Gauhati High Court
Suren Das vs The State Of Assam And Anr on 25 August, 2023
Page No.# 1/19
GAHC010182882012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./422/2012
SUREN DAS
S/O LT. HARICHARAN DAS R/O NO.2 MATHGHARIA BIDYAPUR PATH, GHY-
24, P.S. NOONMATI, DIST. KAMRUP, ASSAM,
VERSUS
THE STATE OF ASSAM AND ANR
2:SMTI ANIMA DAS
C/O SRI ANANDI DAS R/O VILL and P.O. BALISATRA
P.S. KAYAN
DIST. KAMRUP
ASSA
Advocate for the Petitioner : Mr. G. Saikia, ld.Adv.
Advocate for the Respondent : Mr. B. Sarma, ld. Addl. P.P.
Mr. P. Kataki, ld. Adv.
Page No.# 2/19 :::BEFORE:::
HON'BLE MRS. JUSTICE MITALI THAKURIA Date of hearing : 21.07.2023 Date of Judgment & Order : 25.08.2023 JUDGMENT & ORDER (CAV) Heard Mr. G. Saikia, learned counsel for the petitioner. Also heard Mr. B. Sarma, learned Additional Public Prosecutor for the State respondent No. 1 and Mr. P. Kataki, learned counsel for the respondent No.2.
2. This is an application filed under Sections 401/397 of Cr.P.C. read with Section 482 of the Code of Criminal Procedure, 1973 challenging the order dated 21.06.2012 passed by the learned Additional Sessions Judge (FTC), Kamrup, Rangia in Criminal Revision No.45/2011, whereby, the learned Revision Court was pleased to set aside the order dated 27.05.2011, which was passed by the learned Judicial Magistrate, First Class, Rangia in Case No.20 M//11.
3. The brief facts leading to the filing of the present petition is that;
3.1. The present respondent/opposite party as first party had filed an application under Section 125 Cr.P.C. before the Court of learned SDJM, Rangia alleging inter alia that she is the wife of the present petitioner/opposite party as per the Marriage Agreement dated 22.12.2000, and out of their wedlock a male child was born. It was further stated that the present petitioner under intoxication used to torture the respondent and also neglected to maintain her and their child. And on 17.12.2006, the present petitioner assaulted the respondent and dragged her out along with her minor child from the Page No.# 3/19 Government quarter at Satgaon, Narengi, Guwahati. Thus, finding no alternative she took shelter at her parental house at Balisatra under Kayan Police Station along with her minor son and accordingly, she filed the petition under Section 125 Cr.P.C seeking for maintenance, as because the present petitioner was neglecting to maintain her and their minor son.
3.2. The present petitioner as opposite party contested the proceeding by filling written statement, wherein, he denied the allegation made by the first party/present respondent regarding torture and negligence, but he admitted the fact of marriage agreement with the present respondent.
3.3. After hearing both the parties, the learned Trial Magistrate disposed of the proceeding vide Judgment and Order dated 23.12.2007 by allowing the petition of the first party/present respondent and directed the second party/present petitioner to pay maintenance allowance @ Rs.1000/-(Rupees One thousand) only per month each to the respondent and to her minor son till he attains majority w.e.f. the date of the said order. Thereafter, the petitioner was paying the maintenance allowances.
3.4. On the basis of the marriage agreement dated 22.12.2000, the respondent was claiming herself to be the wife of the present petitioner and accordingly, she filed an application under Section 125 Cr.P.C seeking maintenance for herself and for her minor son. Thus for setting the issue once and for all, the present petitioner preferred a Title Suit being T.S. No.19/08, which was ultimately dismissed by the learned Munsiff No.4, Kamrup, Guwahati vide Judgment and Decree dated 02.03.2009. Thereafter, the petitioner had preferred an appeal being Title Appeal No.37/09 before the Court of learned Civil Judge No.3, Kamrup, challenging the said Judgment and Decree of Page No.# 4/19 dismissal passed by the aforesaid Court in T.S. No.19/08. And after hearing both the parties, the Title Appeal was decided on merit by the learned Civil Judge No.3, Kamrup, vide Judgment and Order dated 16.07.2010, who was pleased to set aside the Judgment and Decree of dismissal passed by the learned Trial Court and partly decreed the suit by declaring that Marriage Agreement dated 22.12.2000 has no legal force so far the marriage of the parties are concerned. It was also declared that the defendant/present respondent was not the legally married wife of the plaintiff/present petitioner. The said Judgment and Decree passed in Title Appeal No.37/09 was not challenged by the present respondent in any higher Court.
