IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Appeal No.1049 of 2018

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Kalawati Devi, Wife of Mohan Prasad Gupta, Daughter of Laxman Sao @

Lachmi Prasad Gupta, Resident of Village- Barun Bazar, Police Station-

Barun, Post Office- Barun, District- Aurangabad (Bihar).

... ... Appellant/s

Versus

1.Mohan Prasad Gupta, Son of Shiv Prasad Gupta, Resident of Village- Barun

Bazar, Police Station- Barun, Post Office- Barun, District- Aurangabad

(Bihar).

2.Raj Kumari Devi, Daughter of Mohan Prasad Gupta Resident of Village

Barun Bazar, Police Station- Barun, Post Office- Barun, District-

Aurangabad (Bihar).

... ... Respondent/s

======================================================

Appearance :

For the Appellant/s: Mr.Sanjeet Kumar, Advocate

For the Respondent/s: Mr.Rakesh Singh, Advocate

CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI

and

HONOURABLE MR. JUSTICE ARUN KUMAR JHA

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE ARUN KUMAR JHA)

Date : 25-09-2023

In the instant appeal, the judgment dated 04.10.2018

and decree dated 05.11.2018 passed by the learned Principal

Judge, Family Court, Aurangabad in Matrimonial Suit No.09 of

2011, CIS-Mat 816/2013 are under challenge.

2. The case of the appellant/opposite party no.1, as it

appears from the records, is that the respondent no.1/petitioner

filed a case before the learned Family Court seeking relief that

the appellant/opposite party no.1 Kalawati Devi was not his

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wife and the respondent no.2/ opposite party no.2, Raj Kumari

Devi was not the daughter of the respondent no.1/petitioner

Mohan Prasad Gupta, submitted before the learned Family

Court that his marriage was solemnized with one Prabhavati

Devi in the year 1978 and out of the wedlock, they have six sons

and three daughters. Five years prior to the filing of the petition

before the Family Court, the appellant/opposite party no.1

Kalawati Devi, with her husband, started living in the house of

the respondent no.1/petitioner as tenant. Two years thereafter,

husband of the appellant/opposite party no.1 left her and he

never returned. Since the husband of the appellant/opposite

party no.1 did not return and people of doubtful character

started visiting the appellant/opposite party no.1, the respondent

no.1/petitioner asked the appellant/opposite party no.1 to vacate

the house. Peeved by the demand of the respondent/petitioner,

the appellant/opposite party no.1 and her daughter threatened

the respondent no.1/petitioner that they would falsely implicate

him and subsequently, the appellant/opposite party no.1 lodged

Barun P.S. Case No.235/2009 in which the respondent

no.1/petitioner was sent to jail. The appellant/opposite party

no.1 also got registered a case against the son of the respondent

no.1/petitioner. In order to save the future of his children, the

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respondent no.1/petitioner entered into a compromise with the

appellant/opposite party no.1 and got bail on the basis of

compromise. Afterwards, the appellant/opposite party no.1 and

her daughter filed Maintenance Case No.10/2010 in the Family

Court in which the learned Family Court, vide order dated

29.10.201, ordered for payment of Rs.2,000/-per month as

maintenance. Thus, the respondent no.1/petitioner came to

understand that the appellant/opposite party no.1 and her

daughter wanted to ruin the future of the respondent no.1 as the

appellant/opposite party no.1 was not the wife of the respondent

no.1/petitioner and both of them are merely tenants. The

marriage of the respondent no.1/petitioner was never

solemnized with the appellant/opposite party no.1. On the

aforesaid facts, the respondent no.1/petitioner sought declaration

that the appellant/opposite party no.1 was not his wife and the

respondent no.2/opposite party no.2 was not his daughter.

3. The appellant/opposite party no.1 contested the case

of the respondent no.1/petitioner saying that her marriage was

solemnized with Mohan Prasad Gupta, respondent

no.1/petitioner and birth a daughter took place out of the

wedlock, who was student of Intermediate at the time of filing

of maintenance case. In her written statement, the

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appellant/opposite party no.1 has further submitted that in the

certificate of Class-X, the name of the father of the daughter of

the appellant/opposite party no.1 was mentioned as Mohan

Prasad Gupta. The appellant/opposite party no.1 has further

submitted that she filed Barun P.S Case No.312 of 2009 for

cruelty against the respondent no.1/petitioner in which he was

sent to jail and the matter was compromised.

