Wife In Voidable Marriage Not Disentitled To Maintenance Unless Decree Of Nullity Is Passed: Allahabad High Court

The Allahabad High Court has held that wife's right to claim maintenance cannot be denied merely because the marriage “could” be annulled when there is no decree of nullity shown to the Court.Justice Rajiv Lochan Shukla held,“Unless and until, a marriage, which is voidable, has been declared a nullity by a decree, the status of the revisionist as the legally wedded wife of the opposite party No.2 persists and all the rights that flow from the same continuous.”Wife-revisionist approached the High Court against order of the Family Court denying her maintenance under Section 125 Cr.P.C. The Family Court had held that she was not entitled to maintenance as she was living separately as the husband had hid the factum of his previous marriage and divorce. The Family Court had also referred to Section 12 of the Hindu Marriage Act (voidable marriages) and held that the wife could obtain a decree of nullity on grounds of fraud (hiding previous marriage) and was therefore, not entitled to maintenance. Hence, she approached the High Court.The High Court at the outset observed that a mere passing reference to the previous marriage and divorce being concealed from the revisionist could not lead to any conclusion that the revisionist was willfully avoiding her duties as a wife and was living separately from her husband without reasonable cause.Justice Shukla further held that merely because a marriage could be annulled/ declared void, maintenance to the wife cannot be denied. The Court held that revisionist was still the legally wedded wife of the opposite party-No.2. “Here, no proceedings have been been drawn to the notice of the Court where either of the parties had sought a decree for declaration of the marriage as a nullity as such, once marriage persists, the status of the revisionist as the legally wedded wife of the opposite party No.2 continues and not subject to challenge. The marriage itself has not been declared a nullity and in the absence of the same, denial of relief of maintenance on the incorrect assumption of the applicability of Section 12(1)(c) of the Act, 1955 was clearly illegal and perverse.”Accordingly, the order was set aside and the matter was remanded to the Family Court for passing fresh orders. Case Title: Sweta Jaiswal v. State of U.P. and AnotherClick Here To Read/Download Order

Wife In Voidable Marriage Not Disentitled To Maintenance Unless Decree Of Nullity Is Passed: Allahabad High Court

Upasna Agrawal

Tags