representing the petitioner stated that it stands proved on
record that petitioner had been residing with the respondent
for more than 25 years and during this period, they had
developed physical relationship and she had given birth to
four kids and as such respondent is liable to maintain her as
his wife. But as has been observed above, petitioner has not
placed on record any evidence to suggest anything, which
could compel this Court to infer that she is the legally
wedded wife of the respondent strictly in terms of Section 125
Cr.PC, which would have made her entitled to have
maintenance allowance. In support of this contention, Mr.
Sharma placed reliance on Badri Prasad v. Dy. Director of
Consolidation and Ors, AIR 1978 SC 1557, D.Velusamy v.
D.Patchaiammal, AIR 2011 SC 479 and in Indra Sarma v. V.K.V.
Sarma, AIR 2014 SC 309. Perusal of the aforesaid judgments, as
has been relied upon by Mr. Anand Sharma, in support of his
contention clearly suggests that if a man and woman living
as husband wife for about 15 years or more, there is strong
presumption that there is wedlock. There cannot be any
dispute with regard to the aforesaid observations returned by
the judgments to the effect that since petitioner has been
cohabiting with the respondent for a long time, a
presumption can be drawn that there is a wedlock. But in
the present case, when a maintenance is being claimed
under Section 125 Cr.PC, aforesaid proposition may not be of
any help to the petitioner, especially, in the law laid down by
the Hon’ble Apex Court in Yamuna Yamunabai Anantrao
Adhav v. Anantrao Shivram Adhav and Anr. (1988) 1 SCC 530
whereby, it has been specifically held that expression ‘wife’
used in Section 125 Cr.PC, should be interpreted to mean
only a legally wedded wife. Though, it stands proved in the
present case that petitioner has been residing with the
respondent for last more than 25 years and gave birth to four
kids, who are admittedly born out of the lions of the
respondent but in the facts and circumstances of the case,
petitioner has miserably failed to prove that she is a legally
wedded wife of the respondent. Hence, she cannot be held
entitled to maintenance in terms of Section 125 Cr.PC. In the
present case, respondent has been successful in proving that
the petitioner is not a legally wedded wife of the respondent
as earlier marriage was in subsistence in year 1987, when as
per her own version, she-petitioner had actually started living
with the respondent. It is also proved on record that Mast
Ram husband of the petitioner was alive till 1995 which
undisputed fact persuaded this Court to take a view that the
present petitioner cannot be termed as legally wedded wife
of the respondent, which is a strict requirement of Section 125
Cr.PC as has been held by the Hon’ble Apex Court in the
case Supra.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.129 of 2007.
Date of Decision: 7.5.2016.
Kamla Devi
V
Uttam Chand
Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Citation:2016 ALLMR(CRI)JOURNAL542
Present petition filed under Section 397 (1) Cr.PC
read with Section 401 is directed against the order dated
12.7.2007 rendered by Additional Sessions Judge, Fast Track
Court, Kangra at Dharamshala, H.P., in Criminal Revision No.
4-3/x/06 titled Uttam Chand v. Kamla Devi, reversing the
order dated 11.8.2006 rendered by learned Sub Divisional
Judicial Magistrate, Jawali, District Kangra, H.P. in Criminal
Application No. 90-IV/06 titled Kamla Devi v. Uttam Chand,
whereby present petitioner has been held entitled to the
maintenance to the tune of Rs. 1500/- per month under
Section 125 Cr.PC.
2. Perusal of the record of the learned trial Court
below suggests that present petitioner had filed an
application under Section 125 Cr.PC for grant of interim
maintenance allowance from the respondent-herein, which
was allowed by the learned trial Court. Feeling aggrieved
with the order dated 11.8.2006, respondent-herein preferred
a criminal Revision under Section 397 Cr.PC seeking
quashment of aforesaid order passed by learned Sub
Divisional Judicial Magistrate, Jawali, which was allowed by
the learned Additional Sessions Judge. Admittedly, present
revision petition filed under Section 397 Cr.PC read with
Section 401 Cr.PC is directed against the order dated
12.7.2007 passed by learned Additional Sessions Judge which
has been allegedly passed invoking the powers under
Section 397 Cr.PC.
3. Impugned order dated 12.7.2007 suggests that
the same has been passed by learned Additional Sessions
Judge while exercising revisionary powers under Section 397
Cr.PC. Mr. R.K. Sharma, Senior Advocate, appearing for the
respondent, vehemently argued that the present petition
filed under Section 397 Cr.PC is not maintainable being
second revision and prayed that this petition may be
dismissed on the ground of maintainability itself.
