Madhya Pradesh High Court
Smt. Trapti Swami vs Vijay Swami on 15 September, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:26783
1 CRR-3221-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
CRIMINAL REVISION No. 3221 of 2019
SMT. TRAPTI SWAMI
Versus
VIJAY SWAMI
Appearance:
Shri Daya nath Pandey, counsel for the petitioner.
Shri Bhavdeep Singh, counsel for the respondent.
Heard On:02.07.2025
Delivered On: 15.09.2025
ORDER
1. This criminal revision is preferred being aggrieved by the order dated 12.06.2019 passed in Criminal MJC No.346/2018 by Principal Judge, Family Court, Ratlam whereby the application for maintenance under Section 125 of Cr.P.C, 1973 has been rejected at preliminary stage on the ground that her marriage dated 11.10.2017 with the respondent/husband is void under Section 11 of the Hindu Marriage Act, 1955.
2. Facts of the case in brief are that the revision petitioner/applicant filed an application under Section 125 of Cr.P.C 1973 before the Principle Judge, Family Court, Ratlam on 13.11.2018 claiming maintenance of Rs.35,000/- with assertion that the marriage was solemnized on 11.10.2017 as per Hindu Rituals including Saptpadi at Ujala Place, Ratlam and they got registered the marriage and live as husband and wife. It is further alleged that this was their second marriage, both were earlier married and previous Signature Not Verified Signed by: AMIT KUMAR Signing time: 16-09-2025 10:42:34 NEUTRAL CITATION NO. 2025:MPHC-IND:26783 2 CRR-3221-2019 marriage of both the parties were dissolved by the decree of divorce. The factum of earlier marriage and divorce were communicated by both the parties to each other and the family members and the memorandum of facts were also recorded. It was further asserted that within the short period of marriage, the behaviour of husband and family members turned cruel. In the month of November, 2017, revision petitioner/wife and husband/respondent went on a trip to Thailand but on Thailand trip also, she was subjected to cruelty including physical assault. The respondent/husband always put a question mark on the fidelity of the petitioner/wife and leveling allegations of extra marital affairs and put resistance even on her routine. He used to record her conversation and extending the threat, he got recorded the voice of wife and prepared videos to create false evidence. When she tried to make aware the attitude of the husband to mother and father-in-law then they also subjected her to cruel behaviour and demanded Rs.25,00,000/-. In the year 2018, she was beaten with cruelty and due to which she sustained fracture in her lag. Respondent/husband got transferred to Hydrabad in relation to his job in software company and petitioner/wife resided with the parents of the respondent/husband where she was subjected to cruelty. She was extended threat of life and on 23.09.2018 also, she was assaulted physically thereafter, from 25.09.2018, she is residing separate at Ratlam. She has no source of income and she has not been provided any maintenance whereas, she needs Rs.30000/- per month for maintenance. The respondent/husband is a software engineer, he earns Rs.1,20,000/- per month as a job in Tech Link Software Pvt. Ltd. Company at Hydrabad.
Signature Not Verified Signed by: AMIT KUMAR Signing time: 16-09-2025 10:42:34NEUTRAL CITATION NO. 2025:MPHC-IND:26783 3 CRR-3221-2019
3. Revision petitioner also filed an application for interim maintenance.
4. The notice was served upon the respondent/husband and learned Family Court Ratlam conducted a mediation, but the same was unsuccessful. Family Court, Ratlam rejected the application for interim maintenance vide order dated 12.06.2019 with a finding that rejection of interim maintenance will not affect the claim of wife on merits.
5. The respondent/husband filed a MCRC No.17496/2019 before this Court challenging the Registration of application under Section 125 of Cr.P.C., 1973 on the ground that the marriage is void, hence, the proceedings are liable to quash. Vide order dated 13.05.2019, the Co-ordinate bench of this Court dismissed the said application recording finding that:-
"As on today, there is a marriage between petitioner and respondent because the petitioner is seeking the decree that marriage be declared as void. It is for the petitioner to raise all these objections before the family court in a proceedings under section 125 of Cr.P.C. The competent Court is yet to apply his mind on the objection which is yet to be taken by the petitioner before the Family Court. Petitioner is free to raise this objection before the Family Court. Hence, no case for interference at this stage is made out. Petition is accordingly dismissed."
