Smt. Parvatevva and Others vs Shivayya

Mohan Shantanagoudar, J.—The 1st petitioner claiming to be wife of respondent and petitioners 2 and 3 Claiming to be the daughters of respondent, filed Criminal Miscellaneous Case No. 40/95 before the Trial Court and prayed for maintenance of Rs. 500/- each u/s 125 of Cr.P.C. The trial Court, on hearing both the parties, ordered that the petitioners 2 and 3 herein are entitled to Rs. 100/- each per month and 1st petitioner is entitled for monthly maintenance of Rs. 300/- from the respondent from the date of the petition. The said order of granting maintenance was challenged before the Sessions Court, Bagalkot, by filing Criminal Revision Petition No. 21/2002 by the husband-respondent herein. The Sessions Court set aside the order of grant of maintenance in favour of 1st petitioner herein and confirmed the order of awarding maintenance of Rs. 100/- per month to petitioners 2 and 3 herein. Assailing the correctness of the order passed by the Sessions Court refusing for grant of maintenance to the 1st petitioner, this revision petition is filed.

The case of the claimants is that, Parvatevva- 1st petitioner herein is the legally wedded wife of respondent and their marriage was performed at Sri Somanath Devastan, Sogal, Belgaum District, as per the customs prevailing in their community. The two daughters are born during the subsistence of the marriage between Parvatevva and Shivaiah (Respondent herein). As all the three claimants are neglected by Shivaiah, they filed an application before the Trial Court praying for grant of maintenance of Rs. 500/- each. The respondent - Shivaiah took up the contention that he is married with one Smt. Akkamahadevi in the year 1982 itself and that therefore parvatevva is not entitled to maintenance, as she is not his legally wedded wife. In support of his contention, he produced Exs.R-1 to R-10.

Both the Courts below have held that Smt. Parvatevva is the wife of Shivaiah and that Soneswari and Sumangala are born out of the wedlock between Shivaiah and Parvatevva. However, the Sessions Court by relying upon Exs.R-1 to R-10 came to the conclusion that Shivaiah married Akkamahadevi d/o Irayya on 9.5.1982, and consequently, the marriage between Shivaiah and Parvatevva will be the second marriage, which is void ab initio. In this view of the matter, the prayer of Smt. Parvatevva was refused by the Sessions Court by holding that she is the second wife of Shivaiah and is not entitled to maintenance.

The learned Counsel for the petitioner submitted that both the Courts below have held that Smt. Parvatevva is the wife of Shivaiah and in the absence of any satisfactory and concrete material to show that there is subsistence of legally and valid marriage between Shivaiah and Akkamahadevi, the Sessions Court should not have concluded that Parvatevva is the second wife of Shivaiah. He relied upon the judgment of the Apex Court in the case of K.VIMALA v. K. VEERASWAMY AIR 1991 SCW 754 in support of his arguments. Per contra, the learned Counsel for the respondent argued in support of the order passed by the Sessions Court.

Looking to the material on record and in view of the concurrent findings of the Courts below, there cannot be any dispute that Smt. Parvatevva married Shivaiah on 13.3.1991 as per the customs prevailing in their community. PW-2 is the Purohit who conducted the marriage between Parvatevva and Shivaiah. The evidence of PWs.2, 3 and 4 fully supports the case of the claimants that Parvatevva married Shivaiah in the year 1991 and out of the said wedlock, petitioners 2 and 3 are born. In her evidence PW- 1 stoutly denies the suggestion put to her that the husband Shivaiah married Akkamahadevi in the year 1981. However, Exs.R-1 to R-10 produced by Shivaiah would show the marital relationship between Smt. Akkamahadevi and Shivaiah. But, as Shivaiah claims that Akkamahadevi is his first wife, he will have to satisfactorily prove the subsistence of legal and valid marriage between himself and Akkamahadevi. The burden of strict proof of earlier marriage is on the husband Shivaiah. The same is not discharged by respondent. Clear proof of earlier marriage is necessary. Mere living as husband and wife by Shivaiah and Akkamahadevi may not be sufficient to show the subsistence of valid marriage between the two prior to the marriage between Shivaiah and Parvatevva. Entries in insurance policy and family identity card issued by the employer are not sufficient proof of earlier valid marriage. Smt. Akkamahadevi is not examined before the Court in support of the respondents'' case. None of the persons who participated in the marriage between Shivaiah and Akkamahadevi are examined on behalf of the respondent-Shivaiah. In this connection a reference may be made to the observations made by the Apex Court in the case of K. Vimala v. K. Veeraswamy AIR 1991 SW 754 cited supra, which reads thus

"In this case though the respondent- husband repudiated the marriage of the appellant as void on account of subsistence of an earlier marriage, he failed to discharge the heavy burden by tendering strict proof of the fact that he had earlier married another woman ''V'' in the customary form and the marriage was subsisting when the appellant was married to him. In absence of a clear admission of an earlier marriage the statement that the respondent is living with another woman as husband and wife cannot persuade the court to hold that the marriage duly solemnised between the appellant and the respondent suffers from any legal infirmity. The insurance policy indicating that ''V'' was the wife of the respondent and the family identity card issued by Road Transport Corporation where respondent was working showing ''V'' as his wife, being the documents issued on the basis of what the respondent himself had stated, are not conclusive of the subsistence of a valid marriage between the respondent and ''V'' when the admitted marriage with the appellant was solemnised."

Section 125 Cr.P.C., is meant to achieve a social purpose and, therefore, the law which disentitles the second wife from receiving maintenance from her husband 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. The object of the provisions of Section 125 Cr.P.C. 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. In a proceeding for maintenance u/s 125 Cr.P.C., the Courts, are expected to pass appropriate orders after being prima facie satisfied about the marital status of parties. It is obvious that the said decision will be tentative decision subject to final order in any civil proceedings, if the parties are so advised to adopt.

On looking to the entire material on record, it is clear that Smt. Parvatevva is the wife of Shivaiah. In the absence of satisfactory and concrete proof of subsistence of legal and valid marriage between Shivaiah and Akkamahadevi, at the time of marriage between Shivaiah and Parvatevva, the order of the Sessions Court refusing to award amount of maintenance to Parvatevva cannot be sustained. The amount of Rs. 300/- p.m. awarded in favour of first petitioner by the Trial Court cannot be said to be excessive. The negligence on the part of Shivaiah to maintain petitioners is also not in much dispute. In view of the above, the following order is made:

The order passed by the Sessions Court in Criminal Revision Petition No. 21/2002 refusing to award maintenance to Parvatevva is set aside. The order of the trial Court passed in Criminal Miscellaneous No. 40/1995 awarding maintenance to the petitioners herein is restored.

Revision petition is allowed accordingly.