T.K.SURENDRAN v. P.NAJIMA BINDU

W.P.(c) No.36823 of 2008-: 4 :-and P2 were accepted by the respondent/husband and the samewere not challenged. It may not be inapposite in this context tomention that an earlier application for restitution of conjugalrights appears to have been filed by the respondent/husbandbefore the Family Court, Palakkad, and the same -O.P.No.1054/06,, was dismissed by the Family Court by thesubsequent order dated 23/6/06. That order was passed makingspecific reference to Ext.P1 order of annulment of the marriage.6. Subsequently, the claimant/wife filed applications forexecution of the order of maintenance passed under Sec.125Cr.P.C. The amounts due under the order were paid withoutdemur by the respondent/husband evidently accepting Ext.P2order, notwithstanding the annulment of the marriage underExt.P1.7. It is in this context that the claimant/wife filed Ext.P3application for recovery of the amount of maintenance due underExt.P2 order for the period from 1/10/07 to 1/8/08. She claimedan amount of Rs.10,000/- as maintenance due for the said periodof 10 months - at the rate of Rs.1,000/- per mensem. 8. It is at this juncture that the respondent/husband hascome to this Court with this petition. He takes up the contention W.P.(c) No.36823 of 2008-: 5 :-that Ext.P2 order is void in law in the light of Ext.P1 orderannulling the marriage. An order of annulment of marriageterminates the marital tie for all purposes with effect from thedate of marriage and after such an order of annulment, no reliefcan be claimed on the plea that such a marriage existed. It isprayed that the inherent jurisdiction of this Court under Sec.482Cr.P.C. or the jurisdiction under Art.226/227 of the Constitutionmay be invoked to ensure that the patently illegal order Ext.P2 isnot executed against the respondent/husband. This is the factscenario in which the present controversy is raised before us.The prayer, in short, is that Ext.P1 order, and the subsequentattempt vide Ext.P3 to enforce that order may be quashed. 9. We must, at the outset, refer to technical pleas raised bythe claimant/wife. The claimant/wife, first of all, contends thatif Ext.P2 order were passed subsequent to Ext.P1 order, therespondent/husband had the option in law to challenge the orderinvoking the revisional jurisdiction of this Court. Having notchallenged the same and having paid the amounts ofmaintenance due under Ext.P2 for some period of time, therespondent/husband cannot now be permitted to challenge,Ext.P2 order by attempting to bring the challenge within the W.P.(c) No.36823 of 2008-: 6 :-purview of Sec.482 Cr.P.C. or Art.226/227 of the Constitution.On the contrary, if Ext.P1 order of annulment were passedsubsequent to Ext.P2 order, the option of the respondent/husbandwas to file a petition under Sec.127 Cr.P.C. before the FamilyCourt to modify/cancel Ext.P2 order in the light of thesubsequent Ext.P1 order. Having not done the same and havingchosen to comply with Ext.P2 order all along, it is not open to therespondent/husband now to challenge Ext.P2 order passed asearly as on 28/1/05 in December, 2008 by such a petition underSec.482 Cr.P.C. and/or Art.226/227 of the Constitution. This isimpermissible in law. Orderly procedure and discipline mustpersuade this Court not to re-open the old and stale challengeswhich have not been promptly raised in accordance with law.The jurisdiction under Sec.482 Cr.P.C. and/or Art.226/227 of theConstitution cannot be invoked by the litigants who have sleptover their rights for a substantially long period of time and havecomplied with the impugned order without demur all along.10. We do not want to hold that the technical contentionsraised are not sustainable; but we must take the view thatignoring the technicalities the bull has to be tackled by the horns.It will be idle and improper for any court to take umbrage on W.P.(c) No.36823 of 2008-: 7 :-such technicalities and to avoid decision on such a question ofmoment raised by the respondent/husband. We do, in thesecircumstances, choose to ignore the technicalities and proceedto consider the question exhaustively on merits.11. We now rivet our attention on Sec.125 Cr.P.C. It isunnecessary to extract the Section in detail. The Section dealswith the obligation of persons having sufficient means whorefuse or neglect to maintain their wives, legitimate orillegitimate children, father or mother. For our purpose in thiscase we shall pointedly refer to the rights/obligations in respectof the wife alone. Prevention of vagrancy is the signature tuneof Sec.125 Cr.P.C. Society has to prevent vagrancy. Vagrancymay lead to destitution and may have an adverse impact on thelaw and order situation. The concern under Chapter IX of theCr.P.C. is hence undoubtedly the prevention of vagrancy.Legal/moral obligation of the person to maintain his wife is onlythe jurisprudential justification for the legislative prescriptionto prevent vagrancy. Whether personal law or the moral code insociety (or any particular section of society) obliges a person tomaintain his wife, children, father or mother or not, Sec.125Cr.P.C. mandates that he must maintain them if he has sufficient W.P.(c) No.36823 of 2008-: 8 :-means and they are unable to maintain themselves. What wewould like to emphasise is that the legislative mission andpurpose is to prevent vagrancy and that is sought to be achievedby placing on the shoulders of persons having sufficient means,the statutory obligation to maintain their wives, children, fatheror mother who are unable to maintain themselves. In a socialistwelfare State the State has the obligation as patron patriarch toprevent destitution. State which may not now have the meansand schemes to discharge that duty, outsources that obligationby legislation to near relatives having sufficient means. To sumup, the yearning of the State to prevent vagrancy and destitutionis the plank, basis or bedrock on which the right/liability underSec.125 rests.12. The obligation to maintain the wife was stipulatedeven under Sec.488 of the earlier Code. In 1973 when theCr.P.C. was exhaustively amended, the legislature obviouslyperceived the unfortunate plight of women in terminatedmarriages who remain unmarried. The legislativeconcern/compassion flowing in favour of such wives ofterminated marriages who remain unmarried found expression inthe expansive inclusion of certain categories of women within the W.P.(c) No.36823 of 2008-: 9 :-protective sweep of Sec.125 Cr.P.C. It is thus that Explanation(b) was introduced by the Parliament in the Code of CriminalProcedure, 1973. This inclusion raised several eye-brows. Itwill be apposite straightaway to extract Explanation (b) which iscrucial for the resolution of the controversy before us.Explanation (b) to Sec.125 reads as follows:Explanation.-- For the purpose of thisChapter.--(a)x x x x x x (b)“wife” includes a woman whohas been divorced by, or hasobtained a divorce from, herhusband and has notremarried.”13. Unilateral divorcees (wives) whose marriages standterminated by acts of their husbands and persons whosemarriages have been terminated by intervention of courts at theinstance of either spouse, are certainly included within the sweepof the inclusive definition of “wife”. By the norms prevalent insociety such divorced women (or women in terminatedmarriages) are not wives as ordinarily understood in languageand law. The legislature by a bold intervention included women W.P.(c) No.36823 of 2008-: 10 :-of such terminated marriages also within the sweep of theexpression “wife” subject to an important rider that they shouldnot have re-married.14. What we intend to note is that the legislativecompassion was in favour of a woman in a terminated marriageand who has not re-married. We may safely call it the concernin favour of a destitute woman who has no one to depend on aftertermination of the earlier marriage till she re-marries. It is easyto identify the concern of the legislature and the malady whichthe legislature sought to remedy by the enactment of Explanation(b) to Sec.125(1) Cr.P.C.15. Societal realities cannot be ignored by a court trying toascertain the reason or reasons and the meaning of meaningswhich prompted the legisaltue to introduce such anunconventional definition for the 'wife' under Sec.125 Cr.P.C. Thelegislature was not evidently concerned with the emancipatedIndian women - educated, employed and having properties.They are excluded by one stroke from the operation of Sec.125Cr.P.C. as the compassion of the legislature flows only in favour ofa wife - actual or deemed who is “unable to maintain herself”.The legislative compassion, empathy and sympathy was flowing W.P.