Bakulbhai
& Anr Vs. Gangaram & Anr [1988] INSC 27 (27 January 1988)
Sharma,
L.M. (J) Sharma, L.M. (J) Misra Rangnath
CITATION:
1988 SCR (2) 787 1988 SCC (1) 537 JT 1988 (1) 197 1988 SCALE (1)188
ACT:
Code
of Criminal Procedure, 1973: Sections 125 & 397(3)-Maintenance for wife and
child-Entitlement- Maintainability of Revision application-Enhancement of
maintenance to allowance to child-Due to inflation and growing
age-Permissibility of.
Hindu
Marriage Act, 1955: Sections 11 and 16 Hindu woman marrying a Hindu male
already married and his wife living-Validity of-Legitimacy of the child born
out of such wedlock-Entitlement of maintenance for such woman and child.
HEAD NOTE:
% The
appellant filed an application under Section 125 Cr.P.C. before the Judicial
Magistrate, claiming maintenance for herself and her son, alleging lawful
marriage with the respondent, and that the son was born out of the wedlock.
Respondent,
however, denied the marriage and paternity of her son. He claimed that he was
already married twice and both his wives were alive.
The
Judicial Magistrate accepted the appellant's case and granted maintenance at
the rate of 100 per month in her favour and Rs.50 per month for her minor son.
The Judicial Magistrate held that appellant No. t and respondent lived together
in the same house as husband and wife for a considerable period, and appellant
No. 2 was born out of this union. He did not record a categorical finding as to
whether the respondent was already married and his wife or wives were alive on
the date of his marriage with appellant No. t.
A
revision application was filed by the appellant for enhancement of the rate of
maintenance. The respondent also moved the Sessions Judge in revision. The
Sessions Judge reversed the findings of the judicial Magistrate. The appellant
challenged the order by way of a revision application before the Bombay High
Court which rejected the same holding that since it was the second revision
application, it was not maintainable, being barred by the provisions of S.
397(3) Cr. P.C. The High Court also examined the merits of the case and
concurred with the view of the Sessions Judge. This appeal is by Special Leave.
788
Allowing the appeal, this Court, ^
HELD:
t. The plea that respondent could not have lawfully married a third time in
view of the provisions of the Hindu Marriage Act, 1955 was rejected by the
Judicial Magistrate by saying that even according to the respondent, his second
marriage was null and void as his first wife was then alive. As regards the
first marriage he held that it was not as a fact proved. He got rid of the
effect of both the marriages by adopting a queer logic. If the story of the
first marriage was to be rejected, the second marriage could not have been held
to be void on that ground. It appears that the respondent has satisfactorily provide
his case about his earlier marriage by production of good evidence.
Either
the respondent's first marriage was subsisting so as to nullify his second
marriage, in which case the appellant's marriage also was rendered null and
void on that ground; or if the respondent's case of his first marriage is
disbelieved the second marriage will have to be held to be legal and effective
so as to lead to the same conclusion of the appellant's marriage being void. On
either hypothesis the appellant's claim is not covered by Section 125 Cr.P.C.
The
appellant cannot, therefore, be granted any relief in the present proceedings.
[791D-H; 792A-B] Smt. Yamunabhai v Anantrao Shivram Adhav and another, [1988] 2
S.C.R. 809 followed.
2.
Besides holding that the respondent had married the appellant, the Magistrate
categorically said that the appellant and the respondent lived together as
husband and wife for a number of years and that appellant No. 2 was their
child. If, as a matter of fact, a marriage, although ineffective in the eye of
law, took place between the appellant and the respondent, the status of the boy
must be held to be that of a legitimate son on account of Section 16(1) of the
Hindu Marriage Act, 1955. Even if the factum of marriage of his mother is
ignored, he must be treated as an illegitimate child of the respondent on the
basis of the findings of the Judicial Magistrate and is entitled to relief by
reason of clauses (b) and (c) of Section 125(t) Cr. P.C. specifically referring
to an illegitimate child.
The
order of the Judicial Magistrate allowing the maintenance to appellant No. 2
was correctly passed. But the amount of Rs.50 per month was allowed as the
maintenance of the child four years back. In view of the fact that money value
has gone down due to inflation and the child has grown in age, the rate of
maintenance is increased to Rs.150.[791B-C: 793B]
3.
