Sunday, 13 December 2015

When second wife can be granted maintenance under S 125 of CRPC?

 It must be noted that the provisions under Section 125 of
Cr.P.C. do not determine and are not intended to determine the civil
rights and obligations of the parties.  The decisions under Section 125
of Cr.P.C. are obviously tentative decisions subject to any final order in
any civil proceeding, if the parties are so advised to adopt.   This is
what was held by the Hon'ble Apex Court in the case of Santosh w/o
Naresh Pal Vs. Naresh Pal 4 (1998) 8 SCC 447
, in the context of contention that the wife
had not proved that she was legally married wife because her first
husband was living and there was no dissolution of her marriage.  In
the   case   of  Dwarika   Prasad   Satpathy  (supra),   the   Hon'ble   Apex
Court has held that where from the evidence which is led before the
Magistrate, the Magistrate is  prima facie satisfied with regard to the

performance of marriage in proceedings under Section 125, Cr.P.C.
which are of summary nature, strict proof of performance of essential
rites is not required.
Applying   the   aforesaid   principles,   it   is   clear   that   the
respondent   no.1   has   not   been   able   to   make   out   a   case   that   the
marriage between himself and the petitioner no.1 was not legal and
valid, because the petitioner no.1 was allegedly his second wife.
 In the case of Savitaben (supra), it has been held that the
expression 'wife' referred to under Section 125 of the Cr.P.C. means
only 'legally married wife'.  In the present case, the learned JMFC, on
the basis of material on record, had clearly returned a finding that the
petitioner no.1 was the legally wedded wife of the respondent no.1.
The learned ASJ, by purporting to re­assess the material on record,
has substituted a different finding.  Such jurisdiction of re­assessment
of evidence was not at all vested in the learned ASJ.   Therefore, it
cannot be said that the approach of the learned JMFC was, in an
manner, contrary to the dictum of the Hon'ble Apex Court in the case
of Savitaben (supra).  That apart, it is required to be noted that yet
another bench of the Hon'ble Apex Court, in the case of Chanmuniya
Versus   Virendra   Kumar   Singh   Kushwaha   and   Another (2011) 1 Supreme Court Cases 141,   upon
consideration of several other decisions, including the decisions in the
case   of  Dwarika   Prasad  (supra)   and  Savitaben  (supra),   has
expressed an opinion that an expansive interpretation should be given
to term 'wife' to include even those cases where a man and woman

had been living together as husband and wife for a reasonably long
period   of  time  and  strict  proof  of   marriage  should  not  be  a  precondition
for maintenance under Section 125 of Cr.P.C., so as to fulfill
true spirit and essence of beneficial provision of maintenance under
Section 125.   The Hon'ble Apex Court has itself said that such an
interpretation would be a just application of the principles enshrined
in   the   Preamble   to   our   Constitution,   namely,   social   justice   and
upholding the dignity of the individual.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION 
WRIT PETITION NO.2121 OF 2005
 Sou. Shantabai Bhimrao Bauchkar, ]
Kum. Jayashree Bhimrao Bauchkar.
Versus
 Bhimrao Pandu Bauchkar, 
                CORAM :­  M. S. SONAK, J.
                                  DATE     :­  DECEMBER 09, 2015



1. The   challenge   in   this   petition   is   to   the   Judgment   and
Order dated 28/03/2005 made by the 2nd Ad­hoc Additional Sessions
Judge,   Kolhapur   ('ASJ')   by   which   the   learned   ASJ   has   set   aside
Judgment and Order dated 25/03/2004 made by the learned JMFC,
Panhala, awarding maintenance of Rs.500/­ per month to each of the
petitioners.  The petitioner no.1 claims to be the wife of respondent
no.2 and the petitioner no.2 is their daughter.  The learned ASJ has
not   interfered   with   the   award   of   maintenance   to   petitioner   no.2.
However, the learned ASJ has denied maintenance to the petitioner
no.1 after recording a finding that the respondent no.1 was already
married and further marriage with the petitioner no.1 was not a legal
marriage, rather, the same was void. 