4. On the other hand, Mr. Anand Sharma,
appearing for the petitioner stated that petitioner being
aggrieved with the order of learned Additional Sessions
Judge, is competent to file revision petition under Section 397
Cr.PC against the order or judgment passed by learned
Additional Sessions Judge. He further submitted that
impugned order has been passed by the learned Additional
Sessions Judge, Fast Track Court, Kangra at Dharamshala, HP,
in criminal revision petition filed by the respondent herein,
exercising its powers under Section 397 (3) Cr.PC, hence,
specific bar provided under Section 397(3) will not come in
the way of present petitioner as far as filing of the present
petition is concerned in the facts and circumstances of the
case. Admittedly, petition for maintenance allowance was
filed by the present petitioner under Section 125 Cr.PC,
before the learned Sub Divisional Judicial Magistrate, which
was allowed and being aggrieved with the order,
respondent Uttam Chand had actually filed criminal revision
petition under Section 397 Cr.PC. It is ample clear from the
facts narrated herein above that present petitioner has
actually never invoked Section 397 Cr.PC, save and except
the present petition, whereby she has laid challenge to the
order passed by the learned Additional Sessions Judge, on
the revision petition filed by the respondent. It would be apt
to reproduce the provisions of Section 397, herein below:-
397 (3) If an application under this section has been
made by any person either to the High Court or to
the Sessions Judge, no further application by the
same person shall be entertained by the other of
them.
5. Careful reading of Section 397(3) makes it
ample clear that no further application under Section 397
Cr.PC can be filed by the same person, meaning thereby, in
the present case, respondent Uttam Chand is not competent
to file second revision in terms of Section 397 (3) as he had
already exhausted remedy of criminal revision under Section
397 by filing revision petition before the learned Sessions
Court against the order of the learned trial Court.
6. In this regard, reliance is placed upon the
judgment rendered in re Puritipati Jagga Reddy, AIR 1979
Andhra Pradesh 146 Full Bench, wherein it has been held that
“bar created under Section 397 (3) is limited to the same person
who has already chosen to go either to the High Court or to the
Sessions Court seeking a remedy and it does not apply to the
other parties or persons.” Relevant para of the judgment
(supra) is reproduced herein below:-
9. The language of sub-sec. (3) of the S. 397 contains
no ambiguity. If any person has already chosen to
file a revision before the High Court or to the Sessions
Court under sub-sec. (1), the same person cannot
prefer a further application to the other Court. To
put it in other words, Sub-secs. (1) and (3) make it
clear that person, aggrieved by any other or
proceeding can seek remedy by way of a revision
either before the High Court or the Sessions Court.
Once he has availed himself of that remedy, he is
precluded from approaching the other forum. It is
equally manifest from the provisions of sub-sec. (3)
that this bar is limited to the same person who has
already chosen to go either to the High Court or to
the Sessions Court seeking a remedy and that it
does not apply to the other parties or persons.
Further the bar contained in sub-sec. (3) is only
against that person who has already chosen the
remedy either before the High Court or before the
Sessions Judge. It is not permissible to extend the
bar contained under a statute to other persons or to
other fields. It is well established that the bar against
seeking a remedy in a Court of Law or against a
Court of law rendering justice should be strictly
construed. It is noteworthy that sub-sec. (1) of Sec.
397 empowers the High Court or the Sessions Court
to call for and examine the record of any
proceeding before any inferior Criminal Court. That
is to say, it can exercise this power of calling for and
examining the record suo-motu also. The language
of sub-sec. (3), strictly limited as it is to a person who
has chosen to seek the remedy from one of the two
courts, cannot be extended to the High Court
exercising its powers conferred on it under the
provision of the Code. It is patent that the bar
contained in sub-sec. (3) is only against the person
who has already chosen his remedy before one of
the two forums.
7. Moreover, this Court has ample power to treat
the present petition under Section 482 Cr.PC, which gives
inherent powers to the High Court to make such orders as
may be necessary to give effect to any order under this
Code or to prevent the abuse of process of any Court or
otherwise to secure the ends of justice. If the present petition
is not held to be maintainable at this stage, petitioner would
be rendered remediless as she will not have any opportunity
to assail the order dated 12.7.2007 passed by the learned
Additional Sessions Judge exercising revisionary powers
under Section 397 Cr.PC.
