Having knowledge that wife took divorce in police station from her first husband - married the petitioner second time and gave a birth to the second petitioner, the respondent is not permitted to take U turn and can not throw the wife and children to the street as the very purpose of Sec.125 would be defeated
In the present case, the Petitioner has obtained divorce not before the Court of law, but before the Police.
Taking advantage of the same, the husband has taken a plea that she is not entitled for maintenance, since the marriage between them is not a valid marriage.
This Court does not find any force in the said contention, since it may give scope to the husband to leave the wife to her fate, under the guise of the void marriage. Such being the case, the purpose and object of introducing Section 125 of Cr.P.C., will be defeated.
The case was dismissed by the learned trial Court on the ground that the Petitioner has not obtained divorce from her first husband through the Court.
In that view, the present petition is liable to be allowed.
APHC010080562022
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI
(Special Original Jurisdiction)
[3396]
MONDAY, THE FIFTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT JUSTICE VENKATA JYOTHIRMAI PRATAPA
CRIMINAL PETITION NO: 1329/2022
Between:
Karra Subhashini ...PETITIONER/ACCUSED
AND
Karra Ramaiah and Others ...RESPONDENT/COMPLAINANT(S)
Counsel for the Petitioner/Accused:
1.S SYAMSUNDER RAO
Counsel for the Respondent/Complainant(S):
1.
2.PUBLIC PROSECUTOR (AP)
The Court made the following:
ORDER:
The instant petition under Section 482 of the Code of Criminal
Procedure, 1973 (in short, “Cr.P.C.”) has been preferred against the
impugned orders in M.C.No.7 of 2017 dated 03.06.2019 on the file of the
Additional Junior Civil Judge, Ponnur, dismissing the claim of
maintenance which was confirmed in C.R.P.No.49 of 2019 dated
17.01.2020 on the file of the Principal Sessions Judge, Guntur.
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Brief facts of the case:
2. The Petitioner is the wife of Respondent No.1 herein. She has
filed M.C.No.7 of 2017 under Section 125 of Cr.P.C., seeking
maintenance at the rate of Rs.20,000/- per month from Respondent No.1.
The said case was dismissed on the ground that her marriage with her
first husband is subsisted and she obtained divorce before the police and
not from court of law. Therefore, she is not legally wedded wife of the
Respondent No.1 for claiming maintenance. Being aggrieved by the
impugned order passed by the trial Court, the Petitioner carried the
matter in Revision before the Sessions Court, Guntur. Learned Sessions
Judge in C.R.P.No.49 of 2019 confirmed the order of M.C.No.7 of 2017,
dismissing the Revision.
3. Feeling aggrieved and dissatisfied, the Petitioner preferred the
present petition under Sec.482 of Cr.P.C. on the ground that the trial
Court as well as the Sessions Court relied upon the authorities in the
judgments of Nagireddy Sai Kumari v. Nagireddy Varanageswara
Rao1
and Hemalatha Karayat v. Vijay Kumar Karayat2
, wherein it is
held that,
“A married woman cannot claim maintenance from her second
husband during the subsisting of first marriage. It is pertinent to mention
here that the case on hand is that the first marriage dissolved and got
1
2008(2) ALT (Crl) 171
2
2014(Crl) 4935
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divorce before the Police Station. Hence, the above cited judgments
cannot apply to the case on hand”.
4. In the present case, the marriage of the petitioner with the 1st
respondent was performed on 06.10.2014 as per the traditions and
customs of Christian Marriage and a marriage certificate was also issued
to that effect which is marked as Ex.P2 in the MC proceedings before the
Trial Court. The Husband as RW.1, in cross examination, admitted about
his signature on the Ex.P2. The trial Court as well as the Sessions Court
failed to consider this crucial evidence. There is ample evidence on the
record to prove the marriage of the Petitioner with Respondent No.1.
Strict proof of marriage is not essential under the provisions of Section
125 of Cr.P.C., since it is meant to prevent vagrancy.
5. Heard Sri S.Syam Sundar Rao, learned counsel for the Petitioner.
Notice which was sent to Respondent No.1 was returned as refused.
6. Ms. D.Prasanna Lakshmi, learned Assistant Public Prosecutor for
the State/Respondent No.2 is in attendance.
7. Having heard the submissions made by the learned counsel
representing both parties and on perusal of the material available on
record, the point for determination is,
Whether the case against the Petitioner in C.R.P.No.49 of
2019 on the file of the Principal Sessions Judge, Guntur, is
liable to be quashed by exercising jurisdiction under
Section 482 of the Cr.P.C.?
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Crl.P.No.1329 of 2022
Determination by the Court
8. Learned counsel for the Petitioner would submit that a Coordinate
Bench of Madras High Court placed reliance on the judgment of Hon’ble
Apex Court on the point of granting maintenance to the wife and the
marriage is not a valid marriage. Learned counsel took the attention of
this Court to Para No.19 in the judgment of Loyola Selva Kumar v.
