Rakmabai Pandurang Sonavane vs Pandurang Ramkrishna Sonavane & ...
2016 Latest Caselaw 4987 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CRIMINAL APPELLATE JURISDICTION




                                                                                      
                             WRIT PETITION NO. 105 OF 2003




                                                              
            Sou. Rakmabai Pandurang Sonavane     ..                    Petitioner
                 vs.
            Pandurang Ramkrishna Sonavane & Ors. ..                    Respondents




                                                             
            None for Petitioner.
            Mr. Kayval Shah i/b. Mr. P. B. Shah for Respondent No. 1.




                                                  
                                                  CORAM : M. S. SONAK, J.
                                    ig            DATE:   26 AUGUST 2016

            JUDGMENT :

1] By this petition under Article 227 of the Constitution of India,

the petitioner challenges judgment and order dated 10 November

2002 made by the learned II Additional Sessions Judge, Nashik, in

criminal revision application no. 451 of 2001.

2] By the aforesaid impugned judgment and order, dated 11

October 2002, the Additional Sessions Judge (ASJ) has set aside

the judgment and order dated 19 July 2001 made by the learned

Judicial Magistrate First Class, Sinnar (JMFC) in criminal

miscellaneous application no. 268 of 1999 awarding maintenance of

Rs.500/- per month to the petitioner from the date of institution of

the application under section 125 of Cr.P.C. along with costs of

Rs.300/-. This judgment and order dated 19 July 2001 made by the

JMFC came to be set aside by the impugned judgment and order

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dated 10 November 2002 by the ASJ solely on the ground that the

respondent husband was already married and his first wife was

living on the date of solemnization of marriage between the

respondent husband and the petitioner wife. On this basis, the

learned ASJ has concluded that the petitioner was not the legally

wedded wife of the respondent husband and consequently, was

disentitled to claim maintenance under section 125 of Cr.P.C.

3] Neither the petitioner nor her Advocate were present when

the matter was called out. However, Mr. Kayval Shah appeared for

the respondent no. 1 in defence of the impugned judgment and

order.

4] Upon perusal of the impugned judgment and order as also

the record, since it prima facie appeared that the view taken by the

learned ASJ in the making of the impugned judgment and order was

not quite consistent with the law laid down by the Supreme Court in

case of Dwarika Prasad Satpathy vs. Bidyut Prava Dixit & Anr.1

and Badshah vs. Urmila Badshah Godse & Anr.2, the matter was

adjourned to the afternoon session, in order to enable Mr. Shah,

learned counsel for the respondent husband to consider the effect

of such decisions and to make his submissions with regard to the

same.

    1 AIR 1999 SC 3348
    2 (2014) 1 SCC 188



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            5]      Mr. Shah,            learned counsel for the respondent husband

submitted that the material on record very clearly establishes that

since the year 1966, the respondent was married to Anusayabai

and from the wedlock they have three children i.e. two sons and

one daughter. As such, Mr. Shah submitted that the so-called

marriage between the respondent and the petitioner in the year

1973, is no marriage in the eyes of law and under no circumstances

can the petitioner claim the status of legally wedded wife. Mr. Shah

submitted that no amount of mere cohabitation, even though, the

same has resulted in the birth of a son, is sufficient to confer status

of 'wife' upon the petitioner and to entitle her to claim maintenance

under section 125 of Cr.P.C. Mr. shah in support of such

contentions relied upon the decisions in case of Smt. Yamunabai

Anantrao Adhav vs. Anantrao Shivaram Adhav & Anr.3 and

Savitaben Somabhai Bhatiya vs. State of Gujarat & Ors.4

6] In addition to the aforesaid, Mr. Shah, learned counsel for the

respondent produced on record a zerox copy of judgment and

decree dated 20 October 2010 made by the Civil Judge, Junior

Division, Sinnar in Regular Civil Suit No. 5 of 2002 (Shri Bharat

Pandurang Sonawane vs. Shri Bhima Ramkrushna Sonawane &

Ors.), in which the issue as to whether the petitioner is the legally

3 AIR 1988 SC 644 4 (2005) 3 SCC 636

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wedded wife of the respondent has been answered against the

petitioner. The regular civil suit no. 5 of 2002 had been instituted by

Bharat Pandurang Sonawane, son of the petitioner and the

respondent claiming certain rights, interest and share in the

property of the respondent husband. On this basis, Mr. Shah

submitted that it is quite clear that the petitioner is not the legally

wedded wife of the respondent and therefore, disentitled to claim

any maintenance under section 125 of Cr.P.C. In the alternate, Mr.

