K.E. Swaminathan v. N. Sunitha (R.P.(F.C).No.333 of 2008)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 RPFC.No. 333 of 2008() ---------------------MC.128/2007 of FAMILY COURT, KOTTAYAM .................... REVISION PETITIONER/RESPONDENT -------------------------------------------------- K.E.SWAMINATHAN, S/O.LATE NEELAKANDA PODUVAL, AGED 34 YEARS, RESIDING AT KUNNATH ILLOM, MUNDALUR.P.O, MAKRERI AMSOM, KOTTAM DESOM, KANNUR DIST. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): PETITIONER ------------------------- N.SUNITHA, D/O.NARAYANAN MOOSAD, AGED 27, RESIDING AT NARAYANANGALATHILLOM, THALAPPULAM, PLASSANAL, KOTTAYAM DISTRICT. ADV. SRI.R.V.SREEJITH FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.10904 OF 2008 IN RPFC NO.333 OF 2008 ## DISMISSED 22.2.2010 SD/= M.N. KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE cl ## **M.N. KRISHNAN, J.** ........................................... R.P.(F.C).No.333 OF 2008 ............................................. Dated this the 22nd day of February, 2010. ## **O R D E R** This revision is preferred against the order of the Family Court, Kottayam in M.C.No.128/2007. The court below granted an order of maintenance at the rate of Rs.500/= to the wife from 15.5.2007. It is challenging that decision, the husband has come up in revision. 2. The borne of contentions between the parties is that, according to the husband, the wife was a mentally deranged person and suppressing that factum, the marriage had taken place. Therefore, he moved an application before the very same family court as O.P.No.598/2007 to declare the marriage as null and void. The maintenance case was disposed of on 21.5.2008, but on 15.5.2008 itself the court has declared the marriage as null and void. But I do not find any discussion in the maintenance case with respect to this decision. 3. The learned counsel for the revision petitioner would submit before me that in view of the declaration of the : 2 : R.P.(F.C).No.333 OF 2008 marriage as null and void there is no question of any relationship of husband and wife between the revision petitioner and the respondent herein and therefore the maintenance case has to be dismissed. 4. On the other hand the learned counsel for the wife would submit before me that Section 125 of the Cr.P.C is engrafted with the intention to provide maintenance to the neglected wife and children etc. The fundamental concept and theory of maintenance under Section 125 is to the wife and the Supreme Court of India in very many decisions including one of the latest decisions in **Savitaben Somabhai** **Bhatiya v. State of Gujarath** (2005 (2) KLT 65) held that there is no scope for enlarging Section 125 by introducing any artificial definition to include women not lawfully married in the expression wife. The conceptual differences between Sections 11 and 12 of the Hindu Marriage Act are that when there is violation of certain conditions under Section 5, the marriage at the very inception becomes void. But so far as other clauses are concerned, it is Section 12 that deals with the right of the parties and it becomes only a voidable : 3 : R.P.(F.C).No.333 OF 2008 marriage and has to move to annul that marriage. By virtue of the said provision, a competent court of civil jurisdiction exercising its function had declared the marriage between the revision petitioner and the respondent as null and void. When it is declared as null and void, there is no a marriage at all. 5. The maintenance petition was filed on 15.5.2007 and a declaration with respect to annulment of marriage was done on 15.5.2008. So, what will be the impact of an order of declaration of the marriage as null and void would be the next question that has to be considered. This matter has come up for consideration before the Rajasthan High Court in **Madan v. State of Rajasthan** ( 1993 (3) Crimes 372). A learned Judge of the said court has considered the question and the only difference between the void and voidable marriage is that in the former case, the marriage is void ab initio, void from the very inception and have to be ignored as not existing in law at all if, and when such a question arises, while in the latter case, the said marriage, continues to be effective unless the aggrieved party : 4 : ## R.P.(F.C).No.333 OF 2008 exercises the right to avoid it. After the marriage is annulled by a decree of nullity, then, from that date, such marriage has the same effect as in the case of void marriage. So, it has to be held that the result of invalidation of the marriage has to take effect from the date of declaration of the marriage as void and therefore during the pendency of the litigation and till the date of declaration, one cannot hold that the lady was not his wife, when it is admitted that a marriage has taken place. 6. Therefore I hold that invalidity of the marriage takes place only from 15.5.2008 onwards and therefore the wife in this case would be entitled to get maintenance for a period of 12 months from 15.5.2007 to 15.5.2008. Considering the facts and circumstances of the case and the factum that the marriage has been in subsistence only 6 days after the marriage, I feel that maintenance of Rs.500/= will suffice. From 15.5.2007 to 15.5.2008 it has to be paid by the revision petitioner in favour of the respondent therein. If any amount is paid already, that can be given credit to and the balance need be paid and if there is no balance, nothing : 5 : ## R.P.(F.C).No.333 OF 2008 remains to be paid. I make it very clear that since there is no marriage in the eye of law after 15.5.2008, it is made clear that the respondent in the revision petition is not entitled to claim any maintenance. Disposed of accordingly. ## **M.N. KRISHNAN, JUDGE** **cl** : 6 : R.P.(F.C).No.333 OF 2008