(c) No.36823 of 2008-: 11 :-towards that section of feminine humanity in India who followingthe traditional prescription did not deserve any freedom. Shehad to depend on her father during childhood, her husbandduring youth and on her children during old age. She had noright to aspire for freedom. She was a 'sub person' always inneed of support and patronage from another. It is to theunfortunate plight of such deprived, underprivileged andmarginalised feminine section of humanity that the legislatureaddressed itself and conferred the right under Sec.125 Cr.P.C. bya bold inclusion under Explanation (b). Such a woman whosematrimony has been terminated - divorced unilaterally or byintervention of courts and who has not been able to find thesuccessor to whom she can look up for dependence, is therecipient of the legislative compassion by the inclusiveExplanation (b) to Sec.125 Cr.P.C. In our mind there can be nodoubt or confusion on this crucial aspect. The target group ofthe legislative compassion and concern is thus clearlyidentifiable. Ascertainment of legislature intention, thoughwords used - often inadequate, is the mission of theinterpreter/adjudicator. The adjudicator/interpreter shall not beunequal to the task. He should have the constitutional vision. W.P.(c) No.36823 of 2008-: 12 :-He must resonate to the frequency of the legislative idealism.So viewed, the target group identification is crucial. 16. The Indian State, the functionaries of the State andeven citizens have the duty to pursue the constitutional idealismexemplified in the preamble to the Constitution. Every one, theState, its functionaries - the legislature, the executive and thejudiciary and the citizen have all got the obligation to besovereign, socialist, secular and democratic. Constitutionalsocialism is certainly not any competing political ideology. If so,the pluralist Indian Constitution would not have committed itselfto any such competing political ideology as a fundamentalconstitutional value. The constitutional socialism has itsfoundation on humane humanism which the fundamental dutyunder Art.51A(h) commands every Indian citizen to develop.Concern for the weak, compassion for the marginalised,sympathy and empathy for the deprived, helpless and hapless isundoubtedly the signature tune of Indian constitutional socialism.We find the compassion of the socialist legislature flowing infavour of the deprived section of feminine humanity who areunable to find a Saviour to give them comfort, protection anddignity of life consequent to the unfortunate termination of their W.P.(c) No.36823 of 2008-: 13 :-matrimony and their inability to get settled in their lifethereafter by re-marriage.17. How is the legislative prescription in Sec.125 Cr.P.C.including Explanation (b) to Sec.125 Cr.P.C. to be understood andinterpreted by an adjudicator with due constitutional mooringsand values. This is the question that calls for consideration.18. The legislature is a body. Its concern and vision arereflected in the words of the Statute. Words and semantics havetheir limitation. The language of the legislature is that of thedraftsman. No legislature can use language which covers allsituations and can offer precise and specific resolution for themyriad and varied situations that may arise before theadjudicator/interpreter when law actually operates.Inadequacies of language cannot interrupt the flow of thelegislature compassion. That is where the role of theinterpreter/adjudicator comes in. The axiom that the legislatureuses appropriate language and that the intention of thelegislature is fully expressed in the language used in the Statuteis trite. That courts cannot legislate is equally trite. These aredoctrines of expediency and not invariable truth. But all thiscannot persuade an interpreter to abdicate his jurisdiction and W.P.(c) No.36823 of 2008-: 14 :-obligation to decipher the meaning of meanings and the reasonor reasons. An interpreter must have the trained competence tojump over insignificant fences and lead the polity to thelegislative destinations. An interpreter who succumbs totechnicality and throws his hands up too easily lacks the requisiteconstitutional commitment. He lacks foresight and vision of thepromised constitutional and statutory destination. Imperfectionsand inadequacies of language cannot deter an interpreter whenthe legislative intentions and purpose are clearly identifiable.19. In a situation like this, this Court can certainly drawinspiration from the words of Hon'ble Justice Krishna Iyer inparagraph-9 of Ramesh Chander Kaushal, Captain v. VeenaKaushal (AIR 1978 Supreme Court 1807). We extract the saidpassage below which can perpetually inspireadjudicators/interpreters struggling to find the meaning ofmeanings and the reason of reasons. Dealing with theinterpretation of Sec.125 Cr.P.C. Justice Krishna Iyer observedthus in paragraph-9:“This provision is a measure of socialjustice and specifically enacted to protectwomen and children and falls within theconstitutional sweep of Art.15(3) reinforced W.P.(c) No.36823 of 2008-: 15 :-by Art.39. We have no doubt that sectionsof statutes calling for construction bycourts are not petrified print but vibrantwords with social functions to fulfil. Thebrooding presence of the constitutionalempathy for the weaker sections likewomen and children must informinterpretation if it has to have socialrelevance. So viewed, it is possible to beselective in picking out that interpretationout of two alternatives which advances thecause - the cause of the derelicts.” (emphasis supplied)20. Arguments have been advanced before us about themanner in which such a deemed inclusive definition of wife has tobe understood. We have already noted that wife in languageand law does not include a divorced wife (a wife whosematrimony stands terminated either unilaterally or by operationof law and who has not re-married). Legislature has employedthe technique of including within the sweep of the expression“wife” in Sec.125(1)(a) non-wives who do not ordinarily fallwithin the meaning of the expression in law and language. It isartificial inclusion of certain persons within the sweep of adefinition not justified by the meaning ordinarily assigned to the W.P.(c) No.36823 of 2008-: 16 :-expression in language and law. There is actually a fiction anddeeming pressed into service by the legislature. To includecertain categories of women not ordinarily falling within thesweep of the expression “wife”, the legislature has employed thetechnique of inclusive fiction. They are not wives stricto senso;but they are included as wives in the definition by thelegislature. Can our claimant/wife be included in that targetgroup of deemed wives, women is distress, is the burningconcern before us. 21. As to how an inclusive definition has to be understood,counsel have advanced detailed arguments. Observations inparagraph-10 in State of Bombay and Others v. HospitalMazdoor Sabha and Others (AIR 1960 SC 610) is pressed intoservice. “ It is obvious that the words, used ininclusive definition denote extension andcannot be treated as restricted in anysense. (Vide: Stroud's “Judicial Dictionary”,Vol.2, p.1415). Where we are dealing withan inclusive definition it would beinappropriate to put a restrictiveinterpretation upon terms of widerdenotation”. W.P.(c) No.36823 of 2008-: 17 :-22. It is unnecessary to advert to more precedents on thisaspect. However, we remind ourselves of one subsequentdecision in P. Kasilingam and Others v. P.S.G. College ofTechnology and Others (AIR 1995 SC 1395) where JusticeS.C. Agrawal observed that:“the word “includes” when used enlargesthe meaning of the expression defined soas to comprehend not only such things asthey signify according to their naturalimport; but also those things which theclause declares that they shall include.” 23. A literal reading of Explanation (b) might convey thata woman in order to claim inclusion in the sweep of theexpression “wife” by the deemed definition must necessarily havebeen divorced or obtained a divorce from her husband and mustnot have re-married. What is the sweep of the expression“divorced by or has obtained a divorce from”. Can by a processof interpretative expansion the wives in annulled marriages alsobe included within the sweep of Explanation (b)? This is thechallenging controversy that is raised before us.24. It may be apposite in this context to go to the body ofSec.125 and the very fundamentals. Liability under Sec.125 isonly on the husband to maintain his wife. The liability is not on W.P.(c) No.36823 of 2008-: 18 :-“the spouse” having sufficient means to maintain the otherspouse unable to maintain himself/herself. Only the man and notthe woman can be made liable under Sec.125 to maintain hisspouse. It is relevant to note that though the legislature hadcautiously included legitimate as well as illegitimate childrenwithin the sweep of Clauses (b) and(c) of Sec.125, the legislaturedid not choose to include the illegitimate, non-formal or de factowives within the sweep of Sec.125 by specific employment ofwords. It appears that the expression “wife” used in Sec.125was intended to refer to legitimate/legal wives. That undoubtedlyis the interpretation of the Supreme Court in a line of decisions.We may broadly refer to the three mile stones namelyYamunabai Anantrao v. Anantrao Shivaram (1988 (1) SCC530); Vimala v. Veeraswami (1991 (2) SCC 375) andSavitaben Somabhai Bhatiya v. State of Gujarat (2005 (3)SCC 636). The position appears to be well settled. UnderSec.125 as interpreted in these decisions proof of formal andlegal solemnization is necessary to bring a spouse within thesweep of the expression “wife” in Sec.125(1)(a). Formal entry tothe legal and valid institution of matrimony is essential as perthese precedents. Mere relationships in the nature of marriage W.P.