and of law, upon the demise of Sadashiv, Shantabai alone would be “his widow” and as such would succeed to his properties and all interest therein under the provisions of the H.S Act.
21. This conclusion is enough to uphold the decree under appeal, but, as stated above, leave was granted during the course of the hearing of this appeal, which was adjourned from time to time for settlement, to raise the point that under the facts and circumstances of the present case, an absolute decree for possession of the properties left by Sadashiv without providing for the maintenance of Rajeshbai cannot, nor should in fairness, be passed. Rajeshbai has filed an affidavit seeking to assert that she should be given a place of residence in 4 gunthas of land and a sum of Rs. 300 per month be provided towards other amenities. At the hearing, Shantabai personally appeared along with her Counsel. She showed her willingness to deposit or pay to Rajeshbai a sum of Rs. 20,000/- in full and final settlement of her claim for maintenance against the estate of Sadashiv.
22. Before the orders in this regard are finally made, it is necessary once to advert briefly to the legal position in regard to women who become affected because of such legal declarations about their marriages otherwise solemnly gone through and are left without any succour or help. Indeed, laws' premises in this filed are not adequate nor clear. It may be that advisedly the results are left to the fair discretion of courts.
23. Now, fundamentally in the scheme of Hindu Law and even under the provisions of the codified H.M Act, the marriage is not a mere matter of contract, its breach or its failure one may or the other, either because of law or because of the act of the parties, would not therefore, ordinarily give rise to the claims on the principles available and applicable upon breach of contract. A reference to the legislative history leading to codification of different branches of Hindu Law would show that apart from passing the H.M Act, Parliament undertook the codification of the H.S Act. 1956, the Hindu Minority and Guardianship Act, 1956 as well as the Hindu Adoptions and Maintenance Act, 1956. All these independent Acts deal with different subjects and the objectives of these will have to be gathered independently though as part of the same system of Hindu Law. Interpretative approach should of necessity be uniform. Words having reference to legal relations and titles cannot be treated to have different meanings.
24. The first question that arises for consideration is that a person of the type like Rajeshbai, who came to be united with Sadashiv by going through the form of marriage that was later found to be void de jure, could at all be considered as having entitlement to inherit or to succeed under any of the provisions of the H.S Act. The provisions of that Act are made to effectuate legal relations. The order of succession and priorities therein open upon the death of a Hindu male and are governed by special statutory rules. Consequences, where a Hindu dies and is survived by a female relative specified in Class I of the Schedule, are the past of enacting provisions. The word “widow” in that Class I or in any other part of such law, as is placed in juxtaposition of the other relatives, clearly intends to imply a spouse who was legally married and at the time of the death of her husband wag having the same subsisting legal status. A female, whose marriage is void de jure and surviving the death of the husband would not be covered by the term “widow” either in Class I of the Schedule or anywhere such reference occurs. The term “widow”, though not defined in express terms, clearly means and implies a female who was united in marriage recognised by law and who survives the husband without remarriage. Dilation by debate of this statutory sense of the word “widow” is neither possible nor permissible nor furthers the object of the Act.
25. Similar and identical phraseology is employed by the H.A and M. Act and we have words “wife” and “widow” in several places in sections that make Chap. III dealing with the matters of maintenance. It must be observed that S. 21 is not exhaustive of categories of dependants needing measures of maintenance. That is statutory categorisation of dependants for the purpose of application of the Act and enforcement of rights thereunder. In that context cl. (iii) speaks of “his widow” as the dependent of the deceased and qualifies by saying so long as “she does not remarry”. That word connotes legitimacy or lawful title to widowhood. That Act does not recognise a relation by marriage which is void de jure and such surviving female, upon the death of her spouse, would not be a relative that can be characterised as “a widow” for the purpose of S. 21 of the Hindu Adoptions and Maintenance Act. 1956 To be a dependant widow within the meaning of that section, a surviving female upon the death of the husband must be shown to have had lawful stater of widowhood. Significant it is, that other entries in S. 21 show that illegitimate issues have been included in the categories of dependants. “Illegetimate wife” in the sense I have chosen to use this term to indicate the female who has been married but whose marriage is found void cannot be conferred with the status of widowhood, None she can be covered by any other entry in that section as “dependant widow” so as to confer entitlement to have rights of maintenance under the provisions of the Hindu Adoptions and Maintenance Act, 1956.
