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2011 (2) N.C.C. 566
SUPREME COURT OF INDIA
Harjit Singh Bedi and Hon’ble Mrs. Justice Gyan Sudha Misra
Criminal Appeal No. 219 of 2007
PYLA MUTYALAMMA @ SATYAVATHI – Appellant
Versus
PYLA SURI DEMUDU & ANR. – Respondents
Decided on : 09.08.2011
(Paras 2)
(B) Criminal Procedure Code, 1973, Sec. 125 — Incorporation — Object of — 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 Sec 125 of the Criminal Code providing for grant of maintenance. (Para 2)
(C) Revisional jurisdiction of High Court — Scope and ambit of — Revisional Court interferes only if there is an illegality in the order or any material irregularity in the procedure — Error of jurisdiction — Revisional Court is not required in revision to interfere with positive finding in favour of the marriage and patronage of children — But where there is a negative finding, High Court would entertain the revision, re-evaluate the evidence and come to a conclusion whether the finding or conclusions reached by the Magistrate are legally sustainable — Or not as negative finding always have evil consequences on the lives of both children and the woman. (Paras 9, 10 and 15)
(D) Criminal Procedure Code, 1973, Sec. 125 — Proof of marriage required for — Nature of — Determination by the Magistrate — As to whether as to the status of the parties being subject to a final determination of Civil Court — When husband had denied that applicant was not his wife — All that the Magistrate had to find in a proceeding under Sec. 125, whether there was some marriage ceremony between the parties — Whether they have lived as husband and wife in the eyes of their neighbours and whether children were born out of the union — Sec. 125 of Criminal Code proceeds on de facto marriage — Not on marriage de jure. (Para 14)
¼v½ n.M izfØ;k lafgrk] 1973] /kkjk 125 & fookg dh vo/kkj.kk vkSj mldk foLrkj & ml n'kk esa tc iq#"k vkSj L=h db± o"kks± rd yach vof/k ds nkSjku eSFkqu djrs jgrs gSa rks dkuwu] mlds j[kSy gksus ds fo#) 'kknh ds fgr esa gh lksprk gS vkSj tc iq#"k vkSj efgyk lkFk jgrs gq, ifr vkSj iRuh ds :i esa fl) Hkh gks tkrs gSa & tc rd bl ds foijhr vU; dqN fl) ugha gksrk rks dkuwu ;gh dYiuk djrk gS fd os ,d oS/k fookg dh ifjf.kfr ds :i esa lkFk lkFk jg jgs Fks uk fd fdlh j[kSy ds :i esaA ¼izLrj 2½ ¼c½ n.M izfØ;k lafagrk] 1973] /kkjk 125 & lekos'k dk mn~ns'; tc ifr ds }kjk frjLÑr iRuh ds Dyse dks udkjus dk dksbZ iz;kl fd;k tkrk gS vkSj ;g n'kkZrk gS fd og iwoZ esa gh 'kknh'kqnk ;k vkSj mls lansgtud rdZ nsdj j[kSy ds :i esa n'kkZrk gS rks U;k;ky; }kjk igyh 'kknh ds ckjs esa Bksl lcwr ekaxk tk ldsxk vkSj ftldk mn~ns'; efgyk vkSj cPpksa dks fu%lgk; dk thou O;rhr djus ls cpkuk gS & vkSj ;g gh Li"V :i ls /kkjk 125 CrPC dks lekos'k djus dk mn~ns'; Hkh gSA ¼izLrj 2½ ¼l½ mPp U;k;ky; dk iqujh{k.k dk {ks=kf/kdkj vkSj ml dk foLrkj ,oa ifjf/k & iqujh{k.k U;k;ky; rHkh gLr{ksi djrk gS tc vkns'k es adksbZ vfu;ferrk gksrh vFkok izfØ;k esa dksbZ Bksl =qfV gksrh gS & {ks=kf/kdkj dh =qfV & iqujh{k.k U;k;ky; dks fookg vkSj cPpksa ds fir`Ro ds lEcU/k esa /kukRed fu.kZ; esa gLr{ksi fd;k tkuk mfpr ugha gS ijUrq tgk¡ ij _.kkRed fu.kZ; fn;k x;k gS rks mPp U;k;ky; iqujh{k.k ;kfpdk ij fopkj djsxk vkSj lk{; dk iquewZY;kadu djds ,sls fu"d"kZ ij igq¡psxk Hkys gh n.Mkf/kdkjh dk fu.kZ; dkuwuh :i ls mfpr Fkk vFkok ugha pw¡fd udkjkRed fu.kZ; dk cPpksa vkSj efgyk nksuksa ds thou ij lnSo cqjk izHkko iM+rk gSA ¼izLrj 9] 10 ,oa 15½ ¼n½ n.M izfØ;k lafgrk] 1973] /kkjk 125 & fuokZg ds okafNr lcwr dh izÑfr & n.Mkf/kdkjh }kjk vkadyu djrs le; ;g ns[kuk vko';d gS fd i{kdkjksa dk thou Lrj nhokuh U;k;ky; }kjk vafre fu.kZ; ysus yk;d gksuk pkfg, tc fd ifr }kjk izkfFkZuh dks viuh iRuh ekuus ls bUdkj dj fn;k x;k Fkk & /kkjk 125 CrPC ds rgr n.Mkf/kdkjh dks dsl esa D;k ns[kuk pkfg, Fkk & i{kdkjksa ds e/; dksbZ fookg mRlo gqvk Fkk] os vius iM+ksfl;ksa dh fuxkg esa ifr iRuh ds :i esa jg jgs gSa vkSj cPps mUghsa ds ,d nwljs ls feyus ls tUes Fks & /kkjk 125 CrPC dh dk;Zokgh voSèkkfud fookg ij dh tkrh gS uk fd oS/kkfud fookg ijA ¼izLrj 14½
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 b y 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 Visakhapatnam 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 is 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
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