(c) No.36823 of 2008-: 19 :-have to be distinguished from formal and legal marriages. Asper the three decisions referred above the former is not entitledto and the latter alone is entitled to claim rights under Sec.125Cr.P.C. At a certain point of time in the development of societycertainly such insistence on formal solemnization of marriage byperformance of rituals became essential to confer on the spousesthe status of legally wedded spouses. Marriage is the foundationof family and the most basic of all human institutions in society.The same has to be distinguished from non-formal relationshipsof expediency. Arrangements for carnal satisfaction - meresatisfaction of physical demand of sexuality, have to bedistinguished from the formal solemn relationship of marriage.Intention to enter matrimony should be unequivocally declaredby formal solemnization of marriage in accordance with personallaw. Intention to enter matrimony may be inferred from longcohabitation of parties and acts of parties. But wherever statusis in dispute, proof of formal solemnization of marriage inaccordance with personal law has to be insisted. This is theirreducible desideratum that Anatrao, Vimala and Savitabeninsist.25. In a knowledge society such insistence on W.P.(c) No.36823 of 2008-: 20 :-solemnization by rituals will certainly be open to challenge.These rituals of solemnization were earlier insisted traditionallyin ancient society to distinguish between a real intention to enterformal matrimony from other non-formal relationships. It maybe difficult in a knowledge society to sell the idea that formaldeclarations in documents including unquestioned registereddocuments are insufficient and want of ritualistic solemnizationwould detract against such intention to enter matrimony formally.Solemnization used to be insisted only as unmistakableexpression of intention to formally enter matrimony. Certainly ina knowledge society courts cannot continue with such ritualisticinsistence on performance of rituals for solemnisation. For amodern Indian who has imbibed the constitutional fundamentalduty to be reasonable - to develop the scientific temper,humanism and the spirit of inquiry and reform, as insisted underArt.51A(h), such insistence may appear to be empty and hollow.However, the fact remains that the law as it now stands insists onformal ritual solemnization of marriage in accordance with therespective personal law. Under the secular general law, formalverbal and express written declarations have been held to besufficient. A right to be irrational in matters of faith cannot W.P.(c) No.36823 of 2008-: 21 :-obviously be claimed even in our secular republic which toleratesall religious faiths. Bold innovations in law must come in aknowledge society where the citizens right to enter matrimonycannot depend on the involvement of the pundit, monk or khazi.By giving expression of their unmistakable intention to marry inunquestionable documents it must be possible in a knowledgesociety for a young man and woman, who do not deny theirreligion, to enter valid matrimony. We can certainly foresee afuture date where emphasis and accent will not be onperformance of empty rituals which may not have relevance inthe modern society. The search in future will certainly be tounambiguous evidence of intention to create and enter suchformal relationship of marriage. Expressed intention inundisputed documents may have to be given due weightundoubtedly in the proof of marriage in future.26. The learned counsel for the claimant/wife and theamicus curiae laboriously contend that distinction must bedrawn on the basis of the purpose for which proof of marriage isinsisted. The purpose is important. For the purpose ofsuccession and for ascertainment of legal status, totally differentconsiderations may apply as distinguished from mere claims for W.P.(c) No.36823 of 2008-: 22 :-maintenance, support and alimony. The observations of theBombay High Court in Bhausaheb @ Sandu v. Leela Bai(2004 Bombay 283) cited by the learned amicus curiae doesappear to be crucially relevant and perfectly acceptable to us: “It would not be permissible to include inthe term “wife” or “widow”, thatrelationship which is not recognized by law.However, there can be class of persons whoare “illegitimate wives or widows” who canbe the subject of benefaction of law ofmaintenance, notwithstanding thateventually their legal status is annulled.For the purpose of the Succession Act andthe Maintenance Act the terms “wife andwidow” would have a restricted articulatelegal meaning, that by itself would not bethe position when the matter arises for thepurpose of providing the measures ofsustenance on considerations of justiceand fair play involved and basic to allhuman and social relations.” (emphasis supplied)27. We find considerable merit in this approach.Ascertainment of legal status for the purpose of succession etc.,will have to be distinguished certainly from the ascertainment ofthe legal relationship for the purpose of mere avoidance of W.P.(c) No.36823 of 2008-: 23 :-vagrancy. Sec.125 Cr.P.C. is not in any way concerned withdeclaration of status. It deals only with the avowed object ofpreventing vagrancy in the polity. Ascertainment of strict legalrelationship is not legally necessary when we consider the objectand purpose of Sec.125 Cr.P.C.28. Winds of change are blowing across our judicialsystem. The concept that a de facto wife/illegitimate wife so-called is also entitled for maintenance is being progressivelyaccepted. A perusal of the relevant provisions of the Protectionof Women from Domestic Violence Act, 2005 (for short 'the DVA')makes the position eloquent. Monetary relief includingmaintenance is declared to be available to an aggrieved personunder Sec.20 of the DVA. An aggrieved person as per Sec.2(a)is a woman who is or has been in a domestic relationship withthe respondent. “Domestic relationship” is defined under Sec.2(f) of the DVA. as the relationship between two persons who liveor have at any point of time lived together in a shared householdwhen they are related by consanguinity, marriage or through arelationship in the nature of marriage or adoption. A sharedhousehold is again defined in Sec.2(s) of the DVA to mean ahousehold where the aggrieved person lives or has lived in a W.P.(c) No.36823 of 2008-: 24 :-domestic relationship with the respondent. We need not delvedeeper into the provisions of the DVA. The crux of the changebrought about by the DVA is that the monetary relief ofmaintenance can be claimed not only by wives in legal matrimonybut also by women related to men through relationships in thenature of marriage also. The law has taken a great strideforward to ensure security for and to prevent vagrancy in respectof such women who have relationships in the nature of marriagewith the person against whom the claim is made. Not only thoseliving in such relationship; but also those who at any point oftime had lived together in such relationship are also entitled tothe monetary relief of maintenance under Sec.20 of the DVA.29. The concept was well entrenched in our society thatmaintenance can be claimed only by a legitimate and legal wifeand not by a woman who had shared a relationship in the natureof marriage. But changes have come about. Today women whoshare a relationship in the nature of marriage can also claimmaintenance. Meretricious relationships are excluded; but otherrelationships in the nature of marriage which fall within thedefinition of “domestic relationship” in Sec.2(f) of the DVA arereckoned as sufficient if those in such relationships live or had W.P.(c) No.36823 of 2008-: 25 :-lived together in a shared household to entitle them to the reliefof maintenance under Sec.20(1)(d) of the DVA. Entrenchedconcepts are undergoing transformation/change. We areconscious of the decision in D.Velusamy v. D. Patchaimmal(AIR 2011 Supreme Court 479) in which guidelines are given toascertain whether a relationship not amounting to formalmarriage can be reckoned as sufficient to bring the relationshipwithin the sweep of “domestic relationship” under Sec.2(f) of theDVA. We need now only observe that proof of the formalrelationship of marriage is no more essential under the Indianlaw to entitle a woman to claim the monetary relief ofmaintenance under Sec.20(1)(d) of the DVA.30. This change in the law must necessarily get reflected inunderstanding the concept of wife under Sec.125(1)(a) Cr.P.C. Wetake note of the submission of the learned amicus curiae that underSec.26(1) of the DVA which we extract below, it is open to aclaimant in a petition under Sec.125 Cr.P.C. to claim the monetaryrelief of maintenance under Sec.20(1)(b):“26. Relief in other suits andlegal proceedings.