Shah submitted that under no circumstances can any award for

maintenance be made for the period post 20 October 2010 on

account of the categoric finding recorded by the civil court to the

effect that the marriage between the petitioner and the respondent,

was void.

7] As noted earlier, the JMFC, by detailed judgment and order

dated 19 July 2001 had upheld the claim of the petitioner for

maintenance and proceeded to award maintenance of Rs.500/- per

month in her favour. In doing so, the JMFC had evaluated the entire

material on record, both oral as well as documentary. In particular,

the JMFC had accepted the factum of marriage between the

petitioner and the respondent on basis of documents that school

leaving certificate of son Bharat, in which the name of the

respondent was indicated as the father; marriage invitation card

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concerning the marriage of Bharat, which reflected the same

position. There is substantial evidence on record on the aspect of

cohabitation between the petitioner and the respondent and they

lived as husband and wife. The half hearted defence that the

petitioner was also married to some other person, though raised,

has not been established by the respondent husband. Most

importantly, there is nothing in the material on record to suggest that

the petitioner married the respondent with knowledge of his earlier

marriage with Anusayabai.

8] The learned ASJ making the impugned order has not

disturbed the finding of fact recorded by the learned JMFC as to the

factum of marriage between the petitioner and the respondent.

However, the learned ASJ has proceeded to hold that since the

respondent was already married to Anusayabai in the year 1966

and since, Anusayabai expired only in the year 1987, the marriage

between the petitioner and the respondent was in violation of

section 5(1)(i) of the Hindu Marriage Act, 1955 and consequently

void. In doing so, the learned ASJ has relied upon the decision of

the Supreme Court in case of Yamunabai (supra).

9] The purpose and object of enactment of section 125 Cr.P.C.

            needs      neither any reference nor reiteration at this stage. While





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dealing with applications under section 125 of Cr.P.C., we are

required to be conscious that we are dealing with the application of

a destitute wife or helpless children / parents, who seek some

maintenance, often for the purposes of survival. The purpose is to

achieve "social justice" which is the Constitutional vision, enshrined

in the Preamble of the Constitution of India. The Preamble to the

Constitution of India clearly signals that we have chosen the

democratic path under rule of law to achieve the goal of securing for

all its citizens, justice, liberty, equality and fraternity. It specifically

highlights achieving their social justice. Therefore, it becomes the

bounden duty of the Courts to advance the cause of the social

justice. While giving interpretation to a particular provision, the

Court is supposed to bridge the gap between the law and society.

10] The Supreme Court in case of Badshah (supra) has approved

the following eloquence of Prof. Madhava Menon:

"It is, therefore, respectfully submitted that "social context judging" is essentially the application of equality

jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice.

Apart from the social- economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the judge has to be

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not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the

imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context

judging or social justice adjudication."

11] The Supreme Court in case of Badshah (supra) has held that

the provisions of maintenance would definitely fall in the category of

provisions aimed at empowering the destitute and achieving social

justice of equality and dignity of the individual. Therefore, whilst

dealing with the cases under this provision, drift in the approach from

"adversarial' litigation to social context adjudication is a need of the

hour. The Supreme Court adds that law regulates relationships

between people. It prescribes patterns of behavior. It reflects the

values of society. The role of the Court is to understand the purpose

of law in society and to help the law achieve its purpose. But the law

of a society is a living organism. It is based on a given factual and

social reality that is constantly changing. Sometimes change in law

precedes societal change and is even intended to stimulate it. In

most cases, however, a change in law is the result of a change in

social reality. Indeed, when social reality changes, the law must

change too. Just as change in social reality is the law of life,

responsiveness to change in social reality is the life of the law. It can

be said that the history of law is the history of adapting the law to

society's changing needs. In both Constitutional and statutory

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interpretation, the Court is supposed to exercise direction in

determining the proper relationship between the subjective and

objective purposes of the law.

