In Rameshchandra Daga v. Rameshwari Daga MANU/SC/1057/2004 : AIR 2005 SC 422, the right of another woman in a similar situation was upheld. Here the Court had accepted that Hindu marriages have continued to be bigamous despite the enactment of the Hindu Marriage Act in 1955. The Court had commented that though such marriages are illegal as per the provisions of the Act, they are not 'immoral' and hence a financially dependent woman cannot be denied maintenance on this ground.
25. Thus, while interpreting a statute the court may not only take into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. It is this mischief rule, first propounded in Heydon's Case (1854) 3 Co. Rep. 7a , 7b which became the historical source of purposive interpretation. The court would also invoke the legal maxim construction ut res magis valeat guam pereat, in such cases i.e. where alternative constructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. If this interpretation is not accepted, it would amount to giving a premium to the husband for defrauding the wife. Therefore, at least for the purpose of claiming maintenance under Section 125, Code of Criminal Procedure, such a woman is to be treated as the legally wedded wife.
26. The principles of Hindu Personal Law have developed in an evolutionary way out of concern for all those subject to it so as to make fair provision against destitution. The manifest purpose is to achieve the social objectives for making bare minimum provision to sustain the members of relatively smaller social groups. Its foundation spring is humanistic. In its operation field all though, it lays down the permissible categories under its benefaction, which are so entitled either because of the tenets supported by clear public policy or because of the need to subserve the social and individual morality measured for maintenance.1
Crl. Misc. Pet. No. 19530 of 2013 In SLP(Crl)No.8596/2013
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL MISCELLANEOUS PETITION No.19530/2013
IN
SPECIAL LEAVE PETITION (CRL.) No.8596/2013
Badshah
....Petitioner
Versus
Sou.Urmila Badshah Godse & Anr.
...Respondents1
Decided On: 18.10.2013
There is a delay of 63 days in filing the present Special Leave Petition
and further delay of 11 days in refilling Special Leave Petition. For the
reasons contained in the application for condonation of delay, the delay in
filing and refilling of SLP is condoned.
2.
The petitioner seeks leave to appeal against the judgment and order
dated 28.2.2013 passed by the High Court of Judicature at Bombay, Bench
at Aurangabad in Criminal Writ Petition No.144/2012. By means of the
impugned order, the High Court has upheld the award of maintenance to
Crl. Misc. Pet. No. 19530 of 2013 In SLP(Crl)No.8596/2013
respondent No.1 at the rate of Rs.1000/- per month and to respondent No.2
(daughter) at the rate of Rs.500/- per month in the application filed by them
under Section 125 of the Code of Criminal Procedure (Cr.P.C.) by the
learned Trial Court and affirmed by the learned Additional Sessions Judge.
Respondents herein had filed proceedings under Section 125, Cr.P.C. before
Judicial Magistrate First Class (JMFC) alleging therein that respondent No.1
was the wife of the petitioner herein and respondent No.2 was their
daughter, who was born out of the wedlock.
3.
The respondents had stated in the petition that respondent No.1 was
married with Popat Fapale. However, in the year 1997 she got divorce from
her first husband. After getting divorce from her first husband in the year
1997 till the year 2005 she resided at the house of her parents. On demand
of the petitioner for her marriage through mediators, she married him on
10.2.2005 at Devgad Temple situated at Hivargav-Pavsa. Her marriage was
performed with the petitioner as per Hindu Rites and customs. After her
marriage, she resided and cohabited with the petitioner.
Initially for 3
months, the petitioner cohabited and maintained her nicely. After about
three months of her marriage with petitioner, one lady Shobha came to the
house of the petitioner and claimed herself to be his wife. On inquiring from
the petitioner about the said lady Shobha, he replied that if she wanted to
Crl. Misc. Pet. No. 19530 of 2013 In SLP(Crl)No.8596/2013
cohabit with him, she should reside quietly. Otherwise she was free to go
back to her parents house. When Shobha came to the house of petitioner,
respondent No.1 was already pregnant from the petitioner.
Therefore, she
tolerated the ill-treatment of the petitioner and stayed alongwith Shobha.
