Karnataka High Court
Bhimanna @ Bhimappa S/O Mallappa ... vs Smt. Kasturi W/O Bhimanna @ Bhimappa & ... on 7 December, 2018
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 07TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
RPFC.NO.529/2013
BETWEEN:
BHIMANNA @ BHIMAPPA S/O MALLAPPA KALLYANI
AGE: 46 YEARS OCC: AGRICULTURE
R/O: KANAMADI
TQ & DIST: BIJAPUR. ... PETITIONER
(BY SRI.SANJEEVKUMAR.C.PATIL, ADVOCATE)
AND:
1. SMT.KASTURI W/O BHIMANNA @ BHIMAPPA
KALLYANI
AGE: 33 YEARS OCC: HOUSEHOLDS WORK
2. KUMARI.LAXMI D/O BHIMANNA @ BHIMAPPA
KALLYANI
RESPONDENT NO.2 IS MINOR
REPRESENTED BY HER
NATURAL MOTHER RESPONDENT NO.1
BOTH ARE R/O: KANAMADI
TQ & DIST: BIJAPUR-586101.
... RESPONDENTS
(BY SRI.S.S.MAMADAPUR, ADVOCATE FOR R1
R2 IS MINOR REPRESENTED BY R1)
2
THIS RPFC IS FILED UNDER SECTION 19 (4) OF
THE FAMILY COURT ACT 1984 PRAYING TO CALL FOR
RECORD AND SET-ASIDE THE JUDGMENT AND
ORDER PASSED BY THE JUDGE, FAMILY COURT AT
BIJAPUR IN CRL.MISC.NO.46/2012 DATED
23.11.2012.
THIS PETITION COMING ON FOR FINAL
HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition is filed by husband-Bhimanna @ Bhimappa challenging the judgment and order dated 23.11.2012 passed by the Family Court Bijapur in Crl.Misc.No.46/2012.
2. For the sake of convenience the parties are referred as per their ranking before the Court below. 3
3. The brief facts of the case are that, petitioner No.1 is the legally wedded wife of respondent. The petitioner No.2 is the daughter of petitioner No.1. The marriage of petitioner No.1 and respondent has taken place at Kanamadi village. Due to their wedlock petitioner No.2-Kumari Laxmi was born. Her further case is that, respondent has not disclosed his earlier marriage with Smt.Bhandawwa and begotten four children. Since, her husband has refused to maintain the petitioners No.1 and 2, she has filed the petition under Section 125 of Cr.P.C. for maintenance.
4. After service of summons, the husband has filed objections and he denied his marriage with petitioner No.1.
5. On the basis of the pleadings, the Family Court has framed the following points for consideration:-
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1. Whether the petitioner No.1-
Smt.Kasturi Kallyani proves that, she is the wife of the respondent-
Mr.Bhimanna @ Bhimappa and the petitioner No.2-Kumari Laxmi is the daughter born to them?
2. Whether the petitioners prove that, they being the wife and daughter of the respondent, are neglected or refused by him to maintain them?
3. Whether the petitioners prove that, they are unable to maintain themselves?
4. Whether the petitioners are entitled for maintenance? If so, how?
5. What Orders?
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6. To establish their case, the petitioner No.1 has been examined two witnesses as PWs.1 and 2 and marked 07 documents. On the other hand husband- respondent has been examined himself as RW.1 and marked 05 documents. On appreciation of oral and documentary evidence, the Court below has granted maintenance of Rs.1,500/- per month to the wife and Rs.1,000/- per month to the daughter from the date of petition till the remarriage or death of the petitioner No.1-wife and till the marriage of petitioner No.2- daughter.