8. Undisputedly, powers under Section 482 Cr.PC
are required to be used very sparingly, especially, in the
circumstances, where court comes to the conclusion that
order passed by the court below is perverse on the face of it
and is a result of sheer abuse of the process of law. Keeping
in view the fact that this petition has remained pending
before this Court since 4th October, 2007, and same was
admitted on 5th October, 2007, it would not be proper and
just to dismiss the same on the ground of maintainability that
too after nine years of the admission of the case.
Accordingly, in view of the aforesaid discussion, this Court is
of the definite view that present petition is maintainable
under Section 397 Cr.PC and bar created under Section (3)
would not come in her way as far as filing of present petition
is concerned. Since prior to filing of this petition, she had not
filed any revision petition under Section 397 Cr.PC. Rather,
same was filed by respondent No.3 Uttam Chand. Hence,
this court is of the view that this petition cannot be held to be
barred under Section 397 (3) and same is maintainable in
view of the discussion made hereinabove.
9. As has been observed above that this Court has
ample powers under Section 482 Cr.PC and Article 227 of the
Constitution of India. In this regard, reliance is placed on the
judgments of various High Courts i.e.
1. Sashidhar Naik and others v. Gadadhar Patel and
Ors., 1978 CRI.L. J. 1316, Orissa High Court.
2. Bharat Sasmal v. Additional Sessions Judge, Puri and
Ors. 1984 CRI.L. J. 1389, Orissa High Court.
3. Vijay Kumar Puri, V. Miss Usha Mehra and Anr., 1981
CRI. L. J. 102, Delhi High Court.
4. Kanwar Pal Bishnoi V. Addl. Sessions Judge, and
Ors., 1985 (1) Crimes 221, Delhi High Court.
5. Otin Panging and Anr. v. Nambor Kaman and Ors.,
1991 (1) Crimes 509, Gauhati High Court.
6. Ashok Yeshwant Samant V. Suparna Ashok Samant
and Anr., 1991 CRI.L.J. 766, Bombay High Court.
7. M/s Prestolite of India Ltd. and Anr. V. The Munsif
Magistrate, Hawali and Anr., 1978 CRI.L.J. 538.
Allahabad High Court.
10. Brief facts giving rise to the present case are that
present petitioner by way of petition filed under Section 125
Cr.PC filed in the trial Court prayed for interim maintenance
allowance against the respondent being his wife. Record
reveals that as per averments contained in the application
made under Section 125 Cr.PC, petitioner claimed that her
marriage with respondent was solemnized in June, 1987
according to Hindu Rites and Rituals. Respondent is working
in Civil Supplies Department and remained posted at
Bilaspur, Kullu, Gohar and during this period, petitioner as well
as respondent stayed together in these places. It is also
averred that out of the said wedlock, petitioner gave birth to
three daughters and one boy aged about 17, 15, 14 and 12
years respectively. The petitioner alleged that few years
back, respondent started treating the petitioner with cruelty
as he used to lock her inside the house and no food/water
was being provided to her and beatings were given to the
petitioner. She prayed that since she had no source of
income coupled with the fact that respondent willfully
neglected her, she is entitled to maintenance in terms of
Section 125 Cr.PC to the tune of Rs 3,000/-per month and as
such direction may be issued to the respondent to provide
her maintenance.
11. Respondent by way of reply refuted the claim of
the petitioner that she is his wife and contended that she is
not legally wedded wife of him. He categorically stated that
no marriage took place in accordance with Hindu Rites and
Rituals and as such, she has no right or cause of action to file
petition under Section 125 Cr.PC. Allegation of cruelty and ill
treatment meted to the petitioner by respondent has been
also refuted by the respondent. However, in reply, the
respondent admitted that petitioner has been residing with
respondent and they developed physical relations, result
whereof petitioner became pregnant and four children born
from the lions of the respondent. Factum with regard to the
birth of four children is also acknowledged by the
respondent. However, respondent stated that petitioner is
not legally wedded wife of respondent, though, she is
residing with him till date. He also submitted that all the basic
necessities of petitioner are being fulfilled by him but being a
greedy lady, she-petitioner with a intent to grab everything
of the respondent has lodged the present complaint seeking
maintenance allowance. Record further reveals that during
the proceedings of the case pending before the court of
learned Additional Sessions Judge, present petitioner has
placed on record one document dated 8.9.2002 signed by
her as well as respondent, wherein they themselves admitted
to be husband and wife. Respondent also placed on record
death certificate of one Shri Mast Ram who was admittedly
husband of the petitioner. Learned trial Court after perusing
the evidence brought on record by the respective parties,
came into conclusion that petitioner is entitled to
maintenance allowance in terms of Section 125 Cr.PC and
respondent was directed to pay a sum of Rs. 1,500/- per
month to the petitioner. Respondent being aggrieved with
the aforesaid order of learned trial Court approached the
court of learned Additional Sessions Judge. Learned
Additional Sessions Judge vide order dated 12.7.2007 set
aside the order passed by the learned Sub Divisional Judicial
Magistrate. Hence this revision petition by the petitioner.
