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Section 125 in The Code Of Criminal Procedure, 1973
The Code Of Criminal Procedure, 1973
Section 5 in The Code Of Criminal Procedure, 1973
Article 226 in The Constitution Of India 1949
Section 397 in The Code Of Criminal Procedure, 1973

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Gujarat High Court
Kantilal Punjaji Chavda vs Nanubhai Kantilal Chavda And Anr. on 20 August, 1992
Equivalent citations: II (1993) DMC 551, (1992) 2 GLR 1520
Author: A Divecha
Bench: A Divecha

JUDGMENT

A.N. Divecha, J.

The husband has invoked to revisional jurisdiction of this Court under Section 397 of the Criminal Procedure Code, 1973 (the Cr. P.C. for brief) for questioning the correctness of the judgment and order passed by the learned Additional Sessions Judge (Court No. 2) of the City Sessions Court at Ahmedabad on 27th March, 1990 in Criminal Revision Application No. 40 of 1990. Thereby the learned Additional Sessions Judge has accepted the wife's revisional application against the order passed by the learned Metropolitan Magistrate (Court No. 10) at Ahmedabad keeping her application for interim maintenance along with the main matter. It may be mentioned that the learned Additional Sessions Judge has under his impugned judgment and order awarded interim maintenance at the rate of Rs. 400/- per month to the wife.

1. The facts giving to this revisional application are not many and not much in dispute. Respondent No. 1 herein preferred one application under Section 125 of the Cr. P.C. claiming maintenance from the petitioner on the ground that she is lawfully married wife and she was deserted by him and he has sufficient income to maintain her and she is unable to maintain herself. It is not necessary to set out in detail her pleading in her application for maintenance under Section 125 of the Cr. P.C. That application was made in the Court of the Metropolitan Magistrate (Court No. 10) at Ahmedabad. It came to be registered as Criminal Misc. Application No. 253 of 1988. She made therein one application for claiming interim maintenance till her application for maintenance under Section 125 of the Cr. P.C. was heard and finally decided. It appears to have been taken on record as Exh. 3. The petitioner appears to have filed his reply thereto and resisted it mainly on the ground that his marriage with respondent No. 1 herein was a nullity in view of the fact that his first marriage with one Shardaben was subsisting at that time. The learned Metropolitan Magistrate of Court No. 10 at Ahmedabad, by his order passed on 13th December, 1989 below the application for interim maintenance at Exh. 3 in Criminal Misc. Application No. 253 of 1988, ordered it to be heard along with the main application for maintenance. Aggrieved thereby, respondent No. 1 herein invoked the revisional jurisdiction of the Sessions Court of Ahmedabad under Section 397 of the Cr. P.C. for questioning the correctness of the aforesaid order passed by the learned trial Magistrate below her application for interim maintenance. It came to be registered as Criminal Revision Appl. No. 40 of 1990. If appears to have been assigned to the learned Additional Sessions Judge of Court No. 2 of the City Sessions Court of Ahmedabad. By his judgment and order passed on 27-3-1990 in Criminal Revision Application No. 40 of 1990, the learned Additional Sessions Judge accepted the wife's application and awarded the interim maintenance at the rate of Rs. 400/- per month from the date of her interim maintenance application. The aggrieved husband has thereupon invoked the further revisional jurisdiction of this Court under Section 397 of the Cr.P.C. and has questioned the aforesaid judgment and order passed by the learned Additional Sessions Judge in revision.

