Karnataka High Court
Smt Savithri vs Sri B N Dayananda on 29 January, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:3955
RPFC No. 37 of 2018
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REV. PETITION FAMILY COURT NO. 37 OF 2018
BETWEEN:
SMT. SAVITHRI
W/O B.N. DAYANANDA
AGED ABOUT 58 YEARS,
ANGANWADI WORKER
R/O NEAR ANGANAWADI,
GOVINDA NAGAR,
HEGDE COLONY RING ROAD,
TUMKUR - 721 648
...PETITIONER
(BY SRI. REVANNA BELLARY, ADVOCATE)
AND:
SRI. B.N. DAYANANDA
S/O NANJAPPA,
Digitally signed by JAI
JYOTHI J
AGED ABOUT 59 YEARS,
Location: HIGH COURT SANSKKRIT TEACHER IN SIDDARTHA HIGH SCHOOL,
OF KARNATAKA
GOLLAHALLI, HEGGERE POST,
INFRONT OF DR PARAMESHWAR,
KOTTENAHALLI ROAD,
MALLASANDRA,
TUMKUR TALUK & DISTRICT - 721 648.
...RESPONDENT
(BY SRI. T. SUNIL, ADVOCATE)
THIS RPFC IS FILED UNDER SEC.19 OF FAMILY COURT
ACT AGAINST THE JUDGMENT AND DECREE DATED 02.01.2018
PASSED IN C.MIS.73/2016 ON THE FILE OF THE PRL. JUDGE,
FAMILY COURT, TUMAKURU DISMISSING THE FILED UNDER
SEC.125 OF THE CPC., FOR MAINTENANCE.
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NC: 2024:KHC:3955
RPFC No. 37 of 2018
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The instant revision petition is filed by the petitioner- wife challenging the order dated 02.01.2018 passed in C.Mis.No.73/2016 by the Family Court in dismissing the petition filed under Section 125 of Cr.P.C., for maintenance.
2. It is the case set out by the petitioner that she is the wife of the respondent and out of the wedlock between them, a son is born by name Vivekananda. It is stated that after the marriage, initially for few years, both the petitioner and respondent were living cordially, but thereafter for no reason, the respondent has started neglecting the petitioner and child. Therefore, the petitioner was constrained to file a petition under Section 125 of Cr.P.C., for seeking maintenance, but the said petition was dismissed by the Family Court on the reason that the petitioner is not legally wedded wife, but she is -3- NC: 2024:KHC:3955 RPFC No. 37 of 2018 the second wife. Hence, the Family Court dismissed the claim petition.
3. It is the defence of the respondent before the Family Court that the petitioner is a stranger and petitioner is not the wife of the respondent and child is not born to him. Therefore, the respondent has taken the contention that the petitioner is a stranger and do not have any relationship. Therefore, justified the order passed by the Family Court.
4. Heard the arguments from both sides and produced the records.
5. The point that arises for my consideration is as follows:
"Whether, under the facts and circumstances involved in the case, the petitioner is entitled for maintenance, even though, she is proved to be the second wife of the respondent when the husband suppressed first marriage and solemnized second marriage? "-4-
NC: 2024:KHC:3955 RPFC No. 37 of 2018
6. The Family Court upon appreciating the evidence on record has disbelieved the photos at Ex.P.1 produced by the petitioner that the petitioner and respondent are wife and husband by observing that photos are not taken in the marriage, but taken in some other function in the house. Therefore, the Family Court has assigned the reason that the said photos at Ex.P.1 are showing both petitioner and respondent and others have taken together, but they are not marriage photos. But upon considering the evidence of P.W.2 and evidence of the respondent-husband has held that the petitioner is not legally wedded wife of the respondent and has refused to grant maintenance to the petitioner-wife.
7. In this background, whether under what circumstances if woman is proved to be not legally wedded wife, but second wife of the husband and if second marriage has taken place suppressing the first marriage of the husband, is entitled to maintenance are not is the question to be considered here.
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NC: 2024:KHC:3955 RPFC No. 37 of 2018
8. When the petition is filed under Section 125 of Cr.P.C., by the wife for seeking maintenance, the proceeding is summary in nature (Rajnesh Vs. Neha1). There is no strict proof of marriage is required to be considered in these types of proceedings filed under Section 125 of Cr.P.C. The evidence regarding marriage and status of living as husband and wife is to be considered on all its preponderance of probabilities upon appreciating the evidence produced in the petition. Therefore, in this regard, as per the principle of law laid down by the Hon'ble Apex Court in catena of decisions, the instant case is required to be considered as proceedings is summary in nature and evidence is considered on all its preponderance of probabilities.
