Somabhai Bhatiya Vs. State of Gujarat & Ors  Insc 162 (10 March 2005)
Pasayat & S.H. Kapadia
out of SLP (Crl.) No. 4688 of 2004) ARIJIT PASAYAT, J.
brief reference to the factual position would suffice because essentially the
dispute has to be adjudicated with reference to scope and ambit of Section 125
of the Code of Criminal Procedure, 1973 (in short the 'Code').
case at hand according to appellant is a classic example of the inadequacies of
law in protecting a woman who unwittingly entered into relationships with a
position as projected by the appellant is as follows:- Appellant claims that
she was married to respondent No.2 some time in 1994 according to the customary
rites and rituals of their caste. Though initially, the respondent No.2 treated
her nicely, thereafter he started ill-treating her and she was subjected to
mental and physical torture. On enquiry about the reason for such a sudden
change in his behaviour, the appellant came to know that respondent No.2 had
developed illicit relationship with a lady named Veenaben.
the period the appellant stayed with the respondent, she became pregnant and
subsequently, a child was born. As respondent No.2 neglected the appellant and
the child born, an application in terms of Section 125 of the Code was filed
claiming maintenance. The application was filed before the learned Judicial
Magistrate, First Class (hereinafter referred to as the 'JMFC') Himmatnagar.
Respondent No.2 opposed the application by filing written statements taking the
stand that the appellant was not his legally married wife and the child
(respondent No.3) was not his son. He also denied having developed illicit
relationship with Veenaben. He claimed that actually she was married to him
more than 22 years back and two children were born.
son Hament had died in the road accident in July 1990. In the Claim Petition
name of Veenaben was mentioned as the legal heir and in the Voters List, Ration
Card and Provident Fund records, Veenaben was shown as the wife of respondent
No.2. On 23.6.1998 learned JMFC allowed the Claim Petition and granted
maintenance. A criminal revision was filed by respondent No.2 before learned
Additional Sessions Judge, Sabaakatha, Dist. Himmatnagar, who by his order
dated 26.11.1998 set aside the judgment dated 23.6.1998 as passed by the
learned JMFC and remanded the matter to the trial Court for adjudication afresh
after affording an opportunity to respondent No.2 to cross examine the
witnesses of the appellant. By order dated 31.7.1999, learned JMFC after
considering the matter afresh awarded maintenance to both the appellant and the
Criminal Revision Application No.65/95 was filed by respondent No.2 against the
order dated 31.7.1999. By order dated 12.7.2001, learned Additional District
Judge, Sabarkatha dismissed the application. The respondent No.2 filed a
Special Criminal Application No.568/2001 before the Gujarat High Court which by
the impugned order held that the appellant was not legally wedded wife of
was placed on documents filed by respondent No.2 to conclude that before the
alleged date of marriage between the appellant and respondent No.2, the latter
was already married to Veenaben with reference to the documents produced.
However, maintenance granted to the child (respondent No.3) was maintained and
amount as awarded to him i.e. Rs.350/- was enhanced to Rs.500/-. A direction
was also given to pay the enhanced amount from the date of order of the learned
JMFC i.e. 31.7.1999.
support of the appeal, learned counsel for the appellant submitted that the
High Court has taken a too technical view in the matter. Strict proof about a
valid marriage is not the sine qua non for getting maintenance under Section
125 of the Code. The documents produced by respondent No.2 to substantiate the
plea of earlier marriage with Veenaben should not have been given primacy over
the clinching evidence adduced by the appellant to show that she was unaware of
the alleged marriage. Since respondent No.2 is guilty of fraud and mis-representation,
the equity should not weigh in his favour. Law is intended to protect destitute
and harassed woman and rigid interpretation given to the word 'wife' goes
against the legislative intent. In any event, nothing has been shown by
respondent No.2 to show that there is any customary bar for a second marriage.
outweigh enacted law. That being the position, the order passed by the learned
JMFC should be restored. It was residually submitted that when the amount was
claimed as maintenance there was statutory limitation prescribed at Rs.500/-
which has been done away with by omitting the words of limitation so far as the
amount is concerned by amendment in 2001 to the Cr.P.C. Therefore, taking into
account the high cost of living the quantum of maintenance should be enhanced
for the child.
response, learned counsel for respondent No.2 submitted that law is fairly well
settled regarding the definition of the expression 'wife' and there is no scope
for giving an extended meaning to include a woman who is not legally married.
may be substance in the plea of learned counsel for the appellant that law
operates harshly against the woman who unwittingly gets into relationship with
a married man and Section 125 of the Code does not give protection to such
woman. This may be an inadequacy in law, which only the legislature can undo.
But as the position in law stands presently there is no escape from the
conclusion that the expression 'wife' as per Section 125 of the Code refers to
only legally married wife.
provision is enacted for social justice and specially to protect women and
children as also old and infirm poor parents and falls within the
constitutional sweep of Article 15(3) reinforced by Article 39 of the
Constitution of India, 1950 (in short the 'Constitution'). The provision gives
effect to the natural and fundamental duty of a man to maintain his wife,
children and parents so long as they are unable to maintain themselves. Its
provisions are applicable and enforceable whatever may be personal law by which
the persons concerned are governed. (See Nanak Chand v. Chandra Kishore (AIR
1970 SC 446). But the personal law of the parties is relevant for deciding the
validity of the marriage and therefore cannot be altogether excluded from
consideration. (See Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and
Anr.(AIR 1988 SC 644) There is no inconsistency between Section 125 of the Code
and the provisions in the Hindu Adoption and Maintenance Act, 1956 (in short
the 'Adoption Act'). The scope of the two laws is different.
