Partly allowed

Shyam Ramchandra Kunkule v. Gangotri Shyam Kunkule

Bombay HC29 Oct 2007WP/3261/2007

Case brief

AI extract

What is this about?

The Bombay High Court held that a second wife married during the subsistence of a first marriage is not entitled to maintenance under the Hindu Adoption and Maintenance Act, 1956. The writ petition was partly allowed, quashing the order granting maintenance to the respondent wife while reducing the maintenance awarded to the minor child.

What did the court decide?

The impugned order granting maintenance to the respondent wife was quashed. The petitioner was ordered to pay Rs. 1,000/- per month for the minor child Govind instead of Rs. 1,500/-.

Shyam Ramchandra Kunkule Vs Gangotri Shyam Kunkule — Maintenance and Alimony | Bombay HC (2007)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION

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WRIT PETITION NO.3261 OF 2007

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Shyam Ramchandra Kunkule Petitioner vs. Mrs.Gangotri Shyam Kunkule Respondent Mrs.Geeta Mulekar for the petitioner. Mr.M.B. Pahane for the respondent.

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CORAM : ANOOP V. MOHTA,J. DATED : 29th October, 2007

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P.C.
	By		the	present	writ	petition,	a challenge has	been
raised		to	the	impugned	Order	dated	6.10.2006 passed	by
the		learned		Family	Court,	Bandra,	Mumbai in	Interim
Applicat	ion		No.12	/2005 in	Petition	No.C	-5 of 2005.	By
the		impugned		order,	the l	earned	Judge of the	Family
Court h are entitl	eld ed	that the res for mainten	ponde ance.	nt, a second wif	e and son

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2.		Admittedl	y, th	e	respondent-orig	inal	petitioner	no.1
is the	sec	ond	wife.	There	is no	dispute	about	her
status.		Admittedly	, the	app	lication wa	s u	nder	Section
18 of	the	Hindu	Adoption	&	Maintenance	Act,	1956	(HAMC
Act) and		a male	child	namely	, Govind	was	borne out	of
their so-c	alled	marria	ge.	The	said		marriage	was
performed,	as	alleged	, as	the	first wife	was	unable	to

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conceive,		but	lateron	after the birth	of		Govind,	the
said	first	wife	returne	d and she too		conc	eived.	The
whole	fou	ndation	of	the second ma	rriage		therefore	at
this	stage	of	the	proceeding itself	is	no	ground	to
regularise		and/or	pe	rmit the		seco	nd	marriage.
Therefore,		the	fact	remains that	mar	riage	of	petitioner
with	respo	ndent	was	during the	subsist	ence	of	first

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marriage. Now the question is therefore entitlement of

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maintenance as claimed under Section 18 of HAMC Act.

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3.	In so	far as the grant of maintenance	to	the		Govind,
a	minor,	there cannot be any dispute and		the		learned
counsel	for	the petitioner also fairly	mak	es	s	ubmission
that	the	petitioner is ready for the s	ame,	but		the
challange	is	to the quantum. Strong reli	ance	has		been
placed	on	the salary certificate which s	hows	that		the
monthly	inco	me of the petitioner is Rs.4,8	90/-.	H		e has
to	maintain	six members of the family	inc	luding		Govind.
Therefore,	takin	g note of all this, I am	of	the		view
that	the	amount of Rs.1500/- as directed	need	to		be
reduced	to	Rs.1,000/- per month insofar as		Govind		is
concerned.		The petitioner need to main	tain	all		other
members	of	the family also. Admittedly,	Gov	ind i	s	with
the re	spondent.	Taking all this into accou	nt,	so	f	ar as
the	maintenance	as awarded in favour	of	Govin	d	is

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retained, but only to the extent of Rs.1,000/- per

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month.

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4.	Insofar	as	original	petitio	ner-respondent	no.1-wife
is conce	rned, the	Division	Bench	of	this	Court in
Mrs.Ranjana	A. Desai	vs.	Ashokrao	Y.	Desai	in First
Appeal	No.90/2003	decided		on	8.12.2003	, after
considering	quite	similar	facts	and	circumstances	and

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the provisions of Section 18 of the HAMC Act and Hindu

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Marriage Act, 1955, Section 25, held as under:

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"11.	We see no	reason either to	exclude	the
personal	law or th	e provisions of	the	personal
law	contained wit	hin it while	deciding	the
marital	status of	the Appellant	for	the
purpose	of decidi	ng the maintainab	ility of	an
application	under se	ction 18 of	the	Hindu
Adoption	and Main	tenance Act, 1956.	We	are
unable	to find	any reason to	ignore	the
provisions	of Hindu	Marriage Act,	1955	while
determining	whether	a person is	a	"wife"
within	the meaning	of that	expression	in
section 18 o	f the Hindu Adoption	and
Maintenance	Act, 1956.

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The Hindu Adoptions and Maintenance Act,
1956 thus draws a clear distinction between a
wife and a concubine. The Appellant’s status
is that of a concubine. Section 18(1)
provides that a Hindu "wife" shall be entitled
to be maintained by her husband during her
life time. It does not provide that a
concubine is also similarly entitled to be
maintained. There is nothing in the Hindu
Adoptions & Maintenance Act, 1956 that
persuades us to conclude that the expression
"wife" therein includes a person who is not
legally wedded."
5. In view of the Division Bench judgement, I have no
option but to follow the said judgement in all respects

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and specially as it also covers the facts and

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circumstances of the present case.

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6. The learned counsel for the	respondent, however,	has
strongly relied on the following two	judgements of	the
Supreme Court: (1) The case of Ram	eshchandra R.	Daga
vs. Rameshwari R. Daga, (2005) 2	SCC 33. The	facts
and circumstances in that case were	different in	all
respects. There was no consi	deration referring	to
Section 18 of the HAMC Act. Tha	t judgement was	based
upon the Hindu Marriage Act. (2)	The case of	Suresh
Khullar vs. Vijay Khullar, (2005) 12	SCC 166. In	that
case pending the contested issue abo	ut the validity	of
the marriage the Supreme Court has	directed to	pay
interim maintenance based upon Section	18 of the	HAMC
Act. There is no such question	involved here	as
admittedly there is no dispute or	contest to this	issue
about the marriage in question.	Admittedly	second
marriage was performed during the existence of first marriage itself.
7. On these facts, therefore,	the judgement	in
Mrs.Ranjana Desai (Supra) covers in	detail all the	term
"wife" and "void", "right of secon	d wife/mistress"	and
thereby rejected such application/prayer for maintenance under Section 18 of the HAMC Act of second wife.
8. In the result, the petition is	partly allowed.	The
impugned order dated 6.10.2006 is	quashed and set	aside

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in	reference	to r	espondent-origina	l pet	itioner		no.1,
however,	with	liberty to	take	appropriate	procee	dings	in
accordance	with	law if	available.	Inso	far	as	the
child-Govind	is	concerned,	the	petitioner	to		pay
Rs.1,000/-	per	month	instead of	Rs.1,500/-	as		awarded

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and pay the arrears if any, from the date of order,

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within six weeks.

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The petition is disposed of accordingly with the

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above terms.

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[ANOOP V. MOHTA,J.]

Shyam Ramchandra Kunkule v. Gangotri Shyam Kunkule

Case brief

What is this about?

What did the court decide?

Shyam Ramchandra Kunkule v. Gangotri Shyam Kunkule

Case brief

What is this about?

What did the court decide?

What the court decided

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