3.5. Thereafter, the petitioner had filed an application under Section 127 (2) Cr.P.C. along with a copy of Judgment before the learned Trial Court praying for cancellation of maintenance in respect to the present respondent/First Party and accordingly the learned Trial Court was pleased to allow the said petition vide order dated 27.05.2011 passed in Case No.20 M/2007 and was further pleased to cancel the monthly maintenance allowance of Rs.1000/-(Rupees One thousand) only for the respondent.
4. Being highly aggrieved and dissatisfied with the said order dated 27.05.2007, the present respondent as petitioner had preferred revision before the Court of learned Sessions Judge, Kamrup being Crl.Rev.No.45/11, which was later transferred before the Court of learned Additional Sessions Judge(FTC), Kamrup, Rangia. The main ground cited in the said revision petition was that the learned Civil Judge No.3, Kamrup by its Judgment dated 16.07.2010 had declared that the present respondent was not a legally married wife of the present petitioner but, that will not act as a bar in deciding the case Page No.# 5/19 independently in respect of granting of maintenance to the defendant/present respondent, and proof of legal marriage is not required to grant maintenance.
5. It is stated that, during the course of hearing in Crl.Rev.No.45/11, the present petitioner as respondent filed his written argument contending that once a Civil Court of competent jurisdiction has declared that the defendant/present respondent was not a legally married wife of the present petitioner, the Marriage Agreement dated 22.12.2000 has got no legal force so far as the marriage between the parties are concerned, whereby, the marital status of the respondent attained finality that she was not a legally married wife of the present petitioner. That being the position, the respondent is no more the wife of the present petitioner to claim for maintenance under Section 125 Cr.P.C. However, the Revisional Court after hearing both the parties at length was pleased to allow the revision petition and also cancelled the order dated 27.05.2011, which was passed by the learned Judicial Magistrate, 1 st Class, Rangia, in Case No.20M/11 holding that the present respondent was entitled to get maintenance as per the order dated 23.11.2009.
6. On being highly aggrieved and dissatisfied with the impugned Judgment and Order dated 21.06.2012, passed by the learned Additional Sessions Judge (FTC), Kamrup, Rangiya in Crl.Rev.No.45/11, the petitioner has preferred this instant criminal revision petition on the following grounds:-
6.1. The learned Additional Sessions Judge (FTC), Kamrup, Rangiya has committed grave error and irregularity while passing the impugned Judgment and Order and as such the same is liable to be set aside and quashed.
Page No.# 6/19 6.2. The learned Revisional Court had passed the impugned Judgment and Order without applying his judicious mind and was under misconception of facts and law, and thus, the same is liable to be set aside and quashed.
6.3. The learned Trial Court has failed to follow the ratio laid down by the Hon'ble Supreme Court in the case of Savitaben Somabhai Bhatiya Vs. State of Gujarat & Ors., reported in AIR 2005 SC 1809 . The said Court also failed to appreciate the fact that, while, interpreting the definition of "wife" under Section 125 of Cr.P.C. of the Code refers to only "Legally married wife".
6.4. The learned Trial Court had found that the present respondent was not a legally married wife of the present petitioner and therefore, she is not entitled for maintenance under Section 125 of Cr.P.C. and hence, it is required to dismiss the revision petition in question.
6.5. The learned Revisional Court, while passing the impugned Judgment and Order dated 21.06.2012, considered the view of the learned Civil Judge No-3, Kamrup, wherein, it has been held that "as strict proof of marriage is not required in all legislation, the Court of law, which will consider the question of maintenance or any other relief under any other Act, will consider the same in the light of the provision of the particular Act only. The declaration that defendant/present respondent is not legally married wife of the plaintiff/present petitioner will not act as a bar in coming to a decision by any other Court independently in respect of granting of any other reliefs under any provisions of law is not tenable in the eye of law in case at hand as provision of Section 125 Cr.P.C. entitles only a legally married wife to claim for maintenance and not Page No.# 7/19 otherwise". Therefore, the impugned judgment is not sustainable in the eye of law and the same is liable to be set aside and quashed.
