When a PARAMOUR sought maintenance from his mistress & was denied by AP HC!

A paramour who lived-in with a woman when he was already legally married to another with three other children, tries to file a restitution (RCR – sec 9 HMA) on her !! She seems to have filed a 498a cocktail in response !!. The 498a is quashed because she is NOT the legally wedded wife of that guy. Then this Paramour goes on to file Sec 125 against that woman !!! (yes !) and the lower court seems to have admitted the case. So the wife goes for quashing the case

and the Hon AP HC appreciates the facts and orders “…….When the husband is not entitled to claim maintenance even from his legally wedded wife by pressing into service Section 125 Cr.P.C., the question of claiming maintenance by a paramour from a kept mistress or a husband from his second wife is unimaginable. Allowing a paramour to claim maintenance from his kept mistress or concubine under Section 125 Cr.PC., certainly would amount to making mockery of the provisions of Cr.P.C. If this type of petitions are allowed, the very purpose of Section 125 Cr.PC will be defeated or frustrated.

  1. From a perusal of the record, it is manifest that the first respondent instituted the proceedings against the petitioner with an ulterior motive to wreak vengeance against her. When the statute itself does not entitle a husband to claim maintenance, petition under Section 125 Cr.PC is not maintainable. ….”

Well.. court cases are stranger than fiction !!

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Andhra High Court

Smt.Malleshwaramma, … vs G.S.Srinivasulu, … on 15 July, 2016

THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY

CRIMINAL PETITION No.6481 OF 2010

15-7-2016

Smt.Malleshwaramma, D/o.K.Venkataiah ..PETITIONER

G.S.Srinivasulu, S/o.Satyanarayana And another …RESPONDENTS

Counsel for Petitioner  :Sri C.M.R.Velu

Counsel for Respondent No.1:Ms.G.Sudha
Counsel for Respondent No.2:Public Prosecutor

HEAD NOTE:

? Cases referred
1.      AIR 1988 SC 644
2.      (2005) 3 SCC 636
3.      2006(2) ALD (Crl.) 493 (AP)
4.      (2014) 1 SCC 188
5.      Keynote address on Legal Education in Social Context delivered at National Law University, Jodhpur on October 12, 2005.
6.      III (2015) DMC 705 (MP)
7.      1982 CRI.L.J. 1022
8.      (2011) 12 SCC 189
9.      Mohabhai Ali Khan v Mohd. Ibrahim Khan, (1928-29) 56 IA 201: AIR 1929 PC 135
10.     (2002) 3 SCC 533
11.     1992 Supp (1) SCC 335
12.     (2009) 3 SCC 78
13.     (1976) 3 SCC 736
14.     (2007) 12 SCC 1

THE HONBLE SRI JUSTICE T.SUNIL CHOWDARY

CRIMINAL PETITION No.6481 of 2010

ORDER:

  1. This petition is filed under Section 482 Cr.P.C., to quash the proceedings in M.C. No.7 of 2010 on the file of the Judicial Magistrate of First Class, Shadnagar.
  2. The facts leading to filing of the present criminal petition are as follows: The first respondent herein filed M.C. No.7 of 2010 claiming maintenance of Rs.8,000/- per month from the petitioner alleging that she is his legally wedded wife and the first respondent is unable to maintain himself due to ill health. It is the case of the first respondent that his marriage was solemnized with petitioner on 27.10.1994 at Yadagirigutta as per the customs prevailing in their community. Immediately after the marriage, the petitioner joined with him to lead conjugal life and they were blessed with a daughter by name Srilatha. The petitioner left the matrimonial home of the first respondent along with her daughter at the instigation of her parents. Prior to the marriage, the first respondent helped the petitioner to prosecute her studies and get job in Health department. The first respondent filed O.P. No.72 of 2006 for restitution of conjugal rights on the file of the court of Senior Civil Judge, Mahabubnagar and the same was allowed on 14.11.2007. Basing on the complaint of the petitioner, the Station House Officer, Atchampet Police Station, Mahabubnagar District registered a case in Crime No.30 of 2007 for the offences under Section 498A, 506 and 509 IPC against the first respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  3. The contention of the learned counsel for the petitioner is three fold: (1) the petitioner is not the legally wedded wife of the first respondent; (2) a husband is not entitled to claim maintenance from his wife under Section 125 Cr.PC; and (3) the proceedings against the petitioner are nothing short of abuse of process of law; therefore it is a fit case to quash the proceedings by exercising inherent jurisdiction under Section 482 Cr.PC. Per contra, learned counsel for the first respondent submitted that under Section 125 Cr.P.C., first respondent is entitled to claim maintenance from the petitioner, who is his legally wedded wife. She further submitted that the order passed in O.P. No.72 of 2016 clinchingly establishes that the petitioner is legally wedded wife of the first respondent.