However, the petitioner started giving mental and physical torture to her
under the influence of liquor. The petitioner also used to doubt that her
womb is begotten from somebody else and it should be aborted. However,
when the ill-treatment of the petitioner became intolerable, she came back to
the house of her parents.
Respondent No.2, Shivanjali, was born on
28.11.2005. On the aforesaid averments, the respondents claimed
maintenance for themselves.
4.
The petitioner contested the petition by filing his written statement.
He dined his relation with respondent Nos.1 and 2 as his wife and daughter
respectively. He alleged that he never entered with any matrimonial alliance
with respondent No.1 on 10.2.2005, as claimed by respondent No.1 and in
fact respondent No.1, who was in the habit of leveling false allegation, was
trying to blackmail him. He also denied co-habitation with respondent No.1
and claimed that he was not the father of respondent No.2 either. According
to the petitioner, he had married Shobha on 17.2.1979 and from that
marriage he had two children viz. one daughter aged 20 years and one son
Crl. Misc. Pet. No. 19530 of 2013 In SLP(Crl)No.8596/2013
aged 17 years and Shobha had been residing with him ever since their
marriage. Therefore, respondent No.1 was not and could not be his wife
during the subsistence of his first marriage and she had filed a false petition
claiming her relationship with him.
5.
Evidence was led by both the parties and after hearing the arguments
the learned JMFC negatived the defence of the petitioner. In his judgment,
the JMFC formulated four points and gave his answer thereto as under:
1.
2.
3.
4.
6.
Does applicant no.1 Urmila proves that she is a wife
and applicant No.2 Shivanjali is daughter of non
applicant?
Does applicant No.1 Urmila proves that non-
applicant has deserted and neglected them to
maintain them through having sufficient means?
Whether applicant No.1 Urmila and Applicant No.2
Shivanjali are entitled to get maintenance from non-
applicant?
If yes, at what rate?
Yes
Yes
Yes
Rs. 1,000/-
p.m. to
Applicant
No. 1 and
Rs. 500/-
p.m. to
Applicant
No. 2.
It is not necessary to discuss the reasons which prevailed with the
learned JMFC in giving his findings on Point Nos.1 and 2 on the basis of
evidence produced before the Court. We say so because of the reason that
Crl. Misc. Pet. No. 19530 of 2013 In SLP(Crl)No.8596/2013
these findings are upheld by the learned Additional Sessions Judge in his
judgment while dismissing the revision petition of the petitioner herein as
well as the High Court. These are concurrent findings of facts with no
blemish or perversity. It was not even argued before us as the argument
raised was that in any case respondent No.1 could not be treated as “wife” of
the petitioner as he was already married and therefore petition under Section
125 of the Cr.P.C. at her instance was not maintainable. Since, we are
primarily concerned with this issue, which is the bone of contention, we
proceed on the basis that the marriage between the petitioner and respondent
No.1 was solemnized; respondent No.1 co-habited with the petitioner after
the said marriage; and respondent No.2 is begotten as out of the said co-
habitation, whose biological father is the petitioner. However, it would be
pertinent to record that respondent No.1 had produced overwhelming
evidence, which was believed by the learned JMFC that the marriage
between the parties took place on 10.2.2005 at Devgad Temple.
This
evidence included photographs of marriage. Another finding of fact was
arrived at, namely, respondent No.1 was a divorcee and divorce had taken
place in the year 1997 between her and her first husband, which fact was in
the clear knowledge of the petitioner, who had admitted the same even in his
cross-examination.
Crl. Misc. Pet. No. 19530 of 2013 In SLP(Crl)No.8596/2013
7.
The learned JMFC proceeded on the basis that the petitioner was
married to Shobha and was having two children out of the wedlock.
However, at the time of solemnizing the marriage with respondent No.1, the
petitioner intentionally suppressed this fact from her and co-habited with
respondent No.1 as his wife.
8.
The aforesaid facts emerging on record would reveal that at the time
when the petitioner married the respondent No.1, he had living wife and the
said marriage was still subsisting. Therefore, under the provisions of Hindu
Marriage Act, the petitioner could not have married second time.
