Kamla Devi vs Uttam Chand

. ______________________________ _________________________

[

Kamla Devi .........Petitioner. Versus

Uttam Chand ..........Respondent.

Coram

of Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting1? Yes For the petitioner: rt Mr. Anand Sharma, Advocate.

For the respondent: Mr. R.K. Sharma, Senior Advocate with Ms. Bindya Sharma, Advocate

_________________________________________________________ Sandeep Sharma, J (Oral)

Present petition filed under Section 397 (1) Cr.PC

read with Section 401 is directed against the order dated

12.7.2007 rendered by Additional Sessions Judge, Fast Track

Court, Kangra at Dharamshala, H.P., in Criminal Revision No.

4-3/x/06 titled Uttam Chand v. Kamla Devi, reversing the

order dated 11.8.2006 rendered by learned Sub Divisional

Judicial Magistrate, Jawali, District Kangra, H.P. in Criminal

Application No. 90-IV/06 titled Kamla Devi v. Uttam Chand,

whereby present petitioner has been held entitled to the

Whether reporters of the Local papers are allowed to see the judgment? Yes.

::: Downloaded on - 15/04/2017 20:17:55 :::HCHP -2- maintenance to the tune of Rs. 1500/- per month under

Section 125 Cr.PC.

.

2. Perusal of the record of the learned trial Court

below suggests that present petitioner had filed an

application under Section 125 Cr.PC for grant of interim

maintenance allowance from the respondent-herein, which

of was allowed by the learned trial Court. Feeling aggrieved

with the order dated 11.8.2006, respondent-herein preferred rt a criminal Revision under Section 397 Cr.PC seeking

quashment of aforesaid order passed by learned Sub

Divisional Judicial Magistrate, Jawali, which was allowed by

the learned Additional Sessions Judge. Admittedly, present

revision petition filed under Section 397 Cr.PC read with

Section 401 Cr.PC is directed against the order dated

12.7.2007 passed by learned Additional Sessions Judge which

has been allegedly passed invoking the powers under

Section 397 Cr.PC.

3. Impugned order dated 12.7.2007 suggests that

the same has been passed by learned Additional Sessions

Judge while exercising revisionary powers under Section 397 ::: Downloaded on - 15/04/2017 20:17:55 :::HCHP -3- Cr.PC. Mr. R.K. Sharma, Senior Advocate, appearing for the

respondent, vehemently argued that the present petition

.

filed under Section 397 Cr.PC is not maintainable being

second revision and prayed that this petition may be

dismissed on the ground of maintainability itself.

4. On the other hand, Mr. Anand Sharma,

of appearing for the petitioner stated that petitioner being

aggrieved with the order of learned Additional Sessions rt Judge, is competent to file revision petition under Section 397

Cr.PC against the order or judgment passed by learned

Additional Sessions Judge. He further submitted that

impugned order has been passed by the learned Additional

Sessions Judge, Fast Track Court, Kangra at Dharamshala, HP,

in criminal revision petition filed by the respondent herein,

exercising its powers under Section 397 (3) Cr.PC, hence,

specific bar provided under Section 397(3) will not come in

the way of present petitioner as far as filing of the present

petition is concerned in the facts and circumstances of the

case. Admittedly, petition for maintenance allowance was

filed by the present petitioner under Section 125 Cr.PC,

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before the learned Sub Divisional Judicial Magistrate, which

was allowed and being aggrieved with the order,

.

respondent Uttam Chand had actually filed criminal revision

petition under Section 397 Cr.PC. It is ample clear from the

facts narrated herein above that present petitioner has

actually never invoked Section 397 Cr.PC, save and except

of the present petition, whereby she has laid challenge to the

order passed by the learned Additional Sessions Judge, on rt the revision petition filed by the respondent. It would be apt

to reproduce the provisions of Section 397, herein below:-

397 (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.

5. Careful reading of Section 397(3) makes it

ample clear that no further application under Section 397

Cr.PC can be filed by the same person, meaning thereby, in

the present case, respondent Uttam Chand is not competent

to file second revision in terms of Section 397 (3) as he had

already exhausted remedy of criminal revision under Section

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397 by filing revision petition before the learned Sessions

Court against the order of the learned trial Court.

.