7. Being aggrieved by the same, the husband has filed this petition.
8. Sri.Sanjeevkumar.C.Patil, learned counsel for the petitioner submits that, it is specific case of the husband that, at no point of time he has married to petitioner No.1. He has married to Smt.Bandhawwa and he has got four children. He further contended that, 6 even if Court comes to the conclusion that, the respondent is married to petitioner No.1, since it is second marriage. During the subsistence of first marriage, she is not a legal wedded wife. Hence, she is not entitled for any maintenance. In support of his arguments he has relied upon the judgment of Hon'ble Supreme Court in the case of Savitaben Somabhai Bhatiya /vs/ State of Gujarat and others reported in (2005) 3 SCC 636. Accordingly, prayed to allow the petition.
9. Per contra, Sri.S.S.Mamadapur, learned counsel for the respondent submits that, he has produced sufficient oral and documentary evidence to prove that, the petitioner No.1 had married to respondent. Due to their wedlock the petitioner No.2 was born. He further contended that, in the petition under Section 125 of Cr.P.C. strict proof of marriage is not necessary. He further contended that, it is specific 7 case of the petitioners that, respondent-husband had suppressed his earlier marriage. Under these facts and circumstances of the case, the wife and daughter are entitled for maintenance. He has relied upon the judgment of Hon'ble Supreme Court in the case of Badshah /vs/ Urmila Badshah Godse reported in (2014) 1 SCC 188. Accordingly, prayed to dismiss the petition.
10. Heard the learned counsels appearing for the parties.
11. It is specific case of the petitioner No.1 that, she had married to Bhimanna @ Bhimappa. Due to their wedlock Kumari Laxmi was born. She has specifically pleaded in the petition before the Family Court that, her husband had not disclosed his earlier marriage. She came to know only after her marriage that, already her husband had married with Smt.Bandhawwa and got four children. 8
12. The petitioners have produced 07 documents and examined two witnesses to prove the marriage of petitioner No.1 with respondent-Bhimanna. Ex.P.1 is the voters list wherein it is mentioned that, Mr.Bhimanna @ Bhimappa is the husband of Smt.Kasturi Kallyani. Ex.P.2 is the caste-cum-date of birth certificate of Kumari.Laxmi Bhimappa Kallyani issued by the Head Master, Government Pre-Primary School of Jambagi Thota, Badagi, Tq: Athani Dist:
Belgaum. The date of birth of the female baby-Kumari Laxmi is shown to be 18.08.2002. In that document the name of father it is shown as Bhimanna. To prove the documentary evidence they have examined two witnesses. It is specific case of the PWs.1 and 2 that, petitioner No.1 had married to Bhimmanna and their marriage has taken place at Kanamadi village. Due to their wedlock female child was born. PW.2- Sri.Malakappa.G.Belur, specifically stated that, his daughter-Smt.Kasturi.B.Kalyani-Petitioner No.1 had led 9 the married life with Bhimanna for one year. In the meanwhile she has become pregnant. Therefore, she came to her parents' house to deliver a child. But husband-Bhimanna not shown courtesy even to come and see the child. In the cross-examination of PWs.1 and 2 respondent-husband has not elicited any materials. On the other hand Bhimanna has not denied the fact that, female baby Kumari Laxmi born to PW.1.
Considering all these facts Family Court has rightly held that, respondent has married to petitioner No.1 and due to their wedlock petitioner No.2 was born.
13. Learned counsel for the respondent-husband has relied upon the judgment of this Court in the case of Khatalsaheb WD. Khadir Saheb Inamdar (Dead) By L.RS.) and another /vs/ Ameersaheb and others reported in 1995 (1) KLJ 663. That case is not applicable to the fact of this case. The Hon'ble Supreme Court in the case of Kamala and others /vs/ 10 M.R.Mohan Kumar in Criminal Appeal Nos.2368- 2369 of 2009 has held that, strict proof of marriage is not necessary in proceedings under Section 125 of Cr.P.C.