12] The Supreme Court in paragraphs 18 to 22 in case of Badshah

(supra) has observed thus :

"18. The Court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonize results with

justice through a method of free decision--"libre recherché

sceintifique" i.e. "free Scientific research". We are of the opinion that there is a non-rebuttable presumption that the Legislature

while making a provision like Section 125 Cr.P.C., to fulfill its Constitutional duty in good faith, had always intended to give relief to the woman becoming "wife" under such circumstances.

This approach is particularly needed while deciding the issues

relating to gender justice. We already have examples of exemplary efforts in this regard. Journey from Shah Bano to Shabana Bano guaranteeing maintenance rights to Muslim

women is a classical example.

19. In Rameshchandra Daga v. Rameshwari Daga, the right of another woman in a similar situation was upheld. Here the

Court had accepted that Hindu marriages have continued to be bigamous despite the enactment of the Hindu Marriage Act in 1955. The Court had commented that though such marriages are illegal as per the provisions of the Act, they are not 'immoral' and hence a financially dependent woman cannot be denied maintenance on this ground.

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20. Thus, while interpreting a statute the court may not only take into consideration the purpose for which the

statute was enacted, but also the mischief it seeks to suppress. It is this mischief rule, first propounded in

Heydon's Case which became the historical source of purposive interpretation. The court would also invoke the

legal maxim construction of ut res magis valeat guam pereat, in such cases i.e. where alternative constructions are possible the Court must give effect to that which will

be responsible for the smooth working of the system for which the statute has been enacted rather than one which

will put a road block in its way. If the choice is between two interpretations, the narrower of which would fail to achieve

the manifest purpose of the legislation should be avoided. We should avoid a construction which would reduce the legislation to futility and should accept the bolder

construction based on the view that Parliament would

legislate only for the purpose of bringing about an effective result. If this interpretation is not accepted, it would amount to giving a premium to the husband for

defrauding the wife. Therefore, at least for the purpose of claiming maintenance under Section 125, Cr.P.C., such a woman is to be treated as the legally wedded wife.

21. The principles of Hindu Personal Law have developed in an evolutionary way out of concern for all those subject to it so as to make fair provision against destitution. The manifest purpose is to achieve the social objectives for making bare minimum provision to sustain the members of relatively smaller social groups. Its foundation spring is humanistic. In its operation field all though, it lays down the permissible categories under its benefaction, which are so entitled either

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because of the tenets supported by clear public policy or because of the need to subserve the social and individual

morality measured for maintenance.

22. In taking the aforesaid view, we are also encouraged by the following observations of this Court in Capt.Ramesh Chander Kaushal vs. Veena Kaushal:

"9. .......The brooding presence of the Constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance.

So viewed, it is possible to be selective in picking out that

interpretation out of two alternatives which advances the cause - the cause of the derelicts."

[Emphasis supplied]

13] In Dwarika Prasad (supra), the Supreme Court has held that

the validity of the marriage for purposes of summary proceeding

under Section 125, Cr.P.C. is to be determined on the basis of the

evidence brought on record by the parties. The standard of proof of

marriage in such proceeding is not as strict as is required in a trial of

offence under Section 494 of the I.P.C. If the claimant in proceedings

under section 125 of Cr.P.C. succeeds in showing that she and the

respondent have lived together as husband and wife, the court can

presume that they are legally wedded spouses, and in such a

situation, the party who denies the marital status can rebut the

presumption. Once it is admitted that the marriage procedure was

followed then it is not necessary to further probe into whether the said

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procedure was complete as per the Hindu rites in the proceedings

under section 125 of Cr.P.C. From the evidence which is led if the

Magistrate is prima facie satisfied with regard to the performance of

marriage in proceedings under section 125 Cr.P.C., which are of

summary nature, strict proof of performance of essential rites is not

required. It is to be probed that the order passed in an application

under section 125 Cr.P.C. does not finally determine the rights and

obligations of the parties and the said section is enacted with a view

to provide summary remedy for providing maintenance to a wife,

children and parents.

