Karnataka High Court
Rudramma vs H.R. Puttaveerabhadrappa on 28 February, 1986
Equivalent citations: ILR1986KAR1242
ORDER
1. The petitioner who claims to be legally wedded wife of the respondent has filed this petition being aggrieved by the order dt. 25-10-1982 passed by the J.M.F.C., Gowribidanur, in C.M.C. No. 2/82, whereby he has dismissed the application made by the petitioner under S. 125 of the Cr.P.C. as not maintainable.
2. The petitioner made that application under S. 125 Cr.P.C. claiming maintenance at the rate of Rs. 500/- per month from the respondent contending, inter alia, although the respondent married her at Gowribidanur of 29-8-1980 in accordance with the Hindu Marriage Customs and Rites and she also lived with him for one year as his legally wedded wife in his house at Hulikunte, but later on for no fault of her he started ill-treating her and at last deserted her without any sufficient cause and despite issue of legal notice to him to take her back, he had failed to do so and refused to provide maintenance to her and that she had no other source or means for her maintenance. The respondent who contested the application not only denied that there was any such marriage between him and the petitioner, but also contended that the parents of the petitioner had got filed the application with false allegations of marriage to defame and humiliate him and, therefore, the application was not maintainable. He also contended that he had also no separate source of income and the amount of maintenance claimed at the rate of Rs. 500/- was also beyond his means and ability to pay.
3. During inquiry the petitioner examined herself as PW-1 and her father Honnappa as PW-2. Besides, she examined one Rudrappa and another Chandrashekarappa as PWs-3 and 4 and Purohit Basavaradhya, who had, according to her, performed the marriage as PW-5 to prove the marriage between her and the respondent. She also produced the notices exchanged and the invitation and Lagnapatrika as Exs. P-1 and P-4. As against this, the respondent examined himself as RW 1.
4. The learned Magistrate, appreciating the evidence, in a mechanical way without applying his mind to the requirements of the proof both as to the solemnisation of the first or the second marriage and solely relying upon the admissions given by the petitioner that the respondent was already married and he having no issues from his first wife he had taken her in marriage, proceeded to dismiss the application on the ground that the second marriage being a nullity, she was not entitled to claim maintenance under S. 125 of the Cr.P.C.
5. Mr. Thimmarayaswamy, learned counsel for the petitioner, submitted that merely because the marriage of the petitioner with the respondent took place during the lifetime of the first wife, it cannot be said her marriage with the respondent was null and void. He submitted further, apart from the fact that the respondent has not obtained any decree of nullity of marriage, such question of validity of marriage cannot and need not be gone into by the Magistrate for awarding maintenance to a wife as provided under S. 125, Cr.P.C. Once the factum of marriage is admitted or proved, it becomes the duty of the Magistrate, on proof of neglect of refusal by the husband having sufficient means, to award maintenance to a wife unable to maintain herself as provided under S. 125 and the learned Magistrate had failed to exercise the jurisdiction vested in him properly and the order of dismissal passed by the Magistrate, therefor, deserves of be set aside. He submitted further that the neglect and refusal to maintain having held proved, it is proper to award maintenance to the petitioner and the revision therefore deserves to be allowed.
6. Mr. Sadashivappa, learned counsel for the respondent, however, relied upon various authorities some of which were also referred before the Magistrate, and argued the marriage of the petitioner with the respondent during the lifetime of the first wife being in violation of the provisions of Ss. 5(i) read with 11 of the Hindu Marriage Act and the marriage being thus null and void, the petitioner was not there is no error committed by the Magistrate and the revision therefore deserves to be dismissed.
