# Sarnam Singh, Lekhpal Chakbandi Plaintiff/ v. Preetam Kumari & Anr

- **Citation:** (2023) 4 ILRA 174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-05
- **Case number:** Second Appeal No. 1087 of 2015
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarnam-singh-lekhpal-chakbandi-plaintiff-v-preetam-kumari-anr-50089
- **Pages:** 9

## Headnote

Civil Law- Code of Civil Procedure, 1908 -
Section 100 - Hindu Marriage Act, 1955 -
4 All. Sarnam Singh, Lekhpal Chakbandi Vs. Preetam Kumari & Anr.
175
Section-25 - Second appeal against the
part of the judgment & decree of the
lower appellate by which the permanent
alimony has been granted to defendant
against plaintiff- Trial court decreed the
suit filed for declaration of the marriage
as null and void and also dismissed the
suit filed for restitution of conjugal rights-
Since the trial court passed the decree
declaring
the
marriage
as
void
/
ineffective, as such, there was no occasion
to order for maintenance / permanent
alimony in favour of respondent - wife
while dismissing the civil appeal filed by
respondent - wife- No application u/s 25
of the H.M Act on record as such exercise
of power u/s 25 of the H.M Act by the
lower appellate court while dismissing the
civil appeals filed by respondent - wife,
affirming
the
decree
of
trial
court,
declaring
the
marriage
as
void
and
ineffective is vitiated by manifest error of
law. (Para 15, 16, 17, 20 & 21) (E-15)

List of Cases cited:

## Text

174 INDIAN LAW REPORTS ALLAHABAD SERIES
lenient view may be taken in matter of
recovery of surety amount.

13. In Jagannath Vs State of U.P.,
2008 (6) ALJ 696 (All), it has been held that
"where the surety appeared before the Court,
his application for discharge and remission of
penalty would not be rejected merely on the
ground that the Court has already passed
order for forfeiture of whole amount."

14. In this case though the trial Court
has exercised its jurisdiction under Section
446 (3) Cr.P.C., it has also been noted that
when the sureties produced the accused in the
Court before that the amount of the surety
bonds had been forfeited. From the principles
laid down in the aforesaid judicial precedents,
it is clear that even after forfeiture of the
surety bonds, order of remission may be
passed adopting lenient view if the accused
had been produced by the sureties in the
Court concerned.

15. In Jamila Khader Vs. State of
Keral, 2004 CrLJ 3389 Kerala, it has been
held that "the Appellate or Revisional Court,
as the case may be, can always consider,
even at a later stage, where there are
circumstances
warranting
remission
of
penalty."

16. In Mohd. Kunju Vs. State of
Karnataka, AIR 2000 SC 6, "the surety
amount of Rs. 25,000/- was remitted to
Rs.5,000/- only i.e. 1/5th of the total amount"

17. In Jamila Khader (supra) instead of
ordering to pay whole amount of Rs. 5,000/-
only Rs. 5,00/- was directed to be deposited,
after remission.

18. During the course of argument,
learned A.G.A. opined that if 1/5th of the
total amount is directed to be deposited by the
revisionists and rest amount is remitted, it
would meet the ends of justice.

19. Considering the overall facts and
circumstances, the order dated 12.5.2022
passed by the trial Court is modified to the
extent that instead of depositing Rs. 50,000/-,
the revisionists shall pay Rs. 20,000/- within
a month from the date of this order.

20. In case of the compliance of this
order as indicated above, proceedings under
Section 446 Cr.P.C. would be terminated by
the Court below by passing a speaking order.
Let a copy of this order be transmitted to the
Court below for compliance and necessary
action.

