The Supreme Court on August 21, 2019, in the case of T K Surendran v. P Najima Bindu has upheld a Kerala High Court judgment that held that where the marriage happened to be annulled or declared null and void due to some mischief or wrong committed by the husband, he will have to pay maintenance under Section 125 of the Code of Criminal Procedure, 1973, despite declaration of nullity or annulment of marriage.
The Bench comprising of Justice R. Banumathi and Justice A.S. Bopanna dismissed a Special Leave Petition against the Kerala High Court judgment stating that “we are not inclined to interfere with the impugned judgment affirming the award of maintenance to the respondent-wife.”
Section 125 CrPC defines "wife" to include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. In the instant case, the 'wife' applied for annulment of marriage on the ground of impotence of the husband, which was suppressed by him.
Before the Kerala High Court, the husband challenged the order directing him to pay maintenance, and contended that a wife whose marriage stands annulled will not come within the definition of 'wife' under Section 125 of Cr.P.C. Reliance was placed on the Supreme Court judgment in Savitaben Somabhai Bhatiya v. State of Gujarat.
However, rejecting the contention, the Kerala High Court, relied on a later decision of the Supreme Court in Badshah v. Sou. Urmila Badshah Godse, and held that, where the marriage happened to be annulled or declared null and void due to some mischief or wrong committed by the husband, he will have to pay maintenance under Section 125 of Cr.P.C despite declaration of nullity or annulment of marriage.
Justice P. Ubaid of the Kerala High Court had observed: “The purport of the subsequent decision and the position of law settled by the Hon'ble Supreme Court in Badshah's case is that nullity of marriage or annulment of marriage will not by itself disentitle the lady to claim maintenance under Section 125 of Cr.P.C. In a case where the marriage happened to be annulled or declared null and void due to some mischief or wrong committed by the husband, he will have to pay maintenance under Section 125 of Cr.P.C despite declaration of nullity or annulment of marriage. Here is a case where the wife applied for annulment of marriage on the ground of impotence of the husband, which was suppressed by him. In such a situation, the decision of the Honb'ble Supreme Court in Badshah v Sou. Urmila Badshah Godse [2013 (4) KLT 367 (SC)) can be followed. In such a factual situation, where the husband suppressed material facts,and the lady suffered for no fault or wrong of her, the decision in Savitaben's case cannot be applied.”