--- (1) Any relief W.P.(c) No.36823 of 2008-: 26 :-available under Sections 18, 19, 20, 21 and22 may also be sought in any legalproceedings, before a civil court, familycourt or a criminal court, affecting theaggrieved person and the respondentwhether such proceedings was initiatedbefore or after the commencement of thisAct.(2) Any relief referred to in sub-section (1) may be sought for in addition toand along with any other relief that theaggrieved person may seek in such suit orlegal proceeding before a civil court orcriminal court.(3) In case any relief has beenobtained by the aggrieved person in anyproceedings other than a proceeding underthis Act, she shall be bound to inform theMagistrate of the grant of such relief.”We agree with the learned amicus curiae that, in the light of Sec.26of the DVA, the provisions of the DVA in relation to the monetaryrelief of maintenance have been brought into Sec.125 Cr.P.C. and itwould be idle to attempt to understand the expression “wife” in W.P.(c) No.36823 of 2008-: 27 :-Sec.125 without reference to the concepts which have beenaccepted by the Indian legal system by the enactment of the DVA.By Sec.26 we agree that provision to claim maintenance by awoman in non-formal relationship of marriage with the respondenthas also been brought into Sec.125 Cr.P.C. by incorporation. Ifthe expression “wife” can be understood to include a woman indomestic relationship entitled to claim maintenance under Sec.20(1)(d) of the DVA, there shall thereafter be no meaning or rationalein the insistence on proof of formal/legal relationship of wife toentitle her for maintenance under Sec.125 Cr.P.C. “Wife” underSec.125 Cr.P.C. will then have to include a woman in domesticrelationship under the DVA.31. In the light of the DVA and particularly Sec.26 thereofthe decision in Anatrao, Vimala and Savitaben may definitelyhave to be re-visited and re-interpreted. We do not think itnecessary for us to come to any final conclusions on that question.The same is unnecessary for our purpose in this proceedings wherewe are only trying to understand whether the inclusive definition W.P.(c) No.36823 of 2008-: 28 :-under Explanation (b) would take in a wife in an annulledmarriage. We do note that the Supreme Court in Chanmuniya v.Virnedra Kumar Singh Gushawa & Another [(2011) 1 SCC 141)has already referred the question to a larger Bench for decision.The nation and the legal community are anxiously awaiting thedecision in Chanmuniya. We are informed that the said case hasnot been decided yet by the Supreme Court.32. We now come to the immediate problem before us as towhether the wife in an annulled marriage can fall within theinclusive definition under Explanation (b).33. What is the legal effect of a decree for nullity underSec.12 of the Hindu Marriage Act? Does it altogether obliterateand annihilate the duly solemnized marriage? What is thedistinction between void marriages and voidable marriages? Isthat distinction in any way relevant while considering the claim forinclusion of the wife in an annulled marriage also within the sweepof Explanation (b) to Sec.125(1) Cr.P.C.34. According to the Hindu Marriage Act, the marriage can W.P.(c) No.36823 of 2008-: 29 :-be void or voidable. A valid marriage can be ordered to bedissolved also. Under Sec.11 of the Hindu Marriage Act certainmarriages are declared to be null and void. Such null and voidmarriages can be treated as nonest by the parties and others.However, such marriage can be declared to be null and void by thecourt by issuing a decree of nullity. A marriage will be null andvoid and can be declared to be null and void under Sec.11 only ifthe marriage contravenes the conditions specified in Clauses (i),(iv) and (v) of Sec.5. This is clear from Sec.11.35. Under Sec.12 of the Hindu Marriage Act, certainmarriages shall be voidable and may be annulled by a decree ofnullity on any one of the four specified grounds under Sec.12(1)(a)to (d). Such marriages, it is trite, are valid in accordance with lawand will continue to be valid until the court by a decree annuls themarriage on any one of the specific grounds. In short, the marriageis valid in law and will continue to be valid until it is annulled by adecree of nullity under Sec.12. Precedents galore to suggest thatsuch marriages are valid and even assuming that Grounds (a) to (d) W.P.(c) No.36823 of 2008-: 30 :-of Sec.11 exist to vitiate the marriage, parties by their conduct canaccept such marriage and in the absence of a decree for annulmentsuch marriage will continue to be valid for all purposes. It iscrucial to note that severance of a solemnized voidable marriagecan be done only at the instance of the spouses. Such severance isonly on their volition. This is crucial while considering the ply ofExplanation (b) to Sec.125(1) Cr.P.C.36. Sec.13 of the Hindu Marriage Act deals with divorce.By a decree for divorce, on grounds specified under Sec.13, themarriage can be dissolved by the court. The grounds are specifiedin Sec.13. The effect of a decree under Secs.11, 12 and 13therefore appears to be different. The first under Sec.11 is nulland void. It can be treated as null and void by the parties andothers. If necessary, the parties can seek the assistance of the courtfor declaration of such nullity. In the eye of law such a marriagedoes not exist.37. A decree of annulment brings to termination a marriagewhich in fact has been solemnized. But for such decree by which W.P.(c) No.36823 of 2008-: 31 :-such marriage is brought to an end, the marriage would havecontinued to be valid. Parties have the option to reckon themarriage as valid. They have the option to seek severance by adecree for annulment.38. The third category of terminated marriages are validmarriages. They continue to be valid. Their validity is acceptedand conceded by the court when it grants a decree for dissolution.The decree for divorce terminates the marital tie which is valid andaccepted to be valid.39. What are the consequences of a decree passed under anyone of these three Sections – Secs.11, 12 and 13. This questionassumes importance when we undertake the specific task ofascertaining whether a decree of annulment under Sec.12 wouldenable the wife in such marriage to claim maintenance underSec.125 Cr.P.C. 40. For the purpose of the dispute before us it is notnecessary to consider whether the wife whose marriage is or hasbeen declared to be null and void under Sec.11 of the Hindu W.P.(c) No.36823 of 2008-: 32 :-Marriage Act would be entitled to claim maintenance underSec.125 Cr.P.C. The decisions in Anatrao, Vimala andSavitaben appear to clearly lay down that such a woman will notbe a wife and would consequently not be entitled for maintenanceunder Sec.125 Cr.P.C. We await the decision in Chanmuniya v.Virnedra Kumar Singh Gushawa & Another [(2011) 1 SCC 141)and it is not necessary for us to express any opinion on the claim ofsuch a woman for maintenance under Sec.125 Cr.P.C.41. About the claim of a woman whose marriage has beendissolved by a decree for divorce under Sec.13 of the HinduMarriage Act, there is no dispute. She will certainly be includedwithin the sweep of Explanation (b) to Sec.125(1) Cr.P.C.42. The precise question to be considered is whether awoman whose marriage is annulled under Sec.12 of the HinduMarriage Act can be included within the sweep of Explanation (b)to Sec.125(1) Cr.P.C. A reference to the language of Sec.12 maybe of relevance. A marriage attracting Grounds (a) to (d) ofSec.12(1) “shall be voidable and may be annulled by a decree of W.P.(c) No.36823 of 2008-: 33 :-nullity.” This is all that is mentioned in Sec.12. The effect orconsequence of a marriage annulled under Sec.12 is not declared bythe legislature in any provision of the Hindu Marriage Act. Themarriage is said to be voidable and may be annulled by a decree ofnullity. This is all that is stated. We note again that such amarriage shall remain and continue to be valid for all purposesunless it is annulled by a decree under Sec.12 of the HinduMarriage Act. Parties have the option to treat the marriage asvalid. If they do not go to court and seek a decree annulling themarriage under Sec.12 the same shall continue to be valid for allintents and purposes. A marriage duly solemnized gets annulledonly if parties in their volition approach the court to get the sameterminated in accordance with the provisions of Sec.12 of theHindu Marriage Act. The consequence of such annulment is notspecifically declared.43. What are the consequences in fact and in law? This hasto be considered. The learned counsel for the respondent/husbandcontends that once a marriage is annulled under Sec.12 as a W.P.