6. The respondent/husband has filed an application on 24.05.2019 before the learned Family Court Ratlam marked as I.A. No.06 for disposal of the application on the ground that the so called marriage between them on 11.10.2017 is void ab initio due to concealment of the fact, it has been solemnized without taking divorce from first husband Ajay Bairagi with whom, the petitioner/wife has solemnized the marriage on 03.12.2003. She Signature Not Verified Signed by: AMIT KUMAR Signing time: 16-09-2025 10:42:34 NEUTRAL CITATION NO. 2025:MPHC-IND:26783 4 CRR-3221-2019 got registered the marriage before the Registrar of Marriage, Ratlam on 11.10.2017 concealing the fact of marriage with Ajay Bairagi. She produced only decree of divorce with second husband Bhupendra Ninava and the decree and judgment in which the reasons of divorce were not recorded, were not intimated. The respondent/husband has a child from his earlier marriage and to protect the rights of his son from earlier marriage, an agreement was signed in which the facts of earlier marriage with Ajay Bairage were concealed.
7. The application was opposed through filing reply dated 10.06.2019 stating that she has disclosed about all the previous marriages. They have exchanged the documents of previous divorce. Memorandum of understanding was also recorded, the factum of marriage with Ajay Bairagi was also mentioned in the decree of divorce with Bhupendra Ninava. The decree of Divorce with Bhupendra Ninava has not challenged and the same has attained the finality. Her marriage has not been declared void ab initio. Till declaration of the marriage void ab initio she is legally wedded wife of respondent/husband. This issue cannot be decided at the interim stage and required recording of evidence and prayed for setting aside the impugned order.
8. The learned Principal Judge, Family Court, Ratlam vide order dated 12.06.2019 allowed the application I.A. No.6 filed by the respondent/husband and dismissed the original maintenance application at interim stage recording finding that her marriage with Ajay Bairagi has not been dissolved by a decree of competent Court and her marriage with Signature Not Verified Signed by: AMIT KUMAR Signing time: 16-09-2025 10:42:34 NEUTRAL CITATION NO. 2025:MPHC-IND:26783 5 CRR-3221-2019 respondent is in violation of Section 5 of Hindu Marriage Act, 1955 and amounts to void marriage under Section 11 of the Hindu Marriage Act, 1955.
9. Challenging the impugned order, this revision petition is preferred on the ground that:
(i) whether recording of finding without furnishing the opportunity to produce evidence, the impugned order is unsustainable?
(ii) Whether marriage solemnized following the rituals under Hindu Marriage Act, 1955 cannot be declared void in a proceedings under Section 125 of Cr.P.C., 1973?
10. Heard.
11. Counsel for the respondent/husband has supported the impugned order and prayed for dismissal of the revision petition by filing the reply through document No.11094/2022 rendering Annexures R.1 to R-5 on the ground that revision petitioner has not approaching before this Court with clean hands, she is silent on the first marriage. The impugned order is based on her fair admission. She has not taken valid divorce from her first husband Ajay Bairagi. Mutual settlement agreement dated 29.11.2003 can not end the tie of marriage in the eyes of law. It is also submitted that the revision petitioner filed an FIR at Police Station Harmatha District Jaipur, Rajasthan wherein Crime No.06/2019 was registered under Section 498-A of IPC and Signature Not Verified Signed by: AMIT KUMAR Signing time: 16-09-2025 10:42:34 NEUTRAL CITATION NO. 2025:MPHC-IND:26783 6 CRR-3221-2019 said FIR has been closed by filing final report dated 19.10.2019. The revision petitioner also initiated an application under Section 12 of Protection of Woman from Domestic Violence Act, 2005 before the Judicial Magistrate First Class, Ratlam and registered as MJCR No.262/2018 and the said proceedings have been stayed vide order dated 24.06.2022 in MCRC No.52372/2021 by co-ordinate bench of this Court.
