Sau. Asha Devidas Solanke And Another vs Devidas Govindrao Solanke And Another

Both R/o Dahihanda, Near Govt. Hospital, Dahihanda, Tq. and Dist. Akola. .... APPLICANTS

VERSUS

1) Devidas Govindrao Solanke, Aged about 51 years, Occupation - Service, R/o Vyala, Tq. Balapur, District Akola.

2) State of Maharashtra, through D.G.P., Akola. .... NON-APPLICANTS

______________________________________________________________

Shri M.P. Kariya, Counsel for the applicants, Shri R.D. Dhande, Counsel for non-applicant 1, Ms. Ritu Kaliya, Addl.P.P. for non-applicant 2-State. ______________________________________________________________

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CORAM : ROHIT B. DEO, J. DATED : 7th AUGUST, 2019.

ORAL JUDGMENT :

The applicants, claiming to be the wife and son of non-

applicant 1-Devidas Solanke preferred an application for grant of

maintenance under Section 125 of the Criminal Procedure Code, 1973

(Code) which came to be registered as Miscellaneous Criminal Case

685/2014. By judgment dated 30-3-2016, the learned 5th Judicial

Magistrate First Class, Akola allowed the application partly and

directed non-applicant 1 herein to pay monthly maintenance of

Rs.2,000/- to applicant 1 and monthly maintenance of Rs.1,000/- to

applicant 2 with effect from the date of the application. Applicant 2 is

held entitled to maintenance till he attains majority.

2. Non-applicant 1 herein challenged the order of the learned

Magistrate in Revision 65/2016. By judgment dated 26-9-2017, the

learned 4th Additional Sessions Judge, Akola allowed the revision, set

aside the order of the learned Magistrate and remanded the matter to

the learned Magistrate for fresh decision keeping in view the

observations in the judgment of remand. Being aggrieved by the

judgment of the learned Sessions Judge, the applicants are invoking

this Court's inherent powers under Section 482 of the Code.

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3. Before adverting to the merits of the matter, one

development during the pendency of this application may be noted. In

view of the vehement assertion of non-applicant 1 that applicant 1 is

not his wife nor is the applicant 2 his son, the following order was

passed on 18-4-2019.

"Heard.

2] The trial court finally heard the application of the wife and the child preferred under section 125 of the Criminal Procedure Code (Code) and directed the husband - respondent herein to pay monthly maintenance of Rs.2000/- to the wife and Rs.1000/- to the child.

3] The defence of the husband was and is that the applicant is not his wife.

4] The revisional court considered certain documents

which were not produced before the learned Magistrate and remanded the matter to the Magistrate.

5] The order of remand is assailed herein.

6] The controversy would be put to rest if the D.N.A. test

of the respondent 1 - Devidas Govindrao Solanke and the child, who is now a major, Chi. Vicky Devidas Solanke is conducted.

7] The learned counsel for the respondent 1 - Devidas Solanke has no objection if the D.N.A. test is conducted.

8] The Central Forensic Science Laboratory, Nagpur is directed to conduct the D.N.A. test of the respondent 1 - Devidas Solanke and applicant 2 - Vicky Solanke and submit a report within 90 days.

9] Respondent 1 - Devidas Solanke and applicant 2 -

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Vicky Solanke are directed to attend the Central Forensic Science Laboratory, Nagpur on 29.04.2019 to submit the blood sample.

10] The D.N.A. test shall be done at the cost of respondent 1

- Devidas Solanke.

11] Stand over after three months."

4. The DNA test could not be conducted since the learned

Counsel Shri R.D. Dhande conveyed that non-applicant 1 is not in a

position to incur the expenditure for the DNA test. Be it noted, that

when this Court passed the order dated 18-4-2019, no objection was

raised to the direction that the DNA test shall be done at the cost of

non-applicant 1-Devidas Solanke. Subsequently, vide order dated

30-4-2019, this Court considered a request to modify the date of

attending the Central Forensic Laboratory, Nagpur and directed the

parties to attend the said Laboratory on 14-5-2019. At this stage too

non-applicant 1 did not express any reservation or inability to incur the

expenditure for the DNA test. The DNA test would have conclusively

decided the issue of paternity, if not of the validity of marriage.