At the
same time, it has also come on record that the petitioner duped respondent
No.1 by not revealing the fact of his first marriage and pretending that he
was single. After this marriage both lived together and respondent No.2 was
also born from this wedlock. In such circumstances, whether respondents
could filed application under Section 125 of the Cr.P.C., is the issue. We
would like to pin point that in so far as respondent No.2 is concerned, who is
proved to be the daughter of the petitioner, in no case he can shun the
liability and obligation to pay maintenance to her. The learned counsel
ventured to dispute the legal obligation qua respondent No.1 only.
9.
The learned counsel for the petitioner referred to the judgment of this
Court in Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhay & Anr. 1
In that case, it was held that a Hindu lady who married after coming into
force Hindu Marriage Act, with a person who had a living lawfully wedded
wife cannot be treated to be “legally wedded wife” and consequently her
claim for maintenance under Section 125, Cr.P.C. is not maintainable. He
also referred to later judgments in the case of Savitaben Somabai Bhatiya vs.
State of Gujarat & Ors.2 wherein the aforesaid judgment was followed. On
the strength of these two judgments, the learned counsel argued that the
expression “wife” in Section 125 cannot be stretched beyond the legislative
intent, which means only a legally wedded-wife.
He argued that Section
5(1) (i) of the Hindu Marriage Act, 1955 clearly prohibits 2 nd marriage
during the subsistence of the 1st marriage, and so respondent No.1 cannot
claim any equity; that the explanation clause (b) to Section 125 Cr.P.C.
mentions the term “divorce” as a category of claimant, thus showing that
only a legally wedded-wife can claim maintenance. He, thus, submitted that
since the petitioner had proved that he was already married to Shobha and
the said marriage was subsisting on the date of marriage with respondent
No.1,
this
marriage
was
(1988) 1 SCC 530
(2005) 3 SCC 636
void and respondent No.1 was not legally wedded wife and therefore had no
right to move application under Section 125 of the Cr.P.C.
10.
Before we deal with the aforesaid submission, we would like to refer
two more judgments of this Court. First case is known as Dwarika Prasad
Satpathy vs. Bidyut Prava Dixit & Anr.3 In this case it was held:
“The validity of the marriage for the purpose of
summary proceeding under s.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 IPC.
If the claimant in proceedings under s.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 spouse, and in such a situation, the party who denies
the marital status can rebut the presumption. Once it is admitted
that the marriage procedure was followed then it is not
necessary to further probe into whether the said procedure was
complete as per the Hindu Rites in the proceedings under
S.125,Cr.P.C. From the evidence which is led if the Magistrate
is prima facie satisfied with regard to the performance of
marriage in proceedings under S.125, Cr.P.C. which are of
summary nature strict proof of performance of essential rites is
not required.
It is further held:
It is to be remembered that the order passed in an
application under section 125 Cr.P.C. does not finally
determine the rights and obligations of the parties and the said
section is enacted with a view to provide summary remedy for
providing maintenance to a wife, children and parents. For the
purpose of getting his rights determined, the appellant has also
filed Civil Suit which is spending before the trial court. In such
3
(1999) 7 SCC 675
a situation, this Court in S.Sethurathinam Pillai vs. Barbara
alias Dolly Sethurathinam, (1971) 3 SCC 923, observed that
maintenance under section 488, Cr.P.C. 1898 (similar to
Section 125, Cr.P.C.) cannot be denied where there was some
evidence on which conclusion for grant of maintenance could
be reached. It was held that order passed under Section 488 is a
summary order which does not finally determine the rights and
obligations of the parties; the decision of the criminal Court that
there was a valid marriage between the parties will not operate
as decisive in any civil proceeding between the parties.”
11.
No doubt, it is not a case of second marriage but deals with standard
of proof under Section 125, Cr.P.C. by the applicant to prove her marriage
with the respondent and was not a case of second marriage. However, at the
same time, this reflects the approach which is to be adopted while
considering the cases of maintenance under Section 125,Cr.P.C. which
proceedings are in the nature of summary proceedings.
12.
Second case which we would like to refer is Chanmuniya vs. Virendra
Kumar Singh Kushwaha & Anr.4
The Court has held that the term “wife”
occurring in Section 125, Cr.P.C. is to be given very wide interpretation.