12. Admittedly, it has come on record that both the
parties have been residing together for more than 25 years
and petitioner gave birth to four children who have
admittedly born out of the lions of respondent. However, it
has been specifically denied by the respondent that
petitioner is a legally wedded wife of him which makes her
eligible to claim maintenance as envisaged under Section
125 Cr.PC from him. Respondent has also denied allegations
of any cruelty meted out to the petitioner by him. Rather, he
stated in reply that till date, petitioner has been residing with
him and all basic requirements of her are being fulfilled by
him only. Though, petitioner has averred that she is legally
wedded wife of the respondent and their marriage had
actually taken place as per Hindu Rites and Rituals but
admittedly, no evidence worth the name either be it ocular
or documentary has been brought on record from where it
could be inferred that she was actually a legally wedded
wife of the respondent.
13. On the other hand, respondent stated that
petitioner started residing with him in the year, 1987, when
her earlier marriage was in subsistence and at that time, her
husband namely Mast Ram was alive. A copy of marriage
register was also produced during the pendency of revision
petition wherein Mast Ram had been recorded to be her
husband. The certificate, which has been placed on record,
has been admittedly issued from the Gram Panchayat Tehsil
Karsog, District Mandi, H.P. It prima facie appears from the
certificate perused from the record that petitioner was earlier
got married to one Mast Ram in the year, 1983 and
thereafter during the subsistence of her earlier marriage, she
started residing with the respondent in the year, 1987 and
gave birth to four children. Needless to say that as per law,
during the subsistence of earlier marriage, any spouse
cannot contract second marriage. So, at this stage, it can
be safely inferred that even if the version/claim of the
petitioner, which has been admitted by the respondent that
she had been residing with the respondent since the year
1987, may not give her the status of legally wedded wife
because admittedly, as per the record, petitioner was
married to one Mast Ram in 1983 and he was alive till 1995.
Now, for the better understanding of provision i.e Section 125
Cr.PC, it would be apt to reproduce the same as under:-
125. Order for maintenance of wives, children, and
parents.-(1) If any person having sufficient means
neglects or refuses to maintain-
(a)his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself , or
(c) his legitimate or illegitimate child (not being a
married daughter)who has attained majority, where
such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself, or
(d) his father and mother, unable to maintain himself
or herself,
A Magistrate of the first class may, upon proof of
such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife
or such child, father or mother, at such monthly rate
[***], as such Magistrate thinks fit, and to pay the
same to such person as the Magistrate may from
time to time direct:
Provided that the Magistrate may order the father of
a minor female child referred to in clause (b) to
make such allowance, until she attains her majority,
if the Magistrate is satisfied that the husband or such
minor female child, if married, is not possessed of
sufficient means.
[Provided further that the Magistrate may, during
the pendency of the proceeding regarding monthly
allowance for the maintenance under this subsection,
order such person to make a monthly
allowance for the interim maintenance of his wife or
such child, father or mother and the expenses of
such proceeding which the Magistrate considers
reasonable, and to pay the same to such person as
the Magistrate may from time to time direct:
Provided also that an application for the monthly
allowance for the interim maintenance and
expenses for proceeding under the second proviso
shall, as far as possible, be disposed of within sixty
days from the date of the service of notice of the
application to such person.]
14. Plain reading of Section 125 Cr.PC suggests that
wife, who is unable to maintain herself, legitimate/illegitimate
minor child, who are unable to maintain themselves, are
entitled to maintenance allowance in terms of Section 125
Cr.PC. But in the present facts and circumstances, the moot
question requires consideration is, as has been discussed
herein above, whether the petitioner can be termed as
“legally wedded wife” of the respondent in the facts and
circumstances of the present case or not? Admittedly in the
present case, respondent has disputed the very status of
“wife” as being claimed by the petitioner by bringing on
record fact with regard to the subsistence of previous
marriage of the petitioner i.e. in the Year, 1983. There is no
doubt that petitioner has been cohabitating with the
respondent for almost 25 years but, especially, in view of the
fact that petitioner was married to Mast Ram in 1983 and he
was alive till 1995, petitioner cannot claim to be legally
wedded wife of the respondent, especially when earlier
marriage was in subsistence. It stands proved on record that
previous husband was alive till year, 1995.