26. About the term ‘wife’ or ‘widow’ in the context of Marriage, Succession or Maintenance enactments, the terms undoubtedly are of restrictive legal character. These are by themselves articulate, legal terms and those imply the relation that results from a recognised legal mode of marriage.
27. No doubt, in the context of penal statute, a term like “wife” was treated to include a mistress, (see Banwari Lal v. Emperor, AIR 1914 Lah 455) while it was explained in the context of the Oudh Estates Act (1 of 1869), that the word used in s. 29 of that act meant “a woman whose husband has died and who has not been married to any other man”. (See Abdul Halim v. Raja Saadat Ali, AIR 1928 Oudh 155). There, the issue arose in a different context so as to what happens upon the re-marriage of a Mahomedan widow and what would be the legal effects of her entitlement to succeed to the property of the Mahomedan husband. While considering the provisions of S. 29, which used the phrase “widow,” the Court observed that the word “widow” indicated a woman who is a widow, that is, whose husband has died and who has not married to any other man. It was further pointed out that the dictionary meaning of the word “widow” is a woman who has lost her husband by death and has not married again. The argument that the expression should also include a woman who was once a widow was repelled. The first case, in my view, does not render any assistance. In fact, being the matter of penal statute. I would hesitate to enlarge upon the scope of the words in such a statute. The second, however, indicates the accepted principle that the word “widow” has to be interpreted in the context of given law.
28. In Inland Revenue Commrs. v. Gaunt, (1941) 1 KB 706, the appeal Court was called upon to consider whether the word “wife” used in S. 38 of the English Finance Act of 1938 should extend to the case of a widow and in the context of the provisions of law, the learned Scott L.J, whose view has received concurrence by other Lords, observed that it was wrong to limit the word “wife” as excluding “the widow” and in the context of the section the word “wife” should extend to the case of a widow. The learned Lords made it clear that in the context of law the word “wife” would include “a widow.” This is all indicative as to how once legal status of “wife” is available, the same gets impressed in understanding the word “widow” both being matters of legal status.
29. Then, there are two decisions, one under the provisions of the Madras Hindu Bigamy Prevention and Divorce Act and the other under the provisions of the Hindu Marriage Act in the case of Sivakami Ammal v. Bangaruswami Reddi, AIR 1554 Mad 1039, the Court found that the word “wife” in Sec. 5(7) would mean a person who would have been the wife tot for the decree of divorce or dissolution passed in the trial Court, in the case of Govindrao v. Anandibai, AIR 1976 Bom 433, the learned single Judge of this Court upheld the claim of a wife, whose marriage was declared null and void by making a decree of nullity, for the maintenance under Sec. 25 of the Hindu Marriage Act. There, the marriage was found void de jure and consequent decree followed under Sec. 11 of the Act. The learned Judge found that Sec. 25 of that Act not only provides for a remedy but also confers a right upon such “a wife” and refused to give literal meaning to the word “wife” or “husband” used by that section, in his view:—
“The words ‘wife’ and ‘husband’ used in sub-s. (1) of S. 25 of the Act would include within their scope a woman and a man professing the Hindu faith who have gone through a ceremony of marriage which would, in law, have conferred the status of a wife or husband on them but for the provisions of Sec. 11 read with Cls. (i), (iv) and (v) of Sec. 5 of the Act.”
