Full Judgment
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 27 of 2015 Arjun Modi …. Petitioner Versus 1. The State of Jharkhand 2. Putula Devi ……… Opposite Parties Coram : HON’BLE MR. JUSTICE RAVI NATH VERMA For the petitioner(s) : Mr. Brij Bihari Sinha For the respondent State: Addl.P.P. For the respondent No. 2 Mr. Sanjay Kumar Date of CAV :
26.
8. 2015 Date of pronouncement :
02. /9/2015 / 02/09.
2015. The petitioner in this revision application has challenged the legality of the order dated 5.12.2014 passed by the Principal Judge, Family Court, Bokaro, in M.P. Case No. 91 of 2011 whereby and whereunder the petition filed by the present opposite party no.2 for grant of maintenance under section 125 of the Code of Criminal Procedure (in short “ the Code”) has been allowed and the petitioner has been directed to pay maintenance of rupees three thousand per month from the date of the impugned order.
2. The present opposite party no.2 was the petitioner in the court below and in that capacity, she filed a petition under section 125 of the Code alleging therein that her marriage with the present petitioner was solemnized almost 25-26 years ago as per Hindu rites and customs and after their marriage, she went to her matrimonial home and started living with the petitioner as wife and husband. They were blessed with a daughter Basmati Devi aged about 23 years, two sons Dheeraj Kumar, aged about 20 years, Deepak Kumar, aged about 17 years. She lived in her matrimonial house peacefully and enjoyed her conjugal life for 8 to 10 years, but thereafter the petitioner started demanding rupees fifty thousand as dowry and on inability expressed by her to fulfil the demand, she was subjected to mental and physical torture and cruelty and even she was brutally assaulted. Thereafter, she informed her old parents who tried to persuade the petitioner, but he abused her mother also. A panchayati was also called but the petitioner refused to obey the direction given by the panchayat. The petitioner even tried to kill her by pouring kerosene oil, but due to intervention of the neighbourers and her son, she could be saved. Later on, she was ousted from her matrimonial home. Since then she has been living at her parents’ home along with her son. A complainant case under section 498A of the Indian Penal Code was also filed in the court of the CJM, Bokaro, but the same is still pending. She has no independent source of income and is fully dependent upon her old mother. Her husband who is an employee of the Bokaro Steel Limited and drawing rupees forty thousand per month, has not paid any maintenance either to the petitioner or to her son for education.
3. After notice, the present petitioner appeared in the court below and filed his show cause stating inter alia that the present petition is not maintainable, inasmuch as he had never solemnized marriage with the opposite party no. 2, nor had ever enjoyed conjugal relationship as husband and wife and, in fact, one Subhadra Devi is his legally married wife and out of their wed lock, he has three sons and two daughters. It is also the case that the allegation of assault or ouster from the matrimonial home is all false, baseless and concocted.
4. It appears from the record that both the parties adduced their respective witnesses and also filed several documentary evidences. In this case one Malti Devi has been examined under section 311 of the Code and she has testified in her evidence that she is the elder sister of Subhadra Devi, the first wife of the petitioner and the present opposite party no.2, who is claiming herself to be the wife of the present petitioner is also her sister. This witness has further testified that Subhadra Devi is the first wife of the present petitioner and after three years of their marriage, the petitioner solemnized his second marriage with the opposite party no. 2 herein during the life time of his first wife.
5. The court below after considering the pleadings as well as the evidence adduced by the parties directed the petitioner to pay a monthly maintenance to the opposite party no. 2 as indicated above. Hence, this revision.
6. Learned counsel appearing for the petitioner seriously contended that the court below without appreciating the pleadings of the parties and the fact that even if the opposite party no.2 be considered to be the second wife of this petitioner, is not legally entitled to any maintenance during the life time of the first wife granted maintenance is perverse and bad in law. It was also submitted that it is well settled that in a summary proceedings under section 125 of the Code, the court is not supposed to strictly follow the law of pleadings and the evidence. Even if the nature of proof of marriage in the instant proceeding need not be so strong or conclusive, but when on facts and evidence subsistence of first marriage has been established, in no case the second wife is entitled to any maintenance. As such the order impugned is fit to be set aside.
7. Contrary to the aforesaid submissions, learned counsel appearing on behalf of the opposite party submitted that the court below has rightly considered the evidence, including the documentary evidence, adduced on behalf of the opposite party and granted maintenance and even if it be considered that opposite party no.2 is the second wife of the petitioner, but in absence of a conclusive proof of first marriage, she is entitled to maintenance in view of the judgment in the case Pyala Mutyalamma Vs. Pyala Suri Demudu reported in 2011 (12) SCC189 The burden and standard of proof of subsistence of earlier marriage lies on the husband and he has to discharge by tendering satisfactory evidence in court and the petitioner has failed to establish his plea of subsistence of earlier marriage as he has not brought any cogent evidence in support thereof and has also not produced any other witness, except the so-called first wife as the proof of his earlier marriage.