21. With the aforesaid observations, the
revision stands disposed of.
----------
(2023) 4 ILRA 174
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.04.2023

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Second Appeal No. 1087 of 2015

Sarnam Singh, Lekhpal Chakbandi
 ...Plaintiff/Appellant
Versus
Preetam Kumari & Anr.
 ...Defendants/Respondents

Counsel for the Appellant:
Sri Manoj Kumar Sharma, Smt. Krishna
Singh, Sri Vijendra Pal Singh

Counsel for the Respondents:
Sri Manoj Kumar Gupta, Sri Mahesh Narain
Singh

Civil Law- Code of Civil Procedure, 1908 -
Section 100 - Hindu Marriage Act, 1955 -
4 All. Sarnam Singh, Lekhpal Chakbandi Vs. Preetam Kumari & Anr.
175
Section-25 - Second appeal against the
part of the judgment & decree of the
lower appellate by which the permanent
alimony has been granted to defendant
against plaintiff- Trial court decreed the
suit filed for declaration of the marriage
as null and void and also dismissed the
suit filed for restitution of conjugal rights-
Since the trial court passed the decree
declaring
the
marriage
as
void
/
ineffective, as such, there was no occasion
to order for maintenance / permanent
alimony in favour of respondent - wife
while dismissing the civil appeal filed by
respondent - wife- No application u/s 25
of the H.M Act on record as such exercise
of power u/s 25 of the H.M Act by the
lower appellate court while dismissing the
civil appeals filed by respondent - wife,
affirming
the
decree
of
trial
court,
declaring
the
marriage
as
void
and
ineffective is vitiated by manifest error of
law. (Para 15, 16, 17, 20 & 21) (E-15)

List of Cases cited:

1. Abbayolla M. Subba Reddy Vs Padmamxna,
1998 0 Supreme (AP) 477;

2. J. Rajeshwarkant Shahdev Vs Neelam
Shahdev, 1980 0 Supreme (MP) 364;

3. Jai Krishan Pandita Vs Nana Kumari, 2007 0
Supreme (J & K) 190; &

4. Amar Chand Sharma Vs Smt. Sita Devi, 2005
0 Supreme (Raj) 291.

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Mr. Manoj Kumar Sharma
and Smt. Krishna Singh, learned counsel
for the appellant and Mr. Manoj Kumar
Gupta, Advocate, holding brief of Mr.
Mahesh Narain Singh, learned counsel for
defendant-respondent no.1.

2. The instant second appeal has been
filed against the part of the judgment and
decree dated 17.10.2015, by which the
permanent alimony has been granted to
defendant / respondent no.1 (Preetam
Kumari) against plaintiff-appellant (Sarnam
Singh) in Civil Appeal No. 44/2010 and
Civil Appeal No.45/2010, decided by a
common judgment arising out of Original
Suit No.257/1997.

3. Original Suit No.257/1997 has
been filed by plaintiff-appellant (Sarnam
Singh) for declaring the marriage as void
and ineffective. Original Suit No.213 of
2003 was filed under Section 9 of the
Hindu
Marriage
Act
by
defendant
respondent no.1 (Preetam Kumari) for
restitution of conjugal rights.

4. Plaint case of O.S. No.257 of 1997
in brief is that talk of marriage between the
plaintiff and defendant has taken place but
due to fraudulent act of the wife- Preetam
Kumari and their family members, the
mediation has taken place and the proposal
of the marriage has come to an end but the
father of the Preetam Kumari has illegally
kidnapped the plaintiff (Sarnam Singh) and
illegally solemnized the marriage which is
not a legal marriage as prescribed under the
Hindu Marriage Act. It is also mentioned in
the plaint that there was no relation of
husband and wife between them, as such,
the alleged marriage be declared null and
void. In the written statement, Preetam
Kumari denied the plaint allegations and
submitted that the valid marriage has taken
place, as such, the suit for declaring the
marriage null and void be dismissed. Plaint
case of O.S. No.213 of 2003 in brief was
that Preetam Kumari was married to
Sarnam Singh according to the custom on
5/6.7.1997 but husband Sarnam Singh has
deserted her, as such, the instant suit for
restitution of conjugal rights has been filed
by wife Preetam Kumari. In the written
176 INDIAN LAW REPORTS ALLAHABAD SERIES
statement, husband Sarnam Singh denied
the plaint allegations and stated that no
valid marriage according to the Hindu
Marriage Act has taken place between
them, as such, the plaintiff is not entitled to
the relief claimed in the suit for restitution
of conjugal rights. It is also mentioned in
the written statement that defendant has
already filed a Suit No.257/1997 for
declaring the marriage as null and void.

