Maintenance for wife and children u/s 125 0f Cr.P.C.

 

Maintenance for wife and children u/s 125 0f Cr.P.C.

No doubt, in Chanmuniya (supra), the Division Bench of this
Court took the view that the matter needs to be considered with
respect to Section 125,Cr.P.C., by larger bench and in para 41, three
questions are formulated for determination by a larger bench which
are as follows:

“1. Whether the living together of a man and woman as husband
and wife for a considerable period of time would raise the
presumption of a valid marriage between them and whether
such a presumption would entitle the woman to maintenance
under Section 125,Cr.P.C.?

2. Whether strict proof of marriage is essential for a claim
of maintenance under Section 125,Cr.P.C. having regard to
the provisions of the Domestic Violence Act, 2005?

3. Whether a marriage performed according to the customary
rites and ceremonies, without strictly fulfilling the
requisites of Section 7(1) of the Hindu Marriage Act, 1955,
or any other personal law would entitle the woman to
maintenance under Section 125,Cr.P.C.?”

—————————————————————————————————————————————-

REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL MISCELLANEOUS PETITION No.19530/2013

IN

SPECIAL LEAVE PETITION (CRL.) No.8596/2013

 

 

Badshah ….Petitioner

Versus

Sou.Urmila Badshah Godse & Anr. …Respondents

 
J U D G M E N T

A.K.SIKRI,J.

 
1. There is a delay of 63 days in filing the present Special Leave
Petition and further delay of 11 days in refilling Special Leave
Petition. For the reasons contained in the application for
condonation of delay, the delay in filing and refilling of SLP is
condoned.

2. The petitioner seeks leave to appeal against the judgment and
order dated 28.2.2013 passed by the High Court of Judicature at
Bombay, Bench at Aurangabad in Criminal Writ Petition No.144/2012.
By means of the impugned order, the High Court has upheld the award
of maintenance to respondent No.1 at the rate of Rs.1000/- per month
and to respondent No.2 (daughter) at the rate of Rs.500/- per month
in the application filed by them under Section 125 of the Code of
Criminal Procedure (Cr.P.C.) by the learned Trial Court and affirmed
by the learned Additional Sessions Judge. Respondents herein had
filed proceedings under Section 125, Cr.P.C. before Judicial
Magistrate First Class (JMFC) alleging therein that respondent No.1
was the wife of the petitioner herein and respondent No.2 was their
daughter, who was born out of the wedlock.

3. The respondents had stated in the petition that respondent No.1
was married with Popat Fapale. However, in the year 1997 she got
divorce from her first husband. After getting divorce from her first
husband in the year 1997 till the year 2005 she resided at the house
of her parents. On demand of the petitioner for her marriage through
mediators, she married him on 10.2.2005 at Devgad Temple situated at
Hivargav-Pavsa. Her marriage was performed with the petitioner as per
Hindu Rites and customs. After her marriage, she resided and
cohabited with the petitioner. Initially for 3 months, the
petitioner cohabited and maintained her nicely. After about three
months of her marriage with petitioner, one lady Shobha came to the
house of the petitioner and claimed herself to be his wife. On
inquiring from the petitioner about the said lady Shobha, he replied
that if she wanted to cohabit with him, she should reside quietly.
Otherwise she was free to go back to her parents house. When Shobha
came to the house of petitioner, respondent No.1 was already pregnant
from the petitioner. Therefore, she tolerated the ill-treatment of
the petitioner and stayed alongwith Shobha. However, the petitioner
started giving mental and physical torture to her under the influence
of liquor. The petitioner also used to doubt that her womb is
begotten from somebody else and it should be aborted. However, when
the ill-treatment of the petitioner became intolerable, she came back
to the house of her parents. Respondent No.2, Shivanjali, was born
on 28.11.2005. On the aforesaid averments, the respondents claimed
maintenance for themselves.

