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Friday, January 9, 2015

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)

                                                                        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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