(c) No.36823 of 2008-: 34 :-voidable marriage, it ceases to exist in the eye of law. Thereafter itis impermissible to reckon such voidable marriage as valid for anypurpose. A decree of annulment under Sec.12 will have the effectof obliterating and annihilating the marriage solemnized.Therefore it is not a case of a marriage being terminated as in thecase of a decree for divorce/dissolution under Sec.13. It is a caseof there being no marriage at all. No rights or liabilities can stemor emanate from such a marriage which is annulled under Sec.12 ofthe Hindu Marriage Act, contends counsel. 44. We find it difficult to persuade ourselves to accept thiscontention. The learned counsel for the claimant/wife contendsthat a decree of annulment cannot certainly restore the parties totheir position prior to marriage, in fact. The solemnized marriageis a reality. Law cannot close its eyes to such solemnizedmarriage. Law cannot ignore the fact that the spouses had lived ashusband and wife in such matrimony for some period of time.Law cannot afford to ignore the fact that it is the volition of theparties which had led to the annulment of the marriage under W.P.(c) No.36823 of 2008-: 35 :-Sec.12 of the Hindu Marriage Act. They could have treated thesame to be valid. Conduct of parties has a crucial bearing in adecree of annulment under Sec.12.45. We find force in this submission. In the Indian contextwhere the virginity of a woman is given utmost importance, shecan never, in fact, re-claim her status as a spinster after annulmentof her marriage under Sec.12 of the Hindu Marriage Act. She haslost her maidenhood. In the eye of society she has lost hervirginity. Whatever be the law, on declaration of nullity orvoidness of the marriage, in fact, she will continue to be the womanin a terminated marriage. Her maidenhood is lost. If she wants toenter matrimony again, society will reckon the same only as a re-marriage with all its inadequacies and inconveniences. One cannotwish away a solemnized marriage merely because such marriagehas been annulled at the volition of parties by a court by passing adecree under Sec.12. What we intend to note is that there isundoubted transformation of the status of a woman from a maidento the woman in a terminated marriage. In fact, consistent with W.P.(c) No.36823 of 2008-: 36 :-the societal norms she ceases to be a maiden. Her re-marriage willordinarily be a difficult and uphill task. She would be left in thelurch without any one to support until her re-marriage takes place.We are only attempting to satisfy and convince ourselves that sucha woman certainly falls within the target group of unfortunatewomen in whose favour the legislative compassion gets eloquentexpression by the enactment of Explanation (b) to Sec.125 Cr.P.C.46. It is not as though the law assumes that such an annulledmarriage can be ignored, overlooked or forgotten for all purposes.We shall now look into the eventualities pointed out by the learnedamicus curiae and the learned counsel for the claimant/wife wherethe law realistically takes into account the different status ofspouses in an annulled marriage. The law also does not reckon oraccept that because of a decree for annulment, such marriage can beignored, overlooked or forgotten for all purposes.47. Before considering the specific instances under theHindu Marriage Act, we take note of the submissions of Dr.Sebastian Champappilly, the learned amicus curiae on how other W.P.(c) No.36823 of 2008-: 37 :-jurisprudential systems have considered the issue. The learnedamicus curiae points out that in England under Sec.23 ofMatrimonial Causes Act, 1973 it has been made clear that in respectof financial provisions orders, a decree for divorce and a decree fornullity stand on the same footing. The learned counsel points outthat in White v. White (2000) the House of Lords (decision dated26/10/2000) has instructed courts to assume an equal split ofmatrimonial assets on divorce or nullity. All systems arerealistically accepting progressively the need to have identicalproprietory consequences following a decree for nullity anddivorce, argues counsel. We take note of these submissions,though we do not want to found any conclusions on suchsubmissions.48. We now take into consideration Sec.16 of the HinduMarriage Act. We extract Sec.16(2) which deals with the fate ofchildren begotten in a marriage annulled under Sec.12. Sec.16(2)reads as follows:“16. Legitimacy of children of void W.P.(c) No.36823 of 2008-: 38 :-and voidable marriages.--- (1) x x x x x x(2) Where a decree of nullity isgranted in respect of a voidable marriageunder Section 12, any child begotten orconceived before the decree is made, whowould have been the legitimate child of theparties to the marriage if at the date of thedecree it had been dissolved instead ofbeing annulled, shall be deemed to be theirlegitimate child notwithstanding the decreeof nullity.”A child born in such marriage annulled under Sec.12 is equatedwith a child born in a marriage dissolved by a decree for dissolutionunder Sec.13. All that we intend to take note is that the legislatureitself has equated the consequences of a decree annulling marriageunder Sec.12 to a decree for dissolution (divorce) under Sec.13 ofthe Hindu Marriage Act for a specified purpose. Depending on thepurpose to be served/ achieved it is possible, it is evident that theannulled marriage can be reckoned to have the same effect as a W.P.(c) No.36823 of 2008-: 39 :-dissolved marriage. So far as the legitimacy of children born,Sec.16(2) declares that there is no distinction between a marriageannulled under Sec.12 and a marriage dissolved under Sec.13.That to our mind is of crucial relevance.49. Another instance is pointed out in Sec.25. Even the wifeof a marriage annulled under Sec.12 is entitled for permanentalimony and maintenance. We extract Sec.25(1) below:“25. Permanent alimony andmaintenance.-- (1) Any court exercisingjurisdiction under this Act may, at the timeof passing any decree or at any timesubsequent thereto, on application made to itfor the purpose by either the wife or thehusband, as the case may be, order that therespondent shall pay to the applicant for heror his maintenance and support such grosssum or such monthly or periodical sum for aterm not exceeding the life of the applicantas, having regard to the respondent's ownincome and other property, if any, theincome and other property of the applicant, W.P.(c) No.36823 of 2008-: 40 :-the conduct of the parties and othercircumstances of the case, it may seem to thecourt to be just, and any such payment maybe secured, if necessary, by a charge on theimmovable property of the respondent.”The Section comes into operation “at the time of passing anydecree or at any time subsequent thereto”. A question arosewhether for the purpose of grant of permanent alimony andmaintenance wife of a marriage annulled under Sec.12 can bereckoned as identical to a wife in a marriage dissolved underSec.13. It is now trite after the decision in Rameshchandra v.Rameshwari (AIR 2005 SC 422) that the wife in an annulledmarriage is also entitled for permanent alimony and maintenanceunder Sec.25 of the Hindu Marriage Act. A reference to thefollowing observations in paragraph-17 of Rameshchandra doesappear to us to be crucially relevant:“17. In the present case, on thehusband's petition, a decree declaring thesecond marriage as null and void has been W.P.(c) No.36823 of 2008-: 41 :-granted. The learned counsel has argued thatwhere the marriage is found to be null andvoid-meaning non-existent in eye of law ornon est, the present respondent cannot lay aclaim as wife for grant of permanentalimony or maintenance. We have criticallyexamined the provisions of Section 25 in thelight of conflicting decisions of the HighCourt cited before us. In our consideredopinion, as has been held by this Court inChand Dhawan's case (supra), theexpression used in the opening part ofSection 25 enabling the 'Court exercisingjurisdiction under the Act' 'at the time ofpassing any decree or at any timesubsequent thereto' to grant alimony ormaintenance cannot be restricted only to, ascontended, decree of judicial separationunder Section 10 or divorce under Section13. When the legislature has used such wideexpression as 'at the time of passing of anydecree,' it encompasses within theexpression all kinds of decrees such as W.P.(c) No.36823 of 2008-: 42 :-restitution of conjugal rights under Section9, judicial separation under Section 10,declaring marriage as null and void underSection 11, annulment of marriage asvoidable under Section 12 and Divorceunder Section 13.”The learned Judges proceeded to consider the purpose and therationale underlying the statutory stipulations and proceeded tohold in paragraph-19 as follows:“It is with the purpose of not renderinga financially dependent spouse destitute thatS.25 enables the Court to award maintenanceat the time of passing any type of decreeresulting in breach in marriage relationship.”50. Rameshchandra (as also the earlier decisions on whichreliance is placed in that decision) is reckoned by us as authorityfor the proposition that an annulled marriage does not altogetherdeprive a financially dependent destitute wife of her right to claimmaintenance/alimony on the basis of such annulled relationship ofmarriage. For the purpose of Sec.25, it is crucial that the wife in W.P.