2. Mr.   Swapnil   Patil,   learned   Counsel   for   petitioners,   has
submitted that the remedy under Section 125 of Code of Criminal
Procedure, 1973 ('Cr.P.C.') is a summary remedy and the same is not
intended to affect the civil rights of the party.  Therefore, in matters of
this nature, it is sufficient if the claimant prima facie satisfies the
Court that the claimant and the respondent have lived as husband and
wife.  There is no requirement of even proving the essential ceremony
which normally go with a marriage.   In this regard, Mr. Patil relied
upon   the   decision   of   this   Court   in   the   case   of  Dwarika   Prasad
Satpathy Vs. Bidyut Praya Dixit and Another1
.  Mr. Patil submitted
that the learned ASJ has not appreciated this provision in law but
instead, transgressed the bounds of revisional jurisdiction, therefore,
the impugned Judgment and Order made by the learned ASJ warrants
interference.
3. Mr.   S.   S.   Patwardhan.   learned   Counsel   for   respondent
no.1, has submitted that maintenance under Section 125 of Cr.P.C. can
only   be   granted   to   the   legally   married   wife.     In   this   case,   the
respondent no.1 was never legally married to the petitioner no.1.  In
this case, a legal marriage was not at all competent as the respondent
no.1 was already married and his spouse was very much alive.  In this
regard, reliance was placed upon the decision of the Hon'ble Apex
Court in the case of  Savitaben Somabhai Bhatia Versus State of
Gujarat and Others2
.
1 AIR 1999 SC 3348
2 (2005) 3 SCC 636

4. Rival contentions now fall for my determination.
5. The learned JMFC, in the present case, had considered the
defence of the respondent no.1 and recorded a finding on fact that the
petitioner no.1 was indeed the legally wedded wife of the respondent
no.1.   There was both oral and documentary evidence produced on
record by the petitioner no.1.  There is virtually a concurrent findings
of fact recorded by both the learned JMFC as well as learned ASJ, in
the   matter   of   paternity   of   petitioner   no.2.     The   findings   of   fact
recorded by the learned JMFC can neither be said to be vitiated by
perversity or in excess of jurisdiction.  The learned JMFC has rightly
placed reliance upon the decision of the Hon'ble Apex Court in the
case of Dwarika Prasad Satpathy (supra) and therefore, it cannot be
said that the learned JMFC had erred in principle.
6. Despite the aforesaid, the learned ASJ has set aside the
Judgment and Order dated 25/03/2004 made by the learned JMFC,
without   being   conscious   that   it   was   called   upon   to   exercise   only
revisional   jurisdiction   and   not   appellate   jurisdiction.     There   is,
therefore, jurisdictional error in the impugned Judgment and Order.
That apart, the Hon'ble Apex Court, in the case of Dwarika Prasad
Satpathy  (supra), has held that the validity of the marriage for the
purpose of summary proceeding under Section 125, Cr.P.C. is to be
determined on the basis of the evidence brought on record by the
parties. The standard of proof of marriage in such proceeding is not as
strict as is required in a trial of offence under Section 494 of the I.P.C.

If the claimant in proceedings under Section 125 of the Code succeeds
in   showing   that   she   and   the   respondent   have   lived   together   as
husband   and   wife,   the   Court   can   presume   that   they   are   legally
wedded spouses, and in such a situation, the party who denies the
marital status can rebut the presumption.  In this case, the burden was
clearly upon the respondent no.1 to rebut the presumption and at
least for the purpose of summary proceedings under Section 125 of
Cr.P.C., it cannot be said that the respondent no.1 has succeeded in
rebutting such presumption. 
7. Further, the Hon'ble Apex Court,  in the case of Dwarika
Prasad   Satpathy  (supra),   has   held   that   after   a   person   has   not
disputed the paternity of the child, it would hardly lie in the mouth of
such party to contend in proceeding under Section 125, Cr.P.C. that
there was no valid marriage as essential rites were not performed at
the time of said marriage.  The Hon'ble Apex Court has further held
that the provision under Section 125 is not to be utilized for defeating
the   rights   conferred   by   the   Legislature   to   the   destitute   women,
children or parents who are victims of social environment. 
8. In the case of  Vimala (K.) Versus Veerswamy (K.)3
, the
Hob'ble Apex Court, while dealing with the contention of the husband
that second marriage with the applicant­wife was void on the ground
of her first marriage was subsisting, held that the provision under
Section 125 of the Cr.P.C. is meant to achieve a social purpose and
therefore, the law which disentitles the second wife from receiving
3 (1991) 2 SCC 375

