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PETITIONER:

K.VIMAL

Vs.

RESPONDENT:

K.VEERASWAMY

DATE OF JUDGMENT20/03/1991

BENCH:

FATHIMA BEEVI, M. (J)

BENCH:

FATHIMA BEEVI, M. (J)

AHMADI, A.M. (J)

RAMASWAMI, V. (J) II

CITATION:

1991 SCR (1) 904 1991 SCC (2) 375

JT 1991 (2) 182 1991 SCALE (1)495

ACT:

Code of Criminal Procedure, 1973: section 125-scope and

object of- Wife's application for maintenance-Husband's plea

of marriage being void on account of subsistence of his

earliar marriage-HeldCourt should insist on strick proof of

earliar marriage- Insurance nomination and entry in Indenty

Card are not conclusive of substance of earliar marriage.

HEADNOTE:

The appellant-wife filed an application for maintenance

against respondent-husband under section 125 of the Code of

Criminal procedure, 1973. The respondent contested the

application on the ground that appellant was not his legally

wedded wife since their marriage was void on account of

subsistence of respondent's earlier marriage. The Magistrate

awarded a monthly maintenance of Rs. 400 to the wife by

holding that the respondent has not proved his first

marrige. The order of the magistrate was set aside by the

High Court in revision accepting the respodent's plea that

his first marriage was subsisting when the respodent married

the appellant.

In appeal to this court it was contented on behalf of

the respodent that the High Court had no material before it

for arriving at the finding that there was an earlier valid

marriage on the date respondent married the appellant.

Allowing the appeal, this Court.

HELD:1 Section 125 of the code of Criminal Procedure is

meant to achieve a social 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. The term "wife" includes a woman who has been divorced

by a husband or who has obtained a divorce from her husband

and has not remarried.The woman not having the legal status

of a wife is thus brought within the inclusive definition of

the term "Wife" consistent with the objective. However,under

the law a second wife whose marriage is void on account of

the survival of the first marriage is

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not a legally wedded wife and is,therefore,not entitled to

maintenance under this provision. Therefore, the law which

disentitles the second wife from receiving maintenance from

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her husband for the sole reason that the marriage ceremony

though performed in the customary from lacks legal sanctity

can be applied only when the husband satisfactorily proves

the subsistence of a legal and valid marriage particularly

when the provision in the Code is ameasure of social justice

intended to protect women and children. Accordingly, 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 should

insist on strict proof of the earlier marriage. [907D-H]

2. The respondent has not discharged the heavy burden

by tendering strict proof of the fact in issue. He clearly

admitted his marriage with the appellant acording to Hindu

rites. But there is no clear admission of his earlier

marriage to dispense with the proof of subsisting valid

first marriage when the second marriage was solemnised. In

the absence of such an admission, the statement that the

respondent was living with another woman as husband and wife

cannot persuade was court to hold that the marriage duly

solemnised between the appellant and the respondent suffers

from any legal infirmity. [906C-H]

3. The nomination in the Insurance Policy and Entry in

the Identity Card, referred to by the High Court are not

conclusive of the subsistence of a valid marriage between

the respondent and his earlier wife. The High Court has

failed to consider the standard of proof required and has

proceeded on no evidence whatsoever in determining the

question against the appeallant. Accordingly the order of

the High Court is set aside and the order of the Magistrate

is restored. [907B-C]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

664 of 1990.

From the Judgement and Order dated 13.3.1990 of the

Andhra Pradesh High Court in Criminal Revision Case No. 532

of 1989.

K. Ramkumar for the Appellant.

B. Kanta Rao for the Respondent.

The Judgment of the Court was delivered by

FATIMA BEEVI, J. The appellant and the respondent got

906

married according to Hindu rites and customs on June 30,

1983. They lived together until the appellant started

complaining of desertion and ill-treatment. She moved the

court for maintenance by an application under Section

125 of the Code of Criminal Procedure. Though the

claim was resisted on the ground that the appellant is not

the legally wedded wife of the respondent who had

earlier married one Veeramma, the learned magistrate

awarded a monthly maintenance of Rs.400 holding that the

first marriage has not been proved. The order was,

however, set-aside by the High Court in revision

accepting the plea that the first marriage was subsisting

when the respondent married the appellant.