9. The petitioner has claimed that she is the wife of the respondent. Ex.P1 is the photos showing that the petitioner and respondent are garlanding each other. Further the photos prove that there is a child on the lap of 1 AIR 2021 SC 569 -6- NC: 2024:KHC:3955 RPFC No. 37 of 2018 the petitioner. It is not disputed by the respondent that both the petitioner and respondent are not appearing in the photographs. It is only the defence of the respondent that in the photographs he does not know who are other persons. It is the case of the petitioner that both the petitioner and respondent were studying in Bachelor of Arts in Siddaganga College, Tumkur and the petitioner's brother was working as a lecturer in the said college. Since both were studying in the same college, their friendship turned into love affair and developed intimacy between each other and therefore, both the petitioner and respondent married each other. The defence of the respondent is that he is not the husband of the petitioner as the petitioner is a stranger.
10. Therefore, when it is a rival case between the petitioner and respondent, to decide whether the petitioner is wife of the respondent, the evidence on record are appreciated on the theory of preponderance of -7- NC: 2024:KHC:3955 RPFC No. 37 of 2018 probabilities. As discussed above, the respondent has stated that the petitioner and himself are not appearing in the photographs, the said photographs might have been taken in the house. But these photographs prove that both petitioner and respondent are appearing in the photographs and one photograph is proving that the petitioner and respondent are garlanding each other. It is the evidence of the respondent that he has married one Nagarathna and both are having two daughters.
11. It is the case of the petitioner that she has married the respondent on 28.01.1992 and she was taken to the matrimonial home by the respondent. The respondent has produced Ex.R.1 - wedding card, Ex.R.2 - two photos, Ex.R.3 - birth certificate which proves that respondent has married Nagarathna. The respondent has admitted in his evidence that the petitioner and respondent were studying in Bachelor of Arts at Siddaganga College, Tumakuru. This would probablise the -8- NC: 2024:KHC:3955 RPFC No. 37 of 2018 case of the petitioner. PW-2 is the owner of the house, in which the petitioner and respondent have started their marital life by taking house of PW-2 on rent basis. PW-2 has stated that she has participated in the marriage of petitioner and respondent and further stated that after marriage, both petitioner and respondent were residing in her house as tenants for quite some years and a child was born out of their wedlock. Nothing is revealed to disprove the evidence of PW-2 that she is giving false evidence before the Court in the cross-examination. From the evidence of PW-2, it is proved that the petitioner and respondent have married and PW-2 has participated in the said marriage and also she has given her house on rent to the petitioner and respondent to lead marital life.
12. Therefore, upon considering and re-appreciating the evidence on record, on the theory of preponderance and probabilities, it is proved that the petitioner is second wife of respondent considering the dates of events of -9- NC: 2024:KHC:3955 RPFC No. 37 of 2018 marriage as above discussed. The Family Court has recorded a finding that the petitioner - wife has failed to prove that she is the legally wedded wife of the respondent and has dismissed the maintenance petition of the petitioner. From the evidence of PWs-1 and 2, it is proved that the respondent by suppressing the marriage with first wife - Nagarathna and having two children has solemnized second marriage with the petitioner.
13. On the basis of similar circumstances involved in the case, the Hon'ble Supreme Court in the case of Badshah vs. Urmila Badshah Godse and another reported in (2014) 1 SCC 188, has laid down the principle of law as follows:-
"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.
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NC: 2024:KHC:3955 RPFC No. 37 of 2018 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:
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 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.
13.2 Secondly, as already discussed above, when the marriage between respondent 1 and petitioner was solemnized, the petitioner had kept
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NC: 2024:KHC:3955 RPFC No. 37 of 2018 respondent 1 in dark about hir first marriage. A false representation was given to respondent 1 that he was single and was competent to enter into martial tie with respondent 1. In such circumstances, can the petitioner be allowed to take advantage of his own wrong and turn around to say that 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 in 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 with 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 marriages 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.
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NC: 2024:KHC:3955 RPFC No. 37 of 2018 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 destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalized 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. Preamble to the Constitution of India clearly signals that we have chosen the democratic path under 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.
19. In Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga, the right of another woman in a similar situation was upheld. Here the Court had accepted that Hindu marriages have continued to be bigamous despite the enactment of the Hindu Marriage Act in 1955. The Court had commented that though such marriages are illegal as per the provisions of the Act, they are not "immoral" and hence a financially dependent
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NC: 2024:KHC:3955 RPFC No. 37 of 2018 woman cannot be denied maintenance on this ground.