  4. To substantiate the argument, learned counsel for the petitioner has drawn my attention to the following decisions: (i) Smt.Yamunabai Anantrao Adhav v Anantral Shivaram Adhav , wherein the Honble Apex Court held as follows: 8. We, therefore, hold that 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 not entitled to the benefit of Section 125 of the Code. The appeal is accordingly dismissed. (ii) Savitaben Somabhai Bhatia v State of Gujarat , wherein the Honble Apex Court held as follows: 15. .. 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’). : (iii) Buddepu Khogayya v Buddepu Kamalu , wherein this court held as follows: 7. Therefore, the averment itself clearly indicates that there is legally wedded wife to the first respondent by the date of marriage of the petitioner. Hence, she cannot be treated as wife as per the provisions of Section 125 Cr.PC and therefore, she is not entitled for any maintenance.

  5. The learned counsel for the first respondent, while submitting that strict proof of marital relationship is not necessary in proceedings under Section 125 Cr.P.C., relied upon the following decisions: (i) Badshah v Urmila Badshah Godse , wherein the Honble Apex Court held as follows: 13.3. While dealing with the application of a destitute wife or hapless children or parents under this provision (Section 125 Cr.PC), the Court is dealing with the marginalized sections of the society. The purpose is to achieve social justice which is the constitutional vision, enshrined in the Preamble of the Constitution of India.  4. Of late, in this very direction, it is emphasized that the courts have to adopt different approaches in social justice adjudication, which is also known as social context adjudication as mere adversarial approach may special protection and benefits to vulnerable groups in the society. Prof. Madhava Menon describes it eloquently: It is, therefore, respectfully submitted that social context judging is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the social-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication . (ii) Roshan Singh Nepali v Meena Nepali , wherein the Madhya Pradesh High Court observed as follows: 4. In a proceeding under Section 125 of the Code, the Court is expected to pass appropriate order after being prima facie satisfied about the relation status of the parties. (iii) Aijaz Ahmad Lalri v Smt.Shahjehan Begum , wherein Allahabad High Court held as follows: The proceedings under Section 125, Cr.PC may be akin to civil proceedings, but one important distinction between the two cannot be overlooked, namely, the object behind the enactment of maintenance provisions in the Cr.PC. The crux of the matter always is whether the party claiming maintenance has the means or not. The law of pleading in civil cases may be more strict, but it may not be so when the matter of public policy and its objective are involved. Apart from that, the powers under Section 482 Cr.PC are exercised to secure the ends of justice and to prevent abuse of the process of any law and when the clear finding of fact is that the opposite parties have no means to maintain themselves, the Court will not exercise any such inherent powers in favour of the applicant on account of any defect in pleadings. (iv) Pyla Mutyalamma v Pyla Suri Demudu , wherein the Honble Apex Court held at Para No.1 as follows: 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.PC for the sole reason that law leans in favour of legitimacy and frowns upon bastardy . 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.

  6. From the above case law the following principles can be deduced. (1) If a man and woman lived together for such a long time as wife and husband, the wife is entitled to claim maintenance under Section 125 Cr.P.C., notwithstanding establishment of marriage as per the provisions of the Hindu Marriage Act; (2) A man who marries second time by concealing the subsistence of his valid marriage with another woman cannot escape from payment of maintenance to the second wife under Section 125 Cr.PC; 3) A woman who marries a man knowing fully well about subsistence of his valid marriage with another woman is not entitled to claim maintenance under Section 125 Cr.PC. (4) While dealing with the petitions filed under Section 125 Cr.PC prima facie proof of relationship is sufficient to award maintenance.

