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HIGH COURT OF JUDICATOR AT HYDERABAD FOR THE STATE OF TELENGANA AND THE ANDHRA PRADESH
T. Sunil Chowdary, J.
Smt.Malleshwaramma —Petitioner
versus
G.S. Srinivasulu and Anr. —Respondents
Criminal Petition No.6481 of 2010
Decided on 15.7.2016
Held: From the above case law the following principles can be deduced.
(1) If a man and woman lived together for such a long time as wife and husband, the wife is entitled to claim maintenance under Section 125 Cr.P.C., notwithstanding establishment of marriage as per the provisions of the Hindu Marriage Act; (2) A man who marries second time by concealing the subsistence of his valid marriage with another woman cannot escape from payment of maintenance to the second wife under Section 125 Cr.PC;
(3) A woman who marries a man knowing fully well about subsistence of his valid marriage with another woman is not entitled to claim maintenance under Section 125 Cr.PC.
(4) While dealing with the petitions filed under Section 125 Cr.PC prima facie proof of relationship is sufficient to award maintenance.
Let me consider the facts of the case on hand in the light of the above legal principles. Establishment of prima facie relationship of wife and husband is sine qua non to file petition under Section 125 Cr.PC. If the parties to the proceedings under Section 125 Cr.P.C., are Hindus, the claimant has to establish that the marriage with the first respondent is legally valid and their marriage is not hit by Sub-section (1) of Section 5 of the Hindu Marriage Act.
The crucial question that falls for consideration is whether the first respondent is entitled to claim maintenance from the petitioner by filing petition under Section 125 Cr.P.C or not. As per the averments made in the petition (M.C.), the marriage of the first respondent was performed with the petitioner on 27.10.1994 at Yadagirigutta as per the customs prevailing in their community. Basing on the petition averments, one can safely come to a conclusion that the petitioner is the only legally wedded wife of the first respondent. The first respondent filed O.P. No.72 of 2006 on the file of the court of Senior Civil Judge, Mahabubnagar against the petitioner under Section 9 of the Hindu Marriage Act for restitution of conjugal rites and the same was allowed on 14.11.2007. The first respondent is placing much reliance on the order in the O.P. to establish that the petitioner is his legally wedded wife. It is not in dispute that the petitioner did not contest the O.P.; therefore, the court passed the ex parte order. Basing on the complaint lodged by the petitioner, the Station House Officer, Atchampet Police Station registered a case in Crime No.30 of 2007 against the first respondent for the offences under Sections 498A, 506 and 509 IPC. The first respondent obtained anticipatory bail in Crl.P. No.6818 of 2007 on 18.11.2007. For better appreciation of the rival contentions, it is not out of place to extract paragraph No.2 of Crl.P.No.6818 of 2007.
2. As per the said report, the petitioner herein was married and was having three children. He developed contact with her in the year 1994 when she was working at Government Civil Hospital, Perur. They together lived for 10 years at Shadnagar, Mahaboobnagar District and they were blessed with a daughter aged 11 years. It is said that suspecting her character and making wild allegations, he used to abuse her and threaten her saying that he will kill her and her daughter. He also used to abuse on Telephone the staff working in the hospital.
A reading of the above paragraph clearly shows that the first respondent has taken a specific stand that he developed intimacy with the petitioner in the year 1994. If the contents of this criminal petition are taken into consideration, the first respondent did not marry the petitioner. The first respondent also filed Crl.P.No.2745 of 2007 seeking to quash the criminal proceedings against him in Crime No.30 of 2007 on the file of the Station House Officer, Atchampet Police Station. This court, vide order dated 20.7.2007, allowed the criminal petition and quashed the criminal proceedings against the first respondent in Crime No.30 of 2007 for the offence under Section 498A IPC. The relevant observations in the order read as follows:
Even if the entire allegations in the complaint are taken as true and correct, they do not go to show that the de facto complainant is the legally wedded wife of the petitioner. At best, it would go to show that the de facto complainant was kept mistress. It is also stated that the petitioner was having wife and three children. The petitioner was harassing her after making her as his second wife. He was suspecting the conduct of the de facto complainant and was abusing her in vulgar language and he also threatened to kill her and her child. Therefore, the allegations do not show prima facie case of the offences under Sections 506 and 509 IPC. Hence, question of quashing the proceedings does not arise. Prima facie Section 498A IPC has no application. Hence, the proceedings are liable to be quashed.
