SAU SHAILA BALASAHEB KADAM Vs. BALASAHED HINDURAO KADAM & ORS

Tags Maintenance

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 10086-10087 of 2014, Judgment Date: Nov 10, 2014

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 10086-10087 OF 2014

[Arising out of Special Leave Petition (Civil) Nos.35736-35737 of 2013]

Sau Shaila Balasaheb Kadam .. Appellant(s)

-vs-

Balasaheb Hindurao Kadam and ors. .. Respondent(s)

J U D G M E N T

C. NAGAPPAN, J.

1. Leave granted.

2. These appeals are directed against the impugned judgment and final

Order dated 3.5.2013 passed by the High Court of Judicature at Bombay in

Second Appeal No.348 of 2012 with Civil Application No.666 of 2012 in it.

3. The case of the appellant herein/plaintiff is that she married

respondent No. 1 on 6.7.1991 and at the matrimonial home she discovered

that respondent No.1 was already married to one Bharati and said fact was

not disclosed to her earlier and still she lived with him and became

pregnant and after a month ill-treatment started on the pretext that she

did not know agricultural work and her parents had not given household

utensils in the marriage and she was kept without food starving which

resulted in miscarriage. Thereafter the appellant herein prosecuted her

husband for cruelty and bigamy etc. and he was convicted and sentenced for

the said offences, and she was deserted and uncared for. According to the

appellant she was not having any source of income for her livelihood and

her husband owned immovable properties and she filed the suit seeking

monthly maintenance from him.

4. The respondent No.1 in his written statement admitted that he married

the appellant and she is his second wife. He denied the plaint

allegations with regard to suppression of his first marriage and the ill

treatment of the appellant in the matrimonial home. His main contention was

that she was not his legitimate wife and she is not entitled to claim

maintenance from him.

5. The trial court framed six issues and witnesses were examined on both

sides and it held that though the appellant/plaintiff is the second wife,

she is entitled to maintenance amount of Rs.450/- per month from her

husband, and decreed the suit accordingly by creating a charge on the suit

properties for the said amount. Respondent No.1 herein/husband preferred

appeal and the appellate court held that the plaintiff being second wife,

she is not entitled to claim maintenance and allowed the appeal by setting

aside the judgment of the trial court and the suit came to be dismissed.

The appellant herein/plaintiff preferred the second appeal and the High

Court held that the appellant had married the respondent No.1 during the

subsistence of his earlier marriage and hence she is not entitled to claim

any maintenance under Section 18 of the Hindu Adoptions and Maintenance

Act, 1956, and rejected the second appeal by holding that there is no

substantial question of law which requires its consideration. Challenging

the same the present appeals have been preferred.

6. The learned counsel appearing for the appellant contended that the

respondent No.1 duped the appellant by suppressing the factum of his first

marriage and the provision under Section 18(2) of the Hindu Adoptions and

Maintenance Act, 1956, provides for maintenance even to a second wife and

the High Court without considering the contentions raised, has rejected the

second appeal at the threshold by holding that no substantial question of

law arises for consideration and the impugned judgment is liable to be

set aside. It is his further contention that in a similar fact situation

this Court in the recent decision in Badshah vs. Urmila Badshah Godse and

Another (2014) 1 SCC 188) held that the husband by suppressing factum of

his first marriage duped and married the respondent and hence he cannot be

permitted to deny the benefit of maintenance under Section 125 of the

Criminal Procedure Code to her, taking advantage of his own wrong and the

said ratio is applicable to the present suit filed by the appellant

herein.

7. Per contra the learned counsel appearing for the respondent No.1

submitted that the marriage of the appellant with respondent No.1 having a

living spouse is a nullity and the said marriage is therefore, void and

the finding of the High Court that the second wife is not entitled to claim

maintenance is sustainable in law. The counsel placed reliance on the

decisions of this Court in Yamunabai Anantrao Adhav vs. Anantrao Shivram

Adhav and another (1988) 1 SCC 530 and Savitaben Somabhai Bhatiya vs.

State of Gujarat and others (2005) 3 SCC 636.

8. The High Court though recorded the submissions made by the counsel on

both sides, have not dealt with the same in proper perspective in the

impugned judgment. Of course the recent decision of this Court referred to

supra was not available to the High Court at the time of disposal of the

second appeal. However, the rejection of the same on the ground of having

no substantial question of law arising for consideration, in our view is

not proper and the judgment is liable to be set aside. Without expressing

any opinion on the merits of the contentions raised, we deem it fit to

remit the matter to the High Court for fresh consideration.

9. We accordingly allow these appeals, set aside the impugned judgment

and remand the matter back to the High Court and the High Court shall frame

the necessary substantial question of law and after hearing both sides

shall dispose of the second appeal in accordance with law at an early date.

No costs.

…….…………………...J.

(V. Gopala Gowda)

.…………………………J.

(C. Nagappan)

New Delhi;

November 10, 2014.

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