4. The petitioner contested the petition by filing his written
statement. He dined his relation with respondent Nos.1 and 2 as his
wife and daughter respectively. He alleged that he never entered
with any matrimonial alliance with respondent No.1 on 10.2.2005, as
claimed by respondent No.1 and in fact respondent No.1, who was in
the habit of leveling false allegation, was trying to blackmail him.
He also denied co-habitation with respondent No.1 and claimed that he
was not the father of respondent No.2 either. According to the
petitioner, he had married Shobha on 17.2.1979 and from that marriage
he had two children viz. one daughter aged 20 years and one son aged
17 years and Shobha had been residing with him ever since their
marriage. Therefore, respondent No.1 was not and could not be his
wife during the subsistence of his first marriage and she had filed a
false petition claiming her relationship with him.

5. Evidence was led by both the parties and after hearing the
arguments the learned JMFC negatived the defence of the petitioner.
In his judgment, the JMFC formulated four points and gave his answer
thereto as under:

|1. |Does applicant no.1 Urmila proves that she is |Yes |
| |a wife and applicant No.2 Shivanjali is | |
| |daughter of non applicant? | |
|2. |Does applicant No.1 Urmila proves that |Yes |
| |non-applicant has deserted and neglected them| |
| |to maintain them through having sufficient | |
| |means? | |
|3. |Whether applicant No.1 Urmila and Applicant |Yes |
| |No.2 Shivanjali are entitled to get | |
| |maintenance from non-applicant? | |
|4. |If yes, at what rate? |Rs. 1,000/- |
| | |p.m. to |
| | |Applicant |
| | |No. 1 and |
| | |Rs. 500/- |
| | |p.m. to |
| | |Applicant |
| | |No. 2. |

 

 

6. It is not necessary to discuss the reasons which prevailed with
the learned JMFC in giving his findings on Point Nos.1 and 2 on the
basis of evidence produced before the Court. We say so because of
the reason that these findings are upheld by the learned Additional
Sessions Judge in his judgment while dismissing the revision petition
of the petitioner herein as well as the High Court. These are
concurrent findings of facts with no blemish or perversity. It was
not even argued before us as the argument raised was that in any case
respondent No.1 could not be treated as “wife” of the petitioner as
he was already married and therefore petition under Section 125 of
the Cr.P.C. at her instance was not maintainable. Since, we are
primarily concerned with this issue, which is the bone of contention,
we proceed on the basis that the marriage between the petitioner and
respondent No.1 was solemnized; respondent No.1 co-habited with the
petitioner after the said marriage; and respondent No.2 is begotten
as out of the said co-habitation, whose biological father is the
petitioner. However, it would be pertinent to record that respondent
No.1 had produced overwhelming evidence, which was believed by the
learned JMFC that the marriage between the parties took place on
10.2.2005 at Devgad Temple. This evidence included photographs of
marriage. Another finding of fact was arrived at, namely, respondent
No.1 was a divorcee and divorce had taken place in the year 1997
between her and her first husband, which fact was in the clear
knowledge of the petitioner, who had admitted the same even in his
cross-examination.

7. The learned JMFC proceeded on the basis that the petitioner was
married to Shobha and was having two children out of the wedlock.
However, at the time of solemnizing the marriage with respondent
No.1, the petitioner intentionally suppressed this fact from her and
co-habited with respondent No.1 as his wife.

8. The aforesaid facts emerging on record would reveal that at the
time when the petitioner married the respondent No.1, he had living
wife and the said marriage was still subsisting. Therefore, under
the provisions of Hindu Marriage Act, the petitioner could not have
married second time. At the same time, it has also come on record
that the petitioner duped respondent No.1 by not revealing the fact
of his first marriage and pretending that he was single. After this
marriage both lived together and respondent No.2 was also born from
this wedlock. In such circumstances, whether respondents could filed
application under Section 125 of the Cr.P.C., is the issue. We would
like to pin point that in so far as respondent No.2 is concerned, who
is proved to be the daughter of the petitioner, in no case he can
shun the liability and obligation to pay maintenance to her. The
learned counsel ventured to dispute the legal obligation qua
respondent No.1 only.