5. Both the aforementioned suits were
consolidated and heard together. Parties
filed oral and documentary evidence in
support of their cases. The trial court vide
judgment and decree dated 26.8.2010
decreed the Suit No.257/1997 and declared
the marriage as null and void and dismissed
the Suit No.213/2003 (Preetam Kumari vs.
Sarnam Singh) filed for restitution of
conjugal rights. Against the judgment and
decree dated 26.8.2010, passed by the Civil
Judge (S.D.), Etah, Preetam Kumari filed
two
civil
appeal
i.e.
Civil
Appeal
No.44/2010 and Civil Appeal No.45/2010
in respect to Suit Nos. 213/2003 and
257/1997. Both the civil appeals were
consolidated and heard together by the
District Judge, Etah. The District Judge,
Etah vide judgment and decree dated
17.10.2015 dismissed both the appeals but
directed that respondent (Sarnam Singh)
shall
pay
Rs.6500/-
per
month
as
maintenance and Rs.2 lacs to the appellant
(Preetam
Kumari)
towards
permanent
alimony. Hence this second appeal on
behalf of Sarnam Singh (plaintiff).

6. No second appeal has been filed by
defendant Preetam Kumari before this
Court.

7. This Court on 15.12.2015 admitted
the second appeal after formulating the
substantial questions of law and granted the
interim order to the effect that half of the
amount of the order of the maintenance
granted by the 1st appellate court shall
remain stayed. The records of the district
courts were also summoned by this Court.
The substantial questions of law are quoted
hereunder:-

"1.Whether
the
order
of
maintenance under Section 25 of the
Hindu Marriage Act can be passed
without such relief being asked by the
person in whose favour such order is
being passed ? If so, its affect.

2. Whether the first appellate
court had not afforded opportunity of
hearing to parties on the point of
maintenance under Section 25 of the
Hindu Marriage Act. ? If so, its affect.

8. In pursuance of the order dated
15.12.2015, records of the district courts
have been received to this court which has
been perused by me. The respondent -
Preetam Kumari has already put in
appearance through caveat in this appeal.

9. Counsel for the appellant submitted
that once the suit for declaring the marriage
as null and void / ineffective, has been
decreed and decree has been affirmed in 1st
appeal, the grant of maintenance by the 1st
appellate court is manifestly erroneous. He
further submitted that the appellate court
has not formulated point of determination
while deciding the 1st appeal as provided
under Order 41 Rule 31 of the C.P.C., as
such, the order for grant of maintenance by
the 1st appellate court is manifestly
erroneous. He also submitted that the order
of maintenance under Section 25 of the
Hindu Marriage Act cannot be passed
unless there is an application and relief
claimed by the party concerned in the
proceeding. He further submitted that no
4 All. Sarnam Singh, Lekhpal Chakbandi Vs. Preetam Kumari & Anr.
177
opportunity has been afforded by the
appellate court on the point of maintenance
under Section 25 of the Hindu Marriage
Act, as such, the judgment and decree
passed by the lower appellate court is
erroneous. Counsel for the appellant placed
the finding of the trial court recorded while
deciding the issue no.2 in Suit No.213 of
2003 and issue no.1 in Suit No.257/1997 to
the effect that marriage between Sarnam
Singh and Preetam Kumari has not taken
place according to the Hindu Marriage Act,
as such, the marriage is held to be void and
ineffective. The oral and documentary
evidence were taken into consideration by
the trial court while decreeing the suit of
the appellant Sarnam Singh and dismissing
the suit of respondent Preetam Kumari. The
finding of fact recorded by the trial court
was affirmed in appeal but the appellate
court has arbitrarily granted monthly
maintenance of Rs.6500/- and a lumpsum
amount of maintenance of Rs.2 lacs to the
respondent Preetam Kumari which is
manifestly erroneous. Counsel for the
appellant
placed
reliance
upon
the
decisions of the other High Courts, which
are hereunder:-