2. It has been urged before me by Shri Pardiwala for the petitioner that the wife in the instant case at the time of making her application under Section 125 of the Cr. P.C. was in know of the fact that the husband's marriage with one Shardaben was subsisting at the time of his marriage with respondent No. 1 and it was therefore necessary for her to plead in her application that his marriage with Shardaben was not a valid marriage in view of the ruling of the Supreme Court in the case of Smt. Yamunabai v. Anantrao, reported in AIR 1988 SC 644. Shri Pardiwala has further urged that the learned Additional Sessions Judge ought to have presumed the validity of the first marriage on the strength of the order of maintenance passed in her favour by the competent Court, in her maintenance application under Section 125 of the Cr. P.C. As against this, both Shri Vohra for respondent No. 1 and Shri Desai for respondent No. 2-State have urged that it was for the husband to prove at trial the fact that his marriage with Shardaben was a valid marriage. According to them, unless the marriage with Shardaben is proved to be valid, the marriage of respondent No. 1 with the petitioner will have to be presumed to be valid and she should be held entitled to interim maintenance on the basis of her prima facie case. Both Shri Vohra for respondent No. 1 and Shri Desai for respondent No. 2-State have further urged that the impugned judgment and order passed by the learned Additional Sessions Judge has done substantial Justice to the wife in the instant case, and as such this Court need not exercise its revisional powers in the present case.

3. It cannot be gainsaid that the Court of first instance has powers to award interim maintenance in a proceeding under Section 125 of the Cr. P.C. in view of the binding ruling of the Supreme Court in the case of Smt. Savitri v. Govind Singh, reported in AIR 1986 SC 984. These powers of awarding interim maintenance will have to be exercised on the basis of the applicant's prima facie case. The relevant observations in that regard are found in para 6 of the aforesaid ruling of the Supreme Court in the case of Smt. Savitri (Supra). The Supreme Court has further ruled that such an order of interim maintenance can be made even before issue of notice to the other side. What is however required by the Court for award of interim maintenance is that the applicant has a prima facie case in his or her favour.

4. At this stage it would be quite proper to look at the dictum of law pronounced by the Supreme Court in its ruling in the case of Smt. Yamunabai (supra). In that case the claim of the applicant for maintenance under Section 125 of the Cr.P.C. was sought to be resisted by pressing into service the relevant provisions contained in Section 5 of the Hindu Marriage Act, 1955 ("the Act' for brief). In that case also the husband resisted the wife's application for maintenance on the ground that his marriage with her was void as it was performed during the subsistence of his marriage with one Smt. Lilabai. The contention that the personal law applicable to the parties will have to be excluded from consideration while deciding the fate of the application under Section 125 of the Cr.P.C. was negatived. It has been held :

"To attempt to exclude altogether the personal law applicable to the parties from consideration is improper, Section 125 has been enacted in the interest of a wife, and one who intends to take benefit under Sub-section (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes her status or relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. The issue whether the section is attracted or not cannot be answered except by the reference to the appropriate law governing the parties."

5. The aforesaid ruling of the Supreme Court in the case of Smt. Yamunabai (supra), was considered by the Kerala High Court in its ruling in the case of Roman Pillai v. Subhadra Amma, reported in 1989 Cri. LJ 1274. In that case also the claim for maintenance of the wife was disputed on the ground that there was no valid marriage between the parties because the husband had earlier married and that marriage was subsisting on the date of his marriage with the applicant-wife in that case. After considering the above quoted observations of the Supreme Court in its ruling in the case of Yamunabai (supra), the Kerala High Court in its ruling in the case of Roman Pillai (supra), has held :

"This means, a lady who wants to claim maintenance from the man should establish that she has lawfully married him in conformity with the provisions contained in Section 5(i) of the Act as well. In other words, in the absence of proof that the marriage between the parties was not void on account of the contravention of the provisions contained in Section 5, the lady will not be entitled to claim maintenance Marriage of a woman, even if it is in accordance with Hindu rites, with a man, having a spouse living at the time of the marriage, is a nullity in the eye of law. The lady will not get the status of a legally wedded wife. She is accordingly not entitled to the benefit of Section 125 of the Code of Criminal Procedure."

I am in respectful agreement with the aforesaid view taken by the Kerala High Court in its ruling in the case of Roman Pillai (supra).