9. The learned counsel for the petitioner referred to the judgment
of this Court in Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhay
& Anr.[1] In that case, it was held that a Hindu lady who married
after coming into force Hindu Marriage Act, with a person who had a
living lawfully wedded wife cannot be treated to be “legally wedded
wife” and consequently her claim for maintenance under Section 125,
Cr.P.C. is not maintainable. He also referred to later judgments in
the case of Savitaben Somabai Bhatiya vs. State of Gujarat & Ors.[2]
wherein the aforesaid judgment was followed. On the strength of
these two judgments, the learned counsel argued that the expression
“wife” in Section 125 cannot be stretched beyond the legislative
intent, which means only a legally wedded-wife. He argued that
Section 5(1) (i) of the Hindu Marriage Act, 1955 clearly prohibits
2nd marriage during the subsistence of the 1st marriage, and so
respondent No.1 cannot claim any equity; that the explanation clause
(b) to Section 125 Cr.P.C. mentions the term “divorce” as a category
of claimant, thus showing that only a legally wedded-wife can claim
maintenance. He, thus, submitted that since the petitioner had
proved that he was already married to Shobha and the said marriage
was subsisting on the date of marriage with respondent No.1, this
marriage was
void and
respondent No.1 was not legally wedded wife and therefore had no
right to move application under Section 125 of the Cr.P.C.

10. Before we deal with the aforesaid submission, we would like to
refer two more judgments of this Court. First case is known as
Dwarika Prasad Satpathy vs. Bidyut Prava Dixit & Anr.[3] In this
case it was held:

“The validity of the marriage for the purpose of
summary proceeding under s.125 Cr.P.C. is to be determined on
the basis of the evidence brought on record by the parties. The
standard of proof of marriage in such proceeding is not as
strict as is required in a trial of offence under section 494 of
the IPC. If the claimant in proceedings under s.125 of the Code
succeeds in showing that she and the respondent have lived
together as husband and wife, the court can presume that they
are legally wedded spouse, and in such a situation, the party
who denies the marital status can rebut the presumption. Once it
is admitted that the marriage procedure was followed then it is
not necessary to further probe into whether the said procedure
was complete as per the Hindu Rites in the proceedings under
S.125,Cr.P.C. From the evidence which is led if the Magistrate
is prima facie satisfied with regard to the performance of
marriage in proceedings under S.125, Cr.P.C. which are of
summary nature strict proof of performance of essential rites is
not required.

It is further held:

It is to be remembered that the order passed in an
application under section 125 Cr.P.C. does not finally determine
the rights and obligations of the parties and the said section
is enacted with a view to provide summary remedy for providing
maintenance to a wife, children and parents. For the purpose of
getting his rights determined, the appellant has also filed
Civil Suit which is spending before the trial court. In such a
situation, this Court in S.Sethurathinam Pillai vs. Barbara
alias Dolly Sethurathinam, (1971) 3 SCC 923, observed that
maintenance under section 488, Cr.P.C. 1898 (similar to Section
125, Cr.P.C.) cannot be denied where there was some evidence on
which conclusion for grant of maintenance could be reached. It
was held that order passed under Section 488 is a summary order
which does not finally determine the rights and obligations of
the parties; the decision of the criminal Court that there was a
valid marriage between the parties will not operate as decisive
in any civil proceeding between the parties.”

11. No doubt, it is not a case of second marriage but deals with
standard of proof under Section 125, Cr.P.C. by the applicant to
prove her marriage with the respondent and was not a case of second
marriage. However, at the same time, this reflects the approach
which is to be adopted while considering the cases of maintenance
under Section 125,Cr.P.C. which proceedings are in the nature of
summary proceedings.

12. Second case which we would like to refer is Chanmuniya vs.
Virendra Kumar Singh Kushwaha & Anr.[4] The Court has held that
the term “wife” occurring in Section 125, Cr.P.C. is to be given very
wide interpretation. This is so stated in the following manner:

“A broad and expansive interpretation should be given to
the term “wife” to include even those cases where a man and woman
have been living together as husband and wife for reasonably long
period of time, and strict proof of marriage should not be a pre-
condition for maintenance under Section 125 of the Cr.P.C. so as to
fulfill the true spirit and essence of the beneficial provision of
maintenance under Section 125.”