30. These decisions are authorities for the proposition that the term “wife” is a juridical term and so also the term “widow.” In the context of the given law, the meaning thereof has to the gathered keeping the object of law in view. Primarily, therefore, it would not be permissible to include in the term “wife” or “widow” that relation which is not recognised by law. However, it is implicit in the judgment of this Court in Govindrao's case (supra) that there can be class of persons who, as I propose to call, are “illegitimate wives or widows” who can be the subject of benefaction of law of maintenance, notwithstanding that eventually their legal status is annulled. Undoubtedly a female spouse united by marriage enters upon a status and is conferred with immediate as well as inchoate rights attached to such status by virtue of her marriage and that is because of the gift and conferment of law. When that status is shaken and found to have no sanction, it does not follow that even the inchoate lights of such person are totally eclipsed. As distinct from succession or inheritance, the right of maintenance can be treated to be a separate one the first two arising upon the natural or civil death of the husband, while the latter always available during the lifetime and even depending upon the contingent conditions after the death of the husband. Maintenance thus is a personal right. In its character it can be treated to be a secular right recognised by almost all the systems of personal laws in various degrees and under varying conditions. Though, therefore, for the purpose of the Succession Act and the Maintenance Act the terms “wife and widow” would have a restricted articulate legal meaning, that fey itself would not be the position when the matter arises for the purpose of providing the measures of sustenance on considerations of justice and fair play involved and basic to all human and social relations.
31. Because of this, whenever issues of maintenance arise, they raise an intensely human problem. In the present case, Rajeshbai, appellant No. 1, was undoubtedly married with Sadashiv by the recognised form of marriage in the prime of her youth. She came to be united in person with Sadashiv and cohabited with him till his death. There as clear evidence that the other wife, Shantabai, was a consenting party to the union by marriage of Rajeshbai and Sadashiv. It is equally true that consent does not cure the defect of law, nor can it operate as an estoppel against Shantabai However, the question is whether having found that Rajeshbai was an illegatimate wife, who had gone through the form of marriage which is found to be void de jure, is she, upon the facts and circumstances, and particularly when Sadashiv has left the suit properties, not entitled to the claim for maintenance? Is it conceivable that although had the matter been under Section 25 of the Hindu Marriage Act she would be entitled to such a maintenance, no such relief can be given by the Court whose aid is sought to recover the properties on the basis that the marriage of Rajeshbai is void de jure? Is the Court not possessed of powers to do justice to the parties placed in such situation acting upon the similar principles underlying the provisions of Sec. 25 of the Hindu Marriage Act? Is that such a person who has done everything and surrendered her prime of the youth to be at the mercy of the cold dictates of law and to remain ever unprovided and suffer the pangs of destitution?
32. In the Book by Derrett. “Introduction to Modern Hindu Law,” on the analogy of contractual relationship, it is suggested in paras 671 and 672 that upon the failure of such a marriage an award of compensation or damage on the principle that there is a breach of implied warranty assured by the husband should be made and should be treated to be available to Court exercising jurisdiction with regard to marriages. Reading of these paras suggests that this view is mostly impressed by two factors, firstly, of the implied warranty involved in the act of a man who takes a woman as his wife by going through the form of a marriage, which eventually is adjudged as invalid and, secondly, by extension of principles of English Law enunciated by Lord Denning in Shaw v. Shaw, (1954) 3 WLR 265, to the effect that this implied involved warranty in the relation of husband and wife could be given effect to by awarding due damages to the wife upon failure of marriage. In that case, the learned Lord was dealing with the cause where the husband and wife lived for 14 years and where, after the death of the husband, it was found that their marriage was not legal because the husband's real wife was alive when the marriage took place. The Court put the matter on the implied term of warranty undertaken by such a husband as binding on successor. Lord Denning observed:—
“The most important breach of all was at the moment of his death, because when he died she was not his widow as she thought she was …… That is the breach for which, in my judgment, damages can be recovered.”
33. I am afraid that the principles of English Law which treat the marriage as a matter of contract can hardly have applicative force where the legal system regards it not as a contract but as a sacrament. Under Hindu system, right from its Shastric origin, legal marriage upon solemnisation results in the union of two spouses. In such union hardly there is any scope to read a warranty of the kind which could arise when juridically duality of persons is maintained. Historically as well as sociologically, institution of marriage is not on identical par amongst Hindus and other communities.
