Sanghmitra and Others vs Ganpat

V.L. Achliya, J.—1. This application is filed seeking relief to set aside the order dated 5/7/2011 passed in Petition No. E-233/2001 by the Principal Judge, Family Court, Nagpur, thereby rejecting claim of maintenance filed by applicant No. 1.

Few facts leading to filing of this application are as under:-

Applicant No. 1 herein had preferred an application under Section 125 of the Criminal Procedure Code for herself and her two minor children, namely, Sadanand and Ku. Vaisali seeking maintenance. She has contended that she is a legally wedded wife of non-applicant. Their marriage was performed on 15.6.1988 in Ram Mandir at Ramtek as per the Hindu rites and customs in the presence of first wife of non-applicant and relatives from both sides. After the marriage they lived together as husband and wife for a period of about 2 years. When she married with non-applicant the first wife of non-applicant was not keeping good health and unable to do the household work. Some time after her marriage with non-applicant, the first wife of the non-applicant (Lilabai) recovered from ailment and able to do domestic work. Thereafter, she started giving mental and physical harassment to applicant No. 1. Due to quarrel between them, the non-applicant took another premises on rent for her residence. She started to stay in the rented premises. She gave birth to male child on 17.6.1991. In the year 1998, the non-applicant started to cause mental and physical torture to applicant No. 1. He stopped providing money to maintain herself and her two children. He refused to maintain her and as well as her two children. Therefore, applicant No. 1 lodged complaint in respect of ill-treatment and harassment against the non-applicant with Police Station Ajni and also issued notice to the non-applicant. Since the non-applicant refused to maintain her and her two children, she filed application under Section 125 of the Criminal Procedure Code seeking maintenance at the rate of Rs. 1,500/- per month for herself and maintenance at the rate of Rs. 1,500/- per month each to two children. The non-applicant appeared in the matter and resisted the application. He denied the status of applicant No. 1 as legally wedded wife of non applicant. The learned Judge of the Family Court vide judgment and order dated 5th July, 2011 partly allowed the application, to the extent of applicant Nos. 2 and 3 i.e. minor children of the applicant (original applicant No. 1), and directed the non-applicant to pay maintenance at the rate of Rs. 1,500/- per month to applicant Nos. 2 and 3 from the date of application. However, the learned Judge rejected the claim of the applicant No. 1 on reaching to conclusion that she has failed to prove that she is legally wedded wife of the non-applicant. Being aggrieved by the judgment and order dated 5.7.2011, passed by the learned Principal Judge of the Family Court, Nagpur the applicants have preferred this application.

Heard Mrs. Deshpande, learned counsel for the applicants. Mr. Sudhir Malode, learned counsel for the non-applicant remained absent.

Mrs. Deshpande, learned counsel for the applicants strenuously contended that while passing the impugned order, the learned Principal Judge of the Family Court has erred in overlooking the very object of the provision of Section 125 of the Criminal Procedure Code. She has contended that Section 125 of Criminal Procedure Code has been enacted as a measure of social justice and specially enacted to protect women and children who are deserted and neglected by the person obliged to maintain them. While interpreting the provision the word "''wife"'' referred in Section 125 needs to be interpreted in a wider sense to cover the woman who had lived with a man as his wife irrespective of whether the marriage is void or voidable. In support of her contention, the learned counsel has referred and relied upon various decisions. She has relied on the decision of the Apex Court in the case of Vimala (K.) V/s. Veeraswamy (K.) reported in , (1991) 2 SCC 375, Captain Ramesh Chander Kaushal V/s. Mrs. Veena Kaushal and others reported in , AIR 1978 SC 1807(1), Dwarika Prasad Satpathy V/s. Bidyut Prava Dixit reported in AIR 1999-EQ(SC)-0-1203, Deoki Panjhiyara V/s. Shashi Bhushan Narayan Azad and another reported in 2013 CRL.J. 684, Badshah V/s. Urmila Badshah Godse and another reported in , (2014) 1 SCC 188.

I have carefully considered the submissions advanced in the light of the reasons and findings recorded by the learned Judge of the Family Court in rejecting the claim of applicant No. 1. If one consider the rival pleadings, then the fact is not in dispute that the applicant has approached with a case that she got married with the non-applicant while the marriage between the non-applicant and his first wife Lilabai was subsisting and Lilabai was very much alive. The fact is also not in dispute that while performing the marriage with the non-applicant, the applicant was fully aware that the non-applicant is already married and his wife is alive. It is nowhere the case of the applicant that the non-applicant has concealed the fact of his first marriage with Lilabai. In view of the undisputed fact that the marriage of the applicant with the non-applicant was performed while the spouse of the non-applicant was alive and the marriage between them was subsistence, learned judge of Family Court has arrived to the conclusion that the applicant has failed to prove that she is legally wedded wife of the non-applicant. Learned Judge has placed reliance upon the decision of this Court in the case of Smt. Kisnabai wd/o. Vithoba Gaydhane and another vs. Vithoba s/o. Goma Gaydhane, reported in 2005 ALL MR (Cri.) 1760.