Since the claim for maintenance was granted in favour of the 789 appellant, by
the Judicial Magistrate, there was no question of her challenging the same. Her
challenge before the Sessions Judge was confined to that part of the order
assessing the amount of maintenance. and this issue could not have been raised
again by her. Subject to this limitation, she was certainly entitled to invoke
the revisional jurisdiction of the High Court. The decision on the merits of
her claim went against her for the first time before the Sessions Judge, and
this was the subject matter of her revision before the High Court. She could
not, therefore, be said to be making a second attempt when she challenged the
order before the High Court. The fact that she had moved the Sessions Court
against the quantum of maintenance could not be used against her in respect of
her right of revision against the Sessions Judge's order. [790F- H;791A]
4. No
error of law appears to have been discovered in the judgment of the Magistrate
and so the revisional courts were not justified in making a reassessment of the
evidence and substitute their own views for those of the Magistrate.
[792C]
Pathumma v. Mohammad, [1986] 2 SCC 585, followed.
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 579 of 1986 From the Judgment and
order dated 15.4.1986 of the Bombay High Court in Crl. R. Appln. No. 160 of
1985.
Rakesh
Upadhyay, M.M. Kashyap and N.A. Siddiqui for the Appellants.
V.N. Ganpule,
S.K. Agnihotri and A.S. Bhasme for the Respondents.
The
Judgment of the Court was delivered by SHARMA, J. The appellant No. 1 Bakulabai
filed an application under s. 125 of the Code of Criminal Procedure, 1973
(hereinafter referred to as the Code) before the Judicial Magistrate, Degloor,
alleging that she was lawfully married to the respondent No. 1 Ganga Ram and
that the appellant No. 2 Maroti was born out of this wedlock. She claimed
maintenance both for herself and for her son. Ganga Ram denied the marriage as
well as the paternity of the appellant No. 2. He also averred that he was
already married twice before the wedding 790 pleaded by Bakulabai and that both
his wives were living.
2. The
Judicial Magistrate accepted Bakulabai's case and granted maintenance at the
rate of Rs. 100 per month in her favour and additional Rs.50 per month for the
minor boy.
3. Ganga
Ram moved the Sessions Judge in revision.
Bakulabai
also filed a revision application for enhancement of the rate of maintenance.
The two applications were registered respectively as Criminal Revision No. 83
of 1984 and Criminal Revision No. 110 of 1984, and were heard together. The
Sessions Judge accepted the defence case, reversed the findings of the Judicial
Magistrate and dismissed the application for maintenance. Revision case No. 83
of 1984 was thus allowed and the wife's application was dismissed. Bakulabai
challenged the order before the Bombay High Court by a revision application. By
the impugned Judgment the High Court rejected the same holding that since it
was the second revision application by the wife it was not maintainable, being
barred by the provisions of s. 397(3) of the Code. The Court further proceeded
to examine the merits of the case and concurred with the view of the Sessions
Judge. The appellants have now come to this Court by special leave.
4. On
the maintainability of the revision application before it, the High Court took
an erroneous view. The provisions of sub-section (3) of s. 397 relied upon, are
in the following terms:
"(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." The main judgment of the
Judicial Magistrate upholding the appellants' claim for maintenance was in her favour
and there was no question of her challenging the same. Her challenge before the
Sessions Judge was confined to the part of the order assessing the amount of
maintenance, and this issue could not have been raised again by her. Subject to
this limitation she was, certainly entitled to invoke the revisional
jurisdiction of the High Court. The decision on the merits of her claim went
against her for the first time before the Sessions Judge, and this was the
subject matter of her revision before the High Court. She could not, therefore,
be said to be making a second attempt when she challenged this order before the
High Court. The fact that she had moved before the Sessions Judge against the
quantum of maintenance 791 could not be used against her in respect of her
right of revision against the Sessions Judge's order. Accordingly, the decision
of the High Court on this question is set aside and it is held that the
revision petition of the appellant before the High Court, except the prayer for
enhancing the amount was maintainable.
5.
Now, coming to the other aspect, the Judicial Magistrate on a consideration of
the evidence led on behalf of the parties accepted the appellants' case. He
held that Bakulabai and Ganga Ram had lived together in the same house as
husband and wife for a considerable period, and the boy Maroti was born of this
union. On the question as to whether Ganga Ram was already married and his wife
or wives were living on the date the marriage with the appellant Bakulabai is
alleged, the Magistrate did not record a categorical finding. According to the
case of Ganga Ram, he was first married with Rajabai, and again with Kusumbai
in 1969. It was, therefore, argued on his behalf that as he had two living
spouses in 1972, he could not have lawfully-married a third time in view of the
provisions of the Hindu Marriage Act, 1955. The Judicial Magistrate rejected
the plea by saying that the second marriage of the respondent with Kusumbai was
on his own showing null and void as his first wife was then alive. Dealing with
the effect of the first marriage he held that it was not as fact proved. Thus
he got rid of the effect of both the marriages by adopting a queer logic. If
the story of the first marriage was to be rejected, the second marriage could
not have been held to be void on that ground. The finding of the Judicial
Magistrate on the validity of the marriage of the appellant was, therefore,
illegal.
6. We
have by our judgment in Criminal Appeal No. 475 of 1983 (Smt. Yamunabai v. Anantrao
Shivram Adhav and another) delivered today held that the marriage of a Hindu
woman with a Hindu male with a living spouse performed after the coming in
force of the Hindu Marriage Act, 1955, is null and void and the woman is not
entitled to maintenance under s. 125 of the Code. Coming to the facts of the
present case, it appears that the respondent has satisfactorily proved his case
about his earlier marriage with Kusumbai by production of good evidence
including a certificate issued by the Arya Samaj in this regard. It is not
suggested that Rajabai was living when Kusumbai was married and was dead by the
time the appellant's marriage took place. The position which emerges,
therefore, is that either the respondent's first marriage with Rajabai was
subsisting so as to nullify his second marriage with Kusumbai, in which case
the appellant's marriage also was rendered null and void on that very ground;
or if, on the other 792 hand, the respondent's case of his marriage with Rajabai
is disbelieved A the marriage of Kusumbai will have to be held to be legal and
effective so as to lead to the same conclusion of the appellant's marriage
being void on either hypothesis the appellant's claim is not covered by s. 125
of the Code. She cannot, therefore, be granted any relief in the present preceedings.
The decision to that effect of the High Court is, R therefore, confirmed.
7. The
other findings of the Magistrate on the disputed question of fact were recorded
after a full consideration of the evidence an should have been left undisturbed
in revision. No error of law appears to have been discovered in his judgment
and so the revisional courts were not justified in making a reassessment of the
evidence and substitute their own views for those of the Magistrate. (See Pathumma
and another v. Mahammad, [1986] 2 SCC 585). Besides holding that the respondent
had married the appellant, the Magistrate categorically said that the appellant
and the respondent lived together as husband and wife for a number of years and
the appellant No. 2 Maroti was their child. If, as a matter of fact, a marriage
although ineffective in the eye of law, took place between the appellant No. 1
and the respondent No. 1, the status of the boy must be held to be of a
legitimate son on account of s. 16(1) of the Hindu Marriage Act, 1955, which
reads as follows:
"16(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." Even if the factum of marriage of his mother is
ignored he must be treated as an illegitimate child of the respondent on the
basis of the findings of the Judicial Magistrate and is entitled to relief by
reason of Clauses (b) and (c) of s. 125(1) of the Code specifically referring
to an illegitimate child. We, therefore, hold that the order of the Judicial
Magistrate allowing the maintenance to the appellant No. 2 was correctly
passed.
8. The
amount of Rs.50 per month was allowed as the mainte- 793 nance of the child in
1984. The revision application filed before the Sessions Judge was rejected. A
second application before the High Court was, therefore, not maintainable. We
will, therefore, assume that the decision assessing the amount of maintenance
as Rs.50 per month in 1984 became final. However, on account of change of
circumstances, this amount can be revised after efflux of time. During the last
four years the value of money has gone down due to inflation. The child has
also grown in age. In the circumstances, we direct the respondent Ganga Ram to
pay the appellant No. 1 the maintenance amount for appellant No. 2 at the rate
of Rs.150 per month with effect from February, 1988. The arrears up to January,
1988, if not paid, should also be paid promptly. The appeal is allowed in the
terms mentioned above. G.N. Appeal allowed.
G.N.
Appeal allowed.
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