12. In support of his contention, counsel for the respondent has placed reliance over the judgments of Hon'ble Apex Court in the cases of Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav and Ors:
MANU/SC/0579/1988, Bakulbhai and Anr. vs. Gangaram and Anr.: (1988) 1 SCC 537 and Savitaben Somabhai Bhatiya vs. State of Gujarat and Ors:
MANU/SC/0193/2005. High Court of Madhya Pradesh in Rama Kumar vs. Udai Lal: II (1989) DMC 425, Ambaram vs. Reshambai: II (1988) DMC 181 and Sharda Vs. Purushottam: MANU/MP/0021/2006. Patna High Court in Saraswati Devi vs. State of Bihar and Ors.: II (2006) DMC 358358. Allahabad High Court in Kiran Dhar vs. Alik Berman: II (2015) DMC 357 (ALL), Chhattisgarh High Court in Hemlata Karayat vs. Vijay Kumar Karayat: II (2015) DMC 533 (Chhat.).
13. Perused the record.
14. Hon'ble Apex Court in Smt. Usha Rani and Anr. vs. Moodudula Srinivas; 2025 INSC 129 dealt with the question whether woman is entitled to claim maintenance under Section 125 of Cr.P.C., 1973 from her second husband, when her first marriage is allegedly legally subsisting. Hon'ble the Apex Court in paragraphs nos.17 and 18 has answered the said question. The Signature Not Verified Signed by: AMIT KUMAR Signing time: 16-09-2025 10:42:34 NEUTRAL CITATION NO. 2025:MPHC-IND:26783 7 CRR-3221-2019 relevant paragraphs are being reproduced as below:-
17. This encapsulates the full scope and gravity of considerations before this Court as we deliberate on the issue at hand. The present case does not concern a live-in relationship. The Family Court made a factual finding that Appellant No. 1 married the Respondent and that finding is not disputed by the Respondent.
Instead, the Respondent seeks to defeat the right to maintenance by claiming that his marriage to Appellant No. 1 is void ab initio as her first marriage is still subsisting. Two other pertinent facts must be considered: firstly, it is not the case of the Respondent that the truth was concealed from him. In fact, the Family Court makes a specific finding that Respondent was fully aware of the first marriage of the Appellant No. 1. Therefore, Respondent knowingly entered into a marriage with Appellant No. 1 not once, but twice. Secondly, Appellant No. 1 places before this Court an MoU of separation with her first husband. While this is not a legal decree of divorce, it also emerges from this document and other evidence that the parties have dissolved their ties, they have been living separately and Appellant No. 1 is not deriving maintenance from her first husband. Therefore, barring the absence of a legal decree, Appellant No. 1 is de facto separated from her first husband and is not deriving any rights and entitlements as a consequence of that marriage.
18. In the opinion of this Court, when the social justice objective of maintenance u/s. 125CrPC is considered against the particular facts and circumstances of this case, we cannot, in good conscience, deny maintenance to Appellant No. 1. It is settled law that social welfare provisions must be subjected to an expansive and beneficial construction and this understanding has been extended to maintenance since Ramesh Chander (supra). An alternate interpretation would not only explicitly defeat the purpose of the provision by permitting vagrancy and destitution, but would also give legal sanction to the actions of the Respondent in knowingly entering into a marriage with Appellant No.1, availing its privileges but escaping its consequent duties and obligations. The only conceivable mischief that could arise in permitting a beneficial interpretation is that the Appellant No.1 could claim dual maintenance--however, that is not the case under the present facts. We are aware that this Court has previously denied maintenance in cases of subsisting marriages (See Signature Not Verified Signed by: AMIT KUMAR Signing time: 16-09-2025 10:42:34 NEUTRAL CITATION NO. 2025:MPHC-IND:26783 8 CRR-3221-2019 Yamunabai (supra) and Bakulabai (supra)). However, a plea of separation from the first marriage was not made in those cases and hence, they are factually distinguishable. It must be borne in mind that the right to maintenance u/s. 125 CrPC is not a benefit received by a wife but rather a legal and moral duty owed by the husband. A recent landmark judgement of this Court in Mohd. Abdul Samad vs. State of Telangana and Another (2024) SCC OnLine SC 1686 has shed greater light on this duty in the Indian context:
"45. Therefore, I observe that an Indian married man must become conscious of the fact that he would have to financially empower and provide for his wife, who does not have an independent source of income, by making available financial resources particularly towards her personal needs; in other words, giving access to his financial resources. Such financial empowerment would place such a vulnerable wife in a more secure position in the family. Those Indian married men who are conscious of this aspect and who make available their financial resources for their spouse towards their personal expenses, apart from household expenditure, possibly by having a joint bank account or via an ATM card, must be acknowledged.