34. However, that in my view, cannot be the end result of such cases where the finding is recorded by the competent Court that the marriage is void de jure. Firstly, the provisions of the Hindu Adoptions and Maintenance Act. 1956 are not the provisions which can be treated to be exhaustive of matters for awarding maintenance. To the extent the provisions are made there, the same would apply or be operative, but there would arise cases where the matter may arise under the general principles of law regarding the maintenance and the Court would be in a position to grant the same.
35. The measures for maintenance by themselves are secular and social in character. Those aim at avoiding immorality and destitution. Maintenance for juridical purposes has its own pragmatics having relation to the need and necessity to make provisions for securing reasonable bioeconomic as well as biocultural requirements for persons, such as shelter, food, garment and health. In the tenets of Hindu Shastric Law, two principles subserve this need to provide reliefs of maintenance and those emanated firstly from social ethics and secondly because of personal economics. The persons related to each other and dependant as such, could look for such, relief by reason of law both on the moral and secular grounds. Subject to conditions; it was a personal obligation and where there was estate, the rights in maintenance could be worked against the estate, nay, was a charge upon it. The moral or pious obligations mostly arose as personal liabilities, while those against property could be classed as economic or secular ones.
36. The principles of Hindu personal Law have developed in an evolutionary way out of concern for all those subject to it so as to make fair provision against the destitution. There is clear evidence to indicate that the law of maintenance stems out of the secular desire and so as to achieve the social objectives for making bare minimum provision to sustain the members of relatively smaller social groups. Organically and originally the law itself is irreligious. Its fountain spring is hummanistic. In its operational field all through, it lays down the permissible categories under its benefaction, which are so entitled either because of the tenets supported by clear public policy or because of the need to subserve the social and individual morality measures for maintenance.
37. Further, it must be kept in view that the institution of property amongst the Hindus is a fine admixture of rights and duties, obligations and liabilities. In fact, it is an intermixture of corpus that is the object and the capacity that is the right or entitlement to it. A Hindu may possess the property and yet it would be limited by moral and civic obligations. One of such recognised obligations inscribed into the property of a Hindu was that of maintenance of dependants. There is no reason to hold that by codification of the laws, this basic concept for providing a sort of social security and having general insurance in favour of dependants has been completely taken away or abrogated by passing of the Hindu Adoptions and Maintenance Act, 1956. Necessity to provide even now may arise out of the premises of that Act and will have to be so worked out.
38. On parity of the principle that prevailed with this Court in Govindrao v. Anandibai, AIR 1976 Bom 433, it can be said that even after the Court rendered a decree of nullity under S. 11 of the Hindu Marriage Act, the wife ralated by such marriage was treated to be entitled under Sec. 25 of that Act to possess a right to have alimony and maintenance. Thus it is obvious that had the matter arisen during the lifetime of Sadashiv between Sadashiv and Rajeshbai and the matter would have been under S. 11, Rajeshbai would have been entitled to rely on Sec. 25 of the Hindu Marriage Act so as to claim the relief of maintenance. I do not think that only by reason of the fact that the proceedings are after the death of Sadashiv, there should be any change in the principle. If Sec. 25, as has been found by the above decision conferred a right that right could be worked out even in collateral proceedings if it be correct that the declaration of nullity of such a marriage could be rendered in such proceedings. Therefore, it will have to be found that Rajeshbai is entitled to rely on the principles of Sec. 25 of the Hindu Marriage Act and to invoke the powers of the Court for making provisions for just and fair maintenance.
39. Even apart from Sec. 25 of the Hindu Marriage Act, I would think that in such matter the Court possesses the inherent power to make such orders in matters of maintenance as may be necessary so as to meet the ends of justice. The principles underlying Sec. 151 of the Civil P.C are no more in doubt. Where the need and the circumstances to do justice require, the power to act ex debito justitiae exists and can be invoked. That power as is observed by the Supreme Court in Manoharlal v. Seth Hiralal, AIR 1962 SC 527, is not conferred on the Court but is inherent in the Court “by virtue of its duty to do justice between the parties before it.” The power will not be exercised when there is any express prohibition enacted by any statute nor would it be exercised when the operational field is covered by the terms of the statute or the terms of the Code. It would always be exercised undoubtedly and unfailingly to reach out a just and fair dispensation of justice to the parties before the Court.