5. Coming to the judgment of remand, the observation of the

learned Sessions Judge is that the learned Magistrate did not decide or

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adjudicate the issue of legality of marriage. The learned Sessions Judge

notes that non-applicant 1 herein placed on record several documents,

which were not produced before the learned Magistrate. The judgment

of remand is premised on the need to provide an opportunity to the

rival parties to produce on record relevant material as would assist the

learned Magistrate to effectively decide the issue of the validity of the

marriage.

6. The averments in the application under Section 125 of the

Code may now be noted. Applicants herein state that applicant 1 is the

legally wedded wife of non-applicant 1 herein and the marriage was

solemnized as per rites and customs in the year 1992 and applicant 2 is

born from the wedlock. The next averment is that non-applicant 1

cohabited with applicant 1 for five years after the birth of applicant 2

and thereafter started ill-treating and harassing applicant 1. It is

averred that non-applicant 1 established an extra marital relationship

and used to mercilessly assault applicant 1 and neglect the applicants.

It is averred that the applicants were not provided food or basic

household provisions. The next relevant averment is that non-applicant

1 deserted the applicants. It is then averred that sometimes non-

applicant 1 used to give Rs.1,000/- per month to the applicants, which

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non-applicant 1 stopped giving since two years prior to the preferring

of the application. The other averments pertain to the need of the

applicants to maintenance. It is emphasized that non-applicant 1 is a

Police Constable and is earning handsome salary. The applicants

claimed monthly maintenance of Rs.8,000/- each.

7. Non-applicant 1 herein filed written statement Exhibit 21,

denying every material averment in the application. Non-applicant 1

denied the factum of marriage and the paternity. In the additional

submissions, in paragraph 7, it is averred that there is no relationship

between the applicants and non-applicant 1. Non-applicant 1 is posted

at Channi Police Station, Tahsil-Patur, District-Akola as Assistant Sub-

Inspector and is living a normal married life with his wife and sons. It

is stated that despite having no relationship with non-applicant 1, there

is a persistent attempt made by applicant 1-wife to create nuisance. It

is averred that in the year 1999, applicant 1 lodged a similar false

complaint with the Superintendent of Police, Akola who recorded the

statements of applicant 1 and non-applicant 1 and after enquiry

declined to take cognizance. It is then contended that since 1999

applicant 1 is harassing non-applicant 1 with the intent to extract

money. The other averments in the additional submissions question the

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character of applicant 1 and allege that she is in relationship with one

Ganesh Bonde.

8. Applicant 1 entered the witness box and deposed on the

lines of the application under Section 125 of the Code. She was cross-

examined and one of the suggestions given is that her marriage with

non-applicant 1 is second marriage. She is also suggested that she was

aware that non-applicant 1 has wife and children and she answered

that she was told by non-applicant 1 that the woman is his sister-in-law

and the children are her children. Applicant 1 states in response to the

question put in the cross-examination that since she was given this

impression, she resided with non-applicant 1 at Devi Police Line, Akola

for three years.

9. Non-applicant 1 then entered the witness box and stated

on oath that there is no relationship between him and the applicants.

