Smt. Sharda Vs. Purushottam - Court Judgment

Excerpt:
family - maintenance - second marriage - section 125 of code of criminal procedure, 1973(cr pc) - petitioner was second wife of respondent - petitioner filed application under section 125 of cr. p.c. for claiming maintenance - application rejected - hence, present petition - held, petitioner was aware of facts that first wife of respondent was alive and no divorce had taken place between respondent and his first wife - in such circumstances, marriage performed between petitioner and respondent was void ab initio and petitioner not covered within meaning of term 'wife' for purpose of maintenance - therefore, petitioner not entitled to get maintenance - petition dismissed - - the non-applicant was already married and his wife rajshri sharma was very well alive on 13-12-1998, which is.....orders.c. vyas, j. 1. this revision under section 397 of the cr.pc is directed against the order dated 27-7-2005 passed by additional principal judge family court, indore in misc. judicial case no. 22/2005, whereby application filed by the applicant under section 125 of the code of criminal procedure has been rejected on the ground that her alleged marriage with the non-applicant was nullity.2. the applicant submitted in application under section 25(1) of the cr.pc, 1973 before the learned family court with a prayer to award rs. 3,000/-per month as maintenances, from the non-applicant, on the ground that her marriage with the non- applicant was solemnized in khajrana ganesh mandir, indore on 13-12-1998 as per hindu rites and customs and thereafter she started living with the non-applicant.....

Judgment:
ORDER

S.C. Vyas, J.

1. This revision under Section 397 of the Cr.PC is directed against the order dated 27-7-2005 passed by Additional Principal Judge Family Court, Indore in Misc. Judicial Case No. 22/2005, whereby application filed by the applicant under Section 125 of the Code of Criminal Procedure has been rejected on the ground that her alleged marriage with the non-applicant was nullity.

2. The applicant submitted in application under Section 25(1) of the Cr.PC, 1973 before the learned Family Court with a prayer to award Rs. 3,000/-per month as maintenances, from the non-applicant, on the ground that her marriage with the non- applicant was solemnized in Khajrana Ganesh Mandir, Indore on 13-12-1998 as per Hindu rites and customs and thereafter she started living with the non-applicant at his residence. It has also been contended that thereafter she became pregnant but on the advise of the non-applicant aborted the child. She has further contended that on 19-2-1999 non-applicant ousted her from his home and stopped even talking to her. She has no means for her maintenance whereas non-applicant is working as clerk in account section in Municipal Council, Indore and is getting Rs. 9,000/- per month as salary. Therefore, she prayed for granting a maintenance @ Rs. 3,000/- per month.

3. The non-applicant in his reply contended that he was never married with the applicant and applicant is not his legally wedded wife. The non-applicant was already married and his wife Rajshri Sharma was very well alive on 13-12-1998, which is alleged as date of marriage of the applicant in his application. He had contended that his wife Rajshri died on 17-12-1999, therefore, it was prayed that the application filed by the applicant be rejected.

4. Learned Judge of the Family Court after considering the evidence adduced by both the parties came to the conclusion that the applicant is not legally wedded wife of non-applicant and, therefore, is not entitled for any maintenance under the provision of Section 125 of the Code of Criminal Procedure. In Para 9 of the impugned order it has been held that non-applicant was having a living spouse and, therefore, on the date of alleged marriage wife of non-applicant was already alive, therefore, no marriage could be solemnized between applicant and non-applicant as per the provisions of Hindu Marriage Act, 1955. The law laid down by the Hon'ble Supreme Court in the case of Smt. Yamuna Bai Ananlrao Adhav v. Anantrao Shivram Adhav and Anr. reported in AIR 1988 SC 644, was followed and the application filed by the applicant was rejected.

5. Learned Counsel for the applicant Shri A.K. Nalwaya submitted that learned Family Judge was wrong in applying the ratio of case of Yamunabai Anantrao (supra) in the facts of the present case as there was sufficient proof of marriage between the applicant and non-applicant and they were living as husband and wife for quite some time. Even the applicant became pregnant because of the relationship with the non-applicant. Sufficient proof regarding her pregnancy and abortion was also adduced before the learned Family Court but the learned Judge of the Family Court ignored of the evidence adduced by the applicant and came to a wrong conclusion. Learned Counsel for the applicant placed reliance upon the reported case of Supreme Court and this High Court in Harinarayan v. State of M.P. 2005(1) MPLJ Page 196, and Dwarka Prasad v. Vidyut Parva Dixit 2000(11) MANISA Page 6.

