- (1.) THE only question to be decided in this second appeal is as to whether the wife (plaintiff) is entitled to claim maintenance under Hindu Marriage Act, 1955 when her marriage has been declared as void, as spouse of her husband (defendant No.1) was living at the time of her marriage with the plaintiff.
(2.) DEFENDANT No.1 is the husband of plaintiff. Plaintiff filed a suit being Regular Civil Suit No.288 of 1977 claiming maintenance at the rate of Rs.1800/- per annum and separate residence of two Khans for her from the suit property. It was contended on behalf of the plaintiff-wife that she was wedded to defendant No.1, her husband, and her marriage with defendant No.1 was solemnised about thirteen years ago from the date of filing of the suit. The said marriage was solemnised by following Hindu rituals and ceremonies. However, sometime after the marriage, defendant No.1 started harassing and ill treating her and also fell in love with one lady by name Vaijayantabai, due to which plaintiff was deserted by her husband defendant No.1 and she left the house of defendant No.1 and took shelter in the house of her parents at village Devwadi. The financial condition of plaintiff's parents was poor and, therefore, she filed the aforesaid suit for maintenance and separate possession. According to the plaintiff, income of defendant No.1 is about Rs.20,000/- per annum from agricultural lands and Rs.15,000/- from a tailoring shop, which he owns. Plaintiff, therefore, contended that defendant No.1's total income is Rs.35,000/- per annum and, she therefore, prayed for maintenance at the rate of Rs,150/- per month. The aforesaid suit was resisted on the ground that defendant No.1 was already married to one Housa alias Rukminibai prior to plaintiff coming in contact with the defendant and, therefore, plaintiff was not entitled to claim maintenance from defendant No.1. Trial Court held that plaintiff proved that she got married with defendant No.1 by following Hindu rites. Trial Court, however, held that in view of section 5(i) of Hindu Marriage Act, 1955, since Housa, wife of defendant No.1, was staying in the house of defendant No.1 and defendant No.1's marriage with Housa was not dissolved, marriage of plaintiff with defendant No.1 has become void. The trial Court of Civil Judge, Junior Division, Islampur, by his judgment and decree dated 29.11.1979 dismissed the suit by plaintiff.
(3.) AGAINST the aforesaid judgment and decree passed by the trial Court, plaintiff preferred an appeal being Regular Civil Appeal No.186 of 1980 in the Court of Extra Assistant Judge, Sangli, who by his judgment and decree dated 16.7.1982 partly allowed the said appeal and directed defendant No.1 to pay an amount of Rs.1200/- per year to the plaintiff from defendant No.1. The aforesaid decision of Extra Assistant Judge, Sangli, is subject-matter of this second appeal before me. Mr. R.B.Raghuwanshi, learned counsel appearing on behalf of appellant (original defendant No.1) contended that the lower appellate Court erred in granting the order of maintenance once having come to the conclusion that the marriage of defendant No.1 with plaintiff was void in view of section 5(i) of the Hindu Marriage Act, 1955. While granting maintenance, the learned Judge of the lower appellate Court relied upon the following observations of this Court in the case of Govindrao Ranoji Musale v. Sou. Anandibai, reported in AIR 1976 Bombay 433: " ... for the purpose of Succession Act and the Maintenance Act, the terms "wife" and "widow" would have a restricted articulate legal meaning. That by 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". Therefore, the lower appellate Court felt that there is no reason as to why plaintiff should be denied the relief of maintenance in the present suit when the issue about her marriage with defendant No.1 was dealt with and her marriage was declared void.;