The only document which is proved by non-applicant 1 is the reply sent

to the counsel of applicant 1 and the postal receipt of dispatch. The

learned Magistrate partly allowed the application as aforestated. The

learned Magistrate considered the suggestion given in the cross-

examination of applicant 1 thus :

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"9. On perusal of evidence of applicant it is seen that, marriage of applicant 1 with non-applicant is performed in the year 1992 and out of said wedlock applicant No.2 is born. It is pertinent to note that, during the course of her cross-

examination the learned advocate for the non-applicant put a suggestion that, applicant No.1 is second wife of non-applicant. It is the case of the non-applicant that, he has no relationship with applicants. However, this suggestion goes to show that, applicant No.1 is wife of non-applicant. The present application is filed under section 125 of Cr.P.C. Therefore I cannot go into the aspect whether the marriage of applicant No.1 with non- applicant is legal and valid. It is for the competent court to decide this aspect. The applicant No.1 has filed election card. On perusal of election card Exhibit 15 it is seen that, the name of applicant No.1 is mentioned as Asha Devidas Solanki. It is not the case of non-applicant that, he filed any suit for restraining the applicants from using his name. Therefore non- applicant can not take a defence that, the applicant No.1 is not a wife of non-applicant. Thus, it becomes clear that, applicant No.1 is wife of non-applicant."

10. The learned Magistrate then proceeds on the premise that

applicant 1 married non-applicant 1 in 1992, applicant 2 was born in

the year 1998 and, therefore, in view of the statutory presumption

under Section 112 of the Indian Evidence Act, the paternity is

established.

The learned Magistrate then considered the income of non-

applicant 1 and directed grant of maintenance as noted supra.

11. Perusal of the record of the revisional Court reveals that on

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16-9-2017 twelve documents were placed on record by the revisionist-

non-applicant 1 herein. Four documents were additionally placed on

record vide list of documents dated 18-9-2017. The learned Sessions

Judge notes in paragraph 16 of the judgment impugned that the

documents placed on record by the revisionist-non-applicant 1 herein

were not produced before the learned Magistrate. The learned Sessions

Judge then spells out the need for remand in paragraph 19 of the

judgment which reads thus :

"19. The Non-applicant has filed various documents before this court, which are not filed before the learned trial court. It includes marriage card of the year 1986, FIR of the year 1992, leaving certificate, Aadhar Card and other documents. Now to verify, whether the non-applicant is having first legally wedded wife and thereafter the applicant No.1 came in his life. Whether there is marriage solemnized between the applicant No.1 and the non-applicant. Whether it is a legal and valid marriage. To decide all these questions, I think it is required to be decided by the learned trial Court on merit after providing an opportunity to both the parties. Hence my answer to point No.1 accordingly."

In paragraph 20, the learned Sessions Judge observes that

the learned Magistrate erred in not deciding the validity of the

marriage.

12. The record further reveals that in view of the judgment of

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remand, vide Exhibit 41 the applicants filed on record additional

pleadings dated 02-1-2018. Vide Exhibit 42 applicant 1 has filed an

additional affidavit in lieu of oral examination.

13. The learned Counsel for the applicants Shri M.P. Kariya

would submit that the judgment impugned is clearly unsustainable and

that no case of remand is made out. The alternate submission of Shri

M.P. Kariya is that even if an opportunity deserves to be granted to the

parties, to lead further evidence, considering the fact that it was non-

applicant 1 who failed to produce on record the documents, which

documents were produced in the revisional Court, while directing

remand, the learned Sessions Judge ought to have directed non-

applicant 1 to pay the maintenance to the applicants as directed by the

learned Magistrate, as an interim arrangement. Shri M.P. Kariya

invites my attention to the decision of the Hon'ble Supreme Court in

Pyla Mutyalamma alias Satyavathi v. Pyla Suri Demudu and Anr.,

2012 Cri.L.J. 660 and in particular to paragraphs 12 and 13 thereof

which read thus :

"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

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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 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 Yamuna Bai vs. Anant Rai7 (AIR 1988 SC 644), 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 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

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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."

The reliance on the said observations is to buttress the

submission that the proof and evidence of subsistence of an earlier

marriage at the time of solemnizing the second marriage has to be

adduced by the husband. Shri M.P. Kariya would further submit that

the nature of the proof of marriage required under Section 125 of the

Code need not be conclusive since the object of the provision is to

afford a swift remedy and the determination of the status would be

subject and subservient to the determination by the civil Court. Shri

M.P. Kariya would rely on the following observations in the said

decision.