This is so stated in the following manner:
“A broad and expansive interpretation should be given to the
term “wife” to include even those cases where a man and woman have been
living together as husband and wife for reasonably long period of time, and
strict proof of marriage should not be a pre-condition for maintenance under
Section 125 of the Cr.P.C. so as to fulfill the true spirit and essence of the
beneficial provision of maintenance under Section 125.”
(2011) 1 SCC 141
13.
No doubt, in Chanmuniya (supra), the Division Bench of this Court
took the view that the matter needs to be considered with respect to Section
125,Cr.P.C., by larger bench and in para 41, three questions are formulated
for determination by a larger bench which are as follows:
“1. 2. Whether strict proof of marriage is essential for a claim
of maintenance under Section 125,Cr.P.C. having regard
to the provisions of the Domestic Violence Act, 2005?
3.
14.
Whether the living together of a man and woman as
husband and wife for a considerable period of time would
raise the presumption of a valid marriage between them
and whether such a presumption would entitle the woman
to maintenance under Section 125,Cr.P.C.?
Whether a marriage performed according to the
customary rites and ceremonies, without strictly fulfilling
the requisites of Section 7(1) of the Hindu Marriage Act,
1955, or any other personal law would entitle the woman
to maintenance under Section 125,Cr.P.C.?”
On this basis, it was pleaded before us that this matter be also tagged
along with the aforesaid case. However, in the facts of the present case, we
do not deem it proper to do so as we find that the view taken by the courts
below is perfectly justified. We are dealing with a situation where the
marriage between the parties has been proved. However, the petitioner was
already married. But he duped the respondent by suppressing the factum of
alleged first marriage. On these facts, in our opinion, he cannot be permitted
to deny the benefit of maintenance to the respondent, taking advantage of his
own wrong. Our reasons for this course of action are stated hereinafter.
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.
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. 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.
18.
Of late, in this very direction, it is emphasized that the Courts have to
adopt different approaches in “social justice adjudication”, which is also
known as “social context adjudication” as mere “adversarial approach” may
not be very appropriate. There are number of social justice legislations
giving special protection and benefits to vulnerable groups in the society.
Prof. Madhava Menon describes it eloquently:
“It is, therefore, respectfully submitted that “social
context judging” is essentially the application of equality
jurisprudence as evolved by Parliament and the Supreme Court
in myriad situations presented before courts where unequal
parties are pitted in adversarial proceedings and where courts
are called upon to dispense equal justice. Apart from the social-
economic inequalities accentuating the disabilities of the poor
in an unequal fight, the adversarial process itself operates to the
disadvantage of the weaker party. In such a situation, the judge
has to be not only sensitive to the inequalities of parties
involved but also positively inclined to the weaker party if the
imbalance were not to result in miscarriage of justice. This
result is achieved by what we call social context judging or
social justice adjudication.”5
19.
Provision of maintenance would definitely fall in this category which
aims at empowering the destitute and achieving social justice or equality and
dignity of the individual. While dealing with cases under this provision,
drift in the approach from “adversarial” litigation to social context
adjudication is the need of the hour.
20.
The law regulates relationships between people.
It prescribes
patterns of behavior. It reflects the values of society. The role of the Court
is to understand the purpose of law in society and to help the law achieve its
purpose. But the law of a society is a living organism. It is based on a given
factual and social reality that is constantly changing. Sometimes change in
law precedes societal change and is even intended to stimulate it. In most
cases, however, a change in law is the result of a change in social reality.
Indeed, when social reality changes, the law must change too. Just as
change in social reality is the law of life, responsiveness to change in social
reality is the life of the law. It can be said that the history of law is the
history of adapting the law to society’s changing needs.
In both
Constitutional and statutory interpretation, the Court is supposed to exercise
5
Delivered a key note address on “Legal Education in Social Context”
direction in determining the proper relationship between the subjective and
objective purpose of the law.
21.
