Yashodan Rani vs Baldev Raj

S.S. Dewan, J.

This revision is directed against the order dated July 16, 1984, recorded by the learned Additional Sessions Judge, Jalandhar, in Criminal Revision No. 62 of 1983 by which he allowed the revision of the opposite party Baldev Raj and reversed the order dated August 5, 1983, recorded by the Judicial Magistrate 1st Class, Jalandhar, allowing the maintenance application under s. 125 of the Code of Criminal Procedure (for short, the Code) of the revisionist and allowing Rs. 150/ P.M. as maintenance to her from the date of the application.

Briefly stated, the facts are that Smt. Yashodan filed an application under s. 125 of the Code in the Court of the Judicial Magistrate concerned on the allegations that her marriage with the respondent took place about 14 years ago in accordance with Hindu rites and thereafter they cohabited together but no child was born out of the wedlock. She alleged that the respondent started illtreating her and turned her out in the month of January 1980 from his house and then she filed an application under s. 125 of the Code and a maintenance of Rs. 100/ P.M. passed in her favour. The respondent did not pay the maintenance to her. She got issued warrant of arrest against him. She further pleaded that the respondent appeared in the Court and offered to maintain her. Consequently, she remained with the respondent for about nine months and thereafter he again turned her out from his house. She claimed a sum of Rs. 500/ as maintenance form her husband. Baldev Raj respondent denied all the allegations. He denied his marriage with the petitioner. He rather pleaded that Smt. Yashodan Rani was married with Chautha Ram and two daughters and a son were born out of that wedlock. He claimed to have a living wife named Swaran Devi and a son aged 23 years. After considering the oral and documentary evidence of the parties, the learned Magistrate allowed the application and granted Rs. 150/ P.M. maintenance to the petitioner. Aggrieved by this decision, the respondent filed a revision which was allowed and the learned Additional Sessions Judge while reversing the order of the trial Court made the following observations :

"From the evidence led out by both the parties, it appears that Yashodan Rani and Baldev Raj had some connections and possibly had lived together but their relationship did not culminate into relationship of husband and wife. Yashodan Rani thus did not acquire the status of wife in order to bring her case for a petition under section 125 Cr.P.C. by her. In the circumstances, the conclusion drawn by the trial Magistrate are not in accordance with law as a result of which the revision field by Baldev Raj is accepted."

Mr. Manmohan Lal learned counsel, appearing for the petitioner at the outset has strenuously urged that the learned Additional Sessions Judge was wrong in interfering with the order made by the Magistrate on reappraisal of the evidence and the order made by the Additional Sessions Judge, therefore, be set aside. I regret my inability to accept this contention. Though ordinarily the revisional Court will be slow to interfere with the order made by the Magistrate but if the appreciation of the evidence is perfunctory and capricious, it is competent for the Sessions Judge to reappraise the evidence. Since the appreciation of evidence by the Magistrate was perfunctory and capricious and the finding regarding the petitioner''s marriage with the respondent on the basis of which mainly the Magistrate proceeded to make an order for maintenance, was based on incredible evidence, the learned Additional Sessions Judge was perfectly justified in reappraising the evidence and recording his own findings on the questions of the alleged second marriage and I affirm his finding.

The question involved in this revision is as to, "whether the second wife whose marriage is void in view of the provisions of Sections 5 and 11 of the Hindu Marriage Act, 1955, is entitled to apply for maintenance under S. 125 of the Code of Criminal Procedure." This matter is now not res integra. This question has been answered by a Division Bench decision of the Bombay High Court in Bajirao Raghoba Tambare v. Tolanbai Bhagwan Tonge and another 1979 Mh. L.J. 693 in the following terms :

"Unless and until the applicant under section 125, Criminal Procedure Code establishes that she is the legally wedded wife of the nonapplicant, the Magistrate will have no jurisdiction to pass an order of maintenance in her favour. If the parties being Hindus marry in contravention of section 5 and 11, Hindu Marriage Act and thus marriage is null and void but still the Magistrate grants maintenance under section 125, Criminal Procedure Code, 1973 to the wife and the Sessions Judge upholds the decision, there is a clear error on the face of the record which requires to be rectified and the case is fit for interference under Article 227, Constitution of India. A refusal to exercise the power would result in totally ignoring the provisions of law and maintaining an order which on the face of it illegal and without jurisdiction."

This view has been approved by a Full Bench decision of the same High Court in Yamunabai Anantrao Adhav v. Anantaro Shivram Adhav and others, 1983 H.L.R. 229.

On the plain reading of s. 125 of the Code, therefore, in this case the petitioner''s marriage with the respondent being null and void under Ss. 5 and 11 of the Hindu Marriage Act, she was not the legally wedded wife of the respondent, with the result that the petitioner cannot be termed as a wife of the respondent to entitle her to an order of maintenance under the said S. 125.

In the result, the revision petition stands dismissed and the order of the revisional Court is confirmed.