JUDGMENT

GYAN SUDHA MISRA, J. — Under the law, a second wife whose marriage is void on account of survival of the previous marriage of her husband with a living wife is not a legally wedded wife and she is, therefore, not entitled to maintenance under Section 125 Cr.P.C. for the sole reason that “law leans in favour of legitimacy and frowns upon bastardy, AIR 1929 P.C. 135 ”. But, the law also presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a long number of years and when the man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage. Several judicial pronouncements right from the Privy Council up to this stage, have considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. But, 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 and this is intended to protect women and children from living as destitutes and this is also clearly the object of incorporation of Section 125 of the Code of Criminal Procedure providing for grant of maintenance.

2.This appeal at the instance of an estranged wife, once again has beseeched this Court to delve and decide the question regarding grant of maintenance under Section 125 Cr. P.C. which arises after grant of special leave under Article 136 of the Constitution and is directed against the judgment and order dated 19.09.2005 passed by a learned single Judge of the High Court of Andhra Pradesh at Hyderabad in Criminal Revision No. 234/2004 whereby the learned single Judge had been pleased to set aside the order of the Family Court, Visakhapatnam awarding a sum of Rs.500/- per month to the appellant-wife by way of maintenance to her under Section 125 Cr.P.C. The respondent-husband assailed this order by way of a criminal revision before the High Court of Andhra Pradesh which was allowed and the order granting maintenance to the appellant-wife was set aside.

3.The appellant-Pyla Mutyalamma @ Satyavathi initially filed an application bearing M.C.No.145/2002 under Section 125, Cr.P.C. claiming Rs.500/- per month from her husband Pyla Suri Demudu-the respondent herein, on the ground that she married him in the year 1974 at Jagannadha Swamy Temple at Visakahapatnam as per the Hindu rites and customs after which they lived as a normal couple and out of the wedlock they were blessed with two daughters and a son of whom one daughter died. The surviving daughter is married and the son aged 22 years is also employed in the Dock Labour Board who was engaged as such by his father the respondent-husband himself. However, the relationship of the appellant-wife and the respondent-husband subsequently got strained when the respondent got addicted to vices and started ignoring and neglecting the appellant-wife as he failed to provide her even the basic amenities like food and clothing and indulged in beating her frequently under the influence of liquor. He thus deserted her and also started living with another woman due to which the appellant was compelled to claim maintenance from the husband-the respondent herein.

4.The respondent-husband herein, however, flatly denied the allegations and went to the extent of stating that the appellant is not his wife as he was already married to one Kolupuru Mutyalamma in a native of Lankivanipalem in the year 1970 and had children through her first marriage and that he never married the present appellant. He also alleged that the appellant is married to another man and as she owns a sum of Rs.2.50 lac to the respondent which he had given to her by way of a loan at the time of construction of her house in the y