Cardozo acknowledges in his classic6
“....no system of jus scriptum has been able to escape the need
of it”, and he elaborates: “It is true that Codes and Statutes do
not render the Judge superfluous, nor his work perfunctory and
mechanical. There are gaps to be filled. There are hardships
and wrongs to be mitigated if not avoided. Interpretation is
often spoken of as if it were nothing but the search and the
discovery of a meaning which, however, obscure and latent,
had none the less a real and ascertainable pre-existence in the
legislator’s mind. The process is, indeed, that at times, but it is
often something more. The ascertainment of intention may be
the least of a judge’s troubles in ascribing meaning to a
stature.”
Says Gray in his lecture7
“The fact is that the difficulties of so-called interpretation
arise when the legislature has had no meaning at all; when the
question which is raised on the statute never occurred to it;
when what the judges have to do is, not to determine that the
legislature did mean on a point which was present to its mind,
but to guess what is would have intended on a point not present
to its mind, if the point had been present.”
22.
The Court as the interpreter of law is supposed to supply omissions,
correct uncertainties, and harmonize results with justice through a method of
free decision—“libre recherché sceintifique” i.e. “free Scientific research”.
We are of the opinion that there is a non-rebuttable presumption that the
6
7
The Nature of Judicial Process
From the Book “The Nature and Sources of the Law” by John Chipman Gray
Legislature while making a provision like Section 125 Cr.P.C., to fulfill its
Constitutional duty in good faith, had always intended to give relief to the
woman becoming “wife” under such circumstances.
23.
This approach is particularly needed while deciding the issues relating
to gender justice. We already have examples of exemplary efforts in this
regard.
Journey from Shah Bano8 to Shabana Bano9 guaranteeing
maintenance rights to Muslim women is a classical example.
24.
In Rameshchandra Daga v. Rameshwari Daga10, the right of
another woman in a similar situation was upheld. Here the Court had
accepted that Hindu marriages have continued to be bigamous despite the
enactment of the Hindu Marriage Act in 1955. The Court had commented
that though such marriages are illegal as per the provisions of the Act, they
are not ‘immoral’ and hence a financially dependent woman cannot be
denied maintenance on this ground.
25.
Thus, while interpreting a statute the court may not only take into
consideration the purpose for which the statute was enacted, but also the
mischief it seeks to suppress. It is this mischief rule, first propounded in
8
AIR 1985 SC 945
AIR 2010 SC 305
10
AIR 2005 SC 422
9
Heydon’s Case11 which became the historical source of purposive
interpretation. The court would also invoke the legal maxim construction ut
res magis valeat guam pereat, in such cases i.e. where alternative
constructions are possible the Court must give effect to that which will be
responsible for the smooth working of the system for which the statute has
been enacted rather than one which will put a road block in its way. If the
choice is between two interpretations, the narrower of which would fail to
achieve the manifest purpose of the legislation should be avoided. We
should avoid a construction which would reduce the legislation to futility
and should accept the bolder construction based on the view that Parliament
would legislate only for the purpose of bringing about an effective result. If
this interpretation is not accepted, it would amount to giving a premium to
the husband for defrauding the wife. Therefore, at least for the purpose of
claiming maintenance under Section 125, Cr.P.C., such a woman is to be
treated as the legally wedded wife.
26.
The principles of Hindu Personal Law have developed in an
evolutionary way out of concern for all those subject to it so as to make fair
provision against destitution. The manifest purpose is to achieve the social
objectives for making bare minimum provision to sustain the members of
11
(1854) 3 Co.Rep.7a,7b
relatively smaller social groups. Its foundation spring is humanistic. In its
operation field all though, it lays down the permissible categories under its
benefaction, which are so entitled either because of the tenets supported by
clear public policy or because of the need to subserve the social and
individual morality measured for maintenance.
27.
In taking the aforesaid view, we are also encouraged by the following
observations of this Court in Capt.Ramesh Chander Kaushal vs. Veena
Kaushal 12:
“The brooding presence of the Constitutional empathy
for the weaker sections like women and children must inform
interpretation if it has to have social relevance. So viewed, it is
possible to be selective in picking out that interpretation out of
two alternatives which advances the cause – the cause of the
derelicts.”
28.
For the aforesaid reasons, we are not inclined to grant leave and
dismiss this petition.
.............................J.
[Ranjana Prakash Desai]
.............................J.
[A.K.Sikri]
New Delhi,
October 18, 2013
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