  7. Let me consider the facts of the case on hand in the light of the above legal principles. Establishment of prima facie relationship of wife and husband is sine qua non to file petition under Section 125 Cr.PC. If the parties to the proceedings under Section 125 Cr.P.C., are Hindus, the claimant has to establish that the marriage with the first respondent is legally valid and their marriage is not hit by Sub-section (1) of Section 5 of the Hindu Marriage Act.

  8. The crucial question that falls for consideration is whether the first respondent is entitled to claim maintenance from the petitioner by filing petition under Section 125 Cr.P.C or not. As per the averments made in the petition (M.C.), the marriage of the first respondent was performed with the petitioner on 27.10.1994 at Yadagirigutta as per the customs prevailing in their community. Basing on the petition averments, one can safely come to a conclusion that the petitioner is the only legally wedded wife of the first respondent. The first respondent filed O.P. No.72 of 2006 on the file of the court of Senior Civil Judge, Mahabubnagar against the petitioner under Section 9 of the Hindu Marriage Act for restitution of conjugal rites and the same was allowed on 14.11.2007. The first respondent is placing much reliance on the order in the O.P. to establish that the petitioner is his legally wedded wife. It is not in dispute that the petitioner did not contest the O.P.; therefore, the court passed the ex parte order. Basing on the complaint lodged by the petitioner, the Station House Officer, Atchampet Police Station registered a case in Crime No.30 of 2007 against the first respondent for the offences under Sections 498A, 506 and 509 IPC. The first respondent obtained anticipatory bail in Crl.P. No.6818 of 2007 on 18.11.2007. For better appreciation of the rival contentions, it is not out of place to extract paragraph No.2 of Crl.P.No.6818 of 2007. 2. As per the said report, the petitioner herein was married and was having three children. He developed contact with her in the year 1994 when she was working at Government Civil Hospital, Perur. They together lived for 10 years at Shadnagar, Mahaboobnagar District and they were blessed with a daughter aged 11 years. It is said that suspecting her character and making wild allegations, he used to abuse her and threaten her saying that he will kill her and her daughter. He also used to abuse on Telephone the staff working in the hospital.

  9. A reading of the above paragraph clearly shows that the first respondent has taken a specific stand that he developed intimacy with the petitioner in the year 1994. If the contents of this criminal petition are taken into consideration, the first respondent did not marry the petitioner. The first respondent also filed Crl.P.No.2745 of 2007 seeking to quash the criminal proceedings against him in Crime No.30 of 2007 on the file of the Station House Officer, Atchampet Police Station. This court, vide order dated 20.7.2007, allowed the criminal petition and quashed the criminal proceedings against the first respondent in Crime No.30 of 2007 for the offence under Section 498A IPC. The relevant observations in the order read as follows: Even if the entire allegations in the complaint are taken as true and correct, they do not go to show that the de facto complainant is the legally wedded wife of the petitioner. At best, it would go to show that the de facto complainant was kept mistress. It is also stated that the petitioner was having wife and three children. The petitioner was harassing her after making her as his second wife. He was suspecting the conduct of the de facto complainant and was abusing her in vulgar language and he also threatened to kill her and her child. Therefore, the allegations do not show prima facie case of the offences under Sections 506 and 509 IPC. Hence, question of quashing the proceedings does not arise. Prima facie Section 498A IPC has no application. Hence, the proceedings are liable to be quashed.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  10. This court made an observation that the petitioner is only kept mistress of the first respondent basing on the stand taken by the first respondent in Crl.P. No.2745 of 2007.

  11. Before filing M.C. No.7 of 2010, the first respondent has taken specific stand that he developed intimacy with petitioner in the year 1994 which resulted in the birth of Srilatha. The fact remains that the petitioner was having legally wedded wife before developing contacts with petitioner in 1994. Even as per the case of the first respondent, he was blessed with three children through his first wife. In order to constitute a valid marriage, neither of the partiesif they are Hindusshall have a spouse living at the time of marriage in view of Sub-section (1) of Section 5 of the Hindu Marriage Act.

  12. Having regard to the facts and circumstances of the case and also the principles enunciated in the decisions cited supra, I am unable to accede to the contention of the learned counsel for the first respondent that the petitioner is the legally wedded wife of the first respondent.

  13. Even assuming, but not admitting, that the first respondent is husband of the petitioner, the point to be determined in this case is, whether a husband is entitled to claim maintenance from wife by filing petition under Section 125 Cr.PC. It is not out of place to extract hereunder the relevant portion of Section 125 Cr.PC.