7. It is not necessary to refer to various decisions decided under S. 488 of the old Cr.P.C. and it is sufficient to mention here that the expression 'wife' having not been defined under the old Cr.P.C., adopting the dictionary meaning of the expression 'wife' as 'a married woman', it has consistently been held by all Courts that only a legally married woman who is entitled to claim maintenance, and not a concubine, however long and faithfully she might have lived with the person. A distinction has clearly been made between wife and a concubine. In other words, the provisions of S. 488 of the old Cr.P.C. were held to apply to the abandoned wife and not to abandoned mistress, the object of the provisions being mainly to prevent vagrancy and provide cheap and speedy remedy. In cases where the marriage was disputed, it has also been held by all the Courts consistently that such proceedings for maintenance being civil in nature, the Magistrate should also decide the question of marriage without leaving the claimant to establish her status as a wife in a Civil Court. The provisions of S. 125 of the new Cr.P.C. (Act 2 of 1974) are also enacted to achieve the same object as under S. 488 of the old Cr.P.C. While the provisions of S. 488 of the old Code were restricted in operation to wife and children, whether legitimate or illegitimate, unable to maintain, the scope has how been enlarged under S. 125 of the new Code by bringing into is fold the parents also who are unable to maintain themselves as also extending the benefits of the said provisions to a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried, with this rider however that the wife claiming maintenance is also unable to maintain herself. Thus the wife claiming maintenance under S. 125, apart from proving neglect or refusal by her husband to maintains having sufficient means to provide, has also to prove that she is unable to maintain herself.
8. One thing more that has to be clearly borne in mind is that to these provisions of maintenance are not only intended to provide a cheap and speedy remedy, the procedure to be followed being summary in nature, but are also applicable to all persons belonging to all religions and has no relationship with the personal law of the parties and maintenance could be awarded irrespective of the fact that the claimant has different remedy available under the personal law. Such being the scope and intendment of the legislature in providing cheap and summary remedy, the questions therefore that require to be considered in view of the contentions advanced by counsel are :
(1) If only be reason of the fact that the second marriage was solemnised during the subsistence of the first marriage, the second marriage becomes null and void ?
AND :
(2) Whether questions like validity or otherwise of marriage should also be decided by a Magistrate ?
9. In one of the decisions referred to before the Magistrate and now cited by Mr. Sadashivappa such questions had come for decision, although they do support the view point of law as canvassed by him that the marriage of the second wife being null and void, the second wife is not entitled to claim maintenance under S. 125, Cr.P.C. and this view of law has been effectively brought out in the case of Bajirao v. Tolanbai, 1980 Cri LJ 473 (Bom) and it has been held, the second marriage performed in contravention of Clause (i) of S. 5 of the Hindu Marriage Act being null and void from its inception, such marriage does not confer a status of legally wedded wife to the second wife to enable her to maintain an application under S. 125 Cr.P.C.
10. It appears to me that merely by reasons of the fact that the first wife is living the second marriage will not be null and void; because the expression spouse as used in S. 5(i) of the Hindu Marriage Act means a lawfully married wife or husband. Therefore, in necessarily followed, before deciding the validity or otherwise of the second marriage, the solemnisation of the first marriage in due form has also to be established. If the first marriage itself is void, either because of the violation of the conditions in Cls. (iv) and (v) of S. 5 of the Act, the parties to the marriage being within the prohibited degrees of relationship or being sapindas of each other; or because of the non-performance of the marriage in due form with essential customary rites, the second marriage will not be null and void. Therefore, before the second marriage is held to be null and void, the performance of the first marriage with requisite conditions and essential customary rites and ceremonies has to be established.
