when a husband takes a plea that the marriage was void due to subsistence of an earlier 1 (1991) 2 SCC 375

' ITEM NO.113 COURT NO.7 SECTION II


S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

CRIMINAL APPEAL NO(s). 219 OF 2007

PYLA MUTYALAMMA @ SATYAVATHI Appellant (s)

VERSUS

PYLA SURI DEMUDU & ANR. Respondent(s)

(With appln(s) for stay)

Date: 09/08/2011 This Appeal was called on for hearing today.


CORAM :
HON'BLE MR. JUSTICE HARJIT SINGH BEDI
HON'BLE MRS. JUSTICE GYAN SUDHA MISRA


For Appellant(s)
Mr. Y. Raja Gopala Rao,Adv.
Ms. Vismai Rath,Adv.
Mr. Hitendra Nath Raja,Adv.

For Respondent(s)
Mr. V.N. Raghupathy,Adv.

for State: Mr. D.Mahesh Babu,Adv.
Mr. Ramesh Allanki,Adv.
Ms. Savita Dhanda,Adv.

UPON hearing counsel the Court made the following
O R D E R

The appeal is allowed.




[SUMAN WADHWA] [VINOD KULVI]
COURT MASTER COURT MASTER

Signed Reportable judgment is placed on the file.
REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 219 OF 2007


PYLA MUTYALAMMA @ SATYAVATHI .. Appellant

Versus

PYLA SURI DEMUDU & ANR. ..Respondents




J U D G M E N T



GYAN SUDHA MISRA, J.



Under the law, a second wife whose marriage is void on

account of survival of the previous marriage of her husband

with a living wife is not a legally wedded wife and she is,

therefore, not entitled to maintenance under Section 125 Cr.P.C.

for the sole reason that "law leans in favour of legitimacy

and frowns upon bastardy1".

But, the law also presumes in

favour of marriage and against concubinage when a man and

woman have cohabited continuously for a long number of years

and when the man and woman are proved to have lived together as

man and wife, the law will presume, unless the contrary is

clearly proved, that they were living together in consequence

of a valid marriage and not in a state of concubinage.

Several

judicial pronouncements right from the Privy Council up to this

stage, have considered the scope of the presumption that could
1 AIR 1929 P.C. 135
be drawn as to the relationship of marriage between two persons

living together.

But,

when an attempt is made by the husband

to negative the claim of the neglected wife depicting her as a

kept mistress on the specious plea that he was already

married,

the court would insist on strict proof of the earlier

marriage and

this is intended to protect women and children from

living as destitutes and

this is also clearly the object of

incorporation of Section 125 of the Code of Criminal Procedure

providing for grant of maintenance.



2. This appeal at the instance of an estranged wife,

once

again has beseeched this Court to delve and decide

the question

regarding grant of maintenance under Section 125 Cr. P.C. which

arises after grant of special leave under Article 136 of the

Constitution and

is directed against the judgment and order

dated 19.09.2005 passed by a learned single Judge of the High

Court of Andhra Pradesh at Hyderabad in Criminal Revision No.

234/2004

whereby the learned single Judge had been pleased to

set aside the order of the Family Court, Visakhapatnam awarding

a sum of Rs.500/- per month to the appellant-wife by way of

maintenance to her under Section 125 Cr.P.C.

The respondent-

husband assailed this order by way of a criminal revision before

the High Court of Andhra Pradesh which was allowed and the

order granting maintenance to the appellant-wife was set aside.



3. The appellant-Pyla Mutyalamma @ Satyavathi initially

filed an application bearing M.C.No.145/2002 under Section 125,
Cr.P.C. claiming Rs.500/- per month from her husband Pyla Suri

Demudu-the respondent herein,

on the ground that she married him

in the year 1974 at Jagannadha Swamy Temple at Visakahapatnam as

per the Hindu rites and customs after which they lived as a

normal couple and out of the wedlock they were blessed with

two daughters and a son of whom one daughter died.

The

surviving daughter is married and the son aged 22 years is also

employed in the Dock Labour Board who was engaged as such by his

father the respondent-husband himself.

However, the

relationship of the appellant-wife and the respondent-husband

subsequently got strained when the respondent got addicted to

vices and started ignoring and neglecting the appellant-wife as

he failed to provide her even the basic amenities like food and

clothing and indulged in beating her frequently under the

influence of liquor.