14. In respect of second contention, the Hon'ble Supreme Court in the case of Savitaben Somabhai Bhatiya /vs/ State of Gujarat and others reported in (2005) 3 SCC 636, has held at Para No.15 that, "In Yamunabai case, it was held that the expression "wife" used in Section 125 of the Code should be interpreted to mean only a legally wedded wife. The word "wife" is not defined in the Code except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of the law proceeding that status. The expression must therefore be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with Hindu rites with a man having a living 11 spouse is a complete nullity in the eye of the law and she is therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act, 1955 (in short "the Marriage Act"). Marriage with a person having a living spouse is null and void and not voidable. However, the attempt to exclude altogether the personal law applicable to the parties from consideration is improper. Section 125 of the Code 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. The issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes such status or relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the provision in Section 125 of the Code is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. The 12 issue whether the section is attracted or not cannot be answered except by reference to the appropriate law governing the parties".
15. In view of the law laid down by the Hon'ble Supreme Court in the case of Savitaben Somabhai Bhatiya, as stated supra, the second wife is not a legally wedded wife and she is not entitled to file petition under Section 125 of Cr.P.C. In the case on hand, the specific case of the petitioner No.1/wife is that, her husband had suppressed the factum of earlier marriage. She came to know only after her marriage that, her husband had married with Smt.Bhandawwa and having four children. The Hon'ble Supreme Court in the case of Badshah, as stated supra has considered the judgment in the case of Savitaben Somabhai Bhatiya. In the case of Badshah /vs/ Urmilla Badshah Godse and another reported in (2014) 1 SCC 188, the Hon'ble Supreme Court it is clearly held in Para Nos.13, 14 and 15 that :-
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Para No.13 :- On this basis, it was pleaded before us that this matter be also tagged along with the aforesaid case. However, in the facts of the present case, we do not deem it proper to do so as we find that the view taken by the courts below is perfectly justified. We are dealing with a situation where the marriage between the parties has been proved. However, the petitioner was already married. But he duped the respondent by suppressing the factum of alleged first marriage. On these facts, in our opinion, he cannot be permitted to deny the benefit of maintenance to the respondent, taking advantage of his own wrong. Our reasons for this course of action are stated hereinafter.
Para No. 13.1 :- Firstly, in Chanmuniya case, the parties had been living together for a long time and on that basis question arose as to whether there would be a presumption of marriage between the two because of the said reason, thus, giving rise to claim of maintenance under Section 125 Cr.P.C. by 14 interpreting the term "wife" widely. The Court has impressed that if man and woman have been living together for a long time even without a valid marriage, as in that case, term of valid marriage entitling such a woman to maintenance should be drawn and a woman in such a case should be entitled to maintain application under Section 125 Cr.P.C. On the other hand, in the present case, Respondent 1 has been able to prove, by cogent and strong evidence, that the petitioner and Respondent 1 had been married to each other.
Para No.13.2 :- Secondly, as already discussed above, when the marriage between Respondent 1 and the petitioner was solemnized, 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 15 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 Adhav and Savitaben 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 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 harmonized.16
Para No.13.3 :- Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve "social justice" which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society.17
Para 14 :- Of late, in this very direction, it is emphased that the courts have to adopt different approaches in "social justice adjudication", which is also known as "social context adjudication" as mere "adversarial approach" may not be very appropriate. There are number of social justice legislations giving special protection and benefits to vulnerable groups in the society. Prof. Madhav Menon describes it eloquently:
"It is, therefore, respectfully
submitted that 'social context
judging' is essentially the
application of equality
jurisprudence as evolved by
Parliament and the Supreme
Court in myriad situations
presented before courts where
unequal parties are pitted in
adversarial proceedings and
where courts are called upon to
dispense equal justice. Apart
from the social-economic
inequalities accentuating the
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disabilities of the poor in an
unequal fight, the adversarial
process itself operates to the
disadvantage of the weaker party. In such a situation, the Judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication".
Para No.15 :- The provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from "adversarial" litigation to social context adjudication is the need of the hour.19
16. In view of the decision of Hon'ble Supreme Court in the case of Savitaben Somabhai Bhatiya (supra), the petitioner No.1 and 2 are entitled for maintenance. For the reasons stated above the petition is dismissed.
Sd/-
JUDGE KJJ