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)
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
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.
(V. Gopala Gowda)
November 10, 2014.