PERMANENT ALIMONY IN CASES OF VOID MARRIAGES

Can there be permanent alimony or maintenance from the other spouse where the marriage itself is void?

Question:

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CAN THERE BE PERMANENT ALIMONY OR MAINTENANCE FROM THE OTHER SPOUSE WHERE THE MARRIAGE ITSELF IS VOID ?

Ans: YES

Delhi Law Academy Jaipur presents below for aspirants of Rajasthan Judicial Service (RJS), DJS, PCS (J) and other Judicial Services throughout India a very important judgment of the Supreme Court of India, delivered on 12 February, 2025.

Presented below: Summarized version [by Delhi Law Academy Jaipur] of the Supreme Court Judgment in the case of Sukhdev Singh v. Sukhbir Kaur delivered on 12 February, 2025.

Original language of the judgment has been maintained; it has not been disturbed or replaced.

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SUKHDEV SINGH v. SUKHBIR KAUR

J U D G M E N T

6. The following questions arise for our consideration:

i) Whether a spouse of a marriage declared as void by a competent Court under Section 11 of the 1955 Act is entitled to claim permanent alimony and maintenance under Section 25 of the 1955 Act?

ii) Whether in a petition filed seeking a declaration under Section 11 of the 1955 Act, a spouse is entitled to seek maintenance pendente lite under Section 24 of the 1955 Act?

12. A marriage is void when either of the parties to the marriage has a spouse living, and the marriage with the spouse is subsisting. If any of the spouses of the marriage had an earlier marriage dissolved by a decree of divorce before their marriage, clause (a) above will not apply. As far as clause (b) regarding prohibited relationships is concerned, the degrees of prohibited relationships have been specified in clause (g) of Section 3. Regarding the third category of sapinda relationship, clause (f) of Section 3 defines what is a sapinda relationship.

13. Section 11 provides for the grant of a declaration of a marriage as null and void. The marriages covered by the categories (a), (b) or (c) mentioned above become void at the inception. Therefore, such marriages are void ab initio. Such marriage does not exist at all in the eyes of the law.

14. Now, we come to Section 25 of the 1955 Act. We have already reproduced Section 25. It confers a power on the matrimonial court to grant permanent alimony “at the time of passing any decree or at any time subsequent thereto”. The issue is about the meaning of the decree contemplated by Section 25. A cause of action arises for the spouses to apply for permanent alimony and maintenance when any decree is passed by any court exercising its jurisdiction under the 1955 Act.

Clause (a) of Section 23(1) applies to a case where a decree of annulment is sought under Section 12. Only clause (d) of Section 23(1) is applicable when a decree of nullity is sought. The decree of nullity cannot be passed if there has been unnecessary and improper delay in instituting the petition seeking a declaration of nullity.

17. An order of dismissal of a suit will be a decree, provided the conditions in Section 2(2) of the Code of Civil Procedure, 1908 are satisfied. However, a decree in proceedings contemplated by Section 23 of the 1955 Act is a narrower concept. It can only be a decree granting one of the reliefs under Sections 9 to 13 of the 1955 Act. The decree referred to in Section 25 of the 1955 Act is the decree as contemplated by Section 23, which has the title ‘decree in proceedings’. On plain reading thereof, the decree contemplated by Section 23 is a decree granting relief under the 1955 Act. Section 23 deals with only the decrees granting reliefs under Sections 9 to 13 of the 1955 Act. Considering the language employed in Section 23, the ‘decrees in proceedings’ will not include the decisions dismissing the petitions seeking reliefs under Sections 9 to 13. The decrees passed under Sections 11 to 13 bring about a change of status of the parties to the marriage. Even a decree of restitution of conjugal rights brings about a change of status of the parties in case there is no restitution of conjugal rights within one year of a decree. That is a ground for passing a decree of divorce under Section 13(1A)(ii). Even a decree of judicial separation under Section 10 brings about a change of status in the sense that a spouse who has got such a decree is no longer under an obligation to cohabit with his or her spouse. If the separation from the date of the decree continues for a period of one year, it becomes a ground for passing a decree of divorce by invoking Section 13(1A)(i).

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

When a decree is sought under Sections 9 to 13 and is declined by the court, the remedy under Section 18 of the Hindu Adoption and Maintenance Act, 1956, remains available to the wife. Even the remedy under Section 125 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) or Section 144 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (for short, ‘the BNSS’) continues to be available. The view taken in both cases on the interpretation of the words ‘any decree” used in Section 25 is consistent with what we have held above.

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

QUESTION (ii)

27. Section 24 confers a power on a matrimonial Court to grant interim maintenance in pending proceedings seeking a decree contemplated under the 1955 Act. The power is to be exercised pending the proceedings for a grant of a decree under Sections 9 to 13 of the 1955 Act. The conditions for applicability of Section 24 are: (i) There must be a proceeding under the 1955 Act pending and (ii) the court must come to a conclusion that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding.

26. Even if, prima facie, the matrimonial court finds the marriage between the parties is void or voidable, the court is not precluded from granting maintenance pendente lite provided the conditions mentioned above are satisfied. The grant of relief under Section 24 is discretionary as the Section uses the word ‘may’. While deciding the prayer for interim relief under Section 24, the Court will always consider the conduct of the party seeking the relief. It provides for issuing a direction to pay a reasonable amount.

28. Accordingly, we answer the questions as follows:

a. A spouse whose marriage has been declared void under Section 11 of the 1955 Act is entitled to seek permanent alimony or maintenance from the other spouse by invoking Section 25 of the 1955 Act. Whether such a relief of permanent alimony can be granted or not always depends on the facts of each case and the conduct of the parties. The grant of relief under Section 25 is always discretionary;

b. Even if a court comes to a prima facie conclusion that the marriage between the parties is void or voidable, pending the final disposal of the proceeding under the 1955 Act, the court is not precluded from granting maintenance pendente lite provided the conditions mentioned in Section 24 are satisfied. While deciding the prayer for interim relief under Section 24, the Court will always take into consideration the conduct of the party seeking the relief, as the grant of relief under Section 24 is always discretionary.

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