Suman Kumari v. Harbans Lal .

V.S Aggarwal, J.:— Petitioner Suman Kumari had filed an application under Section 125 Cr.P.C against Harbans Lal @ Pappu. She was seeking maintenance asserting that she was married to the respondent on 13.4.1990 She was being harassed for not bringing sufficient dowry and was being maltreated. On 13.5.1991 she was turned out by the respondent from his house. Attempts were made to rehabilitate the petitioner but without success. Her case was that respondent has refused to maintain her and thus came the prayer for the maintenance to be fixed.

2. In the reply filed the respondent had contested the petition. It was alleged that petitioner has played fraud upon him. She was married earlier to another person who is still alive. Her marriage has not been dissolved. It was admitted that respondent had married the petitioner but he came to know that petitioner has earlier been married and her husband is alive. Respondent's case was that petitioner has been harassing him and members of his family. It was denied that petitioner was turned out of the house or was maltreated.

3. The learned trial court had recorded the evidence and concluded that petitioner was already married with one Mohan Lal. The marriage with Mohan Lal has not been dissolved. Her marriage with respondent, therefore, was a nullity and she was not entitled to claim the maintenance. The petition as such was dismissed. Aggrieved by the same the petitioner preferred a revision petition in the Court of Sessions. The learned Additional Sessions Judge agreeing with the reasoning of the learned Judicial Magistrate dismissed the revision petition. By virtue of the present petition Suman Kumari petitioner seeks quashing of the orders.

4. On behalf of the petitioner two main contentions had been raised namely (a) the defence of the respondent had been struck off and, therefore, he had no right to cross-examine the petitioner, and (b) since the petitioner had been married to the respondent irrespective of her husband Mohan Lal being alive, she is entitled to claim the maintenance.

5. On both these counts the argument of the petitioner's learned counsel indeed will not cut much ice.

6. Indeed it is not being disputed that during the course of trial the defence of the respondent had been struck off. Once the defence had been struck of, the trial court had proceeded to record the evidence. But when the defence is struck off, it does not debar the opposite party from addressing the court or asking certain questions which are not concerned purely with the defence. When the defence is struck off, it does not imply that petition has to be allowed outright. The said question had been considered by the Supreme Court in the case of M/S Paradise Industrial Corpn. v. M/S Kiln Plastics Products , (1976) 1 SCC 91 : AIR 1976 SC 309. The Supreme Court held that despite the defence having been struck off, the concerned party has the right to cross-examine certain witnesses and even to address the argument. The Supreme Court held:—

“Indeed, one may even say that the phrase “the defence to be struck off or “struck out” is more advantageous from the point of view of the defendants. Even when a defence is struck off the defendant is entitled to appear, cross-examine the plaintiff's witnesses and submit that even on the basis of the evidence on behalf of the plaintiff a decree cannot be passed against him, whereas if it is ordered in accordance with Section 11(4) Page: 663that he shall not be entitled to appear in or defend the suit except with the leave of the Court he is placed at a greater disadvantage. The use of the words defence struck off does not in any way affect the substance of the order and the learned Judge of the High Court was wholly in error in holding that because of the form of the order passed on June 2, 1969 the order was illegal and without jurisdiction. The order squarely falls within Section 11(4). What the law contemplates is not adoption or use of a formula; it looks at the substance. The order is not therefore one without jurisdiction. It is one which the Judge was competent to make.”

7. The same question had been considered again by the Supreme Court in the case of Mondila India v. Kamakshya Singh Deo, 1988 (2) All India Rent Control Journal 525. After scanning through various precedents, the Supreme Court held that after the defence having been struck off, the opposite party has a right to cross-examine the witnesses and address arguments. In paragraph 26 the Court held:—

“26. For the above reasons, we agree with the view of Ramendra Mohan Datta, ACJ., that even in a case where the defence against delivery of possession of a tenant is struck off under section 17(4) of the Act, the defendant, subject to the exercise of an appropriate discretion by the court on the facts of a particular case, would generally be entitled:

(a) to cross-examine the plaintiff's witnesses; and

(b) to address argument on the basis of the plaintiff's case.

We would like to make it clear that the defendant would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weakness of the plaintiff's case. In no circumstances should the cross-examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses.”

8. Keeping in view the above pronouncements of the Supreme Court it becomes unnecessary to ponder further and it must follow that the respondent had the right to cross-examine the petitioner when she stepped into the witness box. Certain admissions flowed from the said statement and finding thus arrived that petitioner was already married and the said marriage was not dissolved, was based on evidence.

9. Confronted with that position, learned counsel for the petitioner vehemently urged that under Section 125 Cr.P.C the wife is entitled to claim maintenance and the petitioner had undergone the religious ceremonies and was married to the respondent; therefore, she is entitled to claim the maintenance.

10. In this regard reference with advantage may be made to clause (a) of sub-section (1) of Section 125 Cr.P.C It gives a right to a wife to seek maintenance if she is unable to maintain herself. The expression “wife” includes as explained in sub-section (1) of Section 125, Cr.P.C a woman who has been divorced and has not remarried. But it will not include a woman who simply undergoes the ceremony of marriage with another while her first husband is alive. If the first marriage is not dissolved the second marriage would be a nullity. The said question has been considered by the Supreme Court in the case of Smt Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, 1988 (1) Recent Criminal Reports 322. The Supreme Court discussed this controversy in paragraph 5 and held:—

“5. It has been contended on behalf of the appellant that the term ‘wife’ in Section 125 of the Code should be given a wider and extended meaning so as to include therein not only a law-fully wedded wife but also a woman married in fact by performance of necessary rites or following the procedure laid down under the law. Relying upon the decision of this Court in Mohd. Ahmed Khan v. Shah Bano Beghum, (1985) 3 SCR 844, it was argued that the personal law of the parties to a proceeding under Section 125 of the Code should be completely excluded from consideration. The relationship of husband and wife comes to an end on divorce, but a divorcee has been held to be entitled to the benefits of the section it was urged, and therefore, applying this approach a woman in the same position as the present appellant should be brought within the sweep of the section. We are afraid the argument is not well founded. A divorce is included within the section on account of clause (b) of the Explanation. The position under the corresponding Section 488 of the Code of 1998 was different. A divorcee could not avail of the summary remedy. The wife's right to maintenance depended Page: 664upon the continuance of her married status. It was pointed out in Shah Bano's case that since that right could be defeated by the husband by divorcing her unilaterally under the Muslim Personal Law or by obtaining a decree of divorce under any other system of law, it was considered desirable to remove the hardship by extending the benefit of the provisions of the section to a divorced woman so long as she did not remarry and that was achieved by including clause (b) of the Explanation. Unfortunately for the appellant the corresponding provision was brought in so as to apply to her. The legislature decided to bestow the benefit of the section even on an illegitimate child by express words but none are found to apply to a de facto wife where the marriage is void ab initio.”

11. The conclusions were thereafter drawn in paragraph 8 and holding that earlier marriage was a nullity will not entitle her to claim maintenance, In paragraph 8 it was held:—

“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 ef law and she is not entitled to the benefit of Section 125 of the Code. The appeal is accordingly dismissed. There will be no orders 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. The position in the present case as noted above is similar. The first marriage was subsisting. The petitioner had re-married the respondent. The second marriage with the respondent thus would be a nullity. She cannot claim herself to be wife and insist for maintenance. There is no ground thus to quash the orders so passed.

13. For these reasons, the revision petition being without merit must fail and is dismissed.

Petition dismissed.