(c) No.36823 of 2008-: 43 :-an annulled marriage under Sec.12 is reckoned as identical to awife whose marriage is dissolved by a decree for dissolution ofmarriage under Sec.13. Under the civil (personal law) the womanin an annulled marriage is entitled to claim permanent alimony andmaintenance. That must carry us far in the journey to ascertainwhether such a woman in an annulled marriage is entitled to claimmaintenance under the secular law (Code of Criminal Procedure)where the accent is to prevent destitution and vagrancy. If she canclaim such permanent alimony and maintenance under the personallaw under certain conditions, we can locate no valid reason to denysuch maintenance under the secular law if she satisfies theconditions specified in such law.51. It of course true that Sec.25 permits even the wife whosemarriage is declared to be null and void by a court under a decreepassed under Sec.11 to be eligible to claim maintenance. We neednot delve deeper into the claim of a wife whose marriage isdeclared null and void by a decree under Sec.11. What we neednote is only that no such right is seen conceded to a woman in W.P.(c) No.36823 of 2008-: 44 :-respect of whose marriage no decree whatsoever is claimed and themarriage is reckoned to be null and void and ab initio by thedeclaration under Sec.11. We take note of Sec.25 only to satisfyourselves that annulment of marriage under Sec.12 does notobliterate or annihilate the solemnized marriage for the purpose ofgranting permanent maintenance/alimony under Sec.25. For thepurpose of Sec.25, there is equation of the wife in an annulledmarriage under Sec.12 with the wife in a dissolved marriage underSec.13.52. Our attention has now been brought to Sec.15 of theHindu Marriage Act. We extract Sec.15 below:“15. Divorced person when maymarry again.-- When a marriage has beendissolved by a decree of divorce and eitherthere is no right of appeal against the decreeor, if there is such a right of appeal, the timefor appealing has expired without an appealhaving been presented, or an appeal has beenpresented but has been dismissed, it shall belawful for either party to the marriage to W.P.(c) No.36823 of 2008-: 45 :-marry again.”(emphasis supplied)This section deals with the right of a spouse in a marriage dissolvedby a decree for divorce to marry again. By the plain language ofSec.15 the Section can apply only “when a marriage has beendissolved by a decree for divorce”. Even though the HinduMarriage Act speaks of declaration of nullity of a void marriageunder Sec.11, annulment of a voidable marriage under Sec.12 andthe dissolution of a valid marriage by a decree for divorce underSec.13, Sec.15 specifically refers only to an instance when amarriage has been dissolved by a decree for divorce. The questionarose whether the spouse in an annulled marriage under Sec.12 isalso subject to the same restriction/disability in respect of re-marriage. Going by the plain and express words of Sec.15, it waspossible to contend that it applies only to a person whose marriagehas been dissolved by a decree for divorce under Sec.13. TheSupreme Court in Smt. Lata Kamat v. Vilas (AIR 1989 SC 1477)unambiguously came to the conclusion that spouses in an annulled W.P.(c) No.36823 of 2008-: 46 :-marriage under Sec.12 or in a dissolved marriage under Sec.13would all fall within the sweep of the expression “dissolved by adecree for divorce”. The following observations in paragraph-7 ofSmt. Lata Kamat does appear to us to be crucial:“It is no doubt true that these twosections have different phraseology. InSec.12 it is said that the marriage beannulled by a decree of nullity whereas inS.13, the phraseology used is “dissolved bydecree of divorce” but in substance themeaning of the two may be different underthe circumstances and on the facts of eachcase but the legal meaning or the effect isthat by intervention of the Court therelationship between two spouses has beensevered either in accordance with theprovisions of S.12 or in accordance with theprovisions of S.13. Probably it is because ofthis reason that the phrase 'decree of nullity'and 'decree of divorce' have not beendefined.” (emphasis supplied) W.P.(c) No.36823 of 2008-: 47 :-53. Later in the same judgment in paragraph-7 the learnedJudges proceeded to make the following observations:“This phrase 'marriage has beendissolved by a decree of divorce' will onlymean where the relationship of marriage hasbeen brought to an end by the process ofCourt by a decree.”The above observations in paragraph-7 of Smt. Lata Kamat doappear to us to be crucially relevant as we are considering theseissues for the purpose of deciding whether the expression “awoman who has been divorced by, or has obtained a divorce fromher husband” in Explanation (b) to Sec.125(1) would include thewife in an annulled marriage under Sec.12. The dictum in Smt.Lata Kamat supports the claimant/wife.54. We may straightaway refer to the provisions of the DVA.The wife in the annulled marriage was certainly living in arelationship with her spouse in a shared household through arelationship in the nature of marriage. The marriage may havebeen voidable. It may have been annulled by a decree under W.P.(c) No.36823 of 2008-: 48 :-Sec.12. That does not take away or detract from the fact that thespouses had lived together in a shared household in a relationship“in the nature of marriage” though that relationship, on account ofvolition of the parties has subsequently been declared to bevoidable and annulled. The spouses have gone through a ceremonyof marriage. Their marriage has been duly solemnized.Consequent to such relationship created by such solemnization,they have lived together as husband and wife for some period oftime. They did so live together in a shared household also. Themere fact that such relationship has subsequently been annulled bya decree under Sec.12 cannot militate against the status of parties aspersons in a domestic relationship and of their having lived in ashared household. In these circumstances, notwithstanding thesubsequent decree under Sec.12 annulling the marriage, the wifemust be held to be entitled for monetary relief of maintenanceunder Sec.20(1)(d) of the DVA. We are conscious of an earlierreported decision by a learned single Judge in Surendran T.K. v.State of Kerala (2009 (3) KHC 569 = 2009 (3) KLT 967) W.P.(c) No.36823 of 2008-: 49 :-between the same parties where it has been held that such a wife inan annulled marriage cannot be held to have shared a domesticrelationship. As rightly pointed out by the learned amicus curiae,the said decision cannot any more be held to be valid in the light ofthe decision in D.Velusamy v. D. Patchaimmal (AIR 2011 SC479). Considering the social purpose which the DVA has to serveand considering the specific language employed in the definitionof Sec.2(f) (“domestic relationship”) and Sec.2(s) (“sharedhousehold”), it has got to be held that a woman who lives withthe spouse in a solemnized marriage or had so lived with himafter such solemnized marriage must be held to be an aggrievedperson under Sec.2(a) and she can claim against her spouse whofalls within the sweep of the definition “respondent” in Sec.2(q).Notwithstanding the subsequent annulment of marriage by adecree under Sec.12 of the Hindu Marriage Act, the status of theparties as aggrieved person and the respondent is not affectedand their past residence (prior to annulment) in the sharedhousehold on the strength of such solemnized marriage mustcertainly be held to entitle the wife/woman to the monetary reliefof maintenance under Sec.20(1)(d) of the DVA. Annulment of W.P.(c) No.36823 of 2008-: 50 :-marriage under Sec.12 of the Hindu Marriage Act cannotaltogether obliterate or annihilate the solemnized marriage.Secs.16, 25 and 15 as interpreted in binding precedents acceptthis position. Even if the marriage is annulled under Sec.12 ofthe Hindu Marriage Act, the decree of annulment cannot militateagainst this fact - that the man and woman had lived togetherin a shared household and were related to each other though arelationship in the nature of marriage. The marriage may havebeen voidable. It may have been annulled as a voidablemarriage by a decree of annulment under Sec.12 of the HinduMarriage Act. But all these cannot militate against the fact thattheir relationship was (at least) in the nature of marriage. Thespouses who lived together for sometime in an annulledmarriage can certainly be held to have shared a domesticrelationship as defined under Sec.2(f) of DVA. In this view of thematter, we are unable to agree with the dictum in Surendran(supra). It has hence got to be held to be not valid. We dospecifically overrule the said decision in Surendran T.K. v.State of Kerala (2009 (3) KHC 569).55. We do, in these circumstances, have no hesitation tocome to the conclusion that the expression “woman who has been W.P.