6. The facts of these two cases were quite different from the facts of the present case in the case of Harinarayan v. Stale of M.P. (supra), the earlier marriage of both the spouses was already dissolved as per the customs prevailing in the community by Chhorchhuti and second marriage in Natra form was performed, as per prevailing custom of the community. In the case of Dwarka Prasad v. Vidyut Parva Dixit, (supra), it has been held that:-

Validity of the marriage for the purpose of summary proceeding under Section 125, Cr.PC. is to be determined on the Evidence of 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 Section 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 spouses, and in such a situation, the party who denies the marital status can rebut the presumption.

7. In that case neither the applicant nor non-applicant were previously married. Whereas the question of determination in the present case is regarding marriage of a lady with a person who was already having a living spouse.

8. In Paragraph 7 of the impugned judgment it has been mentioned that applicant Smt. Sharda P.W. 1 herself has admitted that the wife on non-applicant died in the month of December, 1999. She has further admitted that her marriage with the non- applicant was solemnized in the life time of wife of non-applicant and when spouse of non-applicant was alive and living, at that time on 13-12-1998 the marriage ceremony was performed. She has stated that in the said ceremony she and non-applicant had exchanged garlands and without help of any Pandit they had taken rounds of each other.

9. Looking to the statement given by Smt. Sharda (P.W. 1) it appears that admittedly the so called marriage ceremony of applicant with non-applicant was performed in the life time of living spouse of non-applicant. Hon'ble Supreme Court in the case of Smt. Yamuna Bai Anantrao Adhav v. Anantrao ShivramAdhav and Anr. (supra), has clearly held as under:-

Para 6. The attempt to exclude altogether the personal law applicable to the parties from consideration also has to be repelled. The section has been enacted in the interest of wife, and one who intends to take benefit under Sub-section (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes her status on (or) relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the section is established by proof of necessary conditions mentioned therein, it can not be defeated by further reference to the personal law. The issue whether the section is attracted or not can not be answered except by the reference to the appropriate law governing the parties. In our view the judgment in Shah Bano's case : 1985CriLJ875 does not help the appellant. It may be observed that for the purpose of extending the benefit of the section to a divorced woman and an illegitimate child the Parliament considered it necessary to include in the section specific provision to that effect, but has not clone so with respect to women not lawfully married.

Para 7. Lastly it was urged that the appellant was not informed about the respondent's marriage with Lilabai when she married the respondent who treated her as his wife, and therefore, her prayer for maintenance should be allowed. There is no merit in this point either. The appellant can not rely on the principle of estoppel so as to defeat the provisions of the Act. So far as the respondent treating her as his wife is concerned, it is again of no avail as the issue has to be settled under the law. It is the intention of the legislature which is relevant and not the attitude of the party.

Para 8. We, therefore, hold that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of Section 125 of the Code. The appeal is accordingly dismissed. There will be no order as to costs. During the pendency of the appeal in this Court some money was paid to the appellant in pursuance of an interim order. The respondent shall not be permitted to claim for its refund.

10. Thereafter again in the case of Bakul Bai v. Gangaram reported in 1988(1) MPWN Short Note 83, it has been reiterated that-

the marriage of Hindu women with a Hindu male with a living spouse performed after coming in force of the Hindu Marriage Act, 1955, is null and void and the woman is not entitled to maintenance under Section 125 of the Code.

11. Recency also Hon'ble Supreme Court again in case of Khemchand Om Prakash Sharma v. Slate of Gujarat and Anr. : (2000)3SCC753 , held as under :-

Para 2. The short question that arises for consideration in this appeal is whether the respondent Jasumatiben, who claimed maintenance on the admitted position that the applicant's wife is alive and there has been no annulment of marriage by decree of divorce or otherwise. During the subsistence of the first marriage, any second marriage is null and void, and therefore, the Courts below committed a mistake in granting maintenance in favour of Jasumatiben, who claimed maintenance as the second wife of the applicant. We, therefore, set aside the grant of maintenance in favour of the Jasumatiben alone. Needless to mention the children, namely, Trupti and Vaishali will continue to get maintenance, as directed.

12. Therefore, law laid down by the Supreme Court in the above said cases is quite clear on the point of maintenance. It is clear that the applicant was very much knowing that wife of non-applicant was alive when the so called marriage was performed between her and non-applicant. Therefore she does not come in the term of 'wife' for the purpose of Section 125 of the Code of Criminal Procedure, 1973 and, therefore, she is not entitled for any maintenance.

13. Learned Judge of the Family Court has applied the ratio of the case laid down by the Hon'ble Supreme Court correctly in the facts of the present case and has come to a right conclusion. The order passed by the learned Family Court's Judge is legal, proper and correct and calls for no interference in this revision. Hence the revision petitioner is devoid of any merit and is disallowed.