4. On the basis of pleadings of the parties, learned

Family Court framed the following issues :-

(i) Whether the suit of the plaintiff

was maintainable?

(ii) Whether the plaintiff has got

cause of action for filing the present suit?

(iii) Whether the defendant no.1

Kalawati Devi was not the wife of the

plaintiff?

(iv) Whether the defendant no.2 Raj

Kumari Devi was not the daughter of the

plaintiff?

(v) Whether the plaintiff was

entitled to get any other relief/reliefs?

5. Thereafter, both the sides got recorded their

evidence and the learned Family Court after consideration of the

facts and circumstances and evidence of the parties, came to the

conclusion that the respondent no.1/petitioner has been able to

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prove that the appellant/opposite party no.1, Kalawati Devi was

not the legally wedded wife, but the respondent no.1/petitioner

failed to prove the fact that Raj Kumari Devi, respondent

no.2/opposite party no.2 was not his daughter. Thus, the learned

Family Court partially decreed the suit of the respondent

no.1/petitioner declaring that Kalawati Devi was not the legally

wedded wife of the respondent no.1/petitioner and further

declared that respondent no.2 Raj Kumari Devi was their

daughter and the respondent no.2 Raj Kumari Devi was entitled

to get her maintenance from the respondent no.1/petitioner.

6. Aggrieved by the aforesaid judgment and decree of

the learned Family Court, the appellant/opposite party no.1

herein Kalawati Devi has assailed the same before this Court in

the present appeal.

7. In the miscellaneous appeal, number of grounds

have been taken to challenge the judgment and decree of the

learned Family Court submitting inter alia, that the judgment

under appeal is erroneous on facts as also in law and is liable to

be set aside. It has been further submitted that the learned

Family Court did not consider the fact that the respondent

no.1/petitioner has filed a Matrimonial Suit No.09/2011 to save

his skin from the Misc. Case No.10/2010 only in order to

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frustrate the claim of the appellant/opposite party no.1. The

learned Family Court did not consider the fact that the

appellant/opposite party no.1 was legally wedded wife of the

respondent no.1/petitioner after the Misc. Case No.10/2010 was

decided in favour of the appellant/opposite party no.1. The

learned Family Court did not also take into consideration the

fact that dispute between the parties arose only in the year 2009

when the appellant/opposite party no.1 and her daughter were

brutally beaten by the respondent no.1/petitioner for which

Barun P.S Case No.312 of 2009 was lodged against the

respondent no.1/petitioner. The learned Family Court treated the

averments of the respondent no.1/petitioner as sacrosanct and

merely on the basis of his statement passed the impugned order.

Thus, it has been submitted in the miscellaneous appeal that the

impugned order is not in accordance with law and the same is

liable to be set aside in the instant appeal.

8. However, during the course of argument, the

learned counsel appearing on behalf of the appellant/opposite

party no.1 confined his argument only to the point that the

learned Family Court proceeded beyond the pleadings while

delivering the judgment and even though it declared the

daughter of the appellant/opposite party no.1 entitled for

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maintenance from the respondent no.1/petitioner, yet it failed to

take into consideration the claim of the appellant/opposite party

no.1 for getting the maintenance from the respondent

no.1/petitioner as his second wife. So, with the consent of the

parties, the matter has been taken up for disposal at the stage of

admission itself on the limited point.

9. Hence, the following point is formulated for

determination of the present appeal :

(i) Whether the appellant/opposite

party no.1 is entitled to receive maintenance

from the respondent no.1/petitioner?

(ii) Whether the learned Family

Court could have passed the order for

maintenance or entitlement of maintenance

in

favour of the respondent no.2/opposite party

no.2 in the absence of pleadings of the

parties?

10. The learned counsel for the appellant/opposite

party no.1 submitted that at this stage the appellant/opposite

party no.1 does not want to assail the order of the learned

Family Court to the effect that she is not the legally wedded

wife of the respondent no.1/petitioner, but the learned Family

Court committed an error when it went on to declare the

entitlement of the respondent no.2/opposite party no.2 for

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maintenance though denying the same to the appellant/opposite

party no.1. The learned counsel further submitted that the

learned Family Court went beyond its jurisdiction as the issue of

maintenance was not before it as there was a valid order dated

29.06.2016 passed by a court of competent jurisdiction in Misc.