6.6. The findings of the learned Revisional Court below to the effect that the learned Civil Court had stopped the opposite party/present petitioner from challenging legal enforceability of the said Marriage Agreement under Section 115 of the Indian Evidence Act. So, the petitioner/present respondent is entitle to get maintenance from the present petitioner is highly illegal and not tenable in the eye of law, as law of estoppels cannot override the written text of law and the provision of Section 125 of Cr.P.C. is not meant for enforcing any agreement. Thus, the impugned Judgment and Order is illegal and bad in law and same is liable to be set aside and quashed.
6.7. The initial presumption of marriage drawn by the learned Trial Court gets automatically rebutted once the Civil Court of competent jurisdiction declared that the defendant/present respondent is not a lawful wife of the present petitioner and thereafter, filing of a petition by the present petitioner under Section 127(2) of Cr.P.C., the learned Trial Court had rightly cancelled the earlier maintenance order with respect to the present respondent vide order dated 27.05.2011. Non-consideration of the said aspect while passing the impugned order has rendered the same unsustainable in the eye of law and thus, the same is liable to be set aside and quashed.
6.8. The learned Trial Court also failed to appreciate the entire facts of the case and on misconception of fact and law had passed the Judgment and Order dated dated 21.06.2012, which is bad in law and is liable to be set aside and Page No.# 8/19 quashed.
7. Mr. G. Saikia, the learned counsel for the petitioner has submitted that the present respondent had filed an application under Section 125 of Cr.P.C. only on the basis of the Marriage Agreement dated 22.12.2000, whereby, she claimed maintenance for herself and for her minor son, which was accordingly allowed by the Court of learned Magistrate, Rangia by directing the present petitioner to pay a sum of Rs.1000/-(Rupees one thousand) only each to the respondent as well as to her minor son. Thereafter, the present petitioner had filed a Civil Suit for declaration that the respondent is not legally married wife of the present petitioner, however the suit was dismissed by the learned Munsiff No-4, Guwahati vide Judgment and Decree dated 02.03.2009. Thereafter, an appeal was preferred before the Court of learned Civil Judge No.3, Kamrup, wherein, it was declared that the respondent is not a legally married wife of the present petitioner and thus, she is not entitled to get maintenance. On the basis of the said declaration and status of the parties, the petitioner filed an appeal under Section 127(2) Cr.P.C., which was allowed and the maintenance granted to the respondent was accordingly cancelled. Thereafter, the present respondent filed the Criminal Revision No.45/11 before the Court of learned Additional Sessions Judge (FTC), Kamrup, Rangiya and same was allowed by setting aside the impugned order dated 27.05.11, which was passed by the learned Judicial Magistrate First Class, Rangia, wherein, the maintenance allowances granted to the present respondent was cancelled.
8. Further, it is submitted that the learned Additional Sessions Judge, (FTC), Kamrup, Rangiya, while passing the Judgment mainly considered the fact that Page No.# 9/19 though the first party/respondent is not legally married wife of the second party/present petitioner, but, they lived a conjugal life in the house of the present petitioner. On the strength of the Marriage Agreement dated 22.12.2000 and upon living a conjugal life, one child was born out of their wedlock. In this regard, the learned Civil Court No-3, Kamrup had clearly stated that the Marriage Agreement has no legal force so far the marriage of the parties are concerned and also declared that the present respondent is not legally married wife of the present petitioner and thus, she is not entitled to get any maintenance under Section 125 of Cr.P.C.
9. He also submitted that the learned Revisional Court had accepted the fact that the respondent is not legally married wife of the present petitioner and she was granted the maintenance only with an opinion that they lived a conjugal life on the strength of marriage agreement. Thus, the learned Trial Court had passed the impugned Judgment and Order dated 21.06.2012 ignoring the material facts and important question of law involved as laid down by the Hon'ble Apex Court.