1. Abbayolla M. Subba Reddy
vs. Padmamxna, 1998 0 Supreme (AP)
477;

2. J. Rajeshwarkant Shahdev
vs. Neelam Shahdev, 1980 0 Supreme
(MP) 364;

3. Jai Krishan Pandita vs. Nana
Kumari, 2007 0 Supreme (J & K) 190; &

4. Amar Chand Sharma vs.
Smt. Sita Devi, 2005 0 Supreme (Raj)
291.

10. On the other hand, learned
counsel for the respondent submitted that
the appellant has not complied the
conditions of the interim order passed by
this Court for paying the half of the
maintenance amount to the respondent, as
such, the appellant is not entitled to be
heard and the second appeal is liable to be
dismissed. He further submitted that the
monthly
maintenance
/
lumpsum
maintenance has been granted by the lower
appellate court in accordance with law as
appellant has failed to maintain the
respondent on the basis of valid marriage
taken place between them. He also
submitted that the finding of fact recorded
by the lower appellate court cannot be
interferred with in the second appeal and
the second appeal is liable to be dismissed.
He also submitted that the substantial
questions of law as framed by this Court
are not involved in the second appeal, as
such, the second appeal is liable to be
dismissed. He further submitted that the
amount of maintenance of Rs.500/- granted
by the trial court during the pendency of
the proceedings, has not been timely paid
to the respondent, as such, the appellant is
not entitled to any relief in the matter.

11. In reply, counsel for the appellant
submitted that the monthly amount of
maintenance granted during the pedency of
the proceeding before the trial court has
been paid to the respondent and the receipt
has been annexed along with the affidavit
filed in support of the stay application
along with the second appeal, as such, it
cannot be said the appellant has not
complied the conditions before the trial
court. He further submitted that so far as
the compliance of the additional interim
order passed by this Court is concerned, the
appellant
has
filed
a
modification
application no.332915 of 2017 to modify
the order dated 15.12.2015 which is still
pending before this Court. He further
submitted that no counter affidavit to the
stay
application
has
been
filed
by
178 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent no.1 denying the averment
made in the affidavit to the effect that
plaintiff
has
complied
the
condition
imposed during the trial.

12. I have considered the arguments
advanced by learned counsel for the parties
and perused the records.

13. The instant second appeal has
been admitted on the following two
substantial questions of law, as such, the
same shall be heard on the substantial
questions of law which were framed at the
time of the admission of the appeal, same
are as under:-

"1.Whether
the
order
of
maintenance under Section 25 of the
Hindu Marriage Act can be passed
without such relief being asked by the
person in whose favour such order is
being passed ? If so, its affect.

2. Whether the first appellate
court had not afforded opportunity of
hearing to parties on the point of
maintenance under Section 25 of the
Hindu Marriage Act. ? If so, its affect.

14. In order to answer the substantial
question of law as framed by this Court, the
perusal of the relevant portion of finding of
fact recorded by trial court will be
necessary which are as under:-

वाद सं०-213/03 के वाद बिन्दु सं०-2
एंव वाद सं०357/97 के वाद बिन्दु सं०-1 का
बिस्तारणः-

वाद सं० 213/03, श्रीमती प्रीतमकुमारी
ििाम सरिामबसंह में वाद बिन्दु सं०-2 इस
आशय का बवरबित है बक,- " क्या वादिी के बिता
व सहयोबियों िे बविक्षी का अिहरण करके बििा
बविक्षी की सहमबत के, जिरि शादी सम्पन्न
करायी?" जिबक वाद सं. 357/97 सरिामबसंह
ििाम प्रीतम कुमारी में वाद बिन्दु सं०-1इस
आशय का बवरबित बकया िया है बक- " क्या वादी
की शादी, प्रबतवाबदिी के साथ अिुबित दिाव
डालकर सम्पन्न करायी ियी?"