15. The Hon’ble Apex Court while interpreting the
expression “wife” especially while dealing with the case
under Section 125 of the Code has held that the word ‘wife’
used under Section125 Cr.PC of the Code should be
interpreted to mean only “legally wedded wife”. Careful
reading of the Section 125 Cr.PC suggests that wife means
legally wedded wife because while providing provision under
Section 125 Cr.PC, interest of wife who intends to take benefit
under Sub Section 125 (1) (a), has been specifically
protected. Whosoever intends to take benefit of this provision
necessarily needs to establish that she is the wife of the
person concerned, meaning thereby, same can be decided
only by referring to the law applicable to the parties. As per
Hindu Customs and law, marriage of woman in accordance
with Hindu Rites, can be termed as legally wedded wife. The
meaning of ‘wife’ strictly in terms of Section 125 (1)(a) has
been defined by the Hon’ble Apex Court in the case titled
Yamuna Yamunabai Anantrao Adhav v. Anantrao Shivram
Adhav and Anr. (1988) 1 SCC 530 wherein the Hon’ble Apex
Court, has held that “Section 125 Cr.PC has been enacted in the
interest of a wife, and one who intends to take benefit of the said
Section has to establish the necessary condition, namely, that she
is the wife of the person concerned.” Vide aforesaid judgment,
it has further been held that Hindu woman, who gets
married, after coming into force of the Hindu Marriage Act,
1955, in accordance with Hindu Rites with Hindu male having
a living spouse was not entitled to maintenance under
Section 125 Cr.PC as such marriage is void under Section 11
of the Act. The relevant paragraphs are as below:
“3. For appreciating the status of a Hindu woman
marrying a Hindu male with a living spouse some of
the provisions of the Hindu Marriage Act, 1955
(hereinafter referred to as the Act) have to be
examined. Section 11 of the Act declares such a
marriage as null and void in the following terms:
11. Void marriages-Any marriage solemnized
after the commencement of this Act shall be
null and void and may, on a petition
presented by either party thereto against the
other party, be so declared by a decree of
nullity if it contravenes any one of the
conditions specified in clauses (i), (iv) and (v)
of Section 5. "
Clause (1)(i) of Section 5 lays down, for a lawful
marriage, the necessary condition that neither party
should have a spouse living at the time of the
marriage. A marriage in contravention of this
condition, therefore, is null and void. It was urged on
behalf of the appellant that a marriage should not
be treated as void because such a marriage was
earlier recognised in law and custom. A reference
was made to Section 12 of the Act and it was said
that in any event the marriage would be voidable.
There is no merit in this contention. By reason of the
overriding effect of the Act as mentioned in Section
4, no aid can be taken of the earlier Hindu Law or
any custom or usage as a part of that Law
inconsistent with any provision of the Act. So far as
Section12 is concerned, it is confined to other
categories of marriage and is not applicable to one
solemnised in violation of Section5(1)(i) of the Act.
Sub-section (2) of Section 12 puts further restrictions
on such a right. The cases covered by this section
are not void ab initio, and unless all the conditions
mentioned therein are fulfilled and the aggrieved
party exercises the right to avoid it, the same
continues to be effective. The marriages covered by
Section 11 are void-ipso- jure, that is, void from the
very inception, and have to be ignored as not
existing in law at all if and when such a question
arises. Although the section permits a formal
declaration to be made on the presentation of a
petition, it is not essential to obtain in advance such
a formal declaration from a court in a proceeding
specifically commenced for the purpose. The
provisions of Section 16, which is quoted below, also
throw light on this aspect:
" 16. Legitimacy of children of void and
voidable marriages.-(1) Notwithstanding that
a marriage is null and void under Section 11,
any child of such marriage who would have
been legitimate if the marriage had been
valid, shall be legitimate, whether such child is
born before or after the commencement of
the Marriage Laws (Amendment) Act, 1976
(68 of 1976), and whether or not a decree of
nullity is granted in respect of that marriage under
this Act and whether or not the marriage is held to
be void otherwise than on a petition under this
Act.
(2) Where a decree of nullity is granted in respect
of a voidable marriage under Section 12, any
child begotten or conceived before the
decree is made, who would have been the
legitimate child of the parties of the marriage
if at the date of the decree it had been
dissolved instead of being annulled, shall be
deemed to be their legitimate child
notwithstanding the decree of nullity.
(3) Nothing contained in sub-section (1) or sub
section (2) shall be construed as conferring
upon any child of a marriage which is null and
void or which is annulled by a decree of nullity
under Section 12, any rights in or to the
property of any person, other than the
parents, in any case where, but for the
passing of this Act, such child would have
been incapable of possessing or acquiring
any such rights by reason of his not being the
legitimate child of his parents.
