Madhya Pradesh High Court
Shrikrishna vs Smt. Sunita Bai on 2 May, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL REVISION No. 466 of 2023
BETWEEN:-
SHRIKRISHNA S/O LATE SHRI VINAYAK RAO KHEDE,
AGED ABOUT 62 YEARS, OCCUPATION: RETIRED
NARMADA DHAM COLONY, NARMADA ROAD,
BARWAH, TEHSIL BARWAH, DISTRICT KHARGONE
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI RISHI TIWARI, ADVOCATE)
AND
SMT. SUNITA BAI W/O DILIP CHATURVEDI, AGED
ABOUT 57 YEARS, 48, GOONDI PATTI (SUBHASH MARG),
BARWAH, TEHSIL BARWAH, DISTRICT KHARGONE
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI NILESH DAVE, ADVOCATE)
..........................................................................................................................................
Heard on : 05.04.2024
Delivered on : 02.05.2024
This criminal revision having been heard and reserved for
judgments, coming on for pronouncement this day, the court passed the
following:
ORDER
With the consent of the parties heard finally.
2. This criminal revision has been filed by the petitioner under Section
397(1) read with Section 401 of the Code of Criminal Procedure, 1973 being
aggrieved and disgruntled by the judgment dated 05.01.2023, passed in Criminal
Revision No. 11/2021, by learned III Additional Sessions Judge, Barwah,
District-Mandleshwar (M.P.) whereby the learned Court has set aside the order
dated 06.09.2021 passed by Judicial Magistrate First Class, Badwah District
West Nimad passed in MJC R No. 400081/2016 and by allowing the application
filed under Section 125 of Cr.P.C awarded maintenance of Rs.10,000/- in
favour of respondent from the date of application.
3. The facts of respondent's application in brief are that, the petitioner
and respondent got married about 6-7 years ago and further, under influence of
his elder brother and sister-in-law, the petitioner started mistreating the
respondent and made no arrangement for her maintenance. Therefore, the
respondent has filed an application under Section 125 of Cr.P.C for
maintenance which has been dismissed by the trial Court. Thereafter, revision
has been filed before the Revisional Court, which was allowed in favour of
respondent, hence, being aggrieved by the order of aforesaid order, this petition
has been filed.
4. Learned counsel for the petitioner has submitted that the Revisional
Court has not considered all the aspects of the case and not appreciated the
evidence available on record. The petitioner has denied the factum of marriage
solemnized between them. It was categorically stated that the respondent was
married with one Dilip Chaturvedi and had three sons from that marriage. As
per the Ration Card and Samagra ID of the respondent, her husband was Dilip
Chaturvedi. It was clarified that the eldest son of the respondent had given a
house on rent by the petitioner and due to dispute of payment of rent, a false
case was filed. The income of Rs.50,000/- per month and Rs.10,00,000/-
income from agriculture, was denied by the petitioner. He further submitted that
the petitioner had retired and his pension was yet to be sanctioned.
5. It is further submitted that the respondent/wife herself admitted in her
cross-examination that earlier she was married one Dilip Chaturvedi and out of
that wedlock, three children were born and also stated that neither she has filed
any case for divorce before any of the Courts against Dilip Chaturvedi nor Dilip
Chaturvedi has taken any action against respondent in this regard. Hence, prays
for setting aside the impugned judgment. In support of his contentions, learned
counsel for the petitioner has relied upon the law laid down in the case of
Gindan and Ors. Vs. Barelal, [AIR 1976 MP 83] passed in F.A. No.
199/1974 decided on 05.12.1975.
6. On the other hand, learned counsel for the respondent has opposed
t h e prayer and submitted that looking to the income of the applicant, the
Revisional Court has rightly awarded maintenance amount in favour of
respondent. He has placed reliance in the case of Chanmuniya Vs.
Chanmuniya Virendra Kumar Singh Kushwaha and Ors reported in
(2011) 1 SC 141 and in the case of Kamala and Ors. Vs. M.R. Mohan
Kumar reported in AIR 2018 SC 5128. Therefore, the petition deserves to be
dismissed.
7. In view of the aforesaid submissions, the conundrum of the case is as
to whether the findings of learned Revisional Court, reversing the order of
rejecting maintenance by learned trial Court under Section 125 of Cr.P.C., is
incorrect and suffering from infirmity and illegality.
