PANDURANG S/O. VENKATSH PRABHU v. KUMARI HRITHIKA D/O. PANDURANG PRABHU

: 4 :

maintenance has filed RPFC No.100061/2014. Husband being aggrieved by award of maintenance to the daughter has preferred RPFC.No.100047/2014. Hence, both the petitions are taken up together for consideration and by consent of learned Advocates, it is taken up for final disposal.

2. The records from the trial Court has also been secured. I have heard the arguments of Sri K.L.Patil, learned counsel appearing for husband and Sri Suresh Gundi, learned counsel appearing for wife. Perused the records. Parties are referred as per their rank in trial Court.

3. Petitioners 1 and 2 (wife and daughter) filed a petition under Section 125 of Cr.P.C. claiming maintenance of Rs.5,000/- each from the respondent. Said petition was initially filed before the JMFC Court, Hubli, and on establishment of Family Court, it stood transferred to the Family Court, Hubli, and as such, it was

: 5 :

re-numbered as Crl.Misc.116/2012 (Old No.201/2012). It was contended by the 1^stpetitioner that she is the legally wedded wife of the respondent and out of their wedlock, 2^ndpetitioner was born and at the time of marriage, respondent misrepresented and had informed her that his wife had expired in an accident and after having informed her so, she agreed to marry respondent and accordingly they got married and thereafterwards she came to know that wife of the respondent was still alive and on persistent enquiry being made by her in this regard, respondent deserted her and as such, claiming maintenance for herself and her daughter, petition in question came to be filed. Respondent on service of notice appeared and contested the matter by filing detailed statement of objections and denied the alleged marriage as also the paternity of 2^ndpetitioner. It was contended by the respondent that he was married to one Smt.Kalpana and their marriage had been solemnised on 30.05.1994 and out of the marriage with Smt.Kalpana, he had two

: 6 :

children. It was further contended by him that petitioner No.1 was working in the same organisation where he was working and they knew each other and petitioner No.1 was treated as a family member and she being unmarried used to spend her holidays with his wife and children and she used to attend all the family functions and with ulterior motive, she has filed the present petition calling herself as wife of respondent. It was contended that petitioner is not the wife of respondent and when the first marriage is subsisting, 2^ndmarriage cannot be recognised. He also contended that his wife Smt.Kalpana had filed O.S.No.249/2005 before the Prl. Civil Judge, Jr.Dn., Hubli, to declare the alleged marriage between petitioner No.1 and him as void ab-initio and by interim order dated 02.07.2005, 1^stpetitioner had been restrained from claiming herself to be the legally wedded wife of respondent. On these amongst other grounds, he sought for dismissal of the petition.

: 7 :

4. Both parties got themselves examined as PW-1 and RW-1 respectively and also tendered the documentary evidence. Trial Court after considering the pleadings, formulated the points for its discussion and answered the issue in favour of the petitioner and awarded maintenance to the daughter by rejecting claim of the 1^stpetitioner. It came to be held by the Family Court that competent Civil Court has already held that marriage of Smt. Kalpana with the respondent had taken place in the year 1994 and 1^st petitioner claims her marriage with respondent having taken place in the year 1999 and 1^stpetitioner is not the legally wedded wife of respondent since the alleged marriage between 1^stpetitioner and respondent took place during the subsistence of first marriage.

5. As already noticed hereinabove, petitioner being aggrieved by rejection of her claim and respondent being aggrieved by order directing him to pay maintenance to the daughter have filed these two revision petitions.

: 8 :

6. It is the contention of Mr.K.L.Patil, learned counsel appearing for respondent that when respondent had denied his relationship with 1^stpetitioner, burden was cast on her to prove that respondent had fathered 2^nd petitioner and on account of there being no evidence tendered by the 1^stpetitioner in this regard, Family Court ought not to have granted or awarded or ordered payment of maintenance to 2^ndpetitioner. He would also elaborate his submission by contending that Family Court having held that mother of 2^ndpetitioner is not the legally wedded wife of respondent, it could not have awarded maintenance in favour of 2^ndpetitioner. He would also contend that award of maintenance at the rate of Rs.5,000/- to 2^ndpetitioner is contrary to material on record and it has not taken note of financial capacity of respondent while awarding exorbitant maintenance of Rs.5,000/- to 2^ndpetitioner. He would also contend that marriage of 1^stpetitioner with respondent is a void marriage and hit by Section 11 of the Hindu Marriage Act.