6. It would thus mean that the spouse approaching the Court under Section 125 of the Cr. P.C. will have to establish at trial that there was a lawful marriage between the spouses and that there was no impediment existing at the relevant time which would invalidate their marriage. The question now is whether what is required to be established by the spouse making the application under Section 125 of the Cr. P.C. at trial is required to be pleaded by that spouse in the application under Section 125 of the Cr. P.C. on an application for interim maintenance during the pendency of the main application for maintenance. This question has arisen in view of the fact that the wife in the instant case has stated in her application for maintenance under Section 125 of the Cr.P.C. that at the time of her marriage she was informed by the petitioner herein that his previous wife was no longer alive and was survived by a female child but later on it was found that the former wife was alive and a fraud was practised upon respondent No. 1 herein. Relying on this averment made in para 5 of her application for maintenance under Section 125 of the Cr. P.C., Shri Pardiwala for the petitioner has urged that she ought to have pleaded that there was no impediment against her marriage with the petitioner as provided in Section 5 of the Act as the parties, being Hindus, were governed thereby.

7. This Court had an occasion to examine what should be the pleading of the spouse making an application under Section 125 of the Cr.P.C. in Criminal Revision Application No. 333 of 1989 decided on 30th July, 1992 (Arunabehn T. Ramanuj v. Vasudev P. Nimavat, reported in 1992 (2) GLH 148). It has been held therein that the law of pleadings as applicable to civil proceedings is not applicable to maintenance proceedings under Section 125 of the Cr. P.C. It has further been held therein that loose pleadings of a party claiming maintenance under Section 125 of the Cr.P.C. would not be fatal to the claim of maintenance.

8. In the present case, the grievance is that respondent No. 1 in her application for maintenance under Section 125 of the Cr.P.C. has not pleaded to the effect that the earlier marriage of the present petitioner was not a valid marriage. That omission at the most would make pleadings loose. Looseness in her pleading would not come in her way in claiming maintenance. If it does not come in her way in claiming maintenance itself, it cannot come in her way in claiming interim maintenance.

9. Besides, what the Supreme Court has ruled in the case of Smt. Yamunabai (supra) as explained by the Kerala High Court in its ruling in the case of Raman Pillai (supra) is that, in order to take benefit under Section 125 of the Cr. P.C., the wife has to establish the necessary condition, namely, that she is the wife of the person concerned in the light of the law applicable to the parties. This she has to do at the stage of trial or hearing of the maintenance proceedings. Even if she has not properly pleaded her case in her application, she should not be prohibited from establishing at trial or hearing that she is a legally wedded wife of the opposite party. In that view of the matter, the absence of plea that the earlier marriage of the present petitioner was a nullity will not come in her way in claiming interim maintenance during the pendency of her maintenance application.

10. The grievance made by Shri Pardiwala for the petitioner that the wife in the instant case has not been able to establish her prima facie case in view of the material on record deserves some consideration. The prima facie case has obviously to be decided on the basis of the pleadings of the parties in the first place. As aforesaid, in its ruling in the case of Smt. Savitri (supra) the Supreme Court has held that interim maintenance can be awarded to a spouse without issuing any notice to the other side if the Court is satisfied about the prime facie case of the applicant. If any notice is issued to the other side and the application for interim maintenance is sought to be contested, the prima facie case can be decided on the basis of the pleadings of the parties and the materials that the parties might have brought on record. Unless the status of the spouse is seriously denied or disputed, an application for maintenance under Section 125 of the Cr. P.C. should raise a presumption about the validity of the matrimonial tie between the spouses. It is not necessary for a spouse in the application under Section 125 of the Cr. P.C. specifically to plead that the relationship between the spouses is on account of a valid marriage between the two. It is sufficient that the other side is branded as a spouse if the application for maintenance is made by either spouse. As aforesaid, unless the status of the spouse is seriously denied or disputed, the validity of the marriage between the spouses should be presumed.

