Pyla Mutyalamma @ Satyavathi vs Pyla Suri Demudu & Anr

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