6. In this regard, reliance is placed upon the

judgment rendered in re Puritipati Jagga Reddy, AIR 1979

Andhra Pradesh 146 Full Bench, wherein it has been held that

"bar created under Section 397 (3) is limited to the same person

of who has already chosen to go either to the High Court or to the

Sessions Court seeking a remedy and it does not apply to the rt other parties or persons." Relevant para of the judgment

(supra) is reproduced herein below:-

9. The language of sub-sec. (3) of the S. 397 contains no ambiguity. If any person has already chosen to

file a revision before the High Court or to the Sessions Court under sub-sec. (1), the same person cannot

prefer a further application to the other Court. To put it in other words, Sub-secs. (1) and (3) make it

clear that person, aggrieved by any other or proceeding can seek remedy by way of a revision

either before the High Court or the Sessions Court.

Once he has availed himself of that remedy, he is precluded from approaching the other forum. It is equally manifest from the provisions of sub-sec. (3) that this bar is limited to the same person who has already chosen to go either to the High Court or to the Sessions Court seeking a remedy and that it

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does not apply to the other parties or persons. Further the bar contained in sub-sec. (3) is only against that person who has already chosen the

.

remedy either before the High Court or before the

Sessions Judge. It is not permissible to extend the bar contained under a statute to other persons or to

other fields. It is well established that the bar against seeking a remedy in a Court of Law or against a

of Court of law rendering justice should be strictly construed. It is noteworthy that sub-sec. (1) of Sec. 397 empowers the High Court or the Sessions Court rt to call for and examine the record of any proceeding before any inferior Criminal Court. That

is to say, it can exercise this power of calling for and examining the record suo-motu also. The language of sub-sec. (3), strictly limited as it is to a person who

has chosen to seek the remedy from one of the two courts, cannot be extended to the High Court

exercising its powers conferred on it under the provision of the Code. It is patent that the bar

contained in sub-sec. (3) is only against the person who has already chosen his remedy before one of

the two forums.

7. Moreover, this Court has ample power to treat

the present petition under Section 482 Cr.PC, which gives

inherent powers to the High Court to make such orders as

may be necessary to give effect to any order under this

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Code or to prevent the abuse of process of any Court or

otherwise to secure the ends of justice. If the present petition

.

is not held to be maintainable at this stage, petitioner would

be rendered remediless as she will not have any opportunity

to assail the order dated 12.7.2007 passed by the learned

Additional Sessions Judge exercising revisionary powers

of under Section 397 Cr.PC.

8. Undisputedly, powers under Section 482 Cr.PC rt are required to be used very sparingly, especially, in the

circumstances, where court comes to the conclusion that

order passed by the court below is perverse on the face of it

and is a result of sheer abuse of the process of law. Keeping

in view the fact that this petition has remained pending

before this Court since 4th October, 2007, and same was

admitted on 5th October, 2007, it would not be proper and

just to dismiss the same on the ground of maintainability that

too after nine years of the admission of the case.

Accordingly, in view of the aforesaid discussion, this Court is

of the definite view that present petition is maintainable

under Section 397 Cr.PC and bar created under Section (3)

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would not come in her way as far as filing of present petition

is concerned. Since prior to filing of this petition, she had not

.

filed any revision petition under Section 397 Cr.PC. Rather,

same was filed by respondent No.3 Uttam Chand. Hence,

this court is of the view that this petition cannot be held to be

barred under Section 397 (3) and same is maintainable in

of view of the discussion made hereinabove.

9. As has been observed above that this Court has rt ample powers under Section 482 Cr.PC and Article 227 of the

Constitution of India. In this regard, reliance is placed on the

judgments of various High Courts i.e.

1. Sashidhar Naik and others v. Gadadhar Patel and Ors., 1978 CRI.L. J. 1316, Orissa High Court.

2. Bharat Sasmal v. Additional Sessions Judge, Puri and

Ors. 1984 CRI.L. J. 1389, Orissa High Court.

3. Vijay Kumar Puri, V. Miss Usha Mehra and Anr., 1981 CRI. L. J. 102, Delhi High Court.

4. Kanwar Pal Bishnoi V. Addl. Sessions Judge, and Ors., 1985 (1) Crimes 221, Delhi High Court.

5. Otin Panging and Anr. v. Nambor Kaman and Ors., 1991 (1) Crimes 509, Gauhati High Court.

6. Ashok Yeshwant Samant V. Suparna Ashok Samant and Anr., 1991 CRI.L.J. 766, Bombay High Court.

::: Downloaded on - 15/04/2017 20:17:55 :::HCHP -9- 7. M/s Prestolite of India Ltd. and Anr. V. The Munsif Magistrate, Hawali and Anr., 1978 CRI.L.J. 538. Allahabad High Court.

