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Cites 4 docs
Section 125 in The Code Of Criminal Procedure, 1973
The Code Of Criminal Procedure (Amendment) Act, 2005
Section 15 in The Code Of Criminal Procedure, 1973
The Code Of Criminal Procedure, 1973
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Supreme Court of India
K.Vimal vs K.Veeraswamy on 20 March, 1991
Equivalent citations: 1991 SCR (1) 904, 1991 SCC (2) 375
Author: M Fathima Beevi
Bench: Fathima Beevi, M. (J)
           PETITIONER:
K.VIMAL

	Vs.

RESPONDENT:
K.VEERASWAMY

DATE OF JUDGMENT20/03/1991

BENCH:
FATHIMA BEEVI, M. (J)
BENCH:
FATHIMA BEEVI, M. (J)
AHMADI, A.M. (J)
RAMASWAMI, V. (J) II

CITATION:
 1991 SCR  (1) 904	  1991 SCC  (2) 375
 JT 1991 (2)   182	  1991 SCALE  (1)495


ACT:
    Code of Criminal Procedure, 1973: section 125-scope and
object of- Wife's application for maintenance-Husband's plea
of  marriage  being void on account of	subsistence  of	 his
earliar marriage-HeldCourt should insist on strick proof  of
earliar marriage- Insurance nomination and entry in  Indenty
Card are not conclusive of substance of earliar marriage.



HEADNOTE:
     The appellant-wife filed an application for maintenance
against respondent-husband under section 125 of the Code  of
Criminal  procedure,  1973.  The  respondent  contested	 the
application on the ground that appellant was not his legally
wedded	wife  since their marriage was void  on	 account  of
subsistence of respondent's earlier marriage. The Magistrate
awarded	 a  monthly maintenance of Rs. 400 to  the  wife  by
holding	 that  the  respondent	has  not  proved  his  first
marrige.  The order of the magistrate  was set aside by	 the
High  Court in revision accepting the respodent's plea	that
his first marriage was subsisting when the respodent married
the appellant.
     In	 appeal to this court it was contented on behalf  of
the respodent that the High Court had no material before  it
for arriving at the finding that there was an earlier  valid
marriage on the date respondent married the appellant.
     Allowing the appeal, this Court.
     HELD:1 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. The term "wife" 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 wife whose marriage is void on account  of
the survival of the first marriage is
						       905
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 for the sole reason that the marriage  ceremony
though performed in the customary from 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 ameasure of social justice
intended to protect women and children. Accordingly, 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  should
insist on strict proof of the earlier marriage. [907D-H]
      2. The respondent has not discharged the heavy  burden
by  tendering strict proof of the fact in issue. He  clearly
admitted  his marriage with the appellant acording to  Hindu
rites.	But  there  is no clear	 admission  of	his  earlier
marriage  to  dispense with the proof  of  subsisting  valid
first  marriage when the second marriage was solemnised.  In
the  absence  of such an admission, the statement  that	 the
respondent was living with another woman as husband and wife
cannot	persuade  was court to hold that the  marriage	duly
solemnised between the appellant and the respondent  suffers
from any legal infirmity. [906C-H]
     3. The nomination in the Insurance Policy and Entry  in
the  Identity  Card, referred to by the High Court  are	 not
conclusive  of the subsistence of a valid  marriage  between
the  respondent	 and his earlier wife. The  High  Court	 has
failed	to consider the standard of proof required  and	 has
proceeded  on  no  evidence whatsoever	in  determining	 the
question  against the appeallant. Accordingly the  order  of
the High Court is set aside and the order of  the Magistrate
is restored. [907B-C]



JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 664 of 1990.

From the Judgement and Order dated 13.3.1990 of the Andhra Pradesh High Court in Criminal Revision Case No. 532 of 1989.

K. Ramkumar for the Appellant.

B. Kanta Rao for the Respondent.

The Judgment of the Court was delivered by FATIMA BEEVI, J. The appellant and the respondent got 906 married according to Hindu rites and customs on June 30, 1983. They lived together until the appellant started complaining of desertion and ill-treatment. She moved the court for maintenance by an application under Section 125 of the Code of Criminal Procedure. Though the claim was resisted on the ground that the appellant is not the legally wedded wife of the respondent who had earlier married one Veeramma, the learned magistrate awarded a monthly maintenance of Rs.400 holding that the first marriage has not been proved. The order was, however, set-aside by the High Court in revision accepting the plea that the first marriage was subsisting when the respondent married the appellant.

We have granted special leave to appeal against the order of the High Court. We have been taken through the pleadings and the evidence by the learned counsel for the appellant for the purpose of satisfying that the High Court had no material before it for arriving at the finding that there was a valid marriage between Veeramma and the respondent on the day the respondent married the appellant. It is pointed out that the appellant had nowhere admitted the subsistence of a valid marriage which would render her marriage illegal. The appellant stated in her petition that one year after her marriage, she came to know that respondent married Veeramma and lived with her in Hyderabad and soon thereafter Veeramma started living along with the appellant and the respondent and, thus extra-marital relationship of the respondent with Veeramma has disrupted her family life. In fact, the respondent had in his counter flatly denied all the averments made by the appellant in the petition and maintained that a marriage ceremony was performed between Veeramma and the respondent when both were children and the appellant is only his kept-mistress. The respondent has, however, clearly admitted that he married the appellant according to Hindu rites. When that marriage is repudiated as void on account of the subsistence of an earlier marriage, the respondent was bound to prove that he married Veeramma in the customary form and the marriage was subsisting in the year 1983 when the appellant was married to him. As rightly pointed out by the learned counsel for the appellant, there is no clear admission of an earlier marriage between the respondent and Veeramma to dispense with the proof of subsisting valid first marriage when the second marriage was solemnised. In the absence of such an admission, 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 High Court has referred to Ex. R-12 and R- 13 relied on 907 by the respondent to prove that he was already married. Ex. R- 12 is the insurance policy issued On 5. 12. 1975 where the name of the nominee is shown as Veeramma indicating that she is the wife of the respondent. Ex. R- 13 is the family identity card issued by the Road Transport Corporation where the respondent was working in 1977. These documents are issued on the basis of what the respondent himself had stated. The entries are not conclusive of the subsistence a valid marriage between the respondent and Veeramma. If they had been living together as husband and wife even without performing a ceremonial marriage, and the respondent represented that Veeramma was his wife, it is possible that such entries would come into existence. Therefore, these documents by themselves cannot prove any marriage or the subsistence of a valid marriage when the admitted marriage with the appellant was solemnised.

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 15 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 wife whose marriage is void an 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, Cr. P.C., 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.

908

We find that there is no dispute that the appellant was married to the respondent in the customary form. They lived together as husband and wife and of late the respondent had neglected to maintain her. The respondent has no case that the appellant has means to maintain herself or that the amount she has claimed is not commensurate with the means of the respondent. The learned magistrate was, therefore, justified in awarding an amount of Rs.400 per mensem towards the maintenance of the appellant. That order of the magistrate has to be restored.

In the result, we allow the appeal, set-aside the order of the High Court and restore that of the trial court.

T. N. A.				      Appeal allowed.
						       909