He thus deserted her and also started

living with another woman due to which the appellant was

compelled to claim maintenance from the husband-the respondent

herein.



4. The respondent-husband herein, however,

flatly denied

the allegations and

went to the extent of stating that the

appellant is not his wife as he was already married to one

Kolupuru Mutyalamma in a native of Lankivanipalem in the year

1970 and had children through her first marriage and that he

never married the present appellant.

He also alleged that the

appellant is married to another man and as she owns a sum

of Rs.2.50 lac to the respondent which he had given to her by
way of a loan at the time of construction of her house in the

year 1991-1992, she started the litigation in order to evade

making the repayment of loan amount.



5. The learned trial Magistrate on an appreciation and

scrutiny of evidence held that

the appellant in fact is the wife

of respondent No.1 who was deserted by the respondent and,

therefore, fixed a maintenance of Rs.500/- per month to the

appellant and the respondent-husband was directed to pay this

amount to the appellant-wife.

As already stated, this was

resisted by the respondent-husband who assailed the order of the

trial court by filing a revision petition before the High

Court.

The learned single Judge of the High Court was pleased

to hold that there was no valid marriage between the

respondent-husband and the appellant-wife, as an earlier

marriage between the appellant and one another lady-Kolupuru

Mutyalamma was subsisting and as the marriage with the appellant

was performed without repudiation of the earlier marriage of

1970, the subsequent marriage was not a valid one and hence no

maintenance could be paid to the appellant-wife.

Feeling

aggrieved with this view of the High Court, expressed in the

impugned order, the appellant-wife has preferred this appeal.



6. Learned counsel for the appellant-wife in substance

has contended that

the learned single Judge of the High Court

erred in reversing the finding of fact rendered by the trail

court and interfered with a pure question of fact in spite of
 clinching evidence available on record to show that the

appellant was the legally married wife of the respondent-husband

who had been living together ever since their marriage in 1974

as any other usual couple and it is only in the year 2001, the

respondent started deserting the appellant due to his vices

which he picked up much after his marriage with the appellant.

The High Court also ignored the evidence of the son and the

daughter of the appellant but relied upon the evidence of

Respondent-husband.

The High Court further relied on the

defence case of the respondent -husband that he was already

married to another lady in the year 1970, although no other

witness except the so-called first wife was produced as a

witness before the courts below.



7. The counsel for the appellant further laid much

emphasis on the fact that

the order granting maintenance to the

appellant by the trial court should not have been interfered

with by the High Court as it was merely raised to circumvent the

order granting maintenance by setting up a false story

regarding the existence of previous marriage of the appellant

in the year 1970 ignoring the clinching evidence led by the

appellant regarding her marriage which was creditworthy.

In

support of his submission, the counsel also relied upon a

decision delivered in the matter of Vimala (K) vs. Veeraswamy

(K)1, wherein a Bench of three learned Judges of this Court

had been pleased to hold that when a husband takes a plea

that the marriage was void due to subsistence of an earlier
1 (1991) 2 SCC 375
marriage, the same requires clear and strict proof and the

burden of strict proof of earlier marriage is on the husband

to discharge. It may be relevant and worthwhile at this stage to

quote the observations of their Lordships in the aforesaid

matter which was to the following effect:

"Section 125 of the Code of Criminal Procedure is
meant to achieve a social purpose. The object is to
prevent vagrancy and destitution. It provides a
speedy remedy for the supply of food, clothing and
shelter to the deserted wife. When an attempt is made
by the husband to negative the claim of the
neglected wife depicting her as a kept mistress on the
specious plea that he was already married, the court
would insist on strict proof of the earlier marriage.
Under the Hindu Law, a second marriage is void on
account of the survival of the first marriage and is
not a legally wedded wife. She is, therefore, not
entitled to maintenance under Section 125. Such a
provision in law which disentitles a second wife
from receiving maintenance from her husband under
Section 125, Cr.P.C., for the sole reason that the
marriage ceremony though performed in the customary
form lacks legal sanctity can be applied only when
the husband satisfactorily proves the subsistence of
a legal and valid marriage particularly when Section
125 is a measure of social justice intended to protect
women and children."