.

10. Brief facts giving rise to the present case are that

present petitioner by way of petition filed under Section 125

Cr.PC filed in the trial Court prayed for interim maintenance

allowance against the respondent being his wife. Record

of reveals that as per averments contained in the application

made under Section 125 Cr.PC, petitioner claimed that her rt marriage with respondent was solemnized in June, 1987

according to Hindu Rites and Rituals. Respondent is working

in Civil Supplies Department and remained posted at

Bilaspur, Kullu, Gohar and during this period, petitioner as well

as respondent stayed together in these places. It is also

averred that out of the said wedlock, petitioner gave birth to

three daughters and one boy aged about 17, 15, 14 and 12

years respectively. The petitioner alleged that few years

back, respondent started treating the petitioner with cruelty

as he used to lock her inside the house and no food/water

was being provided to her and beatings were given to the

petitioner. She prayed that since she had no source of

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income coupled with the fact that respondent willfully

neglected her, she is entitled to maintenance in terms of

.

Section 125 Cr.PC to the tune of Rs 3,000/-per month and as

such direction may be issued to the respondent to provide

her maintenance.

11. Respondent by way of reply refuted the claim of

of the petitioner that she is his wife and contended that she is

not legally wedded wife of him. He categorically stated that rt no marriage took place in accordance with Hindu Rites and

Rituals and as such, she has no right or cause of action to file

petition under Section 125 Cr.PC. Allegation of cruelty and ill

treatment meted to the petitioner by respondent has been

also refuted by the respondent. However, in reply, the

respondent admitted that petitioner has been residing with

respondent and they developed physical relations, result

whereof petitioner became pregnant and four children born

from the lions of the respondent. Factum with regard to the

birth of four children is also acknowledged by the

respondent. However, respondent stated that petitioner is

not legally wedded wife of respondent, though, she is

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residing with him till date. He also submitted that all the basic

necessities of petitioner are being fulfilled by him but being a

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greedy lady, she-petitioner with a intent to grab everything

of the respondent has lodged the present complaint seeking

maintenance allowance. Record further reveals that during

the proceedings of the case pending before the court of

of learned Additional Sessions Judge, present petitioner has

placed on record one document dated 8.9.2002 signed by rt her as well as respondent, wherein they themselves admitted

to be husband and wife. Respondent also placed on record

death certificate of one Shri Mast Ram who was admittedly

husband of the petitioner. Learned trial Court after perusing

the evidence brought on record by the respective parties,

came into conclusion that petitioner is entitled to

maintenance allowance in terms of Section 125 Cr.PC and

respondent was directed to pay a sum of Rs. 1,500/- per

month to the petitioner. Respondent being aggrieved with

the aforesaid order of learned trial Court approached the

court of learned Additional Sessions Judge. Learned

Additional Sessions Judge vide order dated 12.7.2007 set

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aside the order passed by the learned Sub Divisional Judicial

Magistrate. Hence this revision petition by the petitioner.

.

12. Admittedly, it has come on record that both the

parties have been residing together for more than 25 years

and petitioner gave birth to four children who have

admittedly born out of the lions of respondent. However, it

of has been specifically denied by the respondent that

petitioner is a legally wedded wife of him which makes her rt eligible to claim maintenance as envisaged under Section

125 Cr.PC from him. Respondent has also denied allegations

of any cruelty meted out to the petitioner by him. Rather, he

stated in reply that till date, petitioner has been residing with

him and all basic requirements of her are being fulfilled by

him only. Though, petitioner has averred that she is legally

wedded wife of the respondent and their marriage had

actually taken place as per Hindu Rites and Rituals but

admittedly, no evidence worth the name either be it ocular

or documentary has been brought on record from where it

could be inferred that she was actually a legally wedded

wife of the respondent.