Case No.10 of 2010 for grant of maintenance to the

appellant/opposite party no.1 and her daughter. The learned

counsel further submitted that by not holding that the

appellant/opposite party no.1 is entitled for maintenance, the

claim of the appellant/opposite party no.1 for maintenance has

become clouded since the respondent no.1/petitioner has

preferred Criminal Revision No. 845 of 2016 against the order

dated 29.06.2016 passed in Misc. Case No. 10 of 2010 allowing

the maintenance to the appellant/opposite party no.1 and her

daughter. It would severely prejudice the mind of any court. The

learned counsel further submitted that there is no doubt that

there has been relationship between the appellant/opposite party

no.1 and the respondent no.1/petitioner and from this

relationship, birth of a daughter namely, Raj Kumari Devi

(respondent no.2 herein) has taken place. The appellant/opposite

party no.1 can be considered as the second wife of the

respondent no.1 and for this reason, she becomes entitled for

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maintenance. The learned counsel relied on a judgment of the

Hon’ble Supreme Court in the case of Badshah Vs. Urmila

Badshah Godse and Another, reported in (2014) 1 SCC 188

(Paragraphs 13 to 20), on the point that the second wife is also

entitled for maintenance. The learned counsel further relied on a

judgment of Hon’ble Supreme Court in the case of Bachhaj

Nahar v. Nilima Mandal, reported in, AIR 2009 SC 1103

(Paragraphs 9 and 12), on the point that the learned Family

Court could not have travelled beyond the pleadings and

decided that only the respondent no.2 was entitled for

maintenance. Thus, the learned counsel submitted that the

impugned judgment and decree of learned Family Court be set

aside to the extent of denial of maintenance to the

appellant/opposite party no.1 at par with daughter-respondent

no.2 and the appellant/opposite party no.1 be declared to be

entitled for maintenance like her daughter-respondent no.2.

11. The contention of the appellant/opposite party no.1

was vehemently opposed by the learned counsel appearing on

behalf of the respondent no.1/petitioner. The learned counsel

submitted that the learned Family Court has discussed at length

the evidence of both sides and has also recorded its reasons for

its decision holding that the appellant/opposite party no.1 is not

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the wife of the respondent no.1/petitioner. The learned counsel

further submitted that there is no error in the order of the learned

trial court except that it ought not to have declared that the

respondent no. 2/opposite party no.2 was entitled for any

maintenance from the respondent no.1. However, the learned

counsel conceded that the respondent no.1/petitioner has not

preferred any appeal challenging the judgment and decree of the

learned Family Court on this account.

12. Since the learned counsel for the

appellant/opposite party no.1 has confined his prayer to only

one point regarding eligibility of the appellant/opposite party

no.1 to get maintenance from the respondent no.1/petitioner and

the learned Family Court travelling beyond the pleadings for

recording its finding, we are taking up the point for

determination as a whole for deciding the instant appeal.

13. For arriving at just conclusion, it is essential to

take note of relevant statutory provisions.

Section 7 of the Family Courts Act reads as under :-

“7. Jurisdiction.—(1) Subject to the

other provisions of this Act, a Family Court

shall—

(a) have and exercise all the

jurisdiction exercisable by any district court or

any subordinate civil court under any law for

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the time being in force in respect of suits and

proceedings of the nature referred to in the

Explanation; and

(b) be deemed, for the purposes of

exercising such jurisdiction under such law, to

be a district court or, as the case may be, such

subordinate civil court for the area to which the

jurisdiction of the Family Court extends.

Explanation.—The suits and

proceedings referred to in this sub-section are

suits and proceedings of the following nature,

namely:—

(a) xxx;

(b) a suit or proceeding for a

declaration as to the validity of a marriage or

as to the matrimonial status of any person;

(c) xxx;

(d) xxx;

(e) a suit or proceeding for a

declaration as to the legitimacy of any person;

(f) a suit or proceeding for

maintenance;

(g) xxx.