20. Thus, while interpreting a statute the court may not only take into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. It is this mischief rule, first propounded in Heydon case which became the historical source of purposive interpretation. The court would also invoke the legal maxim construction of ut res magis valeat quam pereat, in such cases i.e. where alternative constructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. If this interpretation is not accepted, it would amount to giving a premium to the husband for defrauding the wife. Therefore, at least for the purpose of claiming maintenance under Section 125
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NC: 2024:KHC:3955 RPFC No. 37 of 2018 CrPC, such a woman is to be treated as the legally wedded wife."
14. Therefore, when the respondent is proved to have married the petitioner as second marriage by suppressing the first marriage occurred in the year 1988 and have lived together as husband and wife for a considerable long spell of time and making society to believe and recognize them as husband and wife, then the petitioner is entitled for maintenance from the respondent. The respondent has denied the fact that the petitioner is legally wedded wife. As discussed above, but it is proved that the petitioner is second wife of the respondent.
15. Section 114 of the Indian Evidence Act, 1872 empowers the Court to presume existence of certain facts. Section 114 of the Indian Evidence Act, 1872 stipulates as follows:-
"114. Court may presume existence of certain facts. - The Court may presume the existence of any fact which it thinks likely to have
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NC: 2024:KHC:3955 RPFC No. 37 of 2018 happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
16. There would be presumption in favour of wedlock, if the partners live together for long spell of time as husband and wife making society to believe them as husband and wife. However, this presumption is rebuttable. But such rebuttable evidence is put forth where the question of deciding whether the wife is legally wedded or not. But while considering maintenance petition and by applying under Section 114 of the Indian Evidence Act, 1872, the Court may presume that the petitioner and respondent have lived as husband and wife. For grant of maintenance, strict proof of marriage is not required while considering petition filed under Section 125 of Cr.P.C. where it is alleged that the husband by suppressing his first marriage has solemnized second marriage and when then the second wife become destitute at the hands of the husband, then the second wife is entitled for maintenance. Though the petitioner is second
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NC: 2024:KHC:3955 RPFC No. 37 of 2018 wife, but the respondent has made the society to believe that they are husband and wife as it is proved by the evidence of PW-2, raising presumption in this regard is sufficient while considering the petition filed under Section 125 of Cr.P.C. Thus, the Family Court has committed an error in dismissing the petition filed by the petitioner - wife by not granting maintenance on the reason that the petitioner has failed to prove that she is legally wedded wife of the respondent. Upon considering the principle of law laid down by the Hon'ble Supreme Court as stated supra, the petitioner is entitled for maintenance from the respondent. Therefore, the point for consideration is answered in the Affirmative.
17. Now, considering the quantification of the maintenance amount to be payable to the petitioner, the respondent is proved to be a Sanskrit Lecturer in Sri Siddartha Samskrutha Patashala, Tumakuru and as on the date of issuance of Ex.P.2 - salary certificate i.e., on
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NC: 2024:KHC:3955 RPFC No. 37 of 2018 11.09.2015, the respondent was drawing salary of Rs.25,300/- per month on the pay scale between Rs.14,550/- - Rs.26,700/-. Therefore, it is proved that the respondent is a permanent Lecturer in the college. It is submitted by the learned counsel for the petitioner that the respondent is still serving as a Lecturer in College and drawing salary of Rs.60,000/- per month. But she has not produced any documents to prove the same. However, the respondent is a Lecturer working on permanent basis in the said college may receive lucrative salary. When this being the evidence on record, it is proved that the respondent is a financially viable person to maintain his wife. At the same time, it is stated that the respondent owns land and house properties, for which, there is no evidence produced. The respondent being the Lecturer in the college proved to be financially viable person to maintain his wife but at the same time, the petitioner is a rusticated woman having no capacity to maintain herself. Therefore, considering all these aspects, the petitioner needs minimum amount of maintenance to sustain in life
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NC: 2024:KHC:3955 RPFC No. 37 of 2018 and accordingly, the respondent - husband is directed to pay an amount of Rs.18,000/- per month as maintenance to the petitioner - wife on every month.
18. Hence, I proceed to pass the following:-
ORDER i. The petition is allowed-in-part.
ii. The order passed in C.Mis.No.73/2016 dated 02.01.2018 by the Principal Judge, Family Court at Tumakuru is hereby set aside.
iii. The respondent - husband shall pay maintenance amount of Rs.18,000/- per month to the petitioner
- wife from the date of petition till her lifetime or till her remarriage.
iv. The respondent - husband is also directed to pay Rs.10,000/- towards litigation expenses to the petitioner - wife.
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NC: 2024:KHC:3955 RPFC No. 37 of 2018 v. The respondent shall pay maintenance amount without fail as per order.
Sd/-
JUDGE PB: Para 1 to 9 MH: Para 10 to 15 List No.: 1 Sl No.: 30