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13. On the other hand, respondent stated that

petitioner started residing with him in the year, 1987, when

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her earlier marriage was in subsistence and at that time, her

husband namely Mast Ram was alive. A copy of marriage

register was also produced during the pendency of revision

petition wherein Mast Ram had been recorded to be her

of husband. The certificate, which has been placed on record,

has been admittedly issued from the Gram Panchayat Tehsil rt Karsog, District Mandi, H.P. It prima facie appears from the

certificate perused from the record that petitioner was earlier

got married to one Mast Ram in the year, 1983 and

thereafter during the subsistence of her earlier marriage, she

started residing with the respondent in the year, 1987 and

gave birth to four children. Needless to say that as per law,

during the subsistence of earlier marriage, any spouse

cannot contract second marriage. So, at this stage, it can

be safely inferred that even if the version/claim of the

petitioner, which has been admitted by the respondent that

she had been residing with the respondent since the year

1987, may not give her the status of legally wedded wife

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because admittedly, as per the record, petitioner was

married to one Mast Ram in 1983 and he was alive till 1995.

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Now, for the better understanding of provision i.e Section 125

Cr.PC, it would be apt to reproduce the same as under:-

125. Order for maintenance of wives, children, and parents.-(1) If any person having sufficient means

of neglects or refuses to maintain-

(a)his wife, unable to maintain herself, or rt

(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 and 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:

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Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority,

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if the Magistrate is satisfied that the husband or such

minor female child, if married, is not possessed of sufficient means.

[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly

of allowance for the maintenance under this sub- section, order such person to make a monthly allowance for the interim maintenance of his wife or rt such child, father or mother and the expenses of

such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and

expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty

days from the date of the service of notice of the application to such person.]

14. Plain reading of Section 125 Cr.PC suggests that

wife, who is unable to maintain herself, legitimate/illegitimate

minor child, who are unable to maintain themselves, are

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Cr.PC. But in the present facts and circumstances, the moot

question requires consideration is, as has been discussed

.

herein above, whether the petitioner can be termed as

"legally wedded wife" of the respondent in the facts and

circumstances of the present case or not? Admittedly in the

present case, respondent has disputed the very status of

of "wife" as being claimed by the petitioner by bringing on

record fact with regard to the subsistence of previous rt marriage of the petitioner i.e. in the Year, 1983. There is no

doubt that petitioner has been cohabitating with the

respondent for almost 25 years but, especially, in view of the

fact that petitioner was married to Mast Ram in 1983 and he

was alive till 1995, petitioner cannot claim to be legally

wedded wife of the respondent, especially when earlier

marriage was in subsistence. It stands proved on record that

previous husband was alive till year, 1995.

15. The Hon'ble Apex Court while interpreting the

expression "wife" especially while dealing with the case

under Section 125 of the Code has held that the word 'wife'

used under Section125 Cr.PC of the Code should be

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interpreted to mean only "legally wedded wife". Careful

reading of the Section 125 Cr.PC suggests that wife means

.

legally wedded wife because while providing provision under

Section 125 Cr.PC, interest of wife who intends to take benefit

under Sub Section 125 (1) (a), has been specifically

protected. Whosoever intends to take benefit of this provision

of necessarily needs to establish that she is the wife of the

person concerned, meaning thereby, same can be decided rt only by referring to the law applicable to the parties. As per

Hindu Customs and law, marriage of woman in accordance

with Hindu Rites, can be termed as legally wedded wife. The

meaning of 'wife' strictly in terms of Section 125 (1)(a) has

been defined by the Hon'ble Apex Court in the case titled

Yamuna Yamunabai Anantrao Adhav v. Anantrao Shivram

Adhav and Anr. (1988) 1 SCC 530 wherein the Hon'ble Apex

Court, has held that "Section 125 Cr.PC has been enacted in the

interest of a wife, and one who intends to take benefit of the said

Section has to establish the necessary condition, namely, that she

is the wife of the person concerned." Vide aforesaid judgment,

it has further been held that Hindu woman, who gets ::: Downloaded on - 15/04/2017 20:17:55 :::HCHP

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married, after coming into force of the Hindu Marriage Act,

1955, in accordance with Hindu Rites with Hindu male having

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a living spouse was not entitled to maintenance under

Section 125 Cr.PC as such marriage is void under Section 11

of the Act. The relevant paragraphs are as below:

"3. For appreciating the status of a Hindu woman

of marrying a Hindu male with a living spouse some of the provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) have to be rt examined. Section 11 of the Act declares such a

marriage as null and void in the following terms:

11. Void marriages-Any marriage solemnized after the commencement of this Act shall be

null and void and may, on a petition presented by either party thereto against the

other party, be so declared by a decree of

nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5. "

Clause (1)(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. It was urged on behalf of the appellant that a marriage should not

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be treated as void because such a marriage was earlier recognised in law and custom. A reference was made to Section 12 of the Act and it was said

.

that in any event the marriage would be voidable.