---------------------------------------------
-------------------------

"उिरोक्त बववेििा एंव ित्रावली िर
उिलब्ध मौखिक व अबिलेिीय साक्ष्य से यह
तथ्य साबित िाया जाता है बक, वाबदया
प्रीतमकुमारी के बिता व सहयोबियों िे बविक्षी
सरिामबसंह का अिहरण कर उस िर अिुबित
दिाव डालकर जिरि उक्त शादी सम्पन्न
करायी। तद्िुसार वाद सं० 213/03 का वाद बिन्दु
सं०-2 व वाद सं० 357/97 का वाद बिन्दु सं०-1
सकारात्मक रूि में बिबणित बकया जाता है।"

Operative portion of the judgment
of trial court is as under:-

जहां तक वाद सं० 357/97 का प्रश्न है,
ऊिर की ियी बववेििा से यह बिष्कर्ि बिकलता
है बक , वादी सरिामबसंह की शादी प्रबतवाबदिी
प्रीतमकुमारी के साथ अिुबित दिाव डालकर,
उसकी इच्छा के बवरूद्ध सम्पन्न करायी ियी थी।
ऐसी खथथबत में िक्षों के मध्य सम्पन्न हुयी उक्त
शादी,शून्य व बिष्प्रिावी घोबर्त बकये जािे योग्य
है। इस प्रकार यह वाद सव्यय आज्ञप्त बकये जािे
योग्य है।
आदेश

वाद सं० 213/03 प्रीतमकुमारी ििाम
सरिामबसंह, स्वयय िाररज बकया जाता है।

वाद सं० 357/97सरिामबसंह ििाम
प्रीतमकुमरी आबद सव्यय आज्ञप्त करते हुये यािी
व बविक्षी प्रीतमकुमारी के मध्य हुये वाईडेबवल
बववाह को शून्य व बिष्प्रिावी घोबर्त बकया जाता
है।

इस बिणिय की एक प्रबत वाद सं०
357/97 सरिामबसंह ििाम प्रीतमकुमारी में रिी
जाये।

बदिांकः 26.08.2010

(वंशिहादुर यादव)

बसबवल जज(सी.बड.)

 एटा।
4 All. Sarnam Singh, Lekhpal Chakbandi Vs. Preetam Kumari & Anr.
179

आज यह बिणिय मेरे द्वारा िुले
न्यायालय में बदिांबकत व हस्ताक्षररत करके
उद्घोबर्त बकया िया।

बदिांकः 26.08.2010

(वंशिहादुर यादव)

बसबवल जज(सी.बड.)

 एटा।

The relevant / operative portion
of the judgment of lower appellate court by
which judgment and decree of trial court
was maintained but decree of permanent
alimony was granted is as under:-

िक्षकारों की िहस को सुिकर तथा
ित्रावली का अवलोकि करिे से यह बवबदत होता
है बक िूंबक इस अिील में िक्षकार सि् 1997 से
ही अलि रह रहे है और उन्हें अलि रहते हुए
लििि 18 वर्ि का समय व्यतीत हो िुका है तथा
वे मुकदमें के बविाराधीि रहिे के दौराि िी
किी साथ-साथ िही रहे और इस िीि उिके
सम्बन्ों में िी काफी कडवाहट आ िुकी है और
अि ऐसा प्रतीत होता है बक दोिों िक्षकार, िबत व
ित्नी की तरह साथ-साथ रह कर िी, एक- दूसरे
के प्रबत वैवाबहक दाबयत्ों का िालि िहीं कर
सकते और ऐसा करिा उिके बलये असंिव है।
अतः मै बवद्वाि अधीिथथ न्यायालय द्वारा िाररत
तलाक की बडक्री को बिरस्त बकये जािे योग्य िहीं
िाता हूँ, अबितु उसकी िजाय तलाक की बडक्री
ज्यो-की त्ों रिते हुए, धारा-25 बहन्दू बववाह
अबधबियम के तहत, श्रीमती प्रबतमा कुमारी के
बलये थथाई िरण-िोर्ण की धिराबश की व्यवथथा
बकया जािा न्योयोबित होिा।