11. Naturally, this should not mean that the presumption of a valid marriage would arise even if there is a serious challenge to the factum of marriage. For the purpose of deciding a prima facie case, the material on record shall have to be taken into consideration. Shri Pardiwala for the petitioner seems to be right in his submission that a presumption of valid marriage should arise on the basis of an order of maintenance passed by the competent Court under Section 125 of the Cr. P.C. if brought on record. If an application for maintenance by a spouse is capable of raising a presumption of a valid marriage in absence of any serious challenge having been made thereto by the opposite side, an order of maintenance passed by the competent Court under Section 125 of the Cr. P.C. should be all the more capable of raising such presumption in favour of a valid marriage. To that, extent, the approach of the learned Additional Sessions Judge might not be justified. The petitioner in the present case appears to have brought on record the order of maintenance passed by the learned Chief Metropolitan Magistrate of Ahmedabad in Criminal Misc. Application No. 90 of 1976 decided on 31st March, 1977 in favour of the petitioner's previous wife by the name of Shardaben. That order should have prima facie raised a presumption in favour of the present petitioner's valid marriage with Shardaben. If there was a prima facie presumption in favour of the petitioner's valid marriage with said Shardaben, the marriage between him and respondent No. 1 herein will prima facie be found to be invalid in view of the relevant provisions contained in Section 5 of the Act. The fact that Shardaben was alive on the date of the marriage between the petitioner and respondent No. 1 herein is not in dispute. In that view of the matter, there is no hesitation in coming to a prima facie conclusion that the marriage of respondent No. 1 with the petitioner would be invalid. This would obviously be a prime facie conclusion.

12. Shri Pardiwala has also made a grievance that the learned Additional Sessions Judge in his impugned judgment and order has undoubtedly cast the burden of proving in the validity of the present petitioner's marriage with Shardaben on the petitioner contrary to the aforesaid ruling of the Supreme Court in the case of Yamunabai (supra). As aforesaid, what the Supreme Court has ruled in the case of Yamunabai (supra) is chat the wife claiming maintenance under Section 125 of the Cr.P.C. will have to show that her marriage was performed in accordance with the law and that there existed no impediment by the law applicable to the parties. It is not expected of the wife to establish at trial that the earlier marriage of her husband was a nullity. It would be sufficient for the wife to establish at trial that at the time of her marriage there existed no impediment there against by the law applicable to the parties. In the instant case, it is the say of the wife that it was represented to her by the petitioner at the time of their marriage that his former wife was not alive and was survived by one female child. This would be sufficient for her to show that there existed no impediment by the law applicable to the parties for the purpose of her marriage with the present petitioner. Even if it found subsequently that the former wife was alive and that marriage between the spouses was not invalid in any manner, the law does not expect that the wife should prove the invalidity of the previous marriage. How the marriage ceremony was performed, whether the parties entering the matrimonial tie were within the prohibited degrees, what rituals where observed and like matters would be within the special knowledge of the parties to a marriage. The wife in the instant case was not a party to the previous marriage. She would not know whether the present petitioner's marriage with Shadaben was between the parties within the prohibited degrees. Respondent No. 1 herein would not be in the know of the fact whether or not the previous marriage was performed in accordance with the ceremonies and rituals prescribed by the law applicable to the parties. All these facts would be within the special knowledge of the petitioner herein. Section 106 of the Indian Evidence Act, 1872 casts the burden of proving that fact upon that person which is especially within the knowledge of that person. The burden to prove that his previous marriage was valid will be on the petitioner herein. In that view of the matter, I think the aforesaid ruling of the Supreme Court in the case of Smt. Yamunabai (supra) does not require the wife to establish at trial the invalidity of her husband's previous marriage.

13. However, for the, purpose of deciding the fact of an interim maintenance application, it is not necessary to decide on whom the burden of proof would tie. As aforesaid, the prima facie case for the purpose of deciding the interim maintenance application would be the pleadings of the parties and the material that the parties might have brought on record. As aforesaid, in absence of any serious challenge to the statute of the spouse making the application for maintenance, a presumption as to the validity of the marriage between the spouses would arise. Such presumption should prima facie arise with all the greater force on the strength of the order of maintenance passed by the competent Court under Section 125 of the Cr. P.C, if brought on record. In the instant case, as aforesaid, the petitioner herein has brought on record the order of maintenance passed by the Chief Metropolitan Magistrate of Ahmedabad on the 31st July, 1977 in Criminal Misc. Application No. 90 of 1976 in favour of his former wife by the name of Shardaben. That should raise a prima facie presumption as to the valid marriage between the two. The learned Additional Sessions Judge was not justified in not raising a prima facie presumption of a valid marriage between the present petitioner and Shardaben on the strength of the order of maintenance passed by the competent Court in her favour.

