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2023 Supreme(Online)(Bom) 27
HIGH COURT OF BOMBAY
Rajesh S. Patil, J
Alka Bhausaheb Bhad – Appellant
Versus
Bhausaheb Ramrao Bhad – Respondent
CRIMINAL WRIT PETITION NO.2416 OF 2022
For the Appellants/Petitioners: Narayan G. Rokade, Ajinkya V. Taskar
For the Respondents: Priyank Daga, Sushrita Daga, Y. M. Nakhwa
A husband cannot evade maintenance liability under Section 125 CrPC by citing a subsisting first marriage if he induced the second wife into wedlock by fraudulently misrepresenting that he was not already married.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 125 - Maintenance - Second wife - Entitlement where husband misrepresented divorce of first wife - Doctrine of estoppel - Husband cannot be permitted to take advantage of his own wrong to deny maintenance by claiming marriage is avoid due to subsisting first marriage. (Paras 18, 23)
(B) Evidence - Maintenance proceedings - Summary nature - Strict proof of marriage is not required - Evidence of cohabitation as husband and wife is sufficient to support a maintenance claim under S. 125. (Para 22.1)
(C) Revision - Scope of - Revisional court should not re-appreciate evidence and substitute own findings on questions of fact which were already decided in favour of the applicant by the trial magistrate. (Para 22.3)
Facts of the case:
The petitioner, as the second wife, sought maintenance from the respondent. She alleged that the respondent misrepresented himself as divorced from his first wife, leading her to marry him. Evidence was presented regarding cohabitation and birth of children. The trial magistrate granted maintenance, but the revisional court reversed the order, holding the marriage void.
Findings of Court:
The High Court held that the husband, having induced the petitioner into marriage by suppression, could not rely on his own wrong to deny her maintenance. The trial court's finding was restored.
Issues: Whether a second wife, deceived about the legality of a marriage, is entitled to maintenance under S. 125 CrPC; and whether the revisional court erred in re-appreciating evidence.
Ratio Decidendi: A purposive interpretation of S. 125 CrPC is required to provide social justice, ensuring husbands cannot rely on the subsistence of a prior marriage to escape liability when they have actively misinformed the claimant about their marital status.
Result: Petition allowed; Maintenance order restored.
| Table of Content |
|---|
| 1. procedural background of the maintenance petition and the lower courts' findings. (Para 3 , 4 , 5 , 6 , 7) |
| 2. summary of rival contentions regarding maintenance entitlement and the standard of proof. (Para 9 , 10) |
| 3. legal reasoning on maintaining a second wife misled by the husband regarding his marital status. (Para 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 23 , 24) |
| 4. final order granting maintenance and liberty for future enhancement. (Para 25 , 26) |
JUDGMENT :
1. RULE. Rule by consent made returnable forthwith.
2. This Writ Petition is filed under Article 227 of the Constitution of India challenging the Judgment and Order dated 21 April 2022, passed by the Additional Sessions Judge, Niphad, in Criminal Revision Application No.11 of 2015.
FACTS :
3. The Petitioner on 20 December 2012, filed an Application being Criminal Application No. 444 of 2012 under Section 125 of the Code of Criminal Procedure,1973 (for short “Cr.P.C.”) for grant of maintenance before the J.M.F.C., Yeola, from the Respondent/Husband.
3.1 It was pleaded by the Petitioner before the J.M.F.C. that she is the second wife of the Respondent, and her marriage took place with the Respondent in the year 1989. It was further stated that she was made to believe that the first wife of the Respondent namely Jijabai was not cohabiting with him properly and as Jijabai was not able to conceive a male child, the Respondent got divorced from her. Relying on the words of the Respondent, the Petitioner got married with the Respondent.
3.2 It is further case of the Petitioner that on 3 September 1991, she gave birth to a male child who was conceived with the Respondent. After one or two years of her marriage, the first wife of the Respondent, namely Jijabai, requested the Respondent through mediators to allow her to cohabit with him, and through the intervention, the Petitioner herself gave consent to the Respondent to allow Jijabai to reside with them jointly. Thereafter, the Petitioner gave birth to another male child, while Jijabai also gave birth to a male child.
3.3. It is further case of Petitioner that the Respondent immediately thereafter started harassing the Petitioner. The Petitioner was subjected to various abuses and physical beating at the hands of the Respondent and ultimately, she was sent to her parental home. Subsequently, due to intervention of members of the community, there was a mutual understanding between the Petitioner and Respondent, pursuant to which, the Petitioner started residing separately along with her children in the same village. The Respondent started paying maintenance amount to the Petitioner, which continued till the year 2011, but however, since 2011 at the instigation of the first wife Jijabai, the Respondent stopped paying maintenance to the Petitioner and he also stopped visiting the house of the Petitioner. So also, the Respondent abused the children conceived with the Petitioner and also threatened them not to demand any maintenance amount. It was also further submitted by the Petitioner that Respondent was having good income as he was owner of irrigated agricultural land, and also had milk business. He was also a contractor for digging wells; and as such his monthly income is around Rupees fifty to sixty thousand, therefore, the Petitioner claimed a sum of Rs.5,000/- per month from the Respondent.
4. The Respondent/Husband filed his reply to the maintenance application filed by the Petitioner. The Respondent denied the contention of the Petitioner. He stated that he never married the Petitioner and as per his contention he got married with Jijabai on 12 March 1981 and the said marriage was still in existence and he had never divorced Jijabai. The Respondent further stated that he never resided with the Petitioner, and he has no concern with the children of the Petitioner, whatsoever.
5. The Petitioner examined herself and reiterated the statement made by her in her pleadings. She also stated that if nec