(Emphasis added).
Sub-section (1), by using the words underlined
above clearly, implies that a void marriage can be
held to be so without a prior formal declaration by a
court in a proceeding. While dealing with cases
covered by Section 12, sub- section (2) refers to a
decree of nullity as an essential condition and subsection
(3) prominently brings out the basic
difference in the character of void and voidable
marriages as covered respectively by Section 11
and 12. It is also to be seen that while the legislature
has considered it advisable to uphold the legitimacy
of the paternity of a child born out of a void
marriage, it has not extended a similar protection in
respect of the mother of the child. The marriage of
the appellant must, therefore, be treated as null and
void from its very inception.
4. The question, then arises as to whether the
expression 'wife used in Section 125 of the Code
should be interpreted to mean only a legally
wedded wife not covered by Section 11 of the Act.
The word is not defined in the Code except
indicating in the Explanation its inclusive character
so as to cover a divorcee. A woman cannot be a
divorcee unless there was a marriage in the eye of
law preceding that status. The expression must,
therefore, be given the meaning in which it is
understood in law applicable to the parties, subject
to the Explanation (b), which is not relevant in the
present context.
6. The attempt to exclude altogether the
personal law applicable to the parties from
consideration also has to be repelled. The section
has been enacted in the interest of a wife, and one
who intends to take benefit under sub-section (1)(a)
has to establish the necessary condition, namely,
that she is the wife of the person concerned. This
issue can be decided only by a reference to the law
applicable to the parties. It is only where an
applicant establishes her status on relationship with
reference to the personal law that an application
for maintenance can be maintained. Once the right
under the section is established by proof of
necessary conditions mentioned therein, it cannot
be defeated by further reference to the personal
law. The issue whether the section is attracted or not
cannot be answered except by the reference to
the appropriate law governing the parties. In our
view the judgment in Shah Bano's case does not
help the appellant. It may be observed that for the
purpose of extending the benefit of the section to a
divorced woman and an illegitimate child the
Parliament considered it necessary to include in the
section specific provisions to that effect, but has not
done so with respect to women not lawfully
married.”
16. The Hon’ble Apex Court in Savitaben Somabhai
Bhatiya v. State of Gujarat and Ors., (2005) 3 SCC 636, again
reiterated the view taken in case referred supra. Paras No. 15
to 17 as reproduced as below:-
“15. In Smt. Yamunabai's case (supra), it was held
that expression 'wife' used in Section 125 of the
Code should be interpreted to mean only a legally
wedded wife. The word 'wife' is not defined in the
Code except indicating in the Explanation to
Section 125 its inclusive character so as to cover a
divorcee. A woman cannot be a divorcee unless
there was a marriage in the eye of law preceding
that status. The expression must therefore be given
the meaning in which it is understood in law
applicable to the parties. The marriage of a woman
in accordance with the Hindu rites with a man
having a living spouse is a complete nullity in the
eye of law and she is therefore not entitled to the
benefit of Section 125 of the Code or the Hindu
Marriage Act, 1955 (in short the 'Marriage Act').
Marriage with person having living spouse is null and
void and not voidable. However, the attempt to
exclude altogether the personal law applicable to
the parties from consideration is improper. Section
125 of the Code has been enacted in the interest of
a wife and one who intends to take benefit under
sub- section (1)(a) has to establish the necessary
condition, namely, that she is the wife of the person
concerned. The issue can be decided only by a
reference to the law applicable to the parties. It is
only where an applicant establishes such status or
relationship with reference to the personal law that
an application for maintenance can be
maintained. Once the right under the provision in
Section 125 of the Code is established by proof of
necessary conditions mentioned therein, it cannot
be defeated by further reference to the personal
law. The issue whether the Section is attracted or not
cannot be answered except by reference to the
appropriate law governing the parties.
16. But it does not further the case of the appellant
in the instant case. Even if it is accepted as stated
by learned counsel for the appellant that husband
was treating her as his wife it is really
inconsequential. It is the intention of the legislature
which is relevant and not the attitude of the party.
17. In Smt. Yamunabai's case (supra) plea similar to
the one advanced in the present case that the
appellant was not informed about the respondent's
earlier marriage when she married him was held to
be of no avail. The principle of estoppel cannot be
pressed into service to defeat the provision of
Section 125 of the Code.