8. The solitary question which falls for consideration by this court is whether the second wife whose marriage is void on account of survival of previous marriage of her husband with the living wife is entitled to maintenance under section 125 of the Code of Criminal Procedure? 9. Before I enter into the veils of submissions of the counsels, I would like to examine the pleadings of the parties. it appears that none of the parties in their pleadings has disclosed that besides their claim or denial to be husband and wife, any other relationship also exists between them. The opposite party no.2 has nowhere pleaded that her elder sister was married with the petitioner and subsequently she had solemnized her marriage with this petitioner. Similarly, the present petitioner has nowhere disclosed in his pleadings that the opposite party no.2 is the sister of his wife Subhadra Devi; rather, in the entire pleading, he has denied and disputed any relationship with the present opposite party no.2. But surprisingly, the petitioner’s first wife, Subhadra Devi, who has been examined as O.P.W. No. 2 in the court below has disclosed the fact that she has two other sisters and she has admitted that Putula Devi is her younger sister. Jaideo Modi, who is the son of Arjun Modi petitioner, has also admitted that Putula Devi is his mausi. Now, I would like to discuss some of the documentary evidences. Present opposite party has filed voter ID Card, Adhar Card, domicile certificate of her son Sunil Kumar Modi and Dheeraj Kumar Modi and the provisional certificate issued by the Jharkhand Academic Council, Ranchi, in the name of her son Deepak Kumar Modi, original admission card of Intermediate Examination of Deepak Kumar Modi and other documents. In all these documents, in the column, Arjun Modi has been shown as the husband of opposite party no.2. Similarly, the name of this petitioner has been shown as father of Deepak Kumar Modi, one of the son of opposite party no.
2. 10. The present petitioner has also relied upon some of the documents filed by him in the court below showing Subhadra Devi alias Basmati Devi as his wife. In the Voter ID of Basmati Devi, the name of this petitioner has been shown as husband and in the medical card of Bokaro Steel Limited also, Basmati Devi has been shown as the wife of Arjun Modi. From perusal of the above documentary evidences, this fact cannot be denied that the present opposite party had some relationship with Arjun Modi. Malti Devi who was examined in the court below has clearly testified that almost after three years of marriage of this petitioner with Subhadra Devi @ Basmati Devi, her younger sister Putula Devi solemnized her second marriage with this petitioner. 11 It is well settled that the nature of the proof of marriage required for a proceeding under section 125 of the Code need not to be so strong or conclusive as in a criminal proceeding for an offence under section 494 of the Indian penal Code. Since the jurisdiction of a Magistrate under section 125 of the Code being preventive in nature, the Magistrate cannot usurp his jurisdiction of a matrimonial dispute possessed by the civil court. But if the evidence led in a proceeding under section 125 of the Code raised a presumption that the opposite party no. 2 is the wife of the petitioner , it would be sufficient for the Magistrate to pass an order granting maintenance under the proceedings. In the instant case, the opposite party no.2 has produced evidence, both oral and documentary, and in almost all the documents, the petitioner has been shown to be the husband of opposite party no.2, but contrary to that, the petitioner has also adduced oral as well as documentary evidences showing Subhadra Devi alias Basmati Devi as his wife and in support of that, he has also produced several documentary evidences. It is true that the parties have testified beyond their respective pleadings, but in a summary proceeding under section 125 of the Code, the proof of pleadings has not to be strictly followed and the evidence even beyond pleadings can be looked into. Hence, It can be presumed from the evidence of the parties that the opposite party no.2 is the wife of the petitioner, but she is the second wife during the life time of the first wife of the petitioner. In the case of Pyala Mutyalamma (supra), in paragraph 19, the Hon’ble Supreme Court has held as follows:
“19. 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 case 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 socalled first wife as a witness of proof of his earlier marriage. This strong circumstance apart from the facts recorded hereinabove, goes heavily against the respondent husband.”
12. From bare perusal of the above paragraph of the judgment, it appears that since the husband had failed to establish his plea that his earlier marriage was at all in subsistence, the Hon’ble Court restored the order of the Magistrate granting maintenance to the wife. But in the instant case, it has come from the evidence that the first marriage of the petitioner is still subsisting. When the previous marriage or the first marriage of the petitioner has been established, in view of the settled law, the present opposite party no. 2, even if be presumed as second wife, is not entitled to any maintenance under Section 125 of the Code. It is equally a settled view that the Court sitting in revision ought not to have entered into a scrutiny of the evidences and the finding recorded by a Magistrate, but if on the face of it, there is any illegality in the order or any material irregularity, this Court even sitting in revisional jurisdiction cannot shut its eyes and refuse to interfere. Where finding is a negative one or the legal aspect has not been rightly appreciated, this Court, as held in Pyala Mutyalamma (supra) in paragraph 16, can re-evaluate the evidence to come to a conclusion. In the case Savitaben Somabhai Bhatiya Vs State of Gujarat : (2005) 3 SCC636the Hon'ble Supreme Court almost in a similar situation held that the scope of section 125 cannot be enlarged by introducing any artificial definition to include a second woman not legally married in the expression “wife. 13 Thus, having considered the submissions of the learned counsel and the evidence available on record, I find that the order impugned cannot sustain and deserves to be set aside. 14 For the reasons aforesaid, this revision application is, hereby, allowed and the impugned order is set aside. ( R.N.Verma, J.
) Jharkhand High Court, Ranchi, Dated 02/09/2015 Ambastha/NAFR