46. Another aspect of vulnerability of a married Indian woman is regarding her security of residence in her matrimonial home. In this context in the case of Prabha Tyagi vs. Kamlesh Devi, (2022) 8 SCC 90, this Court while considering Section 17 along with other provisions of the Domestic Violence Act, 2005 opined as under:
"60. In our view, the question raised about a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed must be interpreted in a broad and expansive way, so as to encompass not only a subsisting domestic relationship in praesenti but also a past domestic relationship. Therefore, Parliament has intentionally used the expression "domestic relationship" to mean a relationship between two persons who not only live together in the shared household but also between two persons who "have at any point of time lived together"
in a shared household."
Signature Not Verified Signed by: AMIT KUMAR Signing time: 16-09-2025 10:42:34NEUTRAL CITATION NO. 2025:MPHC-IND:26783 9 CRR-3221-2019
47. Thus, both 'financial security' as well as 'security of residence' of Indian women have to be protected and enhanced. That would truly empower such Indian women who are referred to as 'homemakers' and who are the strength and backbone of an Indian family which is the fundamental unit of the Indian society which has to be maintained and strengthened. It goes without saying that a stable family which is emotionally connected and secure gives stability to the society for, it is within the family that precious values of life are learnt and built. It is these moral and ethical values which are inherited by a succeeding generation which would go a long way in building a strong Indian society which is the need of the hour. It is needless to observe that a strong Indian family and society would ultimately lead to a stronger nation. But, for that to happen, women in the family have to be respected and empowered!"
15. Now, coming to the facts of this case, there is no fact that revision petitioner/wife is receiving any maintenance from her earlier husband Ajay Bairagi or she has not separated from Ajay Bairagi. On the contrary, this is a fact that after separation from Ajay Bairagi, she got married to Bhupendra Ninava and from Bhupendra Ninava also, she obtained a decree of divorce from a competent Court of law. There is a copy of mutual settlement agreement (R-1) dated 29.11.2003 whereby Ajay Bairagi and the revision petitioner ended their marital tie by mutual consent. In light of the judgment Smt. Usha Rani (supra), in which most of the judgments relied by counsel for the respondent have been considered, the learned Family Court, Ratlam was not within jurisdiction to dismiss the application for maintenance without recording the evidence at the primary stage because the fact that she disclosed about the marriage with Ajay Bairagi and separation can be decided on appreciation of evidence only.Signature Not Verified Signed by: AMIT KUMAR Signing time: 16-09-2025 10:42:34
NEUTRAL CITATION NO. 2025:MPHC-IND:26783 10 CRR-3221-2019
16. Accordingly, the impugned order dated 12.06.2019, rejecting the original claim of the petitioner/wife is set aside. Consequential, the order dated 06.05.2019, dismissing the application for interim maintenance is also set aside. Both the parties are directed to appear before the Principal Judge, Family Court, Ratlam on 28.10.2025.
17. Considering the material available on record including the factum of registration of marriage, the application for interim maintenance is allowed and the respondent shall pay the amount of Rs.20,000/- (Rs. Twenty Thousand Only) per month from the date of application i.e. from 13.11.2018.
18. Office is directed to remit the record back to the learned Family Court concerned and the learned Family Court concerned is directed to continue the trial and conclude the main application filed by the revision petitioner under Section 125 of Cr.P.C. as expeditiously as possible.
(GAJENDRA SINGH) JUDGE amit Signature Not Verified Signed by: AMIT KUMAR Signing time: 16-09-2025 10:42:34