  14. Order for maintenance of wives, children and parents: (1) If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) 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 (d) 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 as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.

  15. The object of Section 125 Cr.PC is to wipe off the tears of destitute wife, hapless legitimate or illegitimate children and parents. The Parliament in its wisdom incorporated Section 125 Cr.PC to achieve the above social object. There is a social and legal obligation on the part of a man to look after the welfare of his wife, legitimate and illegitimate minor children and parents. There is no ambiguity in the language employed in Section 125 Cr.PC.

  16. It is a cardinal principle of interpretation of statutes that the court shall not substitute or omit any of the words used in the statute unless there is ambiguity in it. The court has to interpret the words used in a statute in the context and the purpose for which it is used. In interpreting a statutory provision, the first and foremost rule of interpretation is the literal construction. All that the Court has to see, at the very outset, is what the provision says. If the provision is unambiguous and if, from the provision, the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when the legislative intent is not clear.

  17. In Padma Sundara Rao v State of T.N. , the Honble Apex Court in paragraph No.12 (relevant portion) observed as follows: It is well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said.

  18. It appears, the Parliament, in its wisdom, intentionally not included the words husband or spouse after the words his wife and preceding the words unable to maintain in clause (a) of Sub- section (1) of Section 125 Cr.PC; therefore, a husband is not entitled to file application under Section 125 Cr.PC claiming maintenance from the wife. My view is supported by Section 24 of HM Act, which reads as follows: 24 Maintenance pendente lite and expenses of proceedings. Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the first respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the first respondent, it may seem to the court to be reasonable: Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.

  19. A perusal of Section 24 of H.M. Act makes it clear that not only the wife but also the husband is entitled to claim maintenance on showing that he has no independent source of income. However, the husband will have to satisfy the court that either due to physical or mental disability he is handicapped to earn and support his livelihood.

  20. After reading Section 24 of H.M. Act and Section 125 Cr.P.C., the court can safely arrive at a conclusion that under Section 125 Cr.P.C., husband is not entitled to claim maintenance from his wife. When the husband is not entitled to claim maintenance even from his legally wedded wife by pressing into service Section 125 Cr.P.C., the question of claiming maintenance by a paramour from a kept mistress or a husband from his second wife is unimaginable. Allowing a paramour to claim maintenance from his kept mistress or concubine under Section 125 Cr.PC., certainly would amount to making mockery of the provisions of Cr.P.C. If this type of petitions are allowed, the very purpose of Section 125 Cr.PC will be defeated or frustrated.

  21. From a perusal of the record, it is manifest that the first respondent instituted the proceedings against the petitioner with an ulterior motive to wreak vengeance against her. When the statute itself does not entitle a husband to claim maintenance, petition under Section 125 Cr.PC is not maintainable. (i) In State of Haryana v. Bhajan Lal , the Honble Supreme Court held at clause (7) of paragraph No.102 as follows: (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. (ii) In V.Y. Jose v. State of Gujarat , the Honble Supreme Court held at paragraph No.23 as follows: 23. Section 482 of the Code of Criminal Procedure saves the inherent power of the court. It serves a salutary purpose viz. a person should not undergo harassment of litigation for a number of years although no case has been made out against him. (iii) In State of Karnataka v L.Muniswamy , the Supreme Court observed that the wholesome power under Section 482 Cr.P.C., entitles the High Court to quash proceedings when it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. (iv) A three-Judge Bench of the Supreme Court in Inder Mohan Goswami v State of Uttaranchal , after examining the scope and ambit of Section 482 of the Criminal Procedure Code, observed that inherent powers under Section 482 should be exercised for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the Court, then the Court would be fully justified in preventing injustice by invoking the inherent powers of the Court.

  22. Having regard to the facts and circumstances of the case and also the principles enunciated in the cases cited supra, I am of the considered view that continuation of the proceedings against the petitioner would certainly amount to abuse of process of law. Therefore, it is a fit case to quash the proceedings against the petitioner in order to secure ends of justice. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  23. In the result, the criminal petition is allowed, quashing the proceedings in M.C.No.7 of 2010 on the file of the Judicial Magistrate of First Class, Shadnagar. Miscellaneous petitions, if any pending in this criminal petition, shall stand closed.

T.SUNIL CHOWDARY, J

July 15, 2016.


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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