10. In support of his submission, the learned counsel for the petitioner relies on the decision passed by the Hon'ble Supreme Court in the case of Savitaben Somabhai Bhaatiya Vs. State of Gujarat and others reported in AIR 2005 SC 1809, wherein, it is held that;
"Section 125--Hindu Marriage Act, 1955--Sections 5 and 12--Maintenance to wife and minor male child--Whether Hindu woman contracting marriage with Hindu man already having wife living entitled to claim maintenance under Section 125 of Cr.P.C.?-- Held, "no"--Such marriage is void under Hindu Marriage Act-Only legally wedded wife Page No.# 10/19 entitled to maintenance-However, illegitimate male child entitled to maintenance-- Maintenance of Rs.500 granted to child by High Court before amendment of Section 125--Enchanced to Rs.850 as after amendment of Section 125 w.e.f. 24.09.2001, there is no limit of Rs.500--As humanitarian gesture, respondent No.2 agrees to pay lump sum amount to settle dispute--Ordered to pay Rs.2 lakhs to appellant.
There may be substance in the plea of learned counsel for the appellant that law operates harshly against the woman who unwittingly gets into relationship with a married man and Section 125 of Code of Criminal Procedure, 1973 (Code) does not give protection to such woman. This may be an inadequacy in law, which only the legislature can undo. But, as the position in law stands presently, there is no escape from the conclusion that the expression 'wife' as per Section 125 of the Code refers to only legally married wife."
11. He also relies on another decision passed by the Hon'ble Supreme Court in the case of Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Anr., reported in (1988) AIR (SC) 644 , wherein, he stressed mainly on paragraph-8 of the said Judgment, which read as under:-
"Para-8, We therefore, hold that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of s. 125 of the Code. The appeal is accordingly dismissed. There will be no order as to costs. During the pendency of the appeal in this Court some money was paid to the appellant in pursuance of an interim order. The respondent shall not be permitted to claim for its refund."
12. He further submitted that under Section 125 of Cr.P.C., the strict prove of marriage is not required, however, either of the parties aggrieved by the order of maintenance under Section 125 Cr.P.C. can approach before the Civil Court Page No.# 11/19 for declaration of status. In connection with his submission he also relies on the decision rendered by the Hon'ble Supreme Court in the case of Dwarika Prasad Satpathy vs. Bidyut Praya Dixit & Anr., reported in (1999) AIR (SC) 3348, wherein, it has been held in paragraph-13 of the said Judgment, which read as under:-
"Para-13, Hence, in our view from the evidence which is led if the Magistrate is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125 Cr.P.C. which are of summary nature, strict proof of performance of essential rites is not required. Either of the parties aggrieved by the order of maintenance under Section 125, Cr.P.C. can approach the civil court for declaration of status as the order passed under Section 125 does not finally determine the rights and obligations of the parties."
13. By citing above Judgments, it is submitted by the learned counsel for the petitioner, Mr. G. Saikia that except the Marriage Agreement between the parties, there is no other proof of legal marriage between them. He also submitted that the learned Civil Judge No-3, Kamrup had rightly passed the Judgment declaring that the first party/respondent is not legally married wife of the second party/present petitioner and accordingly, on the basis of the said declaration the learned Magistrate had rightly cancelled the maintenance granted to the present respondent. However, the learned Revisional Court had set aside the order passed by the learned Magistrate without considering the facts that the learned Magistrate had cancelled the Order of Maintenance under Section 127(2) of Cr.P.C. on the strength of declaration made by the Civil Court that the respondent is not the legally married wife of the petitioner.
Page No.# 12/19
14. On the contrary, the learned counsel for the respondent has submitted that the Court of learned Additional Sessions Judge (FTC), Kamrup, Rangiya had rightly passed the Judgment and Order dated 21.06.2012 stating that, though, the first party/respondent was not legally married wife of the second party/present petitioner, but, they led a conjugal life at the house of the present petitioner on the strength of the marriage agreement and one male child is born out of their wedlock. Further, it is also stated that the learned Civil Judge No.3 had stopped the second party/present petitioner from challenging the legal enforceability of the said married agreement under Section 115 of the Indian Evidence Act, thus, the first party/present respondent was entitled to get maintenance from the present petitioner.
15. He also submitted that in maintenance proceeding under Section 125 of Cr.p.C., the strict prove of marriage is not required and it is sufficient, for the parties to prove the Court that they are living together as husband and wife. Thus, in case of the present respondent, both the parties were living a conjugal life on the strength of the marriage agreement and also they have one male child born out of their conjugal life. Hence, there is no necessity to make any interference on the Judgment and Order passed by the learned Revisional Court.