(c) No.36823 of 2008-: 51 :-divorced by or has obtained a divorce from her husband” inSec.125(1)(b) Cr.P.C. must receive a liberal and expansiveinterpretation to include a destitute woman in distress whosemarriage has been annulled by a decree under Sec.12 of theHindu Marriage Act. To us, the core or the crux of theingredients specified under Explanation (b) is that the womanmust be one whose matrimonial relationship stands severed byacts of spouses - including intervention of court at their instance,and who has not re-married. Going by the object, purpose andrationale of the deemed inclusion of certain non-wives in thecategory of wives by Explanation (b) it would be impermissible todeny the benefit of the legislative compassion to wives whosemarriages have been annulled by court at the volition of parties,on grounds available under Sec.12. 56. A contention has been advanced with great fervor bythe learned counsel for the respondent/husband that suchinterpretative expansion would make innocent husbands alsoliable under Sec.125 Cr.P.C. A husband whose marriage hasbeen annulled on account of contumacious conduct on the partof his wife offering a ground under Sec.12(1)(a) to (d) will also bemade liable to pay maintenance to his wife under Sec.125 Cr.P.C. W.P.(c) No.36823 of 2008-: 52 :-This is not justified. Such a consequence must be alertly avoided,contends the learned counsel for the respondent/husband.57. We have taken note of this contention anxiously.Sec.125, according to us, has nothing to do withcontumaciousness - except perhaps in the refusal or neglect topay maintenance. If the relationship specified under Sec.125Cr.P.C. exists and a husband having sufficient means is refusingand neglecting to pay maintenance to his wife unable to maintainherself, Sec.125 mandates payment of maintenance and thepurpose simply is to avoid vagrancy and destitution. Moralcontumaciousness is evidently irrelevant. It is more so inrespect of a deemed wife under Explanation (b) to Sec.125(1)Cr.P.C.58. That it is not so is evident. We quote one example. Awife in matrimony who is living in adultery may not be entitled toclaim maintenance under Sec.125 Cr.P.C. But the moment herhusband secures divorce on the ground of adultery, he becomesliable to pay maintenance to her in her capacity as a divorcedwife. It is trite that the mere fact that divorce has been obtainedby the husband on account of matrimonial contumaciousness ofthe wife is no reason for the divorced husband to claim W.P.(c) No.36823 of 2008-: 53 :-absolution from the liability to pay maintenance to his divorcedwife under Sec.125 Cr.P.C. A husband who has obtained divorceon the ground of moral contumaciousness of his wife is also liableto pay maintenance to his divorced wife if she is unable tomaintain herself and he has sufficient means. In this view of thematter, we are unable to attach any crucial significance to thearguments advanced on the basis of moral contumaciousness ofthe wife which may have led to the passing of a decree forannulment under Sec.12 of the Hindu Marriage Act. As in thecase of a marriage dissolved under Sec.13 of the Hindu MarriageAct, whatever be the ground of annulment, the wife continues tobe a deemed wife under Explanation (b). 59. The contention is laboriously raised that under Sec.25of the Hindu Marriage Act (we have already extracted Sec.25(1))the court can take note of “the conduct of the parties and othercircumstances of the case”. But when it comes to a claim underSec.125 Cr.P.C. of the wife in an annulled marriage, the court willnot be able to take note of the contumacious conduct of theparties. This would work out injustice, it is impassionatelycontended by the learned counsel for the respondent/husband.60. We had adverted to Sec.25 only to satisfy ourselves that W.P.(c) No.36823 of 2008-: 54 :-the liability to pay permanent alimony and maintenance to thewife in an annulled marriage is recognized by law as per thepersonal law applicable to the parties. Under the personal lawcertain circumstances have to be taken into consideration.Under the secular law - Sec.125 Cr.P.C. the right to claimmaintenance can be enforced if the circumstances mentionedunder Sec.125 are satisfied. The mere fact that while grantingrelief under Sec.25 of the Hindu Marriage Act, the court may beentitled to take note of certain other circumstances also (i.e., theconduct of the parties) cannot in any way entitle therespondent/husband to contend that such wife in an annulledmarriage should not be included in the expansive interpretationof “wife” under Sec.125(1)(b) Cr.P.C. 61. The learned counsel for the respondent/husband placesreliance on certain precedents to contend that Explanation (b)cannot be expanded to include the wife in an annulled marriage.We shall now consider these precedents to decide whether theseprecedents should deter us from including the woman in anannulled marriage under Sec.12 within the sweep of the deemedwife under Sec.125(1)(b) Cr.P.C. 62. A learned single Judge of the Rajasthan High Court W.P.(c) No.36823 of 2008-: 55 :-had taken the view that such inclusion is impermissible inMadan v. State of Rajasthan & Another (1993 (3) Crimes372). For the reasons that we have already given in detail in thisjudgment we respectfully disagree with the learned single Judgeof the Rajasthan High Court.63. Reliance is placed in the decision in K. SivaramaKrishna Prasad v. K. Bharath (1986 (1) All India HinduLaw Reporter 59). A Division Bench of the Andhra PradeshHigh Court had taken a similar view as the learned single Judgeof the Rajasthan High Court. We are unable to accept thereasoning in the said decision. We have already given ourreasons for inclusion. We respectfully disagree with the learnedJudges of the Andhra Pradesh High Court.64. The learned counsel for the petitioner points out that alearned single Judge of this Court in Thulasi Bai v. C.V.Manoharan (1989 (3) Crimes 391) had taken the view that thewoman in an annulled marriage cannot claim maintenance underExplanation (b) to Sec.125(1) Cr.P.C. We note that the questionwas not gone into in detail by the learned single Judge. Therelevant discussion appears in paragraph-14 of Thulasi Baiwhich we extract below: W.P.(c) No.36823 of 2008-: 56 :-“14. The wife initiated proceedingsunder S.125 of the Code of CriminalProcedure claiming maintenance from herhusband. After trial the learned Magistratedirected the husband to pay maintenanceat the rate of Rs. 150/- per month.Husband challenged that order before theSessions Court in revision. During thependency of that Revision Petition, theDistrict Court passed a decree annullingthe marriage which is the subject matter ofthe Second Appeal. That judgment wasproduced before the learned SessionsJudge. In view of the decree annulling themarriage, the Revision Petition wasallowed and claim of maintenance wasnegatived. That order is under challengeby the wife in the Criminal M.C. filedtinder S.482 of the Code of CriminalProcedure. Actually, she ought to havepreferred a Revision Petition against theorder of the Sessions Court. Be that as itmay, I do not find any ground to awardmaintenance to her because of the decisionin Second Appeal confirming the decreepassed by the lower appellate courtannulling the marriage.” (emphasis supplied) W.P.(c) No.36823 of 2008-: 57 :-We are unable to agree that the said observations in paragraph-14 constitute any reasons for us to take a different view. Thecourt had not gone into the question in detail. The observationstherein will have to be held to be not representing the correctlaw in the light of our observations above.65. The learned counsel for the petitioner further relies oncertain observations in a Division Bench ruling of this Court inJose v. Alice (1988 (2) KLT 890). The question that arose forconsideration specifically in that case was only whetherdissolution of a marriage by the Eparchical Tribunal can affectthe legal rights and obligations of the parties. Such a dissolutionby an Eparchical Tribunal was held to be not valid and bindingon the criminal court. Notwithstanding such dissolution by theEparchical Tribunal the husband was held liable to paymaintenance under Sec.125 Cr.P.C. Certain observations arethere in the said judgment which suggest that the effect of a validdecree of declaration of nullity is to render the marriage null andvoid ab initio. At any rate, the learned Judges of the DivisionBench had not gone into the question whether woman in anannulled marriage can fall within the ambit of deemed wife under W.P.