M.Sharon Nisha and another, vide Crl.R.C.(MD) No.417 of 2021 and
Crl.M.P.(MD) No.4388 of 2021 dated 26.06.2023, where in it was held:
“19. Considering the above evidence, it is evident that the
petitioners have proved that the first petitioner and the respondent
were living together as husband and wife and due to their
relationship, the second petitioner was born to them. At this
juncture, it is necessary to refer the judgment of the Hon'ble Apex
Court in Badshah Vs. Urmila Badshah Godse and another
reported in 2014 1 SCC 188 = 2013 (6) CTC 86, and the relevant
passages are extracted hereunder :
15. Firstly, in Chanmuniya case, the parties had been
living together for a long time and on that basis question
arose as to whether there would be a presumption of
marriage between the two because of the said reason,
thus, giving rise to claim of maintenance under Section
125, Cr.P.C. by interpreting the term “wife” widely. The
Court has impressed that if man and woman have been
living together for a long time even without a valid
marriage, as in that case, term of valid marriage entitling
such a woman to maintenance should be drawn and a
woman in such a case should be entitled to maintain
application under Section 125, Cr.P.C. On the other hand,
in the present case, respondent No.1 has been able to
prove, by cogent and strong evidence, that the petitioner
and respondent No.1 had been married each other.
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16. Secondly, as already discussed above, when the
marriage between respondent No.1 and petitioner was
solemnized, the petitioner had kept the respondent No.1
in dark about her first marriage. A false representation
was given to respondent No.1 that he was single and was
competent to enter into martial tie with respondent No.1.
In such circumstances, can the petitioner be allowed to
take advantage of his own wrong and turn around to say
that respondents are not entitled to maintenance by filing
the petition under Section 125,Cr.P.C. as respondent No.1
is not “legally wedded wife” of the petitioner? Our answer
is in the negative. We are of the view that at least for the
purpose of Section 125 Cr.P.C., respondent No.1 would be
treated as the wife of the petitioner, going by the spirit of
the two judgments we have reproduced above. For this
reason, we are of the opinion that the judgments of this
Court in Adhav and Savitaben cases would apply only in
those circumstances where a woman married a man with
full knowledge of the first subsisting marriage. In such
cases, she should know that second marriage with such a
person is impermissible and there is an embargo under
the Hindu Marriage Act and therefore she has to suffer
the consequences thereof. The said judgment would not
apply to those cases where a man marriages second time
by keeping that lady in dark about the first surviving
marriage. That is the only way two sets of judgments can
be reconciled and harmonized.
17. Thirdly, in such cases, purposive interpretation needs
to be given to the provisions of Section 125,Cr.P.C. While
dealing with the application of destitute wife or hapless
children or parents under this provision, the Court is
dealing with the marginalized sections of the society. The
purpose is to achieve “social justice” which is the
Constitutional vision, enshrined in the Preamble of the
Constitution of India. Preamble to the Constitution of
India clearly signals that we have chosen the democratic
path under rule of law to achieve the goal of securing for
all its citizens, justice, liberty, equality and fraternity. It
specifically highlights achieving their social justice.
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Crl.P.No.1329 of 2022
Therefore, it becomes the bounden duty of the Courts to
advance the cause of the social justice. While giving
interpretation to a particular provision, the Court is
supposed to bridge the gap between the law and society.
21. Considering the above, this Court is of the clear view that for
the purpose of Section 125 Cr.P.C, the first petitioner can very well
be considered as wife and the second petitioner as the son of the
respondent. Hence, the finding of the trial Court that the petitioners
are entitled to get maintenance from the respondent cannot be
found fault with”.
(Emphasis supplied)
10. In the present case, the Petitioner has obtained divorce not before
the Court of law, but before the Police. Taking advantage of the same,
the husband has taken a plea that she is not entitled for maintenance,
since the marriage between them is not a valid marriage. This Court does
not find any force in the said contention, since it may give scope to the
husband to leave the wife to her fate, under the guise of the void
marriage. Such being the case, the purpose and object of introducing
Section 125 of Cr.P.C., will be defeated. The case was dismissed by the
learned trial Court on the ground that the Petitioner has not obtained
divorce from her first husband through the Court. In that view, the present
petition is liable to be allowed.
11. In the result, the Criminal Petition is allowed. The matter is
remanded to the trial Court for fresh disposal according to law, since
there are no findings on other aspects.
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Crl.P.No.1329 of 2022
As a sequel thereto, miscellaneous petitions pending, if any, shall
stand closed.
___________________________________
VENKATA JYOTHIRMAI PRATAPA, J
Date: 05-08-2024
PND
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