16. The learned counsel for the respondent further relies on the decision passed by the Hon'ble Supreme Court in Division Bench case of Kamala & Others vs. M.R. Mohan Kumar reported in (2018) AIR (SC) 5128 . In paragraphs-15 and 19 of sub-para-42 of the said judgment, wherein, it has been held that;
Page No.# 13/19 "Para-15, Unlike matrimonial proceedings where strict proof of marriage is essential, in the proceedings under Section 125 Cr.P.C., such strict standard of proof is not necessary as it is summary in nature meant to prevent vagrancy. In Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1999) 7 SCC 675, this Court held that "the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. The learned Judges explained the reason for the aforesaid finding by holding that an order passed in an application under Section 125 does not really determine the rights and obligations of the parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. The learned Judges held that maintenance cannot be denied where there was some evidence on which conclusions of living together could be reached." When the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance of wife under Section 125 Cr.P.C. Applying the well-settled principles, in the case in hand, appellant No.1 and the respondent were living together as husband and wife and also begotten two children. Appellant No.1 being the wife of the respondent, she and the children appellants No.2 and 3 would be entitled to maintenance under Section 125 Cr.P.C."
"42. We are of the opinion that a broad and expansive interpretation should be given to the term "wife" to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 CrPC, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual."
17. By refereeing the above Judgment, it is submitted by the learned counsel for the respondent that the learned Revisional Court had committed no error or mistake while dismissing the impugned order dated 27.05.2011 passed by the Page No.# 14/19 learned Judicial Magistrate First Class, Rangia in Case No.20 M/11, wherein, the said Court had cancelled the order of maintenance, which was granted to the first party/present respondent. Thus, the learned Revisional Court had rightly held that the first party/respondent is entitled to get maintenance from second party/petitioner.
18. After hearing the submissions made by the learned Advocates of both sides, I have perused the case records as well as the Judgment and Degree passed by the learned Civil Judge No.3, Kamrup and Judgment and Order passed by the learned Additional Sessions Judge (FTC), Kamrup, Rangia in Crl.Rev.petn.No.45/11 along with the order passed by the learned Judicial Magistrate First Class, Rangia in Case No.20M/11 dated 27.05.2011, wherein, the order of maintenance granted to the first party/respondent was cancelled. It is an admitted fact that both the petitioner and the respondent entered into a Marriage Agreement and in pursuant to the said agreement the parties led a conjugal life and one child was also born out of their wedlock. It is also a fact that the learned Civil Judge No.03, Kamrup, Guwahati had passed the order in Title Appeal No.37/09, wherein, it has been declared that the Marriage Agreement dated 22.12.2000 has no legal force so as the marriage of the parties are concerned and accordingly declared that the first party/respondent is not the legally married wife of the present petitioner.
19. Further, the following observation had been made by the learned Civil Judge No.-3, Kamrup, Guwahati in Title Appeal No.37/2010 that, " I noted earlier that plaintiff herself and the members of family, friend gave the defendant the status of a wife. As strict proof of marriage is not required in all the legislation, Page No.# 15/19 the Court of law, which will consider the question of maintenance or any other relief under any Act, will consider the same in the light of the provisions of the particular Act only. The declaration that the defendant is not legally married wife of the plaintiff will not act as a bar in coming to a decision by any other Court independently in respect of the granting of maintenance to the defendant or in respect of granting of any other relief under any other provisions of law".
20. The learned Revisional Court had opined that both the parties had led a conjugal life on the strength of their marriage agreement and one child was also born out of their union. It is also seen that the learned Civil Judge No-3, Kamrup had stopped the opposite party/petitioner from challenging the legal enforceability of the said Marriage Agreement under Section 115 of Indian Evidence Act, and hold that the opposite party is not allowed challenging the legal force behind the said agreement. The learned Civil Judge had also declared that the agreement dated 22.12.2000 has no legal force so far the marriage of the parties are concerned and respondent is not legally married wife of the opposite party. However, the learned Additional District Judge had set aside the order dated 27.05.2011 passed by the learned Judicial Magistrate First Class, Kamrup in Case No.20M/07 by which the order of maintenance was cancelled.
21. So, the only claim of the present petitioner is that the present respondent is not legally married wife and therefore, she is not entitled for maintenance as per the provision under Section 125 of Cr.P.C. As the, the learned Civil Judge No.-3, Kamrup, had declared that the respondent is not a legally married wife of the present petitioner, therefore, she is not entitle to get any maintenance by Page No.# 16/19 claiming herself to be the wife of the second party/present petitioner.