There is no merit in this contention. By reason of the overriding effect of the Act as mentioned in Section

4, no aid can be taken of the earlier Hindu Law or any custom or usage as a part of that Law

of inconsistent with any provision of the Act. So far as Section12 is concerned, it is confined to other categories of marriage and is not applicable to one rt solemnised in violation of Section5(1)(i) of the Act. 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 covered 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, which is quoted below, also throw light on this aspect:

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" 16. Legitimacy of children of void and voidable marriages.-(1) Notwithstanding that a marriage is null and void under Section 11,

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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

of (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 rt Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the

decree is made, who would have been the legitimate child of the parties of the marriage if at the date of the decree it had been

dissolved instead of being annulled, shall be

deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the

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passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the

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legitimate child of his parents.

(Emphasis added).

Sub-section (1), by using the words underlined above clearly, implies that a void marriage can be held to be so without a prior formal declaration by a

of court in a proceeding. While dealing with cases covered by Section 12, sub- section (2) refers to a decree of nullity as an essential condition and sub- rt section (3) prominently brings out the basic

difference in the character of void and voidable marriages as covered respectively by Section 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 marriage of

the appellant must, therefore, be treated as null and void from its very inception.

4. The question, then arises as to whether the expression 'wife used in Section 125 of the Code should be interpreted to mean only a legally wedded wife not covered by Section 11 of the Act. The word is not defined in the Code except indicating in the Explanation its inclusive character so as to cover a divorcee. A woman cannot be a

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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, subject

to the Explanation (b), which is not relevant in the present context.

6. The attempt to exclude altogether the personal law applicable to the parties from

of consideration also has to be repelled. The section has been enacted in the interest of a wife, and one who intends to take benefit under sub-section (1)(a) rt has to establish the necessary condition, namely,

that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where an

applicant establishes her status on relationship with reference to the personal law that an application for maintenance can be maintained. Once the right

under the section is established by proof of

necessary conditions mentioned therein, it cannot be defeated by further reference to the personal

law. The issue whether the section is attracted or not cannot be answered except by the reference to the appropriate law governing the parties. In our view the judgment in Shah Bano's case does not help the appellant. It may be observed that for the purpose of extending the benefit of the section to a divorced woman and an illegitimate child the Parliament considered it necessary to include in the

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section specific provisions to that effect, but has not done so with respect to women not lawfully married."

.

16. The Hon'ble Apex Court in Savitaben Somabhai

Bhatiya v. State of Gujarat and Ors., (2005) 3 SCC 636, again

reiterated the view taken in case referred supra. Paras No. 15

of to 17 as reproduced as below:-

"15. In Smt. Yamunabai's case (supra), it was held that expression 'wife' used in Section 125 of the rt 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

divorcee. 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 or the Hindu Marriage Act, 1955 (in short the 'Marriage Act'). Marriage with person having living spouse is null and void and not voidable. However, the attempt to exclude altogether the personal law applicable to

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the parties from consideration is improper. Section 125 of the Code has been enacted in the interest of a wife and one who intends to take benefit under

.

sub- section (1)(a) has to establish the necessary

condition, namely, that she is the wife of the person concerned. The issue can be decided only by a

reference to the law applicable to the parties. It is only where an applicant establishes such status or

of relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the provision in rt Section 125 of the Code is established by proof of necessary conditions mentioned therein, it cannot

be defeated by further reference to the personal law. The issue whether the Section is attracted or not cannot be answered except by reference to the

appropriate law governing the parties.

16. But it does not further the case of the appellant

in the instant case. Even if it is accepted as stated

by learned counsel for the appellant that husband was treating her as his wife it is really

inconsequential. It is the intention of the legislature which is relevant and not the attitude of the party.

17. In Smt. Yamunabai's case (supra) plea similar to the one advanced in the present case that the appellant was not informed about the respondent's earlier marriage when she married him was held to be of no avail. The principle of estoppel cannot be

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pressed into service to defeat the provision of Section 125 of the Code.

