Advocates:
S. C. PATELHARESH RAICHURA

http://JUDIS.NIC.IN

SUPREME COURT OF INDIA

Page 1 of 6

CASE NO.:

Appeal (crl.) 399 of 2005

PETITIONER:

Savitaben Somabhai Bhatiya

RESPONDENT:

State of Gujarat and Ors.

DATE OF JUDGMENT: 10/03/2005

BENCH:

ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT:

J U D G M E N T

(Arising out of SLP (Crl.) No. 4688 of 2004)

ARIJIT PASAYAT, J.

Leave granted.

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’).

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.

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

http://JUDIS.NIC.IN

SUPREME COURT OF INDIA

Page 2 of 6

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.

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.

In support of the appeal, learned counsel for the appellant

submitted that the High Cour