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Monday, April 21, 2014

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. PYLA MUTYALAMMA @ SATYAVATHI .. Appellant Versus PYLA SURI DEMUDU & ANR. ..Respondents= 2011 (Aug. Part) judis.nic.in/supremecourt/filename=38394

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




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