8. In the case under consideration herein, the

respondent-husband has sought to repudiate the marriage of

the appellant as void on account of subsistence of an earlier

marriage.

But while doing so he has also set up another

cooked up story that the appellant is already married to

another woman and as she is owing an amount of Rs.2.50 lakhs to

the appellant which he had advanced to her by way of a loan,

the appellant has raised a false plea of claim of maintenance.

Thus, the respondent-husband in one breath states that the

second marriage with the appellant is void in view of the
 subsistence of his earlier marriage and in the next one he

states that the appellant-wife has set up a false plea as she

wants to get away from the liability of repayment of the

amount which she was owing to the respondent.



9. In fact, we also find sufficient substance in the plea

that the High Court in its revisional jurisdiction ought not

to have entered into a scrutiny of the finding recorded by

the Magistrate that the appellant was a married wife of the

respondent, before allowing an application determining

maintenance as it is well-settled that the revisional court can

interfere only if there is any illegality in the order or

there is any material irregularity in the procedure or there

is an error of jurisdiction. The High Court under its

revisional jurisdiction is not required to enter into re-

appreciation of evidence recorded in the order granting

maintenance; at the most it could correct a patent error of

jurisdiction. It has been laid down in a series of decisions

including Suresh Mondal vs. State of Jharkhand1 that in a case

where the learned Magistrate has granted maintenance holding

that the wife had been neglected and the wife was entitled to

maintenance, the scope of interference by the revisional court

is very limited. The revisional court would not substitute

its own finding and upset the maintenance order recorded by

the Magistrate.



10. In revision against the maintenance order passed in

1 2006 (1) AIR Jhar. R. 153
 proceedings under Section 125, Cr.P.C., the revisional court

has no power to re-assess evidence and substitute its own

findings. Under revisional jurisdiction, the questions whether

the applicant is a married wife, the children are

legitimate/illegitimate, being pre-eminently questions of

fact, cannot be reopened and the revisional court cannot

substitute its own views. The High Court, therefore, is not

required in revision to interfere with the positive finding in

favour of the marriage and patronage of a child. But where

finding is a negative one, the High Court would entertain the

revision, re-evaluate the evidence and come to a conclusion

whether the findings or conclusions reached by the Magistrate

are legally sustainable or not as negative finding has evil

consequences on the life of both child and the woman.

This

was the view expressed by the Supreme Court in the matter of

Santosh (Smt.) vs. Naresh Pal1 , as also in the case of

Parvathy Rani Sahu vs. Bishnu Sahu2. Thus, the ratio decidendi

which emerges out of a catena of authorities on the efficacy

and value of the order passed by the Magistrate while

determining maintenance under Section 125, Cr.P.C. is that it

should not be disturbed while exercising revisional

jurisdiction.



11. However, learned counsel for the respondent-husband

on his part has also cited the case of Savitaben Somabhai

Bhatiya vs. State of Gujarat & Ors.3, in support of his plea

1 (1998) 8 SCC 447
2 (2002) 10 SCC 510
3 (2005) 3 SCC 636
that claim of maintenance by the second wife cannot be

sustained unless the previous marriage of the husband performed

in accordance with the Hindu rites having a living spouse is

proved to be a nullity and the second wife, therefore, is not

entitled to the benefit of Section of 125 Cr.P.C. or the

Hindu Marriage Act, 1955.



12. It is no doubt true that the learned Judges in this

cited case had been pleased to hold that scope of Section 125

cannot be enlarged by introducing any artificial definition to

include a second woman not legally married, in the expression

`wife'. But it has also been held therein that evidence

showing that the respondent-husband was having a living

spouse at the time of alleged marriage with the second wife,

will have to be discharged by the husband. Hence, this

authority is of no assistance to the counsel for the

respondent-husband herein as it is nobody's case that the

appellant-wife should be held entitled to maintenance even

though the first marriage of her husband was subsisting and

the respondent-husband was having a living wife as there is

no quarrel with the legal position that during the subsistence

of the first marriage and existence of a living wife (first

wife), the claim of maintenance by the second wife cannot be

entertained. But proof and evidence of subsistence of an

earlier marriage at the time of solemnizing the second

marriage, has to be adduced by the husband taking the plea of

subsistence of an earlier marriage and when a plea of
 subsisting marriage is raised by the respondent-husband, it has

to be satisfactorily proved by tendering evidence. This was

the view taken by the learned Judges in Savitaben's case

(supra) also which has been relied upon by the respondent-

husband. Hence, even if the ratio of this case relied upon

by the respondent-husband is applied, the respondent-husband

herein has failed to establish his plea that his earlier

marriage was at all in subsistence which he claims to have

performed in the year 1970 as he has not led even an iota of

evidence in support of his earlier marriage including the fact

that he has not produced a single witness except the so-called

first wife as a witness of proof of his earlier marriage.