(2) Subject to the other provisions of

this Act, a Family Court shall also have and

exercise—

(a) the jurisdiction exercisable by a

Magistrate of the first class under Chapter IX

(relating to order for maintenance of wife,

children and parents) of the Code of Criminal

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Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be

conferred on it by any other enactment”.

(

underline supplied)

Further, Section 20 of the Hindu Adoptions and

Maintenance Act, 1956 reads as under :-

“20. Maintenance of children and

aged parents.―(1) Subject to the provisions

of this section a Hindu is bound, during his or

her life-time, to maintain his or her legitimate

or illegitimate children and his or her aged or

infirm parents.

(2) A legitimate or illegitimate child

may claim maintenance from his or her father

or mother so long as the child is a minor.

(3) The obligation of a person to

maintain his or her aged or infirm parent or a

daughter who is unmarried extends in so far

as the parent or the unmarried daughter, as

the case may be, is unable to maintain himself

or herself out of his or her own earnings or

other property”.

14. From perusal of the provisions of Section 7 of the

Family Courts Act, 1984, it is evident that a suit can be brought

for declaration of matrimonial status of any person, so the

respondent no.1/petitioner was within his right to bring the suit

for declaration that the appellant/opposite party no.1 was not his

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wife.

15. We have gone through the evidence adduced on

behalf of the parties with regard to the marital status of the

appellant/opposite party no.1 and the respondent no.1/petitioner.

It has been admitted by the OPW No.2, who is the

appellant/opposite party no.1 herself, that the respondent

no.1/petitioner was married before solemnizing the marriage

with her and the respondent no.1/petitioner has got six sons and

three daughters from his first wife. Even the respondent

no.2/opposite party no.2, who deposed as OPW 1, has admitted

that the respondent no.1/petitioner has two wives and from first

wife, there are six sons and three daughters. We need not make

further discussion on this point since the same has been

discussed at length by the learned Family Court which arrived at

the conclusion that the appellant/opposite party no.1 was not

legally wedded wife of the respondent no.1/petitioner, though it

appears from the evidence of the witnesses of the

appellant/opposite party no.1 that the appellant/opposite party

no.1 married with respondent no.1/petitioner during the

subsistence of marriage of the respondent no.1/petitioner with

one Prabhavati Devi.

16. From perusal of evidence of the parties, some

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interesting facts come to light. The appellant/opposite party

no.1 has been living in the house of the respondent

no.1/petitioner where he has been living with his first wife and

children. It is not the case of the appellant/opposite party no.1

either in the written statement or in her evidence that she was

not knowing about the first marriage of the respondent

no.1/petitioner. This fact becomes important since the Hon’ble

Supreme Court in the case of Badshah Vs. Urmila Badshah

Godse (supra) has held that if the second marriage was

solemnized without knowledge of the first marriage, in that

situation, the second wife becomes entitled as is clear from

paragraphs 13 to 20. Hence, the aforesaid decision is

distinguishable on the facts and circumstances of the present

case.

17. Moreover, the Hon’ble Supreme Court in the case

of Savitaben Somabhati Bhatiya Vs. State of Gujarat and Ors.,

reported in (2005) 3 SCC 636 has clearly held that the second

wife is not entitled for maintenance. It would be relevant to

quote relevant paragraph nos. 8, 15, 17, 18, 20 and 21 of the

said judgment :

“8. There may be substance in the

plea of learned counsel for the appellant that

law operates harshly against the woman who

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unwittingly gets into relationship with a

married man and Section 125 of the Code does

not give protection to such woman. This may

be an inadequacy in law, which only the

legislature can undo. But as the position in law

stands presently there is no escape from the

conclusion that the expression “wife” as per

Section 125 of the Code refers to only legally

married wife.

15. In Yamunabai case [(1988) 1

SCC 530 : 1988 SCC (Cri) 182 : AIR 1988 SC

644] it was held that the expression “wife”

used in Section 125 of the Code should be

interpreted to mean only a legally wedded wife.

The word “wife” is not defined in the Code

except indicating in the Explanation to Section

125 its inclusive character so as to cover a

divorcee. A woman cannot be a divorcee unless

there was a marriage in the eye of the law

preceding that status. The expression must

therefore be given the meaning in which it is

understood in law applicable to the parties.

