SAU SHAILA BALASAHEB KADAM Vs BALASAHED HINDURAO KADAM
Bench: V. GOPALA GOWDA,C. NAGAPPAN
Case number: C.A. No.-010086-010087 / 2014
Diary number: 31881 / 2013
Advocates: MANJU JETLEY Vs
Page 1
1
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.
Page 2
2
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
Page 3
3
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.
Page 4
4
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
Page 5
5
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
Page 6
6
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.