"14. It was still further laid down in the case of Sethu Rathinam v. 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 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

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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 v. 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."

14. Shri R.D. Dhande, learned Counsel for non-applicant 1

relies on the following decisions :

(i) Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, 1988)1) SCC 530.

(ii) Savitaben Somabhai Bhatiya v. State of Gujarat, 2005(3) SCC 636.

(iii) Leonard Mark Hillario v. Seby Hillario, 2007 ALL MR (Cri) 1649.

(iv) Murugaiah v. Annathai, 2002(9) SCC 604. (v) Rajeshwar Prasad Misra v. State of West Bengal, AIR 1965 SC 1887. (vi) Shyam Lal @ Kuldeep v. Sanjeev Kumar & others, 2009 AIR (SC) 3115.

(vii) Kh.Ningol Ibetombi Devi & Anr. v. Pukharambam Ibomcha (Dr.), 1993(1) Crimes 182.

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15. The reliance in Yamunabi Anantrao Adhav v. Anantrao

Shivram Adhav is to buttress the submission that an application for

maintenance can be maintained only when the applicant establishes

her status as wife with reference to the personal law. Notably, the

Hon'ble Supreme Court further observes that 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. Yamunabi Anantrao Adhav v. Anantrao Shivram Adhav is further

pressed into service to buttress the submission that the applicant

cannot be heard saying that she was not informed about the

subsistence of marriage. The Hon'ble Supreme Court concludes by

observing that 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.

16. Savitaben Somabhai Bhatiya v. State of Gujarat

enunciates that a man who is not lawfully married is not entitled to

maintenance, however, the illegitimate child is entitled to maintenance. Leonard Mark Hillario v. Seby Hillario which is the decision by

learned Single Judge of this Court is relied on to substantiate the

contention that the onus lies squarely on the mother to establish the

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paternity of the child who claimed maintenance from the alleged

father. The observations in paragraph 15 are pressed into service.

17. Murugaiah v. Annathai is pressed into service to buttress

the submission that the learned Sessions Judge did not commit any

error in remanding the matter. Paragraphs 9 and 10 which are relied

upon read thus :

"9. Learned Counsel appearing for the parties have referred to the discussion in the judgments of the first appellate court and the High Court in support of their contentions.

10. On perusal of the judgment, it is clear that both the courts have taken note of the fact situation of the case, the oral and documentary evidence on record and also the contemporaneous relevant evidence which the parties failed to produce and drew certain inference from non-production of such evidence. Since we are of the view that for proper adjudication of the dispute raised in the case, the case should be remanded to the trial court for fresh consideration and disposal, we do not deem it proper to discuss in detail the merits of the contentions raised on behalf of the parties, since any observation made by us is likely to affect the case of one party or the other. Suffice it to say that the dispute raised in the case is one of relationship of the parties as husband and wife and also the paternity of the male child. The matter is not only of importance to the parties in the case, it is of relevance for the society. Such a matter calls for careful and in-depth consideration of the evidence on record keeping in mind the sensitive nature of the disputes raised. Regarding the evidence placed on record, the lower appellate court and the High Court have pointed out in their judgments that relevant evidence, both oral and documentary, which were available have not been placed on record. Therefore, for a fair and proper adjudication of the dispute opportunity should be given to both the parties to lead further evidence."

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18. Shyam Lal @ Kuldeep v. Sanjeev Kumar & Others deals

with the presumption under Section 112 of the Indian Evidence Act and

the decision of the learned Single Judge of the Gauhati High Court in

Kh. Ningol Ibetombi Devi & Anr. vs. Pukharambam Ibomcha (Dr.),

1993(1) Crimes 182 considers similar issue.

