SMT. YAMUNABAI ANANTRAO ADHAV versus ANANTRAO SHIVRAM ADHAV AND ANOTHER

Citation: [1988] 2 S.C.R. 809 · Decided: 27-01-1988 · Supreme Court of India · Bench: RANGANATH MISRA · Disposal: Dismissed

Cited by 5 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

SMT. YAMUNABAI ANANTRAO ADHAV 
A 
v. 
ANANTRAO SHIVRAM ADHAV AND ANOTHER 
JANUARY 27, 1988 
[RANGANATH MISRA AND LALIT MOHAN SHARMA, JJ.I 
B 
Criminal Procedure Code, 1973: Section 125-Hindu woman 
marrying a Hindu man having a lawfully wedded wife-Whether 
entitled to maintenance-Personal law of the party-Whether can be 
excluded-Expression 'wife'-Meaning of. 
Hindu Marriage Act, 1955: Sections 4, 5(i), 11, 12, 14, 16-
Hindu woman marrying a Hindu man having a lawfully wedded wife-
Whether such marriage valid-Effect of such marriage-Whether such 
woman entitled to maintenance under s. 125 Cr. P.C., 1973. 
Words and Phrases: Expression 'wife'-Meaningof. 
The appellant was married to the first respondent by observance 
of rites under Hindu Law in June, 1974, while the first respondent's 
earlier marriage was subsisting and the wife was alive. After living with 
the first respondent for a week, she left the house alleging ill-treatment. 
She filed an application for maintenance in 1976, which was dismissed 
by the trial Court. Her appeal to the High Court was dismissed by a Full 
Bench. 
In the appeal to this Court it was urged on behalf of the appellant 
that a marriage should not be treated as void because such a marriage 
was earlier recognised in law and custom and in any event, the marriage 
/"'-would be voidable under s. 12 of the Hindu Marriage Act, 1955, that the 
term "wife" ins. 125 of the Cr. P.C., 1973 should be given a wider and 
extended meaning so as to include therein not only a lawfully wedded 
wife but also a woman married, in fact, by performance or necessary 
rites or following the procedure laid down under the law, that the 
personal law of the parties to a proceeding under s. 125 of the Cr. P.C. 
should be excluded from consideration, and since a divorcee has been 
held to be entitled to the benefits of the section, a woman in the same 
position as the appellant should also be brought within the sweep of the 
section, and since the appellant was not informed about the respon-
dent's earlier marriage, when she married him, who treated her as his 
wife, her prayer for maintenance should be allowed. 
809 
c 
D 
E 
F 
G 
H 
810 
SUPREME COURT REPORTS 
[1988] 2 S.C.R. 
A 
It was contended on behalf of the respondent that the term "wife" 
B 
c 
used in Section 125 of the Cr. P.C. meant only a legally wedded wife, 
and as the marriage of the appellant must be held to be null and void by 
reason of the provisions of the Hindu Marriage, Act, 1955 the appellant 
was not entitled to any relief under the section. 
Dismissing the appeal, 
HELD: 1. The marriage of a woman in accordance with the 
Hindu rites with a man having legal spouse, after coming into force of 
the Hindu Marriage Act, 1955 is a complete nullity in the eye of law and 
she is not entitled to the benefit.of Sec. 125 of the Criminal Procedure \.. 
Code, 1973. [813D] 
J 
2.1 Clause (l)(i) of s. 5 of the Hindu Marriage Act, lays down, 
for a lawful marriage, the necessary condition that neither party should 
have a spouse living at the time of the marriage, and therefore a 
D 
marriage in contravention of this condition is null and void, under 
section 11 of the Act. [813G] 
2.2 By reason of the overriding effect of the Act, as mentioned in 
s. 4, no aid c11n be taken of the earlier Hindu law or any custom or usage 
11-s a par~ of that law, inconsistent with any provisions of the Act. Section 
E 
12 is confined_ to other categories of marriages, and is not applicable to 
one solemnized in violation of s. S(l)(i) of the Act. Cases covered under 
section 12 are not void ab initio. [813H; 814A-B] 
2.3 The marriage covered bys. 11 are void-ipso·jure, that is, void 
from the very inception, and have to be ignored as not existing in law at 
all if and when such a question arises. Although the section permits a-41 
F 
formal declaration to be made on the presentation of a petition, it is not 
esseptial to obtain in,advance such a formal declaration from a court in 
a proceeding specifically commenced for the purpose. [814B-C] 
The marriage of the appellant must, therefore, be treated as null 
G and void from its very inception, [815C] 
~-
. 3.1 Section 125 has been enacted in the interest of a wife, and one 
_) ~ 
who intends to take benefit under sub-section (l)(a) has to establish the 
'I 
necessary conditiol), namely, that she is the wife of the person con-
cerned. This issue can be decided only by a reference to the law appli-
H cable to the partie

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