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Synopsis

The Supreme Court on Wednesday, February 12, 2025, said calling a woman an “illegitimate wife” or “faithful mistress” will amount to a violation of her fundamental rights under Article 21 of the Constitution.

A bench of Justices Abhay S Oka, Ahsanuddin Amanullah, and Augustine George Masih took a strong objection to the use of such words by the Bombay High Court in its 2004 judgment.

Dealing with an issue of maintenance by a woman in a void marriage, the bench said, the Bombay High Court's full judge bench in Bhausaheb alias Sandhu s/o Raghuji Magar Vs Leelabai w/o Bhausaheb Magar (2004) has coined the term “illegitimate wife”.

"Calling the wife of a marriage declared as void as an illegitimate wife is very inappropriate. It affects the dignity of the concerned woman," it said.

The bench said, unfortunately, the Bombay High Court went to the extent of using the words “illegitimate wife”.

"Shockingly, the High Court described such a wife as a 'faithful mistress'. It is pertinent to note that the High Court has not used similar adjectives in the case of husbands of void marriages," the court pointed out.

The court emphasised under Article 21 of the Constitution of India, every person has a fundamental right to lead a dignified life.

"Calling a woman an 'illegitimate wife' or 'faithful mistress' will amount to a violation of the fundamental rights of that woman under Article 21 of the Constitution of India," the bench said.

The bench felt describing a woman by using these words is against the ethos and ideals of our Constitution.

"No one can use such adjectives while referring to a woman who is a party to a void marriage. Unfortunately, we find that such objectionable language is used in a judgment of the full bench of a High Court. The use of such words is misogynistic. The law laid by the Full Bench of the Bombay High Court is obviously not correct," the bench said.

The court was dealing with a reference made by a two-judge bench on August 22, 2024 as there were conflicting views on the applicability of Sections 24 and 25 of the Hindu Marriage Act, 1955, whether alimony can be granted where marriage has been declared void. Senior advocate Mahalakshmi Pavani appeared for the respondent woman in the case.

In its answers, the court held that a spouse whose marriage has been declared void under Section 11 of the Hindu Marriage Act is entitled to seek permanent alimony or maintenance from the other spouse by invoking Section 25 of the Act.

The bench said that whether such a relief of permanent alimony can be granted or not always depends on the facts of each case and the conduct of the parties, as the grant of relief under Section 25 is always discretionary.

"Even if a court comes to a prima facie conclusion that the marriage between the parties is void or voidable, pending the final disposal of the proceeding under the 1955 Act, the court is not precluded from granting maintenance pendente lite provided the conditions mentioned in Section 24 are satisfied," the bench said.

While deciding the plea for interim relief under Section 24, the court will always take into consideration the conduct of the party seeking the relief, as the grant of relief under Section 24 is always discretionary, the bench added.

According to Section 11 of the Act, any marriage can be declared as void if it contravenes the conditions mentioned under Section 5.

Those conditions are neither party has a spouse living at the time of the marriage; the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits a marriage between the two; and the parties are not sapindas of each other unless the custom or usage governing each of them permits a marriage between the two.

A counsel, appearing for husband, said there would be cases where parties to void marriages are conscious of the fact that their marriage would be bigamous. There would be cases where the wife may be responsible for concealing her first marriage which is in subsistence, and induce the husband to marry. There may be cases where both parties may be unaware that they are solemnising a void marriage.

He submitted that it is absurd to include a decree declaring a marriage as void in the expression “any decree” used in Section 25 of the 1955 Act.

He submitted that a marriage declared void under Section 11 is void ab initio, which does not exist. Therefore, a wife whose marriage is declared void cannot claim to be a spouse within the meaning of Section 25 of the 1955 Act.

Referring to Section 25 of the 1955 Act, the bench, however, said, it confers a power on the matrimonial court to grant permanent alimony “at the time of passing any decree or at any time subsequent thereto”.

It said a cause of action arises for the spouses to apply for permanent alimony and maintenance when any decree is passed by any court exercising its jurisdiction under the 1955 Act.

"While enacting Section 25(1), the legislature has made no distinction between a decree of divorce and a decree declaring marriage as a nullity. Therefore, on a plain reading of Section 25(1), it will not be possible to exclude a decree of nullity under Section 11 from the purview of Section 25(1) of the 1955 Act," the bench said.

The court emphasised that the entitlement under Section 25 does not depend on whether the bigamous marriage is moral or immoral.

The bench also pointed out that the remedy under Section 25 of the 1955 Act is completely different from the remedy under Section 125 of the CrPC.

"It confers rights on the spouses of the marriage declared as void under Section 11 of the 1955 Act to claim maintenance from the other spouse. The remedy is available to both husband and wife. The principles which apply to Section 125 of the CrPC cannot be applied to Section 25 of the 1955 Act. The relief under Section 125 of the CrPC can be granted to wife or child and not to husband," the bench said.

Case Title: Sukhdev Singh Vs Sukhbir Kaur