By Sujit Bhar
A Supreme Court bench of Justices Abhay S Oka, Ahsanuddin Amanullah and Augustine George Masih recently passed an order by which a spouse remained entitled to permanent alimony and maintenance even if the marriage had been declared null and void under Section 11 of the Hindu Marriage Act of 1955. The bench, however, said that this is not a blanket order, and each case will have to be treated on its merit. It found remedy to this issue in Section 25 of the same Act.
The bench said that even if, prima facie, the matrimonial court found that the marriage between the parties was void or voidable, the Court was not precluded from granting maintenance pendente lite (depending on the outcome of litigation) provided the conditions were satisfied. The Court pointed to the remedy available in Section 25 of the Hindu Marriage Act, applicable to the wife, as well as to the husband.
The Court, therefore, found remedy away from what has been available under Section 125 of the CrPC—this is Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)—and said that this Section 25 of the Hindu Marriage Act remedy was completely different, because it conferred rights on the spouses of the marriage that had been declared as void under Section 11 of the Hindu Marriage Act.
To realise the issue better, one needs to understand what these Sections have talked about. Section 11 of Hindu Marriage Act says that there are certain conditions (as specified in Section 5), the violation of which can lead to the marriage being declared void. The conditions, detailed in clauses (i), (iv), or (v) of Section 5 are as follows:
- Neither party has a living spouse at the time of the marriage.
- Neither party is incapable of giving valid consent due to unsoundness of mind.
- The groom is at least 21 years old and the bride is at least 18 years old.
- The parties are not in a prohibited relationship, unless custom or usage permits the marriage.
The violation of any of the above provides good cause for nullification of a marriage.
Section 25, on the other hand, deals with maintenance and support payments between spouses. This means that the Section empowers the court to order a spouse to pay the other spouse a sum of money as maintenance/support.
According to the Section, the court can order a spouse to pay a lump sum or a monthly sum for a period that doesn’t exceed the applicant’s life. This decree of the court comes (mostly) after an application has been made to the effect by one spouse.
This order can be modified or rescinded if either spouse remarries, or if the wife has not remained chaste, or if the husband has had sexual intercourse with another woman.
Other parts of the Section deals with the formula and principles to be applied while determining the amount of maintenance thereof.
While this remedy is suitable for both, there is one matter that needs special consideration. This is about a child who may have been the product of a marriage that has been declared void. While socially this could be a tricky matter, the law has made special provisions in this regard.
The Act says that any child of a void marriage, who would have been legitimate if the marriage had been valid, is considered legitimate. This is true regardless of whether a decree of nullity is granted.
This is possibly the most humane face of this law. The law realises that while a misdeed by two adults should be dealt with strictly, such a measure should not affect the health and well being of the innocent child, who had not committed any crime in being born of such a marriage. This understanding and the consequent laying down of the law means that the child gains legal, hereditary rights, and all the rights that are consequent to an offspring in a legitimate marriage.
While this handling of the issue of the child is humane, it still does have the potential to create legal nightmares. If the man in question, say, has had a previous marriage (with the wife living) and has had children from that marriage, then the legitimacy of the child from the nullified marriage could create a long lasting legal wrangle. To this extent, a permanency of maintenance off a nullified marriage makes perfect sense. This allows the other spouse to finance the child through the maintenance received.
This (maintenance) should not cancel the child’s other rights, having been declared a legitimate offspring, though the other issues would have to be dealt with via other means.
At this point it is also necessary to understand what Section 125 of the CrPC (Section 144 of BNSS) is all about. Section 125 allows a magistrate to order someone to pay a monthly allowance for the maintenance of their spouse, children, parents, or other relatives.
As always, the applicant can be a wife, child, parent, or other relative who is unable to maintain him/herself. In other cases, this also includes an older parent, including an adoptive parent, who is unable to sustain themselves, or even a minor married daughter who is unable to maintain herself.
For this, there is no specific directive of either a divorce or a nullification of marriage. While applying to a family court or before a magistrate, the applicant needs to provide proof of neglect or refusal. The result may be the magistrate ordering the defendant to pay a monthly allowance.
The scope of this Section is at once large and narrow. While Section 25 of the Hindu Marriage Act deals with cases within a void marriage, this CrPC section has a wider reach. The CrPC section also applies to a larger cross section of people (different religions, race, etc). However, the issue of a void marriage and its resultant maintenance issues (in a Hindu marriage) cannot be dealt with through this.
This order should set a nice precedent in legal practices and the resultant applications.