Second wife NOT entitled to maintenance under Section 125 CrPC. Husband to plead & conclusively prove 1st marriage. Bombay HC
* Second wife is NOT entitled to maintenance under sec 125 CrPC
* Husband has to plead and ALSO prove first marriage
* Earlier Supreme court decision in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav quoted
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
BOMBAY HIGH COURT
SMT. KISNABAI W/O VITHOBA … VS VITHOBA S/O GOMA GAYADHANE ON 17 FEBRUARY, 2005
EQUIVALENT CITATIONS: (2005) 107 BOMLR 1576
AUTHOR: S KHARCHE
BENCH: S KHARCHE
JUDGMENT S.T. Kharche, J.
1. By invoking the jurisdiction of this Court under Section 482 of the Criminal Procedure Code, the petitioners-applicants have filed this application taking an exception to the judgment and order dated 4/12/2000 passed by the learned Additional Sessions Judge in Criminal Revision No. 24/99, whereby the revision was allowed and the order passed by the learned Judicial Magistrate, First Class awarding maintenance @ Rs. 200/- per month to the applicant No. 1 Kisnabai was set aside.
2. The applicants had instituted an application under Section 125 Criminal Procedure Code on the contentions that applicant No. 1 is legally wedded wife of respondent Vithoba and the applicant No. 2 is a son born out of the wedlock. The applicant No. 1 cohabited with her husband for about 5 to 6 years and after the birth of the son, the wife was being subjected to cruelty and ultimately she and the minor son filed application for claiming maintenance. The learned Judicial Magistrate, First Class recorded the evidence led by the parties and on appreciation of the evidence reached the findings that the wife and son were unable to maintain themselves and the respondent Vithoba having sufficient means, refused and neglected to maintain them and, therefore, awarded maintenance @ Rs. 200/- per month to the applicant No. 1 wife Kisnabai and Rs. 125/- per month to the minor son Niranjan. Being aggrieved by this order, the husband Vithoba had carried the revision before the learned Additional Sessions Judge. On 04/12/2000 the learned Additional Sessions Judge allowed the revision partly and set aside the order passed by the learned Magistrate awarding maintenance @ Rs. 200/- per month to the wife Kisnabai on the ground that her marriage with Vithoba was invalid. This order is under challenge in this application. http://evinayak.tumblr.com/ https://vinayak.wordpress.com/ http://fromvinayak.blogspot.com
3. Mr. Najbile, the learned Counsel for the applicants contended that Kisnabai has examined herself and proved that she is legally wedded wife of Vithoba and no strict proof is required to establish her marriage because the proof which has to be adduced for the purpose of Section 125 Cri.P.C., is nor such a strict proof which is required for establishing the offence of bigamy under Section 494 of the Indian Penal Code. He contended that the learned Additional Sessions Judge has committed an error in placing reliance on the certified copy of voters’ list (Exh.22) to show that Vithoba has a spouse living. He contended that Malanbai who is stated to be the first wife of Vithoba has not been examined as witness and, therefore, non examination of Malanbai would lead to the adverse inference under Section 114(g) of the Evidence Act. He contended that the onus is on the husband Vithoba to show that his first wife Malanbai was married with him in the year 1983 and the said onus has not been discharged by him. He contended that the learned Additional Sessions Judge has wrongly placed reliance on the decision of the Supreme Court in the case of Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. – . He contended that this decision is not applicable to the focus and circumstances of the present case especially when Malanbai has not been examined and no proof has been adduced except the certified copy of the Voters’ list to show that Malanbai was married to Vithoba in the year 1983.
4. Mr. Najbile contended that since the onus is on the husband to prove that Malanbai was his first wife and the marriage is still subsisting, the learned Additional Sessions Judge has committed an error in accepting the certified true copy of the Voters’ list in proof on this point. Since the onus has not been discharged, the order passed by the Magistrate granting maintenance to the wife Kisnabai is perfectly legal and valid. http://evinayak.tumblr.com/ https://vinayak.wordpress.com/ http://fromvinayak.blogspot.com
5. In support of these submissions he relied on the Single Bench decision of this Court in the case of Anusayabai Vasudeo Adkar v. Vasudeo Sambhu Adkar and Anr. – 1991 Mh.L.J. 458, wherein it has been observed that; “Where a party taken up a contention that the spouse is not covered by the legal definition of the term ‘wife’, it is not sufficient merely to plead it but it must also be fully established. The respondent-husband questioned the status of the applicant-wife alleging the so-called marriage referred to by the applicant wife was a void marriage by virtue of the fact that it was in contravention of the provisions of the Bombay Prevention of Bigamous Marriage Act, 1946. No conclusive evidence was led by the husband for the purpose of establishing that she was never married to him or for purposes of establishing for that matter, that she could not have been lawfully and legally married to him by virtue of the fact that he had been legally wedded to some other person and that his earlier wife was living and that the said marriage was still subsisting on the day of the marriage with the applicant. In the absence of any such evidence, wife was entitled to maintenance in so far as there was nothing on record to establish that her marriage suffered from any sort of infirmity.”
6. Mr. Najbile the learned Counsel contended that in such circumstances, the impugned order passed by the learned Additional Sessions Judge is not sustained in law because it is not permissible for the learned Additional Sessions Judge to reappreciate the evidence in the revisional criminal jurisdiction. He, thus contended that the impugned order passed by the learned Additional Sessions Judge deserves to be set aside.