िक्षकारों को यह स्वीकार है बक
सरिाम बसंह लेििाल के िद िर बियुक्त है और
उसे इस िद िर िौकरी करते हुए, लििि 18 वर्ि
का समय व्यतीत हो िुका है, इसबलये उसका
वेति इस समय बकसी िी दशा में 20,000/- रूिये
से कम िहीं होिा, अतः धारा 25 बहन्दू बववाह
अबधबियम के तहत, श्रीमती प्रबतमा कुमारी के
बलये, सरिाम बसंह मुव० 6500/- रूिये प्रबतमाह
अदा करता रहेिा। यबद 3 माह तक यह धिराबश
अदा करिे में उसको ओर से बडफॉल्ट बकया
जाता है तो श्रीमती प्रबतमा कुमारी, इस संिंध में
इज़राय दाखिल कर सकती है।

इसके साथ ही साथ, िूंबक िक्षकारों के
मध्य िहले मूलवाद और बफर अिील िलते हुए
लििि 18 वर्ि का समय व्यतीत हो िुका है,
इसबलये एकमुश्त धि राबश िी श्रीतमी प्रबतमा
को बदलाया जािा न्यायोबित होिा और यह
धिराबश मुव० 2 लाि रू० आज से अंदर 2,
सरिामबसंह के द्वारा उसे प्रदत्त कर दी जायिी।

उिरोक्त बववेििा के आधार िर, दोिों
अिील बिरस्त बकये जािे योग्य हैं।

तदिुसार,
दोिों
बसबवल
अिील्स,
बिरस्त की जाती है, बकन्तु बविक्षी- सरिाम बसंह
को यह बिदेश बदया जाता है बक वह, इस बिणिय
व आदेश की बदिांक से मुव० 6500/- रूिये
प्रबतमाह, ितौर िरण-िोर्ण धिराबश, प्रत्ेक
माह की 10 तारीि तक श्रीमती प्रीतम कुमारी को
अदा करें। यबद 3 माह तक यह धिराबश अदा
करिे में उसकी ओर से बडफॉल्ट बकया जाता है
तो श्रीमती प्रीतम कुमारी, इस संिंध में इज़राय
करके यह रकम प्राप्त कर सकती है।

इसके अबतररक्त बविक्षी- सरिामबसंह,
एकमुश्त धिराबश के रूि में, मु० 2 लाि रू०
आज से 2 अंदर माह, श्रीमती प्रीतम कुमारी को
अदा करिा सुबिबित करे।

िरण-िोर्ण
एंव
वाद
व्यय
की
धिराबश को प्राप्त करिे के बलये, श्रीमती प्रीतम
कुमारी, बियमािुसार कायिवाही कर सकती है।

मूल
अबिलेि,
अबवलंि
बवद्वाि
अधीिथथ न्यायालय, वािस िेजा जाय।

इस बिणिय व आदेश की एक प्रबत,
बसबवल अिील सं०-45 सि् 2010 श्रीमती प्रीतम
कुमारी प्रबत सरिामबसंह की ित्रावली िर रिी
जाय।

अक्टूिर 17, 2015

(कमल बकशोर शमाि)

 बजला न्यायाधीश, एटा

बिणिय एंव आदेश, आज मेरे द्वारा िुले
न्यायालय में हस्ताक्षररत व बदिांबकत कर,
उद्घोबर्त बकये िये।

अक्टूिर 17, 2015

(कमल बकशोर शमाि)

 बजला न्यायाधीश, एटा
180 INDIAN LAW REPORTS ALLAHABAD SERIES

15. The perusal of the judgment of
lower appellate court reveals that lower
appellate
court
has
ordered
for
maintenance/permanent alimony on the
ground that there was divorce decree of the
trial court although trial court passed the
decree declaring the marriage as void /
ineffective, as such, there was no occasion
to order for maintenance / permanent
alimony in favour of respondent - wife
while dismissing the civil appeal filed by
respondent - wife, as such, judgment and
decree passed by lower appellate court for
maintenance/permanent alimony is vitiated
by manifest error of law.