125 of the Code at the point of time when the petition for maintenance was
filed reads as follows:
If any person having sufficient means neglects or refuses to maintain-
wife, unable to maintain herself, or
legitimate or illegitimate minor child, whether married or not, unable to
maintain itself, or
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
his father or 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 not exceeding five hundred rupees in the
whole, as such Magistrate thinks fit, and to pay the same to such person as the
Magistrate may from to time direct:
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 of such minor female child, if
married, is not possessed of sufficient means.
For the purposes of this Chapter-
means a person who, under the provisions of the Indian Majority Act, 1875 is
deemed not to have attained his majority;
includes a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried."
Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) the
words 'not exceeding five hundred rupees in the whole' have been omitted w.e.f.
Prasad Satpathy v. Bidyut Prava Dixit and Anr. (AIR 1999 SC 3348) it was held
that the validity of the marriage for the purpose of summary proceedings under
Section 125 of the Code is to be determined on the basis of the evidence
brought on record by the parties. The standard of proof of marriage in such
proceedings is not as strict as is required in a trial of offence under Section
494 of Indian Penal Code, 1860 (in short the 'IPC'). If the claimant in
proceedings under Section 125 succeeds in showing that she and the respondent
have lived together as husband and wife, the Court has to presume that they are
legally wedded spouses, and in such a situation one 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 as to whether
the said procedure was complete as per the Hindu rites, in the proceedings
under Section 125 of the Code. It is to be noted that when the respondent does
not dispute the paternity of the child and accepts the fact that marriage
ceremony was performed though not legally perfect, it would hardly lie in his
mouth to contend in proceedings under Section 125 of the Code that there was no
valid marriage as essential rites were not performed at the time of said
marriage. The provision under Section 125 cannot be utilized for defeating the
rights conferred by the legislature on the destitute women, children or parents
who are victims of social environment. The provision is a measure of social
justice and as noted above specially enacted to protect women and children and
falls within the constitutional sweep of Article 15(3) reinforced by Article 39
of the Constitution.
sections of statutes calling for construction by courts are not petrified print
but vibrant words with social functions to fulfill.
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. (See Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and
Ors. (AIR 1978 SC 1807).
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
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.
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.
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.
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
be noted at this juncture that the legislature considered it necessary to
include within the scope of the provision an illegitimate child but it has not
done so with respect to woman not lawfully married. However, desirable it may
be, as contended by learned counsel for the appellant to take note of the
plight of the unfortunate woman, the legislative intent being clearly reflected
in Section 125 of the Code, there is no scope for enlarging its scope by
introducing any artificial definition to include woman not lawfully married in
the expression 'wife'.
noted by this Court in Vimala (K.) v. Veeraswamy (K.) (1991 (2) SCC 375) when a
plea of subsisting marriage is raised by the respondent-husband it has to be
satisfactorily proved by tendering evidence to substantiate that he was already
instant case the evidence on record has been found sufficient by the Courts
below by recording findings of fact that earlier marriage of respondent was
that view of the matter, the application so far as claim of maintenance of the
wife is concerned stands dismissed.
brings us to the other question relating to adequacy of the quantum of
maintenance awarded to the child. It is not in dispute that when the Claim
Petition was filed, Rs.500/- was claimed as maintenance as that was the maximum
amount which could have been granted because of the un-amended Section 125. But
presently, there is no such limitation in view of the amendment as referred to
counsel for respondent No.2 submitted that there was no amendment made to the
Claim Petition seeking enhancement. We find that this is a too technical plea.
As a matter of fact, Section 127 of the Code permits increase in the quantum.
The application for maintenance was filed on 1.9.1995. The order granting
maintenance was passed by the learned JMFC on 31.7.1999. The High Court
enhanced the quantum awarded to the child from Rs.350/- to Rs.500/- with effect
from the order passed by learned JMFC. No dispute has been raised regarding
enhancement and in fact there was a concession to the prayer for enhancement
before the High Court as recorded in the impugned judgment.
the peculiar facts of the case, we feel that the amount of maintenance to the
child can be enhanced to Rs.850/- with effect from today.
counsel for the respondent No.2 has submitted that as a humanitarian gesture,
the respondent No.2 agrees to pay a lump-sum amount to settle the dispute. In
case the respondent No.2 pays a sum of rupees two lakhs only within a period of
four months to the appellant, the same shall be in full and final settlement of
the claim of respondent No.3 for maintenance. While fixing the quantum we have
taken note of the likely return as interest in case it is invested in fixed
deposit in a Nationalised Bank, and the likely increase in the quantum of
maintenance till respondent No.3 attains majority. Till deposit is made, the
quantum fixed by this order shall be paid. If the respondent No.2 wants to make
lump-sum payment in terms of this order, the amount shall be paid by the Bank
draft in the name of respondent No.3 with appellant as mother guardian. The
amount shall be kept in a fixed deposit with monthly interest payment facility
till respondent No.3 attains majority.
appeal is accordingly disposed of.