19. Shri R.D. Dhande submits, relying on the decisions noted

supra, that while the proof of marriage need not be conclusive, as is

held by the Hon'ble Apex Court, unless there is proof of factum of

marriage the application under Section 125 of the Code is not

maintainable. The submission is that the definition of 'wife' cannot be

extended or expanded to include a woman who may have lived in a

relationship akin to marriage and that the legality of the marriage will

have to be tested on the touchstone of the personal law and if the

woman has married a man whose earlier marriage is subsisting, the

woman is excluded from the protective umbrella of Section 125 of the

Code. The submission, is well merited. The scope of Section 125 of the

Code cannot be enlarged by introducing an artificial definition to

include a woman who is not legally married in the expression 'wife'.

The decision in Pyla Mutyalamma alias Satyavathi v. Pyla Suri

Demudu and Anr. which is relied upon by Shri M.P. Kariya, and which

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decision refers to the earlier decisions in Yamunabai Anantrao Adhav v.

Anantrao Shivram Adhav and Savitaben Somabhai Bhatiya v. State of

Gujarat also observes that there is no quarrel with the legal principle

that during the subsistence of first marriage the claim of maintenance

by the second wife cannot be entertained. However, the proof and

evidence of subsistence of an earlier marriage has to be adduced by the

husband.

20. If the written submissions filed on behalf of non-applicant

1 in the proceedings under Section 125 of the Code are perused, while

it is averred that non-applicant 1 is happily married and is living with

his wife and sons, the date of the marriage is not disclosed. There is no

averment in the written submissions that non-applicant 1 was already

married in the year 1992 which is the year in which according to

applicant 1, she married non-applicant 1. A suggestion is given to

applicant 1 in the cross-examination that her marriage with non-

applicant 1 is second marriage, which suggestion presupposes and in a

sense admits the marriage between applicant 1 and non-applicant 1

herein. Non-applicant 1 stepped into the witness box. However, non-

applicant 1 has not disclosed even in the evidence the date or year of

his marriage.

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21. At this stage, it would be necessary to consider the

submission of Shri M.P. Kariya, learned Counsel for the applicants that

even if it is assumed arguendo that the marriage of applicant 1 was the

second marriage, since she was kept in dark about the subsisting

marriage, assuming that there was a subsisting marriage, applicant 1

deserves to be granted maintenance. This submission is predicated on

the decision of the Hon'ble Supreme Court in Badshah v. Sou. Urmila

Badshah Godse and another, AIR 2014 SC 869. In the said decision,

the man contended, as in the present case, that the applicant was not

his wife and that the child was not his daughter. The man denied

cohabitation and contended that the woman was habituated to

blackmailing him. Like in the present case, the man contended that he

was married happily and had two children from the marriage with one

Shobha which was solemnized on 17-2-1979 and, therefore, the

woman who claimed to have married him on 10-2-2005 is not entitled

to maintenance. The learned Magistrate allowed the application under

Section 125 of the Code. The Hon'ble Supreme Court noted that the

man could not have married second time and that it has come on

record that the man did not reveal the fact of subsisting marriage to the

woman and pretended that he was single. It is in this backdrop that

the entitlement of the woman to claim maintenance is considered. The

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Hon'ble Apex Court considers the decision in Yamunabai Anantrao

Adhav v. Anantrao Shivram Adhav, Dwarika Prasad Satpathy v. Bidyut

Prava Dixit and Anr., AIR 1999 SC 3848, S. Sethurathinam Pillai v.

Barbara alias Dolly Sethurathinam (1971) 3 SCC 923, Chanmuniya v.

Virendra Kumar Singh Kushwaha and Anr. (2011) 1 SCC 141 and inter

alia enunciates that the judgment in Yamunabi Anantrao Adhav v.

Anantrao Shivram Adhav and Savitaben Somabhai Bhatiya v. State of

Gujarat would apply only in those circumstances where a woman

married a man with full knowledge of the first subsisting marriage.