The marriage of a woman in accordance with

Hindu rites with a man having a living spouse

is a complete nullity in the eye of the law and

she is therefore not entitled to the benefit of

Section 125 of the Code or the Hindu Marriage

Act, 1955 (in short “the Marriage Act”).

Marriage with a person having a living spouse

is null and void and not voidable. However, the

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attempt to exclude altogether the personal law

applicable to the parties from consideration is

improper. Section 125 of the Code has been

enacted in the interest of a 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. The issue can be decided only by a

reference to the law applicable to the parties. It

is only where an applicant establishes such

status or relationship with reference to the

personal law that an application for

maintenance can be maintained. Once the right

under the provision in Section 125 of the Code

is established by proof of necessary conditions

mentioned therein, it cannot be defeated by

further reference to the personal law. The issue

whether the section is attracted or not cannot

be answered except by reference to the

appropriate law governing the parties.

17. In Yamunabai case [(1988) 1

SCC 530 : 1988 SCC (Cri) 182 : AIR 1988 SC

644] plea similar to the one advanced in the

present case that the appellant was not

informed about the respondent's earlier

marriage when she married him was held to be

of no avail. The principle of estoppel cannot be

pressed into service to defeat the provision of

Section 125 of the Code.

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18. It may be noted at this juncture

that the legislature considered it necessary to

include within the scope of the provision an

illegitimate child but it has not done so with

respect to a woman not lawfully married.

However desirable it may be, as contended by

learned counsel for the appellant to take note

of the plight of the unfortunate woman, the

legislative intent being clearly reflected in

Section 125 of the Code, there is no scope for

enlarging its scope by introducing any

artificial definition to include a woman not

lawfully married in the expression “wife”.

20. In the instant case the evidence

on record has been found sufficient by the

courts below by recording findings of fact that

earlier marriage of the respondent was

established.

21. In that view of the matter, the

application so far as claim of maintenance of

the wife is concerned stands dismissed”.

18. We find no merit in the contention of learned

counsel for the appellant/opposite party no.1 that the learned

Family Court went beyond pleadings and passed the orders

which were not at all required. The learned Family Court when

it declared that the respondent no.2/opposite party no.2 is

entitled to receive maintenance from the respondent

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no.1/petitioner, it was only stating what was in the statutes

specifically Section 20 of the Hindu Adoptions and Maintenance

Act, 1956. The said declaration is merely stating the obvious. In

a plethora of the decisions, the Hon’ble Supreme Court has held

the illegitimate children are also entitled to get maintenance and

we do not find that the learned Family Court committed any

error if it went to declare the entitlement of the respondent

no.2/opposite party no.2 for getting maintenance from the

respondent no.1/petitioner.

19. At the same time, there was no occasion for the

learned Family Court to declare the entitlement of the

appellant/opposite party no.1 to get maintenance from the

respondent no.1/petitioner since it has declared that she was not

legally wedded wife of respondent no.1/petitioner. If the

appellant/opposite party no.1 is not held to be the wife of the

respondent no.1/petitioner, in a proceeding for declaration of her

matrimonial status, the learned Family Court was not required to

adjudicate her entitlement for maintenance in absence of any

specific pleadings. So, we do not find any merit in the

submission made by the learned counsel for the

appellant/opposite party no.1 on this point.

20. Further, it appears from the submissions of the

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learned counsel for the appellant/opposite party no.1 that the

appellant/opposite party no.1 is apprehensive about her claim of

maintenance allowed by the learned lower court getting affected

by the present order in revision filed by the respondent

no.1/petitioner, under such circumstances, the appellant/

opposite party no.1 will always be at liberty to raise all issues

before the revisional court and we feel disinclined to further

deliberate upon the matter.

21. In the result, the points for determination are

decided accordingly in terms of the aforesaid discussions

against the appellant/opposite party no.1.

22. In the light of the facts and circumstances and

discussions made hereinabove, we do not find any merit in the

instant appeal and the same is dismissed.

23. However, there will be no order as to costs.

V.K.Pandey/-

(P. B. Bajanthri, J)

( Arun Kumar Jha, J)

AFR/NAFR AFR

CAV DATE 14.09.2023

Uploading Date 25.09.2023

Transmission Date