14] Although, Dwarika Prasad (supra) did not deal with a case of

a second marriage, the decision is important to emphasise the

purpose and object behind enactment of section 125 of Cr.P.C. and

the consequent approach to be adopted by the Magistrates in dealing

with, in a summary manner, the applications under section 125 of

Cr.P.C. The decision is also important because it lays down once the

claimant in a proceeding under section 125 of Cr.P.C. succeeds in

showing that she and the respondent have lived together as

husband and wife, the court can presume that they are legally

wedded spouses, and in such a situation, the party who denies the

marital status has to rebut the presumption. Thus, the onus is upon

the husband to rebut the presumption that there was no legal

marriage in the situation in which we are presently concerned. This is

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because there is ample evidence on record, which has in fact been

accepted by both the JMFC as well as ASJ to the effect that the

petitioner and the respondent have been living as wife and husband

for sufficiently long periods and further, from out of said cohabitation

even a son has been born to them. As noted earlier, even if it is

considered that the respondent has established the factum of the first

marriage with Anusayabai in the year 1966, it cannot be said that the

respondent has discharged onus of establishing that his marriage

with the petitioner was after the petitioner had full knowledge about

the existence of marriage with Anusayabai. Therefore, unless such

onus was discharged by the respondent husband, applying the

dictum in the case of Badshah (supra), there was no question of the

respondent avoiding the liability to pay maintenance under section

125 of Cr.P.C.

15] In paragraph 13.2 of the decision in the case of Badshah

(supra), the Supreme Court has distinguished the decisions in the

case of Yamunabai (supra) and Savitaben (supra) and restricted their

application only in those circumstance where a woman married a

man with full knowledge of the first subsisting marriage. In such

circumstances, the Supreme Court has held that the second wife

should know that there is an embargo under the Hindu Marriage Act

and therefore she has to suffer consequences thereof. Thus

construed, the impugned judgment and order made by the learned

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ASJ cannot be sustained.

16] The judgment and decree dated 20 October 2010, was not

even in existence when the learned ASJ made a impugned judgment

and order on 11 October 2002. In any case, there is no question of

non suiting the petitioner on the basis of such a subsequent

development. As held in case of Badshah (supra), the respondent

cannot be permitted to take advantage of his own wrong and to say

that the petitioner is not entitled to maintenance under section 125 of

Cr.P.C., even though, there is no material on record to establish that

the petitioner married the respondent with full knowledge about the

subsistence of his first marriage with Anusayabai. In Badshah

(supra), under similar circumstances, the Supreme Court has held

that at least for purposes of section 125 of Cr.P.C. , such wife is

required to be treated as a legally wedded wife of the respondent. In

support of such reasoning, the Hon'ble Supreme Court has adopted a

purposive interpretation by reference to 'social justice adjudication' or

'social context adjudication' rather than the usual 'adversarial

approach'. The learned ASJ in making the impugned judgment and

order, having failed to apply 'social context adjudication' or 'social

justice adjudication' approach, the impugned judgment and order

warrants interference.

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              17]     For the aforesaid reasons, the impugned judgment and order

dated 11 November 2002 is hereby set aside. The judgment and

order dated 19 July 2001 made by the learned JMFC is hereby

restored. Consistent with the same, the respondent is directed to pay

maintenance at the rate of Rs.500/- per month to the petitioner with

effect from the date of application under section 125 of Cr.P.C. The

arrears to be cleared within a period of three months from today.

18] Rule is made absolute. Respondent to pay costs assessed at

Rs.7,500/- within a period of three months to the respondent wife.

(M. S. SONAK, J.)

Chandka