11. Now the question next that requires to be considered is : In proceedings of maintenance like these, where the validity or otherwise of the marriage is disputed, whether it is permissible or desirable for the Magistrate to decide such questions of validity of the marriage ? Although, as stated earlier, all Courts have consistently held that in proceedings of maintenance like this, where the marriage is dispute the Magistrate should also decide the question of marriage without leaving the applicant to establish her status as wife in a Civil Court, but the considerations available for deciding the question of validity of the marriage being quite different, depending open proof of several aspects, it seems to me that in proceedings of maintenance like this, such questions of validity of the marriage cannot and need not be gone into (i) Firstly because such questions of validity of the marriage are required to be decided by Special Matrimonial Courts constituted under the law in a regularly instituted suit; (ii) secondly because such questions of validity of the marriage may arise not merely because of the marriage being in violation of condition in Clause (i) of S. 5 of the Hindu Marriage Act, but in may also arise on a contention raised by wife or husband regarding the violation of the conditions in Cls. (iv) and (v) of S. 5 of the said Act. When such contentions are raised, several aspects like customs and usages governing parties to the marriage, which have also necessarily to be proved before establishing the violation of the conditions of valid marriage, arise for decision and they cannot properly be decided in a summary proceeding like this; and (iii) thirdly because ever though the proceedings for maintenance under S. 125. Cr.P.C. are civil in nature, but essentially they are criminal proceedings and the Criminal Court is not called upon to go into such complicated questions of validity of marriage which are to be decided by a competent Civil Court. Therefore, in cases where the validity of the marriage solemnised is disputed in proceedings under S. 125 because of the violation of any of the three conditions referred to in Cls. (i) (iv) and (v) of S. 5 of the Act, the Magistrate should not convert himself into a Civil Court and sit like a Civil Court to decide such questions. The Magistrate should not also, at the same time, make it an easy course to dismiss the application made to him for maintenance, leaving the wife to establish her status as a wife in a Civil Court. The right course to be followed, it appears to me, is : On proof of solemnisation of marriage between the applicant and the respondent with essential customary rites and ceremonies, the other requirements like neglect and refusal having been established, the Magistrate, who is empowered and conferred with jurisdiction to provide maintenance to a wife unable to maintain herself, should award maintenance to the wife leaving the husband to establish the invalidity of marriage in a competent Civil Court, as point our in the case of Palmerino v. Mrs. Palmerino, AIR 1927 Bom 46 : (28 Cri LJ 51). That seems to be the proper course; because the sole object in enacting these provisions of maintenance as incorporated in Chap. IX of the Cr.P.C. is to provide cheep and speedy remedy and to prevent vagrancy of a wife unable to maintain herself and any order of maintenance made by the Magistrate is liable to be cancelled or varied as the case may be, in consequence of any decision of a competent Civil Court.
12. Of course, as an abstract proposition of law, a marriage solemnised in violation of S. 5(i) of the Hindu Marriage Act, is no marriage at all and, it being void ipso jure, it may also be open to the parties to such marriage mutually to treat it as a nullity and even without recourse to the Court; but when the wife of such marriage does not treat is so and comes to the Court with an application for maintenance under S. 125, Cr.P.C., the husband of such marriage should not be allowed to take advantage of his own wrong and to avoid his liability to pay maintenance and walk out of the Court on the ground that the marriage between him and the wife claiming maintenance is a nullity. In fairness to the wife, instead of dismissing the application made by her for maintenance, as stated earlier, the proper course for a Magistrate to follows is to award maintenance leaving the husband to establish the nullity of the marriage in a competent Civil Court; because if he succeeds in establishing the nullity of the marriage and obtains a decree of declaration of nullity of the marriage and produces before the Magistrate, it is also permissible to him to cancel the order of maintenance made by him.
13. Here in the case on hand, unfortunately the Magistrate has neither recorded any findings as to the solemnisation of the marriage as between the petitioner and the respondent, nor has he recorded any finding as to the solemnisation of the marriage between the respondent and the so called first wife, nor has he properly assessed the evidence as to the requirement of the petitioner for her maintenance, nor about the means and ability of the respondent husband to pay the amount of maintenance. He has proceeded to dismiss the application on the abstract proposition of law without recording necessary findings. It appears the attention of the parties was also not properly drawn to the proof of necessary questions involved in the case. The order under revision, therefore cannot be sustained and is liable to be set aside.
14. In the result and for the reasons stated above, the revision is allowed and the order under revision is set aside and the matter is remitted back to the Magistrate with a direction to inquire into the application afresh and dispose of the same in accordance with law in the light of the observations made above.
15. Revision allowed.