7. Mr. Charlewar, the learned Counsel for the respondent-husband supports the impugned judgment and order passed by the learned Additional Sessions Judge and contended that in view of the dear dictum of the Apex Court in the case of Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. – , it is obvious that the petitioner-wife under Section 125 of the Code of Criminal Procedure must be legally wedded wife and the marriage of a woman with a man already having living spouse as per Hindu rites is a complete nullity and where the marriage is null and void, the wife is not entitled to claim maintenance under Section 125 of the Criminal Procedure Code.
8. He contended that the learned Additional Sessions Judge has rightly considered the documentary evidence, i.e. the certified copy of the Voters’ list in order to reach the finding that Malanbai is the first wife of Vithoba whose marriage was solemnized in the year 1983. Not only this, the Voters’ list would indicate that Malanbai has been living with Vithoba since the time of the marriage and this fact has been duly proved through the evidence of Vithoba (DW 1) and Dayaram (DW 2). He contended that since the learned Magistrate did not consider the material evidence and the order has resulted into miscarriage of justice, the learned Additional Sessions Judge was perfectly right in exercising his revisional jurisdiction to find out whether there was perversity in the order passed by the learned Magistrate.
9. He contended that it is established fact on record that Malanbai is first wife of Vithoba and their marriage is still subsisting and, therefore, the alleged marriage of Vithoba with respondent Kisnabai would be void in view of the provisions of Section 5(i) of the Hindu Marriage Act. He, thus contended that no interference into the impugned judgment and order passed by the learned Additional Sessions Judge is warranted. There is no merit in this petition and the same may kindly be dismissed.
10. This Court has given thoughtful consideration to the contentions canvassed by the parties. It is not disputed that Vithoba has claimed that Malanbai is his first wife and therefore, obviously the onus would be on him to establish that his first marriage was still subsisting on the date when the application claiming maintenance under Section 125 Cri.P.C. has been filed. There cannot be any dispute about the ratio laid down by this Court in the case of Anusayabai Vasudeo Adkar v. Vasudeo Sambhu Adkar and Anr. – 1991 Mh.L.J. 458. http://evinayak.tumblr.com/ https://vinayak.wordpress.com/ http://fromvinayak.blogspot.com
11. The question which requires consideration in this case is whether the marriage of Kisnabai with Vithoba is a legal and valid marriage. In this context perusal of the certified copy of Voters’ list of the Maharashtra State Assembly, 148 Amgaon Constituency of village Bothli for the year 1984 would show that Malanbai was shown as wife of Vithoba. The certified copy of the Voters’ list is admittedly a public document for which no separate proof is required.
12. However, Dayaram (DW 2) has been examined to show that Malanbai is the first wife of Vithoba. His testimony would reveal that he is resident of same village, i.e. Bothli, there is one road in between his house and the house of Vithoba and their houses are facing to each other. Prior to 15 to 17 years Vithoba married with Malanbai resident of Sitepar, since the marriage, Malanbai is residing with her husband Vithoba at Bothli and she is having one daughter and one son and the age of the daughter is 13 to 14 years and Vithoba is leading happy matrimonial life with her.
13. Thus, this is a case wherein the onus has been discharged by the husband Vithoba to show that his marriage was solemnized with Malanbai because the Voters’ list is also corroborated in material particulars by the evidence: of Dayaram (DW 2) and in such circumstances, the decision of this Court in the case of Anusayabai v. Vasudeo (cited supra) is not applicable to the facts and circumstances of the present case.
14. In Yamunabai v. Anantrao (cited supra) the ratio has been laid down that if the marriage is void, the woman would not be entitle to claim maintenance under Section 125 Cri. P.C. It has been observed by the Apex Court as under,:
“Clause (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. The plea that the marriage should not be treated as void because such a marriage was earlier recognised in law and custom cannot be accepted. By reason of the overriding effect of the Act as mentioned 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. Such a marriage cannot also be said to be voidable by reference to Section 12. So far as Section 12 is concerned, it is confined to other categories of marriages and is not applicable to one solemnized in violation of Section 5 Clause (i). 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 coveted 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 also throw light on this aspect. Section 16(3) prominently brings out the basis difference in the character of void and voidable marriages as covered respectively by Sections 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 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 divorce. 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.”
15. The aforesaid ratio laid down by the Hon’ble Supreme Court is squarely applicable in the present case because it has been duly established that Malanbai is the first wife of Vithoba and there is no evidence to show that the said marriage has been dissolved by any decree of divorce obtained from a competent Court as is required under the provisions of Section 13 of the Hindu Marriage Act, 1955. Therefore, it fallows that the alleged marriage of Vithoba with respondent Kisnabai would be the nullity in the eye of law and the learned Additional Sessions Judge was perfectly justified in setting aside the order passed by the learned Magistrate awarding maintenance because Kisnabai is not entitled to claim maintenance under Section 125 Cri.P.C. http://evinayak.tumblr.com/ https://vinayak.wordpress.com/ http://fromvinayak.blogspot.com
16. So far as the question whether the Additional Sessions Judge could have gone into appreciation of evidence in his revisional jurisdiction is concerned, it is settled law that when a material evidence has been ignored in reaching the finding, the revisional Court can certainly examine the material evidence to reach a finding of fact. If the finding recorded by the Magistrate results into illegality or miscarriage of justice, the Additional Sessions Judge is perfectly justified in exercising his revisional jurisdiction to correct the error committed by the Magistrate by appreciation of the material evidence which was overlooked. In these circumstances, this Court does not find force in the submission of Mr. Najbile, the learned Counsel for the applicant that the learned Additional Sessions Judge in his revisional jurisdiction could not have examine the Voters’ list for reaching the finding that Malanbai is first wife of Vithoba and their marriage is still subsisting. In that view of the matter, it is quite obvious that there is no merit in this application and the same stands dismissed.
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