22. However, it cannot be denied that in pursuant to the marriage agreement both the parties were living as husband and wife and they have one male child out of their conjugal life. Further, the petitioner also has not challenge the paternity of the child and contested only on the ground that the respondent is not entitled for maintenance as she is not legally married wife of the present petitioner. Although, it is a settled law that strict proof of marriage is not required in a proceeding under Section 125 of Cr.P.C. and, it is only require to establish the fact that both the parties were living as husband and wife. Thus, in the instant case, it is seen that the parties lived together as husband and wife for a considerable period and the respondent used to stay with the petitioner as his wife with a belief that she is legally married wife of the petitioner.
23. In this regard, a decision of Dwarika Prasad Satpathy (Supra) can be cited wherein, in the paragraph-11 of the said judgment, read as under:
Para-11,In Vimala (K.) Vs. Veeraswamy (K.), (1991) 2 SCC 375, dealing with the contention of husband that the second marriage with the applicant wife was void on the ground that her first marriage was subsisting, this Court held that Section 125 Cr.P.C. is meant to achieve a social purpose and, 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 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; the object to prevent vagrancy and destitution; it provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife and observed thus:-
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."
Page No.# 17/19
24. In this regard, a decision of Hon'ble Supreme Court in the Case of Chanmuniya vs. Chanmuniya Virendra Kumar Singh Kushwaha & Anr., reported in (2010) Sup AIR (SC) 29, can also be relied on, wherein, it has been held that "under Section 125 of Cr.P.C.; Maintenance-presumption of valid marriage - Man and woman living together for a long time without valid marriage - Where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay woman maintenance if he deserts her - Man should not be allowed to benefit from legal loopholes by enjoying advantages of a de facto marriage without undertaking duties and obligations". Also can be relied on paragraphs 46 and 47 of the said Judgment, which read as under:-
"46.We are of the opinion that a broad and expansive interpretation should be given to the term `wife' to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C, so as to fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125.
47.We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual."
25. It is also stated in the case of Savitaben (Supra) that expression "wife" as per Section 125 of Cr.P.C. refers to only "legally married wife" and also held that "the marriage of a woman in accordance with the Hindu rites with a man having living spouse is a complete nullity in the eye of law and she is, therefore not entitled to the benefit of Section 125 of Cr.P.C. or the Hindu Marriage Act, 1955. Marriage with person having living spouse is null and void and not voidable". However, it is not a case, where the present petitioner entered into a marriage agreement with the respondent/first party having his first wife rather, it is a case where both the parties started living as husband and wife for a Page No.# 18/19 considerable period on the strength of the Marriage Agreement dated 22.12.2000 and they also have one male child out of their conjugal life and the paternity of the child is also not challenged.
26. It is also seen that the second party/petitioner had never approached before Court regarding the enforceability of the Marriage Agreement and only approached before the civil forum and had filed an appeal claiming that the respondent/first party is not a legally married wife; however, the fact remained same that both the party lived together for a considerable period as a husband and wife and the petitioner also treated the first party/present respondent as his wife and he never challenged the paternity of the child. As it is a settled position of law that there is no strict prove of marriage is required in a proceeding under Section 125 of Cr.P.C.
27. Considering all the aspects of the case as well as the view of the Hon'ble Supreme Court and also considering the fact that the present petitioner had never denied about their conjugal life with the present respondent and nor he challenged the paternity of the child and accordingly, I find it a fit case, where, the respondent is entitled for maintenance.
28. In view of above observation, I find that learned Additional District & Sessions Judge had not committed any error or mistake while passing the Judgment and Order dated 21.06.12 in Criminal Revision No. 45/11 by setting aside the impugned order dated 27.05.11 passed by the learned Judicial Magistrate First Class, Rangiya, in Case No.20 M/07, wherein, the said Court had cancelled the order dated 23.11.2009 by which the present petitioner was directed to pay maintenance at the rate of Rs.1000/-(Rupees One thousand) only to the present respondent.
Page No.# 19/19
25. In terms of above, this criminal revision petition stands dismissed.
26. In the meantime, the petitioner is hereby directed to pay the maintenance to the respondent as per the order dated 23.11.2009.
27. Send down the LCRs.
JUDGE Comparing Assistant