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 the provision in the Code is a measure of
social justice intended to protect women and children.  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.   The
Hon'ble Apex Court has further held that when an attempt is made by
the husband to negative the claim of the neglected wife depicting her
as a kept­mistress on the specious plea that he was already married,
the court would insist on strict proof of the earlier marriage.
9. It must be noted that the provisions under Section 125 of
Cr.P.C. do not determine and are not intended to determine the civil
rights and obligations of the parties.  The decisions under Section 125
of Cr.P.C. are obviously tentative decisions subject to any final order in
any civil proceeding, if the parties are so advised to adopt.   This is
what was held by the Hon'ble Apex Court in the case of Santosh w/o
Naresh Pal Vs. Naresh Pal 4 (1998) 8 SCC 447
, in the context of contention that the wife
had not proved that she was legally married wife because her first
husband was living and there was no dissolution of her marriage.  In
the   case   of  Dwarika   Prasad   Satpathy  (supra),   the   Hon'ble   Apex
Court has held that where from the evidence which is led before the
Magistrate, the Magistrate is  prima facie satisfied with regard to the

performance of marriage in proceedings under Section 125, Cr.P.C.
which are of summary nature, strict proof of performance of essential
rites is not required.
10. Applying   the   aforesaid   principles,   it   is   clear   that   the
respondent   no.1   has   not   been   able   to   make   out   a   case   that   the
marriage between himself and the petitioner no.1 was not legal and
valid, because the petitioner no.1 was allegedly his second wife.
11. In the case of Savitaben (supra), it has been held that the
expression 'wife' referred to under Section 125 of the Cr.P.C. means
only 'legally married wife'.  In the present case, the learned JMFC, on
the basis of material on record, had clearly returned a finding that the
petitioner no.1 was the legally wedded wife of the respondent no.1.
The learned ASJ, by purporting to re­assess the material on record,
has substituted a different finding.  Such jurisdiction of re­assessment
of evidence was not at all vested in the learned ASJ.   Therefore, it
cannot be said that the approach of the learned JMFC was, in an
manner, contrary to the dictum of the Hon'ble Apex Court in the case
of Savitaben (supra).  That apart, it is required to be noted that yet
another bench of the Hon'ble Apex Court, in the case of Chanmuniya
Versus   Virendra   Kumar   Singh   Kushwaha   and   Another (2011) 1 Supreme Court Cases 141

,   upon
consideration of several other decisions, including the decisions in the
case   of  Dwarika   Prasad  (supra)   and  Savitaben  (supra),   has
expressed an opinion that an expansive interpretation should be given
to term 'wife' to include even those cases where a man and woman

had been living together as husband and wife for a reasonably long
period   of  time  and  strict  proof  of   marriage  should  not  be  a  precondition
for maintenance under Section 125 of Cr.P.C., so as to fulfill
true spirit and essence of beneficial provision of maintenance under
Section 125.   The Hon'ble Apex Court has itself said that such an
interpretation would be a just application of the principles enshrined
in   the   Preamble   to   our   Constitution,   namely,   social   justice   and
upholding the dignity of the individual.
12. Therefore, upon cumulative consideration of the aforesaid
facts and circumstances, as also the law on the subject, the impugned
Judgment and Order dated 28/03/2005 made by the learned ASJ is
hereby   set  aside  and  the  Judgment  and  Order dated  25/03/2004
made by the learned JMFC is hereby restored.  Rule is made absolute
in terms of prayer clause (b).  The respondent no.1 shall pay costs of
Rs.5,000/­ (Rupees Five Thousand Only) to the petitioner no.1 within
a period of four weeks from today.
                 (M. S. SONAK, J.)

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