8. Heard learned counsel for the parties and perused the record.
9. Learned counsel for the petitioner has placed reliance in the case of
Gindan (supra), it is condign to quote the following extracts of the judgment,
herein below :-
"...............it was not disputed before us that appellant No. 1
was of about 10 years of age when she was married. That being so, it
is no doubt true that she had not attained the age prescribed for a
marriage under Section 5(iii) o f the Hindu Marriage Act, but, in our
opinion, it cannot be declared as void or even voidable. The
contravention of the provision is only punishable under Section 18 of
the Act Marriage which can be declared null and void on a petition
presented by either party thereto, by a decree of nullity, are those
where they contravene any of the conditions specified in Clauses (i),
(iv) and (v) of Section 5. The marriage can be voidable and may be
annulled by a decree of nullity on any of the grounds mentioned
in Section 12 of the Act. But breach of Clause (iii) of Section 5 does
not find place either in Sections 11 and 12 of the Act. That being so, it
is difficult to hold that in case of such a breach having been committed
the marriage can be declared void or even voidable. In this connection
we may quote with approval a passage from Mulla on Hindu Law, 14th
Edn. page 688. which reads as under :
"A marriage solemnized in violation of the requirement as
to age Laid down in this clause is not void or even voidable but
the contravention of the condition is punishable as an offence
under Section 18 of the Act.
Various other High Courts in India have also taken a
similar view. [See : Mohinder Kaur v. Major Singh, (1970) 72
Pun LR 377; Smt Naumi v. Narotam, AIR 1963 HP 15 and
Budihi Sahu v. Lohurani Sahuani, ILR (1970) Cut 1215]. No
doubt, a contrary view has been taken by the Andhra Pradesh
High Court in Panchireddi Appala Suramma v. Gadela
Ganapatlu, AIR 1975 Andhra Pradesh 193 wherein an earlier
decision of the said Court reported in Rayudu Pallamsetti v.
Dommeti Sriramulu, AIR 1968 Andhra Pradesh 375 has been
relied upon. With great respect we disagree with the view
expressed by the learned Judges. In both the decisions the
provisions of Sections 11 and 12 o f the Act have not been
taken into consideration while it is not the consequence of a
marriage being solemnized in breach of Clause (iii) of Section
5 of the Act. That being so, we are of opinion that a marriage
solemnized in contravention of the age mentioned in Clause (iii)
of Section 5 of the Hindu Marriage Act can neither be declared
ab initio void nor voidable. The consequences, if any, which
flow from that contravention are given in Section 18 and that is
that a person who procures a marriage of himself or herself in
such contraventio n shall be punishable with imprisonment
which may extend to fifteen days, or with fine Which may
extend to one thousand rupees, or with both. In our opinion, no
other result is stated in the Act to flow from the contravention
of the type now under consideration of Clause (iii) of Section
5 to affect the tie of marriage itself and to render the marriage
either void or voidable. If the Legislature intended otherwise,
the Act certainly would have made a specific provision in that
regard in the like manner as it has been done in the case of
contravention of Clauses (i), (ii), (iv) and (v) of Section
5 in Section 11 of the Act. Thus, the marriage would remain
valid in law and enforceable and recognizable in the Court of
law."
10. On this aspect in the case of Bhagwandas S/o. Tilakdhari Shah
vs. Panpati w/o. Bhagwandas Shah reported as 2023 Lawsuit (MP) 223,
this High Court has recently having discussed on concerning legal provisions
and also the law laid down by Hon'ble Supreme Court, adumbrated in para-19
of the judgment as under:-
"Additionally, a ''wife'' under Section 125 Cr.P.C. would
include a woman who has been divorced by a husband or
who has obtained a divorce from her husband and has not
remarried. As discussed above, even if a woman does not
have the legal status of a wife, she is brought within the
inclusive definition of "wife'' in order to maintain
consistency with the object of the statutory provision.
However, a second wife whose marriage is void on
account of survival of the first marriage would not be a
legally wedded wife, and therefore would not be entitled
to maintenance under this provision In the case of Vimala
(K.) v. Veeraswamy (K.),(1991) 2 SCC 375, the Supreme
Court held as follows:
3. Section 125 of the Code of Criminal Procedure is
meant to achieve a social purpose. The object is to
prevent vagrancy and destitution. It provides a
speedy remedy for the supply of food, clothing and
shelter to the deserted wife. 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. The term
''wife'' in Section 125 of the Code of Criminal
Procedure, includes a woman who has been divorced
by a husband or who has obtained a divorce from her
husband and has not remarried. The woman not
having the legal status of a wife is thus brought within
the inclusive definition of the term '''wife'' consistent
with the objective. However, under the law a second
w i fe whose marriage is void on account of the
survival of the first marriage is not a legally wedded
wife and is, therefore, not entitled to maintenance
under this provision.
Therefore, the law which disentitles the second wife
from receiving maintenance from her husband under
Section 125, CrPC, for the sole reason that the
marriage ceremony though performed in the
customary form lacks legal sanctity can be applied
only when the husband satisfactorily proves the
subsistence of a legal and valid marriage particularly
when the provision in the Code is a measure of social
justice intended to protect women and children. We
are unable to find that the respondent herein has
discharged the heavy burden by tendering strict proof
of the fact in issue. The High Court failed to consider
the standard of proof required and has proceeded on
no evidence whatsoever in determining the question
against the appellant. We are, therefore, unable to
agree that the appellant is not entitled to maintenance.
11. In view of the aforesaid law, it emerged that a lady who has already
been married to another person cannot be treated as a legally weeded wife of
the second husband without getting divorce from her first husband. As such,
being not legally wedded wife, she cannot claim maintenance from her second
husband. Now coming to the contentions of the learned counsel of petitioner
that if a woman resided with another man for a substantive period in living
relation or as a concubine, she would be entitled for maintenance from that man.
On this aspect, learned counsel relied upon Chanmuniya (supra). Having gone
through the factual matrix of that case, it is revealed that wherein both the
parties were unmarried and their cohabitation as husband and wife led to the
presumption of them being legally married. However, in the case at hand,
despite cohabitation as husband and wife, it is not legally tenable to raise a
presumption of a valid marriage because the Respondent was already married to
h e r respective spouse Dilip Chaturvedi and their marriage are subsisting.
Therefore, the Respondent cannot rely upon the Chanmuniya case in order to
bring herself within the definition of the term ''wife'' as per the Explanation (b) in
Section 125 Cr.P.C. so as to avail an order for maintenance, despite the social
object of this statutory provision.
12. Learned counsel has also relied upon another judgment delivered by
Hon'ble Apex Court in Kamala (supra). In this case, Hon'ble Apex Court
further held that there should be a broad and expensive interpretation to the term
of "wife" mentioned in Section 125 of Cr.P.C. However, in this case too, the
wife was not married earlier with another person and therefore, the principal laid
down by Hon'ble Apex Court in this case is also not beneficial for petitioner.
13. From the record, it is evident that learned JMFC has passed the order
by dismissing the application under Section 125 of Cr.P.C. on the ground that
since the respondent did not get divorce from her earlier husband and without
getting divorce she entered into second marriage. Hence, she cannot be
ascertained as a legally wedded wife of the petitioner and she is not entitled for
the claim of maintenance.
14. At this juncture, the relevant part of Section 125 of Cr.P.C is also
worth referring hereunder:-
125. Order for maintenance of wives, children and
parents.
(1) If any person having sufficient means neglects or
refuses to maintain:-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself, or
( c ) his legitimate or illegitimate child (not being a
married daughter) who has attained majority, where
such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or
herself,
15. It is unearthed from the aforesaid provision that an illegitimate child is
entitled to get maintenance but an illegitimate wife is not entitled to get
maintenance. The intention of legislature is obvious that maintenance can only
be granted in favour of legally wedded wife. On this issue the law laid down by
the full Bench in the case of Savitaben Somabhai Bhatia vs. State of Gujarat
and Ors. reported as 2005 Lawsuit (SC) 466, is also poignant to be pointed
out her:
"There may be substance in the plea of learned counsel for
the appellant that law operates harshly against the woman
who unwittingly gets into relationship with a married man
and Section 125 of the Code does not give protection to
such woman. This may be an inadequacy in law, which
only the legislature can undo. But as the position in law
stands presently there is no escape from the conclusion
that the expression 'wife' as per Section 125 of the Code
refers to only legally married wife."
16. In view of aforesaid settled propositions and provisions of law, it is
crystal clear that the wife should be a "legally wedded wife" for claiming
maintenance from her husband. A woman, having solemnized second marriage
to another person is only entitled to get maintenance from that person, when the
first marriage has been declared either null and void or she has obtained a
divorce decree from her first husband. The aforesaid view has recently been
endorsed by this Court in the cases of Sangeeta Rathore W/o Naresh Rathore
Vs. Naresh Rathore, 2023 LawSuit (MP) 470 a n d Kewal Singh Vs.
Durgabai, 2024 LawSuit (MP) 179.
17. In conspectus of the aforesaid settled proposition, in this petition
filed under Section 125 Cr.P.C., the term "wife'' under Section 125 Cr.P.C.
envisages a situation wherein she, having a living spouse, cannot seek
maintenance from her second husband without getting divorce from her earlier
husband. Nevertheless, this Court finds it unfortunate that many women,
specially those belonging to the poorer strata of society, are routinely exploited
in this manner, and that legal loopholes allow the offending parties to slip away
unscathed and unquestioned. In spite of the social justice factor embedded in
Section 125 Cr.P.C., the objective of the provision is frustrated as it fails to
arrest the exploitation which it seeks to curb. In the instant case, while the Court
sympathizes with the position of the Respondent, it is constrained to deny her
maintenance as per the law of the land which stands as of today. However, the
Respondent has the liberty to avail other remedies that may be better suited to
the facts and circumstances of this case, such as seeking of compensation
under Section 22 of the D.V. Act.
1 8 . In the result thereof, the order of the learned Revisional Court
awarding the maintenance to the respondent is found against the law and is also
suffering from infirmity and illegality. Accordingly, the impugned order of the
learned Revisional Court is set aside and the order of learned trial Court dated
06.09.2021 is hereby affirmed.
19. Ex-consequentia, this criminal revision is hereby allowed.
(PREM NARAYAN SINGH)
JUDGE
Vindesh
