//
you're reading...
legal issues

Burden lies on Husband when took plea that he was already married 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 bastardy1”. 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. PYLA MUTYALAMMA @ SATYAVATHI .. Appellant Versus PYLA SURI DEMUDU & ANR. ..Respondents= 2011 (Aug. Part) judis.nic.in/supremecourt/filename=38394

Burden lies on Husband when took plea that he was already married 

 

 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 bastardy1″.   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. =

 

 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.

2011 (Aug. Part) judis.nic.in/supremecourt/filename=38394

HARJIT SINGH BEDI, GYAN SUDHA MISRA

REPORTABLE

 

IN THE SUPREME COURT OF INDIA

 

CRIMINAL APPELLATE JURISDICTION

 

CRIMINAL APPEAL NO. 219 OF 2007

 
PYLA MUTYALAMMA @ SATYAVATHI .. Appellant

 

Versus

 

PYLA SURI DEMUDU & ANR. ..Respondents

 

 

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 bastardy1”. But, the law also

 

presumes in favour of marriage and against concubinage

 

when a man and woman have cohabited continuously for

 
1 AIR 1929 P.C. 135
2

 

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
3

 

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.
4

 

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
5

 

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.
6

 

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

 

 

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
2 (1991) 2 SCC 375
8

 

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
9

 

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
10

 

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

 
3 2006 (1) AIR Jhar. R. 153
11

 

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.

 

 

4 (1998) 8 SCC 447

5 (2002) 10 SCC 510

6 (2005) 3 SCC 636
12

 

 

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
13

 

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

 
7 AIR 1988 SC 793 (paras 4, 5 and 8)
14

 

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

 
8 (1970) 1 SCWR 589
15

 

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.

 

 

9 AIR 1999 SC 2374
16

 

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
17

 

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

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,941,223 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,874 other followers

Follow advocatemmmohan on WordPress.com