The fact remains that the petitioner was having legally wedded wife before developing contacts with petitioner in 1994. Even as per the case of the first respondent, he was blessed with three children through his first wife. In order to constitute a valid marriage, neither of the partiesif they are Hindusshall have a spouse living at the time of marriage in view of Sub-section (1) of Section 5 of the Hindu Marriage Act.
Having regard to the facts and circumstances of the case and also the principles enunciated in the decisions cited supra, I am unable to accede to the contention of the learned counsel for the first respondent that the petitioner is the legally wedded wife of the first respondent.
Even assuming, but not admitting, that the first respondent is husband of the petitioner, the point to be determined in this case is, whether a husband is entitled to claim maintenance from wife by filing petition under Section 125 Cr.PC. It is not out of place to extract hereunder the relevant portion of Section 125 Cr.PC.
It appears, the Parliament, in its wisdom, intentionally not included the words husband or spouse after the words his wife and preceding the words unable to maintain in clause (a) of Sub- section (1) of Section 125 Cr.PC; therefore, a husband is not entitled to file application under Section 125 Cr.PC claiming maintenance from the wife. (Paras 6, 7, 8, 9, 11 to 13 and 17)
Result: Petition allowed.
T. Sunil Chowdary, J.—This petition is filed under Section 482 Cr.P.C., to quash the proceedings in M.C. No.7 of 2010 on the file of the Judicial Magistrate of First Class, Shadnagar.
2. The facts leading to filing of the present criminal petition are as follows:
The first respondent herein filed M.C. No.7 of 2010 claiming maintenance of Rs.8,000/- per month from the petitioner alleging that she is his legally wedded wife and the first respondent is unable to maintain himself due to ill health. It is the case of the first respondent that his marriage was solemnized with petitioner on 27.10.1994 at Yadagirigutta as per the customs prevailing in their community. Immediately after the marriage, the petitioner joined with him to lead conjugal life and they were blessed with a daughter by name Srilatha. The petitioner left the matrimonial home of the first respondent along with her daughter at the instigation of her parents. Prior to the marriage, the first respondent helped the petitioner to prosecute her studies and get job in Health department. The first respondent filed O.P. No.72 of 2006 for restitution of conjugal rights on the file of the court of Senior Civil Judge, Mahabubnagar and the same was allowed on 14.11.2007. Basing on the complaint of the petitioner, the Station House Officer, Atchampet Police Station, Mahabubnagar District registered a case in Crime No.30 of 2007 for the offences under Section 498A, 506 and 509 IPC against the first respondent.
3. The contention of the learned counsel for the petitioner is three fold: (1) the petitioner is not the legally wedded wife of the first respondent; (2) a husband is not entitled to claim maintenance from his wife under Section 125 Cr.PC; and (3) the proceedings against the petitioner are nothing short of abuse of process of law; therefore it is a fit case to quash the proceedings by exercising inherent jurisdiction under Section 482 Cr.PC. Per contra, learned counsel for the first respondent submitted that under Section 125 Cr.P.C., first respondent is entitled to claim maintenance from the petitioner, who is his legally wedded wife. She further submitted that the order passed in O.P. No.72 of 2016 clinchingly establishes that the petitioner is legally wedded wife of the first respondent.
4. To substantiate the argument, learned counsel for the petitioner has drawn my attention to the following decisions:
(i) Smt.Yamunabai Anantrao Adhav v Anantral Shivaram Adhav, wherein the Honble Apex Court held as follows:
8. We, therefore, hold that 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 not entitled to the benefit of Section 125 of the Code. The appeal is accordingly dismissed.
(ii) Savitaben Somabhai Bhatia v State of Gujarat, wherein the Honble Apex Court held as follows:
15. .. 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’). :
(iii) Buddepu Khogayya v Buddepu Kamalu , wherein this court held as follows:
7. Therefore, the averment itself clearly indicates that there is legally wedded wife to the first respondent by the date of marriage of the petitioner. Hence, she cannot be treated as wife as per the provisions of Section 125 Cr.PC and therefore, she is not entitled for any maintenance.
5. The learned counsel for the first respondent, while submitting that strict proof of marital relationship is not necessary in proceedings under Section 125 Cr.P.C., relied upon the following decisions:
(i) Badshah v Urmila Badshah Godse, wherein the Honble Apex Court held as follows:
13.3. While dealing with the application of a destitute wife or hapless children or parents under this provision (Section 125 Cr.PC), the Court is dealing with the marginalize
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