17. From the reading of the aforesaid judgment

.

rendered by the Hon'ble Apex Court, one thing clearly

emerges that to have/claim maintenance under Section 125

of Code, petitioner necessarily needs to prove that she is a

legally wedded wife of the respondent. The Hon'ble Apex

of Court while dealing with Sections 5 and 11 of the Hindu

Marriage Act, 1955 in the case titled Bhogadi Kannababu rt and others v. Vuggina Pydamma and Ors., 2006 SCC 532

observed in para 4 as under:-

14. Section 5 of the Act clearly states the grounds

when the marriage cannot be solemnized. Clause (i) of Section 5 is one such condition, which clearly

provides that no marriage can be performed if there is a living spouse. Therefore, in view of Section

5, the marriage between Suryanarayana and Pydamma cannot be considered to be legal as at

the time of such marriage, Chilakamma was very much alive. Section 11 of the Act, which deals with a void marriage says that any marriage solemnized after the commencement of this Act shall be null and void if it contravenes any of the conditions specified in Clause (i), (iv) and (v) of Section 5 of the Act. Therefore, in view of Sections 5 and 11 of the

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Act, it must be held that the marriage between Suryanarayana and Pydamma is a void marriage as the said marriage was admittedly solemnized after

.

the commencement of the Act. Therefore,

considering that the marriage between Suryanarayana and Pydamma was a void marriage,

the question that would now arise is whether their daughters, namely, respondents 2 and 3 were

of entitled to inherit the properties in question, with the first wife, Chilakamma, on the death of Suryanarayana. In this connection, we may refer to rt Section 16 of the Act. Section 16 of the Act deals with legitimacy of children of void and voidable

marriages. Sub-section (1) of Section 16 of the Act clearly says that notwithstanding that the 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.

(Emphasis supplied ). Therefore, in view of section 16, it is clear that the daughters, namely, respondents 2

and 3 inherited the properties in question, along with Chilakamma, on Suryanarayana's death.

Accordingly, the High Court was justified in holding that on the death of Suryanarayana, the properties in question were inherited by his daughters, namely, respondents 2 and 3, along with Chilakamma and therefore were entitled to evict the appellants from the properties in question along with Pydamma. Accordingly, the findings of the High Court on the

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question whether respondents 2 and 3 were entitled to inherit the properties in question of late Suryanarayana jointly with Chilakkama cannot be

.

interfered with. That apart, in an application for

eviction under the A.P.Tenancy Act in which prayer for grant of eviction of a lessee was made, it would

not be necessary to decide that the daughters, respondent Nos. 2 and 3 comprehensively had to

of prove that on the death of Suryanarayana and Chilakamma, they were entitled to inherit the properties in question in the eviction proceedings. rt Therefore, it is not necessary to finally adjudicate upon the question of right, title and interest of the

daughters with respect to the properties in question, which may be done in a comprehensive suit for title.

18. Section 5 of the Hindu Marriage Act, 1955

clearly provides that no marriage can be performed, if there

is living spouse. In the present case, undisputedly, petitioner

was married to Mast Ram in 1983 who was alive till 1995 and

there is no document worth the name to suggest that

petitioner had ever taken any divorce from Mast Ram,

meaning thereby, that when she started residing with

respondent i.e. in the year 1987, her earlier marriage was in

subsistence and as such, in no manner, she can be termed

as a legally wedded wife of the respondent.

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19. Facts narrated hereinabove as well as law cited

above, leaves no scope to interpret the expression "wife" in

.

any other way save and except "legally wedded wife."

20. The Hon'ble Apex Court while dealing with the

provisions of Section 125 Cr.PC has gone to the extent of

observing in Savitaben Somabhai Bhatiya v. State of Gujarat

of and Ors., (2005) 3 SCC 636 that "Even if it is accepted as stated

by learned counsel for the appellant that husband was treating rt her as his wife it is really inconsequential. It is the intention of the

legislature which is relevant and not the attitude of the party."

21. While dealing with the case under Protection of

Women from Domestic Violence Act, 2005, The Hon'ble Apex

Court in D Velusamy v. D. Patchaiammal, (2010) 10 SCC 469,

with regard to the entitlement of wife for maintenance, has

held as under :

10. It may be noted that Section 125 Cr.P.C.

provides for giving maintenance to the wife and some other relatives. The word `wife' has been defined in Explanation (b) to Section 125(1) of the Cr.P.C. as follows :

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"(b) Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."