The relevant observations of the Hon'ble Apex court read thus :

"16. Secondly, as already discussed above, when the marriage between respondent No.1 and petitioner was solemnized, the petitioner had kept the respondent No.1 in dark about her first marriage. A false representation was given to respondent No.1 that he was single and was competent to enter into martial tie with respondent No.1. In such circumstances, can the petitioner be allowed to take advantage of his own wrong and turn around to say that respondents are not entitled to maintenance by filing the petition under Section 125,Cr.P.C. as respondent No.1 is not "legally wedded wife" of the petitioner? Our answer is in the negative. We are of the view that at least for the purpose of Section 125 Cr.P.C., respondent No.1 would be treated as the wife of the petitioner, going by the spirit of the two judgments we have reproduced above. For this reason, we are of the opinion that the judgments of this Court in Adhav and Savitaben cases (AIR 1988 SC 644 and AIR 2005 SC 1809 :

2005 AIR SCW 1601) would apply only in those circumstances where a woman married a man with full knowledge of the first subsisting marriage. In such cases, she should know that second marriage with such a person is impermissible and there is an

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embargo under the Hindu Marriage Act and therefore she has to suffer the consequences thereof. The said judgment would not apply to those cases where a man marriages second time by keeping that lady in dark about the first surviving marriage. That is the only way two sets of judgments can be reconciled and harmonized.

17. Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125,Cr.P.C. While dealing with the application of destitute wife or hapless children or parents under this provision, 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. Preamble to the Constitution of India clearly signals that we have chosen the democratic path under rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society.

18. 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 not be very appropriate. There are number of social justice legislations giving 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

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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."

22. The submission of Shri M.P. Kariya is that the suggestion

given in the cross-examination that the marriage of applicant 1 with

non-applicant 1 was second marriage and that she was aware that non-

applicant 1 was married and had children, clinchingly establishes the

factum of marriage. Shri M.P. Kariya would submit that the learned

Magistrate had no occasion to consider the legality of the marriage

since such a defence was not set up. Shri M.P. Kariya would highlight

that while there is a vague and general statement in the written

submission that non-applicant 1 is married with children, the date of

the marriage is not disclosed and that it was neither pleaded nor

argued that in view of the subsisting marriage, the marriage of

applicant 1 with non-applicant 1 was illegal. I see considerable force in

the said submission.

23. However, I am not inclined to interfere with the order of

remand for three reasons. The first is that the consideration of the

issue involved by the learned Magistrate could have been more detailed

and in-depth. Secondly, and more importantly, the learned Sessions

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Judge has found that in view of the several documents which were

placed before the learned Sessions Judge, but were not produced

before the learned Magistrate, it would be appropriate to remand the

matter for just and effective decision on the factum of marriage.

Thirdly, pursuant to the judgment of remand additional pleadings are

filed and it appears from record that an additional affidavit in lieu of

oral examination-in-chief is also filed by applicant 1. However, since

the situation is brought about by the omission of non-applicant 1 to

plea the necessary particulars and to produce the necessary documents

on record, I deem it appropriate to issue certain directions to

supplement the judgment of remand, ex debito justitiae.

24. The learned Magistrate shall decide the factum of marriage

in the context of the conditions specified in Section 125 of the Code

and in the light of the decisions of the Hon'ble Apex Court in Badshah

v. Sou. Urmila Badshah Godse and another and Pyla Mutyalamma alias

Satyavathi v. Pyla Suri Demudu and Another.

25. The learned Magistrate shall record a categorical finding

on whether applicant 1-wife was kept in dark by non-applicant 1 of his

earlier subsisting marriage, if learned Magistrate concludes that there

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was indeed an earlier subsisting marriage.

26. The direction to pay maintenance to applicant 1 and

applicant 2 vide judgment of the learned Magistrate which is set aside

by the learned Sessions Judge, shall continue to operate as an interim

arrangement till the conclusion of the proceedings on remand.

27. Non-applicant 1 shall additionally pay an amount of

Rs.25,000/- to the applicants as litigation expenses.

28. The application is disposed of in the aforestated terms.

JUDGE adgokar

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