Burden lies on Husband when took plea that he was already married
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. =
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.
2011 (Aug. Part) judis.nic.in/supremecourt/filename=38394
HARJIT SINGH BEDI, GYAN SUDHA MISRA
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
1 AIR 1929 P.C. 135
2
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 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
3
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.
4
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
5
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.
6
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
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)2, 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 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
2 (1991) 2 SCC 375
8
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
9
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
10
including Suresh Mondal vs. State of Jharkhand3 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
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
3 2006 (1) AIR Jhar. R. 153
11
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 Pal4 , as
also in the case of Parvathy Rani Sahu vs. Bishnu Sahu5.
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.6, in support
of his plea 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.
4 (1998) 8 SCC 447
5 (2002) 10 SCC 510
6 (2005) 3 SCC 636
12
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
13
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 Rai7, 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
7 AIR 1988 SC 793 (paras 4, 5 and 8)
14
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 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. Barbara8 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
8 (1970) 1 SCWR 589
15
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. Ganesan9
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 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.
9 AIR 1999 SC 2374
16
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
17
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
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. =
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.
2011 (Aug. Part) judis.nic.in/supremecourt/filename=38394
HARJIT SINGH BEDI, GYAN SUDHA MISRA
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
1 AIR 1929 P.C. 135
2
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 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
3
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.
4
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
5
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.
6
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
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)2, 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 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
2 (1991) 2 SCC 375
8
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
9
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
10
including Suresh Mondal vs. State of Jharkhand3 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
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
3 2006 (1) AIR Jhar. R. 153
11
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 Pal4 , as
also in the case of Parvathy Rani Sahu vs. Bishnu Sahu5.
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.6, in support
of his plea 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.
4 (1998) 8 SCC 447
5 (2002) 10 SCC 510
6 (2005) 3 SCC 636
12
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
13
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 Rai7, 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
7 AIR 1988 SC 793 (paras 4, 5 and 8)
14
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 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. Barbara8 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
8 (1970) 1 SCWR 589
15
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. Ganesan9
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 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.
9 AIR 1999 SC 2374
16
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
17
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