.

11. In Vimala vs. Veeraswamy, a three- Judge Bench of this Court held that Section 125 of the Code of

1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word `wife' the Court

of held: (SCC p.378, para3)

"3..the object is to prevent vagrancy and rt 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. The term `wife' in Section 125 of the Code of Criminal

Procedure, includes a woman who has been divorced by a husband or who has obtained

a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term `wife' consistent with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is

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not a legally wedded wife, and is, therefore, not entitled to maintenance under this provision."

.

12. In a subsequent decision of this Court in

Savitaben Somabhat Bhatiya vs. State of Gujarat and others, this Court held that however desirable it

may be to take note of the plight of an unfortunate woman, who unwittingly enters into wedlock with a

of married man, there is no scope to include a woman not lawfully married within the expression of `wife'. The Bench held that this inadequacy in law can be rt amended only by the Legislature.

22. On the other hand, Mr. Anand Sharma, counsel

representing the petitioner stated that it stands proved on

record that petitioner had been residing with the respondent

for more than 25 years and during this period, they had

developed physical relationship and she had given birth to

four kids and as such respondent is liable to maintain her as

his wife. But as has been observed above, petitioner has not

placed on record any evidence to suggest anything, which

could compel this Court to infer that she is the legally

wedded wife of the respondent strictly in terms of Section 125

Cr.PC, which would have made her entitled to have

maintenance allowance. In support of this contention, Mr.

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Sharma placed reliance on Badri Prasad v. Dy. Director of

Consolidation and Ors, AIR 1978 SC 1557, D.Velusamy v.

.

D.Patchaiammal, AIR 2011 SC 479 and in Indra Sarma v. V.K.V.

Sarma, AIR 2014 SC 309. Perusal of the aforesaid judgments, as

has been relied upon by Mr. Anand Sharma, in support of his

contention clearly suggests that if a man and woman living

of as husband wife for about 15 years or more, there is strong

presumption that there is wedlock. There cannot be any rt dispute with regard to the aforesaid observations returned by

the judgments to the effect that since petitioner has been

cohabiting with the respondent for a long time, a

presumption can be drawn that there is a wedlock. But in

the present case, when a maintenance is being claimed

under Section 125 Cr.PC, aforesaid proposition may not be of

any help to the petitioner, especially, in the law laid down by

the Hon'ble Apex Court in Yamuna Yamunabai Anantrao

Adhav v. Anantrao Shivram Adhav and Anr. (1988) 1 SCC 530

whereby, it has been specifically held that expression 'wife'

used in Section 125 Cr.PC, should be interpreted to mean

only a legally wedded wife. Though, it stands proved in the

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present case that petitioner has been residing with the

respondent for last more than 25 years and gave birth to four

.

kids, who are admittedly born out of the lions of the

respondent but in the facts and circumstances of the case,

petitioner has miserably failed to prove that she is a legally

wedded wife of the respondent. Hence, she cannot be held

of entitled to maintenance in terms of Section 125 Cr.PC. In the

present case, respondent has been successful in proving that rt the petitioner is not a legally wedded wife of the respondent

as earlier marriage was in subsistence in year 1987, when as

per her own version, she-petitioner had actually started living

with the respondent. It is also proved on record that Mast

Ram husband of the petitioner was alive till 1995 which

undisputed fact persuaded this Court to take a view that the

present petitioner cannot be termed as legally wedded wife

of the respondent, which is a strict requirement of Section 125

Cr.PC as has been held by the Hon'ble Apex Court in the

case Supra. Admittedly, in the present case, children born

out of the relations of the respondent petitioner, are entitled

to maintenance in terms of Section 125 Cr.PC (1)(b) but it has

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been informed by the counsel for the respondent that they

are all major and well settled. Moreover, there is no whisper

.

with regard to any maintenance, if any, being claimed by

those children along with the petitioner.

23. In view of the aforesaid discussion, this court

sees no illegality and infirmity in the order passed by the

of Court of learned Sessions Judge whereby he has set-aside

the order passed by Sub-Divisional Magistrate and rt accordingly, same is upheld. Present petition is dismissed

being void of any merit.

May 07, 2016 (Sandeep Sharma), manjit Judge.

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