We have granted special leave to appeal against the

order of the High Court. We have been taken through

the pleadings and the evidence by the learned counsel

for the appellant for the purpose of satisfying that

the High Court had no material before it for arriving at the

finding that there was a valid marriage between Veeramma

and the respondent on the day the respondent married

the appellant. It is pointed out that the appellant had

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nowhere admitted the subsistence of a valid marriage

which would render her marriage illegal. The appellant

stated in her petition that one year after her marriage,

she came to know that respondent married Veeramma and

lived with her in Hyderabad and soon thereafter

Veeramma started living along with the appellant and

the respondent and, thus extra-marital relationship of

the respondent with Veeramma has disrupted her family

life. In fact, the respondent had in his counter flatly

denied all the averments made by the appellant in the

petition and maintained that a marriage ceremony was

performed between Veeramma and the respondent

when both were children and the appellant is only his

kept-mistress. The respondent has, however, clearly

admitted that he married the appellant according to

Hindu rites. When that marriage is repudiated as void

on account of the subsistence of an earlier

marriage, the respondent was bound to prove that he

married Veeramma in the customary form and the

marriage was subsisting in the year 1983 when the

appellant was married to him. As rightly pointed out

by the learned counsel for the appellant, there is no

clear admission of an earlier marriage between the

respondent and Veeramma to dispense with the proof of

subsisting valid first marriage when the second

marriage was solemnised. In the absence of such an

admission, the statement that the respondent is living

with another woman as husband and wife cannot persuade

the court to hold that the marriage duly solemnised

between the appellant and the respondent suffers from any

legal infirmity. The High Court has referred to Ex. R-12

and R- 13 relied on

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by the respondent to prove that he was already married.

Ex. R- 12 is the insurance policy issued On 5. 12.

1975 where the name of the nominee is shown as

Veeramma indicating that she is the wife of the

respondent. Ex. R- 13 is the family identity card

issued by the Road Transport Corporation where the

respondent was working in 1977. These documents are

issued on the basis of what the respondent himself had

stated. The entries are not conclusive of the

subsistence a valid marriage between the respondent

and Veeramma. If they had been living together as

husband and wife even without performing a ceremonial

marriage, and the respondent represented that Veeramma

was his wife, it is possible that such entries would come

into existence. Therefore, these documents by

themselves cannot prove any marriage or the subsistence

of a valid marriage when the admitted marriage with the

appellant was solemnised.

Section 125 of the Code of Criminal Procedure

is meant to achieve a social 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. The term

wife' in Section 15 of the Code of Criminal

Procedure includes a woman who has been divorced by

a husband or who has obtained a divorce from her

husband and has not remarried. The woman not

having the legal status of a wife is thus brought

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within the inclusive definition of the term 'wife'

consistent with the objective. However, under the law a

second wife whose marriage is void an account of the

survival of the first marriage is not a legally wedded wife

and is, therefore, not entitled to maintenance under this

provision. Therefore, the law which disentitles the 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 the

provision in the Code is a measure of social justice

intended to protect women and children. We are unable to

find that the respondent herein has discharged the

heavy burden by tendering strict proof of the fact in

issue. The High Court failed to consider the standard

of proof required and has proceeded on no evidence

whatsoever in determining the question against the

appellant. We are, therefore, unable to agree that the

appellant is not entitled to maintenance.

908

We find that there is no dispute that the appellant

was married to the respondent in the customary form.

They lived together as husband and wife and of late the

respondent had neglected to maintain her. The

respondent has no case that the appellant has means

to maintain herself or that the amount she has claimed

is not commensurate with the means of the respondent.

The learned magistrate was, therefore, justified in

awarding an amount of Rs.400 per mensem towards the

maintenance of the appellant. That order of the

magistrate has to be restored.

In the result, we allow the appeal, set-aside the order

of the High Court and restore that of the trial court.

T. N. A. Appeal allowed.

909