This strong circumstance apart from the facts recorded herein

above, goes heavily against the respondent-husband.



13. We may further take note of an important legal aspect

as laid down by the Supreme Court in the matter of Jamuna Bai

vs. Anant Rai1, that the nature of the proof of marriage

required for a proceeding under Section 125, Cr.P.C. need not

be so strong or conclusive as in a criminal proceeding for an

offence under Section 494 IPC since, the jurisdiction of the

Magistrate under Section 125 Cr.P.C. being preventive in

nature, the Magistrate cannot usurp the jurisdiction in

matrimonial dispute possessed by the civil court. The object

of the section being to afford a swift remedy, and the

determination by the Magistrate as to the status of the

parties being subject to a final determination of the civil
1 AIR 1988 SC 793 (paras 4, 5 and 8)
 court, when the husband denies that the applicant is not his

wife, all that the Magistrate has to find, in a proceeding

under Section 125 Cr.P.C., is whether there was some marriage

ceremony between the parties, whether they have lived as

husband and wife in the eyes of their neighbours, whether

children were borne out of the union.



14. It was still further laid down in the case of Sethu

Rathinam vs. Barbara1 that if there was affirmative evidence on

the aforesaid points, the Magistrate would not enter into

complicated questions of law as to the validity of the

marriage according to the sacrament element or personal law

and the like, which are questions for determination by the

civil court. If the evidence led in a proceeding under Section

125 Cr.P.C. raises a presumption that the applicant was the

wife of the respondent, it would be sufficient for the

Magistrate to pass an order granting maintenance under the

proceeding. But if the husband wishes to impeach the

validity of the marriage, he will have to bring a declaratory

suit in the civil court where the whole questions may be gone

into wherein he can contend that the marriage was not a valid

marriage or was a fraud or coercion practiced upon him.

Fortifying this view, it was further laid down by the Supreme

Court in the matter of Rajathi vs. C. Ganesan2 also, that in a

case under Section 125 Cr.P.C., the Magistrate has to take

prima facie view of the matter and it is not necessary for


1 (1970) 1 SCWR 589
2 AIR 1999 SC 2374
the Magistrate to go into matrimonial disparity between the

parties in detail in order to deny maintenance to the claimant

wife. Section 125, Cr.P.C. proceeds on de facto marriage and

not marriage de jure. Thus, validity of the marriage will not

be a ground for refusal of maintenance if other requirements of

Section 125 Cr.P.C. are fulfilled.



15. When the appellant's case is tested on the anvil of

the aforesaid legal position, it is sufficiently clear that the

appellant has succeeded in proving that she was the legally

married wife of the respondent with three children out of

which one had expired while the other two who are major and

well-settled. It has further been proved that the respondent-

husband started deserting the appellant-wife after almost 25

years of marriage and in order to avert the claim of

maintenance, a story of previous marriage was set up for which

he failed to furnish any proof much less clear proof. Thus, it

was not open for the High Court under its revisional

jurisdiction to set aside the finding of the trial court and

absolve the respondent from paying the maintenance of Rs.500/-

per month to the appellant-wife.



16. Having thus considered the contradictory versions

of the contesting parties and deliberating over the arguments

advanced by them in the light of the evidence and

circumstances, we are clearly led to the irresistible

conclusion that the High Court wrongly exercised its
jurisdiction while entertaining the revision petition against

an order granting maintenance to the appellant-wife under

Section 125 Cr.P.C. We, therefore, set aside the judgment and

order of the High Court and restore the order passed by the

Magistrate in favour of the appellant granting her

maintenance. The appeal accordingly is allowed.


..........................J
(Harjit Singh Bedi)



...........................J
(Gyan Sudha Misra

New Delhi,
August 9, 2011