16. So far as exercise of the
jurisdiction under Section 25 of the Hindu
Marriage Act while dismissing the civil
appeal filed by wife is concerned, the
perusal of Section 25 of the Hindu
Marriage Act will be necessary which is as
under:-

25. Permanent alimony and
maintenance.--(1) Any court exercising
jurisdiction under this Act may, at the
time of passing any decree or at any time
subsequent thereto, on application made
to it for the purpose by either the wife or
the husband, as the case may be, order
that the respondent shall pay to the
applicant for her or his maintenance and
support such gross sum or such monthly
or periodical sum for a term not
exceeding the life of the applicant as,
having regard to the respondent's own
income and other property, if any, the
income and other property of the
applicant, the conduct of the parties and
other circumstances of the case], it may
seem to the court to be just, and any
such payment may be secured, if
necessary, by a charge on the immovable
property of the respondent.

(2) If the court is satisfied that
there is, a change in the circumstances of
either party at any time after it has made
an order under sub-section (1), it may at
the instance of either party, vary, modify
or rescind any such order in such
manner as the court may deem just.(3) If
the court is satisfied that the party in
whose favour an order has been made
under this section has remarried or, if
such party is the wife, that she has not
remained chaste, or, if such party is the
husband,
that
he
has
had
sexual
intercourse with any woman outside
wedlock, it may at the instance of the
other party vary, modify or rescind any
such order in such manner as the court
may deem just].

17. The perusal of the lower court
record reveals that there was no application
under Section 25 of the Hindu Marriage
Act, 1955 on record, as such, exercise of
power under Section 25 of the Hindu
Marriage Act, 1955 by the lower appellate
court while dismissing the civil appeals
filed by respondent - wife, affirming the
decree of trial court, declaring the marriage
as void and ineffective is vitiated by
manifest error of law.

18. So far as grant of monthly
maintenance by trial court is concerned, the
same has come to an end while passing the
final judgment and decree by trial court
declaring the marriage as void and
ineffective, as such, no reliance can be
placed upon the monthly maintenance
granted by trial court.

19. Since there was no application
under Section 25 of the Hindu Marriage
Act, 1955 by respondent-wife in civil
appeal, as such, there was no question that
lower
appellate
court
has
provided
4 All. Sarnam Singh, Lekhpal Chakbandi Vs. Preetam Kumari & Anr.
181
opportunity of hearing to appellant -
husband in civil appeal before passing
order of maintenance in favour of wife.

20. The case law of the Andhra
Pradesh High Court as cited by learned
counsel for the appellant rendered in
Abboyolla M. Subba Reddy (supra) is
relevant. Paragraph Nos. 26, 31 & 32 of the
aforementioned
judgment
rendered
in
Abbayolla M. Subba Reddy (supra) are as
under:-