14. It cannot however be gainsaid that revisional powers are not appellate powers. The Court exercising revisional powers will do so in order to do justice between the parties and not to do injustice, between the parties even if the order sought to be revised is not in confirmity with law. The distinction between the appellate powers and the revisional powers is succinctly brought out in the ruling of the Allahabad High Court in the case of Emperor v. Jafar Khan, reported in (36) 1935 Cr. LJ 907. It has been held therein :

"It is very important and would save much waste of the time of the Courts if it was thoroughly realised that there is a distinction between a revision and an appeal. In the latter the appellant is given a statutory right to demand an adjudication from the Court either on a question of fact or on a question of law or upon both. When a matter comes upon revisional jurisdiction the applicant has no rights whatsoever beyond the right of bringing his case to the notice of the Court. It is for the Court to interfere in excepetional cases where it seems that some real and substantial injustice has been done. That is the main point which the Court has to consider. A revisional application is not to be regarded as in some sort a second appeal on a question of law."

The Court exercising revisional powers may refuse to interfere with the impugned order even if it is shown not fully in accordance with law if substantial justice is found to have been done between the parties.

15. It may be noted that extra-ordinary powers are conferred on the High Court under Article 226 of the Constitution of India. The exercise of these powers is however considered to be at the of discretion of the High Court. In a given case, the High Court may not grant the relief to the petitioner if no serious injustice is caused to him even if the action complained of may not be found to be in strict confirmity with law. In its Division Bench ruling (to which I was a party) in the case of Saurashtra Paper and Board Mills v. State, reported in [1922 (2)] XXXTTT (2) GLR 871 this Court has held that the powers under Article 226 of the Constitution of India are discretionary and in a fit case the Court should refuse to exercise such discretionary powers even if the impugned action is found to be not in accordance with law. In that case one notification issued under the relevant provisions contained in the Minimum Wages Act, 1948 was found not to be in accordance with law. This Court however refused to quash it or set it aside in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India on the ground that no substantial injustice was caused to the petitioner thereby. It cannot be gainsaid that like these extra-ordinary powers under Article 226 of the Constitution of India the revisional powers under the Cr. P.C. are discretionary in nature.

16. In the instant case, the wife is prima facie found to have been duped by the present petitioner. She was lured to enter into a matrimonial tie with the present petitioner under the pretext that his former wife was not alive. I am told by Shri Vohra at the Bar that the wife has brought on record one affidavit filed by the present petitioner before the Arya Samaj where the marriage between the present petitioner and respondent No. 1 herein took place to the effect that he was a bachelor at the time of their marriage. It is also the case of the wife and not seriously disputed by the petitioner herein that they lived together as husband and wife for nearly 12 years. He has admittedly begotten four children through her during this period. The plight of such wife would be pitiable. If the previous marriage is not found to be invalid, the present wife will be rendered helpless. The interim maintenance awarded to her by the impugned order passed by the learned Additional Sessions Judge is just to compensate her for such helplessness. This Court would be disinclined to snatch away whatever little she has been able to get from the Court by way of the impugned judgment and order. In that view of the matter, I am disinclined to interfere with the judgment and order passed by the learned Additional Sessions Judge in revision though I do not agree with the reasoning given in support of that order.

17. The maintenance application appears to have been filed in 1988. More than four years have rolled by since then. It is therefore desirable to see that the proceeding are disposed of as expeditiously as possible. The learned Trial Magistrate is therefore directed to accord the topmost priority to disposal of the maintenance proceedings in question preferably by 31st December, 1992.

18. In the result, this revisional application fails. It is hereby rejected. Rule is accordingly discharged.