In my view, the reasons and findings recorded by the learned Judge of the Family Court are in consonance with the pleadings and evidence on record. There is absolutely no inconsistency or perversity noticed in the decision of the learned Judge of the Family Court. In this context, it is useful to refer the contents of application filed under Section 125 of the Criminal Procedure Code. Applicant No. 1 has not only specifically averred that her marriage with non-applicant was performed while the first wife of the non-applicant was alive, but she has also pleaded that the first wife of the non-applicant was also present at the time of her marriage with non-applicant. The averments made in para 1 of the application reads as under :-

"(1) That the applicant No. 1 is legally wedded wife of the non-applicant and their marriage was solemnized at Ram Mandir, Ramtek, on 15.6.1988 as per Hindu customs and rites in the presence of first wife and relatives of the applicant No. 1 and the non-applicant. That both the applicant No. 1 and the non-applicant resided together and cohabitated in his house at Nandanvan Layout, Trimurti Chowk, Nagpur, with first wife of the non-applicant. However, soon thereafter, there were quarrels and disputes in the house and as such, at the insistence of the non-applicant, the applicant No. 1 started residing in a rented house at Trisharan Chowk, near the house of the parents of the applicant No. 1. That there are two issues out of the said marriage, i.e. the applicant No. 1 and the applicant No. 2. That during this period, the non-applicant was making payment of Rs. 2,000/- to the applicant No. 1 and Rs. 2,500/- to the applicant No. 2.

Thus, the pleadings made in the application itself leaves no scope to advance the submission that the marriage of the applicant with the non-applicant was on account of any concealment of the fact of previous marriage or otherwise. In view of the pleadings made in the application, there is no need to look into the evidence adduced in the matter or even to look into the pleadings of the non-applicant. Learned Judge of the Family Court has rightly placed reliance upon the decision of this Court in the case of Smt. Kisnabai vs. Vithoba (supra) which in turn based upon the decision of the Apex Court in the case of Smt. Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, reported in , AIR 1988 SC 644. While dealing with the case based upon the identical facts of the case, the Apex Court has ruled in uncertain terms that the word "''wife"'' referred in Section 125 means legally wedded wife and the marriage of woman with man already having living spouse is a complete nullity in the eyes of law and such woman is not entitled to the benefit of Section 125 of the Code of Criminal Procedure. The Apex Court has further held that the wife was not informed about the husband''s earlier marriage, when she married would be of no avail as principle of estoppel cannot be relied to defeat the provisions of the Act.

The various rulings as referred and relied by the learned counsel for the applicant are distinguishable on the facts of the case. In the cases cited the plea raised was either concealment of earlier marriage or validity of the marriage on the ground that certain essential conditions / rituals of the marriage were not fulfilled. In the instant case, the applicant herself has pleaded that her marriage was performed as per customs and rites prevailing in Hindu religion and she has married with the non-applicant while spouse of the non-applicant was alive and present in their marriage.

In the case of Badshah vs. Urmila Badshah, reported in , (2014) 1 SCC 188 relied by learned counsel for the applicants, the Apex Court has considered all the decisions as referred above including the decision of the Apex Court in the case of Smt. Yamunabai vs. Anantrao (supra). The decision in said case has not been overruled. On the contrary, it has been observed that the decision in Smt. Yamunabai vs. Anantrao and Savitaben Somabhai Bhatiya vs. State of Gujarat reported in , (2005) 3 SCC 636 would apply in those cases wherein a woman married a man with full knowledge of subsistence of first marriage and said judgment would not apply to those cases where a man marries a second time by keeping that lady in dark about the second marriage. In para 13.2 the Apex Court has observed as under :-

"Secondly, as already discussed above, when the marriage between respondent 1 and the petitioner was solemnised, the petitioner had kept respondent 1 in dark about his first marriage. A false representation was given to respondent 1 that he was single and was competent to enter into marital tie with respondent 1. In such circumstances, can the petitioner be allowed to take advantage of his own wrong and turn around to say that the respondents are not entitled to maintenance by filing the petition under Section 125 CrPC as respondent 1 is not "legally wedded wife" of the petitioner ? Our answer is in the negative. We are of the view that at least for the purpose of Section 125 CrPC, respondent 1 would be treated as the wife of the petitioner, going by the spirit of the two judgments we have reproduced above. For this reason, we are of the opinion that the judgments of this Court in Adhav and Savitaven cases would apply only in those circumstances where a woman married a man with full knowledge of the first subsisting marriage. In such cases, she should know that second marriage with such a person is impermissible and there is an embargo under the Hindu Marriage Act and therefore she has to suffer the consequences thereof. The said judgment would not apply to those cases where a man marries a second time by keeping that lady in dark about the first surviving marriage. That is the only way two sets of judgments can be reconciled and harmonised."

Thus, in the light of discussions made in forgoing paras, no case has been made out to interfere with the decision of the Family Court. In the result, the application deserves to be rejected. Accordingly, the application is rejected.

The fees of the learned counsel appointed for the applicant under legal aid scheme is quantified at Rs. 2,000/-. Accordingly, the fees be paid to her.

Rule is discharged.