26. The learned Counsel for the
respondent submitted that under Section
25 of the Hindu Marriage Act, a wife
whose marriage is void would be
entitled, as of right, of relief of
permanent
maintenance
once
her
marriage is annulled by a decree of
nullity under Section 11 or passing a
decree of a kind envisaged under
Sections 9 to 14 of the Hindu Marriage
Act, and therefore, it follows that the
Hindu Marriage Act, 1955 recognizes,
notwithstanding
the
fact
that
the
marriage is null and void, that the wife
has the status atleast for limited purpose
of
applying
for
alimony
and
maintenance. This statutory intention,
according to the learned Counsel for the
respondent, has to be borne in mind in
considering the claim of the respondent
in this case to maintenance. The support
of this contention the learned Counsel
relied on the decision of a learned single
Judge of Bombay High Court in Smt.
Rajesh Bai and others v. Shantha Bai. In
that case, the first wife of the deceased
filed a suit for partition against the
brothers of her deceased husband and
the 2nd wife of her husband by name
Rajesh Bai. The defendants in that suit
took the plea that the plaintiff was
divorced by her husband as per the caste
custom and after divorce, he married
2nd wife Rajesh Bai. The learned single
Judge while holding that the marriage of
Rajesh Bai is void in view of the
subsisting first marriage of the deceased
with Shantha Bai, granted maintenance
to 2nd wife Rajesh Bai relying on the
pari materia provisions of Section 25 of
the Hindu Marriage Act and also relying
on the inherent powers of the Court
under Section 151 C.P.C. to meet the
ends of justice. The learned single Judge
observed thus: "The rights recognised by
Section 25 of the Hindu Marriage Act
can clearly be worked out in any civil
proceedings subject to consideration of
facts and circumstances so as to meet the
ends of justice by resort to the inherent
powers conferred upon the Courts by
Section
151
C.P.C.
The
statutory
references do not indicate that there is
any prohibition or any specific Provision
in this regard. On the other hand, the
principle is statutorily recognised that
upon a decree being passed for nullifying
the marriage as void de jure, the Court is
possessed with ample power to make
order as to alimony and maintenance.
What could, therefore, be available in
special proceedings cannot be said to be
not available when the same issue is
involved collaterally in competent civil
proceeding." The learned Judge further
observed: "Ultimately, having based the
relief under Section 151 C.P.C. with the
aid of inherent powers and drawing
upon the principle underlying Section 25
of the Hindu Marriage Act, it is implicit
that before maintenance is granted, the
need to grant such must exist as well as
the grantee must fulfil the ordinary
conditions like that of chastity, not being
married with any other person and
further of not being in a position to
maintain herself." With due respect, we
182 INDIAN LAW REPORTS ALLAHABAD SERIES
are not in a position to accept the said
reasoning of the learned Judge. Firstly,
the
assumption
that
Section
25
recognizes
the
right
of
a
woman
bigamously
married
to
claim
maintenance at the time when a decree
of nullity is passed is not correct.
Secondly in the absence of a proceeding
under Sections 9 to 14, such a relief
cannot be granted by invoking Section
151.
Section
151
could
have
no
application to such a situation.

31. In view of the above
decision taken by us, the claim of the
respondent
for
maintenance,
whose
marriage is void ab initio, against the
appellant is not maintainable. Hence, the
decree and judgment in O.S. No.131/87
on the file of the Principal Subordinate
Judge, Chittoor, is liable to be set aside.

32. In the result, the appeal is
allowed. The judgment and decree in
O.S.No.131 of 1987 on the file of the
Principal Subordinate Judge, Chittoor,
is set aside and the suit O.S.No.131 of
1987 is dismissed. In the circumstances
of this case, parties are directed to bear
their costs throughout.

21. Considering the entire facts and
circumstances of the case, the grant of
maintenance under Section 25 of the Hindu
Marriage Act in favour of Preetam Kumari
when marriage has been declared null and
void by the trial court, cannot be
maintained in the eye of law. The suit for
declaring the marriage as null and void, has
been decreed by the trial court and the
decree has been affirmed in the first appeal,
as such, the first appellate court has
committed illegality in passing the order
for maintenance under Section 25 of the
Hindu Marriage Act. It is also material that
finding of the trial court has been
maintained in the appeal, as such, there was
no occasion to grant maintenance under
Section 25 of the Hindu Marriage Act in
favour of the respondent Preetam Kumari
coupled with the fact that there was no
application under Section 25 of the Hindu
Marriage Act, 1955 in civil appeal by
respondent-wife.

22. In view of the finding of fact
recorded by the trial court declaring the
marriage as void and ineffective, the grant
of maintenance under Section 25 of the
Hindu Marriage Act in favour of the
respondent Preetam Kumari is manifestly
erroneous and illegal. The substantial
questions of law nos. 1 & 2 are answered in
favour of appellant and against the
respondent.

23. In view of above, the part of the
judgment and decree of the lower appellate
court by which maintenance under Section
25 of the Hindu Marriage Act has been
granted by the first appellate court in Civil
Appeal No.44/2010 and 45/2010 is hereby
set aside. The second appeal stands
allowed. No order as to costs.
----------
(2023) 4 ILRA 182
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2023

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 2211 of 2023

Saroj Kumari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Satyendra Chandra Tripathi

Counsel for the Respondents: