Pyla Mutyalamma @
Satyavathi Vs. Pyla Suri Demudu & ANR.
J U D G M E N T
GYAN SUDHA MISRA, J.
Under the law, a
second wife whose marriage is void on account of survival of the previous marriage
of her husband with a living wife is not a legally wedded wife and she is,
therefore, not entitled to maintenance under Section 125 Cr.P.C. for the sole
reason that "law leans in favour of legitimacy and frowns upon bastardy
1.
But,
the law also presumes in favour of marriage and against concubinage when a man
and woman have cohabited continuously for a long number of years and when the
man and woman are proved to have lived together as man and wife, the law will presume,
unless the contrary is clearly proved, that they were living together in consequence
of a valid marriage and not in a state of concubinage. Several judicial pronouncements
right from the Privy Council up to this stage, have considered the scope of the
presumption that could be drawn as to the relationship of marriage between two
persons living together.
But, when an attempt
is made by the husband to negative the claim of the neglected wife depicting
her as a kept mistress on the specious plea that he was already married, the court
would insist on strict proof of the earlier marriage and this is intended to
protect women and children from living as destitutes and this is also clearly the
object of incorporation of Section 125 of the Code of Criminal Procedure providing
for grant of maintenance.
2.
This
appeal at the instance of an estranged wife, once again has beseeched this
Court to delve and decide the question regarding grant of maintenance under
Section 125 Cr. P.C. which arises after grant of special leave under Article 136
of the Constitution and is directed against the judgment and order dated 19.09.2005
passed by a learned single Judge of the High Court of Andhra Pradesh at Hyderabad
in Criminal Revision No. 234/2004 whereby the learned single Judge had been
pleased to set aside the order of the Family Court, Visakhapatnam awarding a sum
of Rs.500/- per month to the appellant-wife by way of maintenance to her under Section
125 Cr.P.C.
The respondent-husband
assailed this order by way of a criminal revision before the High Court of Andhra
Pradesh which was allowed and the order granting maintenance to the
appellant-wife was set aside.
3.
The
appellant-Pyla Mutyalamma @ Satyavathi initially filed an application bearing M.C.No.145/2002
under Section 125, Cr.P.C. claiming Rs.500/- per month from her husband Pyla Suri
Demudu-the respondent herein, on the ground that she married him in the year 1974
at Jagannadha Swamy Temple at Visakahapatnam as per the Hindu rites and customs
after which they lived as a normal couple and out of the wedlock they were blessed
with two daughters and a son of whom one daughter died. The surviving daughter is
married and the son aged 22 years is also employed in the Dock Labour Board who
was engaged as such by his father the respondent-husband himself.
However, the
relationship of the appellant-wife and the respondent-husband subsequently got strained
when the respondent got addicted to vices and started ignoring and neglecting
the appellant-wife as he failed to provide her even the basic amenities like food
and clothing and indulged in beating her frequently under the influence of liquor.
He thus deserted her and also started living with another woman due to which the
appellant was compelled to claim maintenance from the husband-the respondent herein.
4.
The
respondent-husband herein, however, flatly denied the allegations and went to
the extent of stating that the appellant is not his wife as he was already
married to one Kolupuru Mutyalamma in a native of Lankivanipalem in the year 1970
and had children through her first marriage and that he never married the present
appellant. He also alleged that the appellant is married to another man and as she
owns a sum of Rs.2.50 lac to the respondent which he had given to her by way of
a loan at the time of construction of her house in the year 1991-1992, she
started the litigation in order to evade making the repayment of loan amount.
5.
The
learned trial Magistrate on an appreciation and scrutiny of evidence held that the
appellant in fact is the wife of respondent No.1 who was deserted by the respondent
and, therefore, fixed a maintenance of Rs.500/- per month to the appellant and the
respondent-husband was directed to pay this amount to the appellant-wife. As already
stated, this was resisted by the respondent-husband who assailed the order of
the trial court by filing a revision petition before the High Court.
The learned single Judge
of the High Court was pleased to hold that there was no valid marriage between the
respondent-husband and the appellant-wife, as an earlier marriage between the appellant
and one another lady-Kolupuru Mutyalamma was subsisting and as the marriage with
the appellant was performed without repudiation of the earlier marriage of 1970,
the subsequent marriage was not a valid one and hence no maintenance could be
paid to the appellant-wife. Feeling aggrieved with this view of the High Court,
expressed in the impugned order, the appellant-wife has preferred this appeal.
6.
Learned
counsel for the appellant-wife in substance has contended that the learned single
Judge of the High Court erred in reversing the finding of fact rendered by the trail
court and interfered with a pure question of fact in spite of clinching evidence
available on record to show that the appellant was the legally married wife of the
respondent-husband who had been living together ever since their marriage in 1974
as any other usual couple and it is only in the year 2001, the respondent started
deserting the appellant due to his vices which he picked up much after his
marriage with the appellant. The High Court also ignored the evidence of the son
and the daughter of the appellant but relied upon the evidence of Respondent-husband.
The High Court further relied on the defence case of the respondent -husband that
he was already married to another lady in the year 1970, although no other witness
except the so-called first wife was produced as a witness before the courts
below.
7.
The
counsel for the appellant further laid much emphasis on the fact that the order
granting maintenance to the appellant by the trial court should not have been interfered
with by the High Court as it was merely raised to circumvent the order granting
maintenance by setting up a false story regarding the existence of previous
marriage of the appellant in the year 1970 ignoring the clinching evidence led
by the appellant regarding her marriage which was creditworthy.
In support of his
submission, the counsel also relied upon a decision delivered in the matter of Vimala
(K) vs. Veeraswamy (K)2, wherein a Bench of three learned Judges of this Court
had been pleased to hold that when a husband takes a plea that the marriage was
void due to subsistence of an earlier marriage, the same requires clear and
strict proof and the burden of strict proof of earlier marriage is on the
husband to discharge. It may be relevant and worthwhile at this stage to quote the
observations of their Lordships in the aforesaid matter which was to the
following effect: "Section 125 of the Code of Criminal Procedure is meant to
achieve a social purpose.
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 kept mistress on the
specious plea that he was already married, the court would insist on strict proof
of the earlier marriage. Under the Hindu Law, a second marriage is void on account
of the survival of the first marriage and is not a legally wedded wife.
She is, therefore, not
entitled to maintenance under Section 125. Such a provision in law which disentitles
a second wife from receiving maintenance from her husband under Section 125,
Cr.P.C., for the sole reason that the marriage ceremony though performed in the
customary form lacks legal sanctity can be applied only when the husband satisfactorily
proves the subsistence of a legal and valid marriage particularly when Section 125
is a measure of social justice intended to protect women and children."
8.
In
the case under consideration herein, the respondent-husband has sought to
repudiate the marriage of the appellant as void on account of subsistence of an
earlier marriage. But while doing so he has also set up another cooked up story
that the appellant is already married to another woman and as she is owing an
amount of Rs.2.50 lakhs to the appellant which he had advanced to her by way of
a loan, the appellant has raised a false plea of claim of maintenance. Thus,
the respondent-husband in one breath states that the second marriage with the appellant
is void in view of the subsistence of his earlier marriage and in the next one
he states that the appellant-wife has set up a false plea as she wants to get
away from the liability of repayment of the amount which she was owing to the
respondent.
9.
In
fact, we also find sufficient substance in the plea that the High Court in its
revisional jurisdiction ought not to have entered into a scrutiny of the
finding recorded by the Magistrate that the appellant was a married wife of the
respondent, before allowing an application determining maintenance as it is well-settled
that the revisional court can interfere only if there is any illegality in the order
or there is any material irregularity in the procedure or there is an error of jurisdiction.
The High Court under its revisional jurisdiction is not required to enter into re-appreciation
of evidence recorded in the order granting maintenance; at the most it could
correct a patent error of jurisdiction. It has been laid down in a series of
decisions including Suresh Mondal vs. State of Jharkhand3 that in a case where
the learned Magistrate has granted maintenance holding that the wife had been
neglected and the wife was entitled to maintenance, the scope of interference by
the revisional court is very limited. The revisional court would not substitute
its own finding and upset the maintenance order recorded by the Magistrate.
10.
In
revision against the maintenance order passed in proceedings under Section 125,
Cr.P.C., the revisional court has no power to re-assess evidence and substitute
its own findings. Under revisional jurisdiction, the questions whether the applicant
is a married wife, the children are legitimate/illegitimate, being pre-eminently
questions of fact, cannot be reopened and the revisional court cannot substitute
its own views. The High Court, therefore, is not required in revision to
interfere with the positive finding in favour of the marriage and patronage of
a child. But where finding is a negative one, the High Court would entertain the
revision, re-evaluate the evidence and come to a conclusion whether the
findings or conclusions reached by the Magistrate are legally sustainable or not
as negative finding has evil consequences on the life of both child and the woman.
This was the view expressed by the Supreme Court in the matter of Santosh (Smt.)
vs. Naresh Pal4 , as also in the case of Parvathy Rani Sahu vs. Bishnu Sahu5. Thus,
the ratio decidendi which emerges out of a catena of authorities on the efficacy
and value of the order passed by the Magistrate while determining maintenance under
Section 125, Cr.P.C. is that it should not be disturbed while exercising
revisional jurisdiction.
11.
However,
learned counsel for the respondent-husband on his part has also cited the case of
Savitaben Somabhai Bhatiya vs. State of Gujarat & Ors.6, in support of his
plea that claim of maintenance by the second wife cannot be sustained unless the
previous marriage of the husband performed in accordance with the Hindu rites having
a living spouse is proved to be a nullity and the second wife, therefore, is not
entitled to the benefit of Section of 125 Cr.P.C. or the Hindu Marriage Act,
1955.
12.
