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2005 Supreme(Raj) 668
Supreme Court
Honble ARIJIT PASAYAT & S. H. KAPADIA, JJ.
Savitaben Somabhai Bhatiya - Appellant
Versus
State of Gujarat - Respondents
Criminal Appeal No.399 of 2005
Decided On : March 10, 2005
S.C. Patel, H.A. Raichura, Himinder Lal, Hemantika Wahi, Mayur Shah, Advocates
Headnote:Cr.P.C., 1973, Sec. 125 – Maintenance of wife – Scope of expression wife – It includes only woman lawfully married – Plight of woman unwittingly entering into wedlock with married man – Can only be undone by legislature – Held – There is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression wife.
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 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 person having living spouse is null and void and not voidable. However, the 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. 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 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 woman not lawfully married in the expression wife. (Para 15 & 18)
(2). A brief reference to the factual position would suffice because essentially the dispute has to be adjudicated with reference to scope and ambit of Section 125 of the Code of Criminal Procedure, 1973 (in short the Code).
(3). The case at hand according to appellant is a classic example of the inadequacies of law in protecting a woman who unwittingly entered into relationships with a married man.
(4). Factual position as projected by the appellant is as follows:-Appellant claims that she was married to respondent No.2 some time in 1994 according to the customary rites and rituals of their caste. Though initially, the respondent No.2 treated her nicely, thereafter he started ill-treating her and she was subjected to mental and physical torture. On enquiry about the reason for such a sudden change in his behaviour, the appellant came to know that respondent No.2 had developed illicit relationship with a lady named Veenaben. During the period the appellant stayed with the respondent, she became pregnant and subsequently, a child was born. As respondent No.2 neglected the appellant and the child born, an application in terms of Section 125 of the Code was filed claiming maintenance. The application was filed before the learned Judicial Magistrate, First Class (hereinafter referred to as the JMFC) Himmatnagar. Respondent No.2 opposed the application by filing written statements taking the stand that the appellant was not his legally married wife and the child (respondent No.3) was not his son. He also denied having developed illicit relationship with Veenaben. He claimed that actually she was married to him more than 22 years back and two children were born. Their son Hament had died in the road accident in July 1990. In the Claim Petition name of Veenaben was mentioned as the legal heir and in the Voters List, Ration Card and Provident Fund records, Veenaben was shown as the wife of respondent No.2. On 23.6.1998 learned JMFC allowed the Claim Petition and granted maintenance. A criminal revision was filed by respondent No.2 before learned Additional Sessions Judge, Sabaakatha; Dist. Himmatnagar, who by his order dated 26.11.1998 set aside the judgment dated 23.6. 1998 as passed by the learned JMFC and remanded the matter to the trial Court for adjudication afresh after affording an opportunity to respondent No.2 to cross examine the witnesses of the appellant. By order dated 31.7.1999, learned JMFC after considering the matter afresh awarded maintenance to both the appellant and the child.
(5). A Criminal Revision Application No.65/95 was filed by respondent No.2 against the order dated 31.7.1999. By order dated 12.7.2001, learned Additional District Judge, Sabarkatha dismissed the application. The respondent No.2 filed a Special Criminal Application No.568/2001 before the Gujarat High Court which by the impugned order held that the appellant was not legally Wedded wife of respondent No.2. Reliance was placed on documents filed by respondent No.2 to conclude that before the alleged date of marriage between the appellant and respondent No.2, the latter was already married to Veenaben with reference to the documents produced. However, maintenance granted to the child (respondent No.3) was maintained and amount as awarded to him i.e. Rs.350/- was enhanced to Rs.500/-. A direction was also given to pay the enhanced amount from the date of order of the learned JMFC i.e. 31.7.1999.
(6). In support of the appeal, learned counsel for the appellant submitted that the High Court taken a too technical view in the matter. Strict proof about a valid marriage is not the sine qua non for getting maintenance under Section 125 of the Code. The documents produced by respondent No.2 to substantiate the plea of earlier marriage with Veenaben should not have been given primacy over the clinching evidence adduced by the appellant to show that she was unaware of the alleged marriage. Since respondent No.2 is guilty of fra