17. From the reading of the aforesaid judgment
rendered by the Hon’ble Apex Court, one thing clearly
emerges that to have/claim maintenance under Section 125
of Code, petitioner necessarily needs to prove that she is a
legally wedded wife of the respondent. The Hon’ble Apex
Court while dealing with Sections 5 and 11 of the Hindu
Marriage Act, 1955 in the case titled Bhogadi Kannababu
and others v. Vuggina Pydamma and Ors., 2006 SCC 532
observed in para 4 as under:-
14. Section 5 of the Act clearly states the grounds
when the marriage cannot be solemnized. Clause (i)
of Section 5 is one such condition, which clearly
provides that no marriage can be performed if
there is a living spouse. Therefore, in view of Section
5, the marriage between Suryanarayana and
Pydamma cannot be considered to be legal as at
the time of such marriage, Chilakamma was very
much alive. Section 11 of the Act, which deals with
a void marriage says that any marriage solemnized
after the commencement of this Act shall be null
and void if it contravenes any of the conditions
specified in Clause (i), (iv) and (v) of Section 5 of the
Act. Therefore, in view of Sections 5 and 11 of the
Act, it must be held that the marriage between
Suryanarayana and Pydamma is a void marriage as
the said marriage was admittedly solemnized after
the commencement of the Act. Therefore,
considering that the marriage between
Suryanarayana and Pydamma was a void marriage,
the question that would now arise is whether their
daughters, namely, respondents 2 and 3 were
entitled to inherit the properties in question, with the
first wife, Chilakamma, on the death of
Suryanarayana. In this connection, we may refer to
Section 16 of the Act. Section 16 of the Act deals
with legitimacy of children of void and voidable
marriages. Sub-section (1) of Section 16 of the Act
clearly says that notwithstanding that the marriage is
null and void under section 11, any child of such
marriage who would have been legitimate if the
marriage had been valid, shall be legitimate.
(Emphasis supplied ). Therefore, in view of section 16,
it is clear that the daughters, namely, respondents 2
and 3 inherited the properties in question, along with
Chilakamma, on Suryanarayana's death.
Accordingly, the High Court was justified in holding
that on the death of Suryanarayana, the properties
in question were inherited by his daughters, namely,
respondents 2 and 3, along with Chilakamma and
therefore were entitled to evict the appellants from
the properties in question along with Pydamma.
Accordingly, the findings of the High Court on the
question whether respondents 2 and 3 were entitled
to inherit the properties in question of late
Suryanarayana jointly with Chilakkama cannot be
interfered with. That apart, in an application for
eviction under the A.P.Tenancy Act in which prayer
for grant of eviction of a lessee was made, it would
not be necessary to decide that the daughters,
respondent Nos. 2 and 3 comprehensively had to
prove that on the death of Suryanarayana and
Chilakamma, they were entitled to inherit the
properties in question in the eviction proceedings.
Therefore, it is not necessary to finally adjudicate
upon the question of right, title and interest of the
daughters with respect to the properties in question,
which may be done in a comprehensive suit for title.
18. Section 5 of the Hindu Marriage Act, 1955
clearly provides that no marriage can be performed, if there
is living spouse. In the present case, undisputedly, petitioner
was married to Mast Ram in 1983 who was alive till 1995 and
there is no document worth the name to suggest that
petitioner had ever taken any divorce from Mast Ram,
meaning thereby, that when she started residing with
respondent i.e. in the year 1987, her earlier marriage was in
subsistence and as such, in no manner, she can be termed
as a legally wedded wife of the respondent.
19. Facts narrated hereinabove as well as law cited
above, leaves no scope to interpret the expression “wife” in
any other way save and except “legally wedded wife.”
20. The Hon’ble Apex Court while dealing with the
provisions of Section 125 Cr.PC has gone to the extent of
observing in Savitaben Somabhai Bhatiya v. State of Gujarat
and Ors., (2005) 3 SCC 636 that “Even if it is accepted as stated
by learned counsel for the appellant that husband was treating
her as his wife it is really inconsequential. It is the intention of the
legislature which is relevant and not the attitude of the party.”
21. While dealing with the case under Protection of
Women from Domestic Violence Act, 2005, The Hon’ble Apex
Court in D Velusamy v. D. Patchaiammal, (2010) 10 SCC 469,
with regard to the entitlement of wife for maintenance, has
held as under :
10. It may be noted that Section 125 Cr.P.C.
provides for giving maintenance to the wife and
some other relatives. The word `wife' has been
defined in Explanation (b) to Section 125(1) of the
Cr.P.C. as follows :
"(b) Wife includes a woman who has been
divorced by, or has obtained a divorce from,
her husband and has not remarried."