It
is no doubt true that the learned Judges in this cited case had been pleased to
hold that scope of Section 125 cannot be enlarged by introducing any artificial
definition to include a second woman not legally married, in the expression `wife'.
But it has also been held therein that evidence showing that the respondent-husband
was having a living spouse at the time of alleged marriage with the second
wife, will have to be discharged by the husband.
Hence, this authority
is of no assistance to the counsel for the respondent-husband herein as it is nobody's
case that the appellant-wife should be held entitled to maintenance even though
the first marriage of her husband was subsisting and the respondent-husband was
having a living wife as there is no quarrel with the legal position that during
the subsistence of the first marriage and existence of a living wife (first wife),
the claim of maintenance by the second wife cannot be entertained. But proof and
evidence of subsistence of an earlier marriage at the time of solemnizing the second
marriage, has to be adduced by the husband taking the plea of subsistence of an
earlier marriage and when a plea of subsisting marriage is raised by the
respondent-husband, it has to be satisfactorily proved by tendering evidence.
This was the view taken
by the learned Judges in Savitaben's case (supra) also which has been relied upon
by the respondent-husband. Hence, even if the ratio of this case relied upon by
the respondent-husband is applied, the respondent-husband herein has failed to
establish his plea that his earlier marriage was at all in subsistence which he
claims to have performed in the year 1970 as he has not led even an iota of evidence
in support of his earlier marriage including the fact that he has not produced
a single witness except the so-called first wife as a witness of proof of his earlier
marriage. This strong circumstance apart from the facts recorded herein above, goes
heavily against the respondent-husband.
13.
We
may further take note of an important legal aspect as laid down by the Supreme
Court in the matter of Jamuna Bai vs. Anant Rai7, that the nature of the proof of
marriage required for a proceeding under Section 125, Cr.P.C. need not be so
strong or conclusive as in a criminal proceeding for an offence under Section 494
IPC since, the jurisdiction of the Magistrate under Section 125 Cr.P.C. being
preventive in nature, the Magistrate cannot usurp the jurisdiction in matrimonial
dispute possessed by the civil court. The object of the section being to afford
a swift remedy, and the determination by the Magistrate as to the status of the
parties being subject to a final determination of the civil court, when the husband
denies that the applicant is not his wife, all that the Magistrate has to find,
in a proceeding under Section 125 Cr.P.C., is whether there was some marriage ceremony
between the parties, whether they have lived as husband and wife in the eyes of
their neighbours, whether children were borne out of the union.
14.
It
was still further laid down in the case of Sethu Rathinam vs. Barbara8 that if
there was affirmative evidence on the aforesaid points, the Magistrate would
not enter into complicated questions of law as to the validity of the marriage according
to the sacrament element or personal law and the like, which are questions for
determination by the civil court. If the evidence led in a proceeding under Section
125 Cr.P.C. raises a presumption that the applicant was the wife of the
respondent, it would be sufficient for the Magistrate to pass an order granting
maintenance under the proceeding. But if the husband wishes to impeach the validity
of the marriage, he will have to bring a declaratory suit in the civil court where
the whole questions may be gone into wherein he can contend that the marriage
was not a valid marriage or was a fraud or coercion practiced upon him.
Fortifying this view,
it was further laid down by the Supreme Court in the matter of Rajathi vs. C. Ganesan9
also, that in a case under Section 125 Cr.P.C., the Magistrate has to take prima
facie view of the matter and it is not necessary for the Magistrate to go into matrimonial
disparity between the parties in detail in order to deny maintenance to the claimant
wife. Section 125, Cr.P.C. proceeds on de facto marriage and not marriage de jure.
Thus, validity of the marriage will not be a ground for refusal of maintenance if
other requirements of Section 125 Cr.P.C. are fulfilled.
15.
When
the appellant's case is tested on the anvil of the aforesaid legal position, it
is sufficiently clear that the appellant has succeeded in proving that she was the
legally married wife of the respondent with three children out of which one had
expired while the other two who are major and well-settled. It has further been
proved that the respondent-husband started deserting the appellant-wife after
almost 25 years of marriage and in order to avert the claim of maintenance, a
story of previous marriage was set up for which he failed to furnish any proof
much less clear proof. Thus, it was not open for the High Court under its revisional
jurisdiction to set aside the finding of the trial court and absolve the respondent
from paying the maintenance of Rs.500/- per month to the appellant-wife.
16.
Having
thus considered the contradictory versions of the contesting parties and
deliberating over the arguments advanced by them in the light of the evidence and
circumstances, we are clearly led to the irresistible conclusion that the High Court
wrongly exercised its jurisdiction while entertaining the revision petition against
an order granting maintenance to the appellant-wife under Section 125 Cr.P.C. We,
therefore, set aside the judgment and order of the High Court and restore the order
passed by the Magistrate in favour of the appellant granting her maintenance. The
appeal accordingly is allowed.
..........................
J (Harjit Singh Bedi)
...........................J
(Gyan Sudha Misra)
New
Delhi,
August
9, 2011
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