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                                                                      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.

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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

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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.

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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

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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

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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.