 
13. No doubt, in Chanmuniya (supra), the Division Bench of this
Court took the view that the matter needs to be considered with
respect to Section 125,Cr.P.C., by larger bench and in para 41, three
questions are formulated for determination by a larger bench which
are as follows:

“1. Whether the living together of a man and woman as husband
and wife for a considerable period of time would raise the
presumption of a valid marriage between them and whether
such a presumption would entitle the woman to maintenance
under Section 125,Cr.P.C.?

2. Whether strict proof of marriage is essential for a claim
of maintenance under Section 125,Cr.P.C. having regard to
the provisions of the Domestic Violence Act, 2005?

3. Whether a marriage performed according to the customary
rites and ceremonies, without strictly fulfilling the
requisites of Section 7(1) of the Hindu Marriage Act, 1955,
or any other personal law would entitle the woman to
maintenance under Section 125,Cr.P.C.?”

14. On this basis, it was pleaded before us that this matter be
also tagged along with the aforesaid case. However, in the facts of
the present case, we do not deem it proper to do so as we find that
the view taken by the courts below is perfectly justified. We are
dealing with a situation where the marriage between the parties has
been proved. However, the petitioner was already married. But he
duped the respondent by suppressing the factum of alleged first
marriage. On these facts, in our opinion, he cannot be permitted to
deny the benefit of maintenance to the respondent, taking advantage
of his own wrong. Our reasons for this course of action are stated
hereinafter.

15. Firstly, in Chanmuniya case, the parties had been living
together for a long time and on that basis question arose as to
whether there would be a presumption of marriage between the two
because of the said reason, thus, giving rise to claim of
maintenance under Section 125,Cr.P.C. by interpreting the term “wife”
widely. The Court has impressed that if man and woman have been
living together for a long time even without a valid marriage, as in
that case, term of valid marriage entitling such a woman to
maintenance should be drawn and a woman in such a case should be
entitled to maintain application under Section 125,Cr.P.C. On the
other hand, in the present case, respondent No.1 has been able to
prove, by cogent and strong evidence, that the petitioner and
respondent No.1 had been married each other.

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 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 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 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.”[5]

19. Provision of maintenance would definitely fall in this category
which aims at empowering the destitute and achieving social justice
or equality and dignity of the individual. While dealing with cases
under this provision, drift in the approach from “adversarial”
litigation to social context adjudication is the need of the hour.

20. The law regulates relationships between people. It
prescribes patterns of behavior. It reflects the values of society.
The role of the Court is to understand the purpose of law in society
and to help the law achieve its purpose. But the law of a society is
a living organism. It is based on a given factual and social reality
that is constantly changing. Sometimes change in law precedes
societal change and is even intended to stimulate it. In most cases,
however, a change in law is the result of a change in social reality.
Indeed, when social reality changes, the law must change too. Just
as change in social reality is the law of life, responsiveness to
change in social reality is the life of the law. It can be said that
the history of law is the history of adapting the law to society’s
changing needs. In both Constitutional and statutory interpretation,
the Court is supposed to exercise direction in determining the proper
relationship between the subjective and objective purpose of the law.

 

21. Cardozo acknowledges in his classic[6]

“….no system of jus scriptum has been able to escape the need
of it”, and he elaborates: “It is true that Codes and Statutes
do not render the Judge superfluous, nor his work perfunctory
and mechanical. There are gaps to be filled. There are
hardships and wrongs to be mitigated if not avoided.
Interpretation is often spoken of as if it were nothing but the
search and the discovery of a meaning which, however, obscure
and latent, had none the less a real and ascertainable pre-
existence in the legislator’s mind. The process is, indeed,
that at times, but it is often something more. The
ascertainment of intention may be the least of a judge’s
troubles in ascribing meaning to a stature.”