11. In Vimala vs. Veeraswamy, a three- Judge Bench
of this Court held that Section 125 of the Code of
1973 is meant to achieve a social purpose and the
object is to prevent vagrancy and destitution.
Explaining the meaning of the word `wife' the Court
held: (SCC p.378, para3)
"3..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 keptmistress
on the specious plea that he was
already married, the court would insist on strict
proof of the earlier marriage. The term `wife' in
Section 125 of the Code of Criminal
Procedure, includes a woman who has been
divorced by a husband or who has obtained
a divorce from her husband and has not
remarried. The woman not having the legal
status of a wife is thus brought within the
inclusive definition of the term `wife' consistent
with the objective. However, under the law a
second wife whose marriage is void on
account of the survival of the first marriage is
not a legally wedded wife, and is, therefore,
not entitled to maintenance under this
provision."
12. In a subsequent decision of this Court in
Savitaben Somabhat Bhatiya vs. State of Gujarat
and others, this Court held that however desirable it
may be to take note of the plight of an unfortunate
woman, who unwittingly enters into wedlock with a
married man, there is no scope to include a woman
not lawfully married within the expression of `wife'.
The Bench held that this inadequacy in law can be
amended only by the Legislature.
22. On the other hand, Mr. Anand Sharma, counsel
representing the petitioner stated that it stands proved on
record that petitioner had been residing with the respondent
for more than 25 years and during this period, they had
developed physical relationship and she had given birth to
four kids and as such respondent is liable to maintain her as
his wife. But as has been observed above, petitioner has not
placed on record any evidence to suggest anything, which
could compel this Court to infer that she is the legally
wedded wife of the respondent strictly in terms of Section 125
Cr.PC, which would have made her entitled to have
maintenance allowance. In support of this contention, Mr.
Sharma placed reliance on Badri Prasad v. Dy. Director of
Consolidation and Ors, AIR 1978 SC 1557, D.Velusamy v.
D.Patchaiammal, AIR 2011 SC 479 and in Indra Sarma v. V.K.V.
Sarma, AIR 2014 SC 309. Perusal of the aforesaid judgments, as
has been relied upon by Mr. Anand Sharma, in support of his
contention clearly suggests that if a man and woman living
as husband wife for about 15 years or more, there is strong
presumption that there is wedlock. There cannot be any
dispute with regard to the aforesaid observations returned by
the judgments to the effect that since petitioner has been
cohabiting with the respondent for a long time, a
presumption can be drawn that there is a wedlock. But in
the present case, when a maintenance is being claimed
under Section 125 Cr.PC, aforesaid proposition may not be of
any help to the petitioner, especially, in the law laid down by
the Hon’ble Apex Court in Yamuna Yamunabai Anantrao
Adhav v. Anantrao Shivram Adhav and Anr. (1988) 1 SCC 530
whereby, it has been specifically held that expression ‘wife’
used in Section 125 Cr.PC, should be interpreted to mean
only a legally wedded wife. Though, it stands proved in the
present case that petitioner has been residing with the
respondent for last more than 25 years and gave birth to four
kids, who are admittedly born out of the lions of the
respondent but in the facts and circumstances of the case,
petitioner has miserably failed to prove that she is a legally
wedded wife of the respondent. Hence, she cannot be held
entitled to maintenance in terms of Section 125 Cr.PC. In the
present case, respondent has been successful in proving that
the petitioner is not a legally wedded wife of the respondent
as earlier marriage was in subsistence in year 1987, when as
per her own version, she-petitioner had actually started living
with the respondent. It is also proved on record that Mast
Ram husband of the petitioner was alive till 1995 which
undisputed fact persuaded this Court to take a view that the
present petitioner cannot be termed as legally wedded wife
of the respondent, which is a strict requirement of Section 125
Cr.PC as has been held by the Hon’ble Apex Court in the
case Supra. Admittedly, in the present case, children born
out of the relations of the respondent petitioner, are entitled
to maintenance in terms of Section 125 Cr.PC (1)(b) but it has
been informed by the counsel for the respondent that they
are all major and well settled. Moreover, there is no whisper
with regard to any maintenance, if any, being claimed by
those children along with the petitioner.
23. In view of the aforesaid discussion, this court
sees no illegality and infirmity in the order passed by the
Court of learned Sessions Judge whereby he has set-aside
the order passed by Sub-Divisional Magistrate and
accordingly, same is upheld. Present petition is dismissed
being void of any merit.
May 07, 2016 (Sandeep Sharma),
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