(c) No.36823 of 2008-: 58 :-Explanation (b) to Sec.125(1) Cr.P.C. The observations in atotally different context appearing in Jose v. Alice (supra) cannotbe reckoned as the dictum. The Hon'ble Judges in that case didnot consider and were not called upon to consider the precisequestion raised before us at present.66. The learned counsel for the respondent/husband placesreliance on the decision in Amina v. Hassan Koya (1985 KLT596). A two Judge Bench of this Court had occasion to considerwhether the Muslim wife who had become pregnant prior to themarriage on account of her licentious life can claim maintenanceunder Sec.125 Cr.P.C. On the peculiar facts and circumstancesof that case, the learned Judges had taken the view that themarriage in that case has to be treated as if it was never in force.The relevant discussion appears in paragraphs-44 to 47 which weextract below:44. The marriage in this case has tobe treated as if it has never been in force.The result is that in law there was nomarriage between the petitioner and therespondent. Since there was no marriagebetween the petitioner and the respondent,the petitioner was at no time remained as awife of the respondent and the respondent W.P.(c) No.36823 of 2008-: 59 :-was never a husband of the petitioner. Sothere was no occasion for the petitioner tobe a 'wife' by the inclusive definition ofS.125 Criminal Procedure Code.45. We now disclose the process ofdecision employed by us in this case. Wehave remembered that aphorism that in thedecision process, the courts are dominantlycoerced not by the essays of theirpredecessors but by a surer thing by anintuition of fitness of solution to theproblem. Vide Oliphiant A Return to staredecisis. General propositions do not decideconcrete cases and the life of the law hasnot been logic, it has been experience. LordEldon has said that it is better that the lawshould be certain than that every judgeshould speculate upon improvements in it.A just solution for the particular case is thecrucial factor in the decision process. Wehave tried to remember that equitable ruleof decision that considerations of justiceare directly relevant to the justification ofany decision.46. Justice we mean justice accordingto law the justice that stems from theapplication of sure and settled principlesand law to proved or admitted facts. We W.P.(c) No.36823 of 2008-: 60 :-also share the root belief of Lord Denningin this case. He said: "My root belief is thatthe proper role of the Judge is to do justicebetween the parties before him. If there isany rule of law which impairs the doing ofjustice, then it is in the province of theJudge to do all that he legitimately can toavoid that rule or even to change it so as todo justice in the instant case beforehim......I would emphasise however theword legitimately. The Judge is himselfsubject to the law and must abide by it.”47. It is extremely difficult for us tofasten a liability under S.125 Crl.Procedure Code (a liability in the languageof the Supreme Court founded upon theindividual's moral obligation to the societyto prevent vagrancy and destitution) on anunfortunate victim of a marital fraud solelyon account of the misfortune that he hadundergone a ritualistic process of acontract of marriage without leastanticipating that he was contracting amarriage with a lady who had five monthsanti nuptial illicit pregnancy. We find itdifficult to direct a person who hasinnocently gone through the process of acontract of marriage with a lady pregnant W.P.(c) No.36823 of 2008-: 61 :-by whoredom to pay maintenanceallowance to her.”(emphasis supplied)67. A careful perusal of the observations in paragraphs-44to 47 must convince this Court that the decision in that case wasso rendered because of the very peculiar fact scenario in thatcase without intending to lay down any rigid principle of law. Itdeserves to be noted that in Amina (supra) it was an admittedcase of divorce and not a case of declaration of nullity ofmarriage. In spite of that, in the peculiar facts andcircumstances of the case, such a divorced Muslim wife was heldto be not entitled to maintenance on the ground that she hadconceived in whoredom prior to her marriage. As seen fromparagraphs-44 to 47 above the learned Judges were only taking ajust decision on the peculiar facts and circumstances of that case.The case of a wife like the claimant/wife whose solemnizedmarriage was annulled by a decree of nullity under Sec.12 wasnot considered by their Lordships. The said observations also donot persuade us to take any different view than the one which wehave come to on the basis of the reasons given already. 68. We must note in this context that all the precedents W.P.(c) No.36823 of 2008-: 62 :-cited above relate to the pre-DVA era. Revolutionary changeshave been brought about and entrenched concepts prevalent insociety have been shaken by the enactment of the DVA.Subsequent statutory instruments must certainly persuade thecourts to understand contemporary meaning of expressions instatutes enacted in a bygone era. It would be myopic for a courtto attempt to understand the meaning of the expression “wife” inthe inclusive definition under Sec.125(1)(b) Cr.P.C. today withoutimbibing the current legal norms prevalent in society in respectof the claim of maintenance by a woman sharing a domesticrelationship with the respondent. The endeavour of all courts atall times must be to innovate and understand the language oflegislations in tune with the norms currently prevalent in society,ushered in and accepted by subsequent pieces of legislations. Inthis view of the matter, we are satisfied that in the post DVA eraattempt cannot be made to understand Explanation (b) toSec.125 Cr.P.C. divorced of the current context in societal andlegal development.69. To conclude, we hold that Explanation (b) to Sec.125(1)Cr.P.C. must receive an interpretation consistent with thelaudable legislative purpose, object and rationale - to prevent W.P.(c) No.36823 of 2008-: 63 :-vagrancy and avoid destitution. We take the view that “thewife” under Explanation (b) must include any woman whosemarriage has been brought to severance by acts of spouses -including a decree passed by court at their instance underSec.12 or Sec.13 of the Hindu Marriage Act. The accent is thatsuch wife in a terminated marriage - unilaterally or byintervention of court, must remain unmarried to claim inclusionwithin the ambit of deemed wife under Explanation (b). Therealistic acceptance of the fact that the wife in an annulledmarriage cannot, in fact, be placed by law to her position ofmaidenhood/spinstership prior to marriage demands andwarrants such an expansive interpretation of the expression“wife” in Explanation (b). The fact that consequences of anannulment are not declared in the Hindu Marriage Actspecifically and the fact that for the purpose of Secs.16, 25 and15 the law realistically accepts that such marriage cannot beignored, overlooked or forgotten and has to be equated to amarriage dissolved under Sec.13 does also help us to accept thewider meaning for the expression “wife” in Explanation (b). Thefact that under the personal law applicable to the parties, there isa liability for the husband in an annulled marriage to pay W.P.(c) No.36823 of 2008-: 64 :-permanent alimony and maintenance to the wife under certaincircumstances does also embolden us to include the wife in anannulled marriage also within the ambit of a deemed wife underExplanation (b). We take the view that such a woman falls withinthe sweep of the definition of “wife” under Explanation-(b).70. Needless to say that wives belonging to other religiousdenominations whose voidable marriages have been annulled bya decree for nullity passed by court at the instance of eitherspouse shall all fall within the inclusive definition of “wife” inExplanation (b) to Sec.125(1). However, so far as wives whosemarriages are expressly declared by law to be null and voidwithout intervention of courts as in Sec.11 of the Hindu MarriageAct, we do not express any final opinion in the light of thedecisions in Anatrao, Vimala and Savitaben (supra), thoughwe are certainly of the opinion that in view of Sec.20 and Sec.26of the DVA they also deserve to be included. We do also awaitthe decision in Chanmuniya (supra) on that aspect. 71. The conclusion is, in these circumstances, evident thatthe claimant/wife in this case is entitled to enforce Ext.P2 orderpassed under Sec.125 Cr.P.C. notwithstanding the decree(Ext.P1) for annulment of her marriage with the W.P.(c) No.36823 of 2008-: 65 :-respondent/husband whether such annulment is prior to orsubsequent to Ext.P2. Consequently the wife is entitled toprosecute Ext.P3 petition for execution of Ext.P2 order for therelevant period. The same does not deserve to be quashed.72. In the result:(a) This writ petition is dismissed.(b) We make it clear that Ext.P2 can be enforced. Wedirect the Family Court, Kannur, to proceed to dispose of Ext.P3in accordance with law.(c) Lest there be any confusion, we make it clear that theclaimant/wife shall be at liberty to proceed to execute Ext.P2order for the subsequent periods. In view of the interim staygranted by this Court on 14/1/09, the respondent/husband shallnot be entitled to resist the claim for amounts due for thesubsequent periods on the ground of limitation for the period14/1/09 to this date. Sd/- R. BASANT (Judge)Sd/- K. SURENDRA MOHAN (Judge)Nan///true//P.S. to Judge