 

Says Gray in his lecture[7]

“The fact is that the difficulties of so-called
interpretation arise when the legislature has had no meaning at
all; when the question which is raised on the statute never
occurred to it; when what the judges have to do is, not to
determine that the legislature did mean on a point which was
present to its mind, but to guess what is would have intended on
a point not present to its mind, if the point had been present.”

 

 
22. The Court as the interpreter of law is supposed to supply
omissions, correct uncertainties, and harmonize results with justice
through a method of free decision—“libre recherché sceintifique” i.e.
“free Scientific research”. We are of the opinion that there is a
non-rebuttable presumption that the Legislature while making a
provision like Section 125 Cr.P.C., to fulfill its Constitutional
duty in good faith, had always intended to give relief to the woman
becoming “wife” under such circumstances.

23. This approach is particularly needed while deciding the issues
relating to gender justice. We already have examples of exemplary
efforts in this regard. Journey from Shah Bano[8] to Shabana Bano[9]
guaranteeing maintenance rights to Muslim women is a classical
example.

24. In Rameshchandra Daga v. Rameshwari Daga[10], the right of
another woman in a similar situation was upheld. Here the Court had
accepted that Hindu marriages have continued to be bigamous despite
the enactment of the Hindu Marriage Act in 1955. The Court had
commented that though such marriages are illegal as per the
provisions of the Act, they are not ‘immoral’ and hence a financially
dependent woman cannot be denied maintenance on this ground.

25. Thus, while interpreting a statute the court may not only take
into consideration the purpose for which the statute was enacted, but
also the mischief it seeks to suppress. It is this mischief rule,
first propounded in Heydon’s Case[11] which became the historical
source of purposive interpretation. The court would also invoke the
legal maxim construction ut res magis valeat guam pereat, in such
cases i.e. where alternative constructions are possible the Court
must give effect to that which will be responsible for the smooth
working of the system for which the statute has been enacted rather
than one which will put a road block in its way. If the choice is
between two interpretations, the narrower of which would fail to
achieve the manifest purpose of the legislation should be avoided.
We should avoid a construction which would reduce the legislation to
futility and should accept the bolder construction based on the view
that Parliament would legislate only for the purpose of bringing
about an effective result. If this interpretation is not accepted,
it would amount to giving a premium to the husband for defrauding the
wife. Therefore, at least for the purpose of claiming maintenance
under Section 125, Cr.P.C., such a woman is to be treated as the
legally wedded wife.

26. The principles of Hindu Personal Law have developed in an
evolutionary way out of concern for all those subject to it so as to
make fair provision against destitution. The manifest purpose is to
achieve the social objectives for making bare minimum provision to
sustain the members of relatively smaller social groups. Its
foundation spring is humanistic. In its operation field all though,
it lays down the permissible categories under its benefaction, which
are so entitled either because of the tenets supported by clear
public policy or because of the need to subserve the social and
individual morality measured for maintenance.

27. In taking the aforesaid view, we are also encouraged by the
following observations of this Court in Capt.Ramesh Chander Kaushal
vs. Veena Kaushal [12]:

“The brooding presence of the Constitutional empathy for
the weaker sections like women and children must inform
interpretation if it has to have social relevance. So viewed,
it is possible to be selective in picking out that
interpretation out of two alternatives which advances the cause
– the cause of the derelicts.”

28. For the aforesaid reasons, we are not inclined to grant leave
and dismiss this petition.

..………………………J.
[Ranjana Prakash Desai]

 

 
…………….………….J.
[A.K.Sikri]
New Delhi,
October 18, 2013
———————–
[1] (1988) 1 SCC 530
[2] (2005) 3 SCC 636
[3] (1999) 7 SCC 675
[4] (2011) 1 SCC 141
[5] Delivered a key note address on “Legal Education in Social Context”
[6] The Nature of Judicial Process
[7] From the Book “The Nature and Sources of the Law” by John Chipman
Gray
[8] AIR 1985 SC 945
[9] AIR 2010 SC 305
[10] AIR 2005 SC 422
[11] (1854) 3 Co.Rep.7a,7b
[12] (1978) 4 SCC 70

 

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