40. When Laws' terms are inadequate and lead to loose ends in unfair tracts, the Court can rely on its inherent power to do justice. With changing complexity of human relations and limes, everything cannot be provided by enacted statutes and unfailing as well as just results can be left to be worked out by the Courts possessing such a power. This power has been exercised so as to grant maintenance pendente lite in partition suits. (See Sushilabai v. Ramcharan, 1976 Man LJ 82). Along with this is the holding of the principles enunciated by this Court that under Sec. 25 of the Hindu Marriage Act, the wife whose marriage is void would be entitled as of right to the relief of permanent maintenance once the marriage is annulled by a decree of nullity under Sec. 11. There is no reason to deny similar relief on pari materia principle, though strictly the decree is not passed having reference to Sec. 11 of the Hindu Marriage Act. The right recognised by Sec. 25 of the Hindu Marriage Act can clearly be worked out in any civil proceeding subject to consideration of facts and circumstances so as to meet ends of justice by resort to the inherent powers conferred upon the Court by Sec. 151 of the Civil P.C The statutory references do not indicate that there is any prohibition or any specific provision in this regard. On the other hand, the principle is statutorily recognised that upon a decree being passed for nullifying the marriage as void de jure, the Court is possessed with ample power to make orders as to alimony and maintenance. What could therefore be available in special proceedings cannot be said to be not available when the same issue is involved collaterally in competent civil proceedings. Strictly, the statutory entitlement of the Court may not apply but having the recognised right and necessity to enforce it, the Court can in exercise of its inherent powers reach out justice by giving remedial and such salutary reliefs. Justice after all is another name of fairness. It cannot be blind to the facts in a given case and should reach out in its mercy those results which would be necessary to avoid ruinous consequences like economic or moral destitution. Ultimately, having based the relief on Sec. 151 of the C.P.C with the aid of inherent powers and drawing upon the principles underlying Sec. 25 of the Hindu Marriage Act, it is implicit that before maintenance is granted, the need to grant such must exist as well as the grantee must fulfil the ordinary conditions, like that of chastity, not being married to any other person and further of not being in a position to maintain herself.
41. Relying on the pari materia provisions of Sec. 25 of the Hindu Marriage Act and relying on the inherent powers of the Court to make orders so as to meet the ends of justice, I think, an appropriate order for maintenance in favour of Rajeshbai can be made, though it has to be concluded that in her appeal on other aspects, she cannot but fail.
42. Fairly Shantabai has come out with an offer to pay Rs. 20,000/- exclusively in full and final settlement of claims for maintenance of Rajeshbai. As stated above, Rajeshbai wants a house to reside and an award of Rs. 300/- per month. The parties are the residents of Malegaon and appear to belong to a middle class agricultural family. The amount of Rs. 20,000/- which is given without any condition, would sub-serve the need for securing a reasonable accommodation and a reasonable return, which will be enough to provide other amenities.
43. Taking this view, the decree made by the trial Court, though confirmed, is made conditional, in that upon the deposit of Rs. 20,000/- to be paid in a lump sum in full and final settlement of claim for maintenance of Rajeshbai, the plaintiff would recover possession of the properties as are described in the decree made by the trial Court. It made clear that it is only upon the deposit of Rs. 20,000/- and from that date onwards, if at all the plaintiff wishes to recover any mesne profits, that cause of action for that would arise in her favour. This clarification was necessitated because there had not been any decree nor any cross-objections filed, but the apprehension was expressed that the parties may litigate unnecessarily in that regard.
44. There will be no order as to costs throughout in view of the findings herein.
Ordered accordingly.