: 9 :

When marriage itself is void, no rights would flow out of such marriage for either of the spouse to claim any right and non-consideration of this vital aspect has resulted in great prejudice and has also resulted in erroneous award of maintenance to 2^ndpetitioner. He would also submit that trial Court was fully justified in dismissing the petition filed by 1^stpetitioner and there is no infirmity committed by the trial Court in this regard since the marriage even according to 1^stpetitioner with the respondent had taken place in the year 1999 i.e., much after the 1^stmarriage which was in the year 1994 with Smt. Kalpana and as such, it violates the conditions stipulated for solemnisation of a Hindu Marriage under Section 5 (1) and as such, it came to be held that marriage of 1^stpetitioner with respondent to be a void marriage which exercise came to be undertaken by the trial court and rightly held in favour of respondent and thereby rejecting claim of 1^stpetitioner. He would support the order passed by Family Court as just and proper and

: 10 :

prays for dismissal of the petition filed by 1^stpetitioner and also prays for allowing the petition filed by respondent and prays for dismissal or rejection of petition filed by both the petitioners under Section 125 of the Cr.P.C. in its entirety. Learned counsel for respondent has relied upon following judgements:

i) CHANMUNIYA VS. CHANMUNIYA

VIRENDRA KUMAR SINGH

KUSHWAHA AND ANOTHER (2011 (1)

SCC 141),

ii) D. VELUSAMY VS. D.PATCHAIAMMAL

(AIR 2011 SC 47),

iii) YAMUNABAT ANANTRAO ADHAV VS.

ANANTRAO SHIVRAM ADHAV (AIR

1988 SC 644).

7. Per contra, Sri Suresh Gundi, learned counsel appearing for the petitioners would support the order passed by the trial Court, in so far as, award of maintenance to 2^ndpetitioner and he would submit that even an illegitimate child would be entitled to claim

: 11 :

maintenance even without admitting or accepting that 2^nd petitioner is an illegitimate child and as such, award of maintenance granted by the Family Court cannot be faulted with since legitimacy of the children born out of void marriages would recognise their right under Section 16 of the Hindu Marriage Act. He would also submit that when the marriage between the 1^stpetitioner and respondent was solemnised in the year 1999, she was led to believe or in other words she was induced to believe the words of respondent which was to the effect that he did not have a living spouse or a wife and only on account of his assurance that his first wife had expired in an accident, she believed his words and got married and as such, even accepting that 1^stpetitioner is the second wife or their marriage having been solemnised during the subsistence of first marriage it would not prevent her from claiming maintenance, since it has not been established by cogent evidence by the respondent-husband that 1^st petitioner was aware of Smt. Kalpana (1^stwife) being alive

: 12 :

as on the date of marriage with 1^stpetitioner. As such, he seeks for allowing the petition filed by 1^stpetitioner and prays for dismissal of petition filed by respondent challenging the award of maintenance granted by Family court in favour of 2^ndpetitioner. Sri Suresh Gundi, in support of his submission, has relied upon the judgment rendered in the case of BADSHAH VS. URMILA BADSHAH GODSE AND ANOTHER reported in (2014 (1) SCC 188).

8. Having heard the learned advocates appearing for the parties and on perusal of records secured from the Family Court and after bestowing careful attention to the rival contentions raised, this Court is of the considered opinion that following points would arise for consideration:

i) Whether the order passed by the Family Court dismissing Crl. Misc. No.116/2012 by rejecting the claim of maintenance sought by 1^stpetitioner (wife) is to be upheld or reversed?

: 13 :

ii) Whether Crl.Misc.No.116/2012 allowed by Family Court awarding maintenance @

Rs.5,000/- per month to 2^nd petitioner is to be affirmed, set aside or modified?

iii) What order?

RE. POINT NO.1:

9. The order of Family Court would indicate that while answering point No.1 formulated by it, it has been answered in the negative and it has been held by the Family Court that evidence on record does not indicate about respondent having concealed his first marriage when he married the 1^stpetitioner herein in the year 1999. In other words, Family Court has held that nothing has been elicited in the cross-examination of husband to show that he concealed his first marriage when he married 1^st petitioner or he had misrepresented to 1^stpetitioner about his earlier marriage. Respondent - husband had also produced certified copy of judgment and decree passed in

: 14 :

O.S. No.249/2005 dated 10.11.2008 which had been obtained by Smt. Kalpana (first wife) whereunder she had sought for declaring that marriage between the 1^st petitioner (Smt. Surekha) and respondent herein as null and void and same having been decreed was yet another factor which swayed in the mind of Family Court to hold that 1^stpetitioner had not proved that she is the legally wedded wife of 1^strespondent or has proved that respondent had suppressed the fact of his earlier marriage.

10. Respondent has denied his relationship with 1^stpetitioner in his statement of objections filed before Family Court. It is very intriguing to note that in a suit filed by his first wife that Smt. Kalpana in O.S. No.249/2005 to declare the marriage between her husband and Smt. Surekha as null and void, he had been arrayed as 2^nddefendant. Though he was served with suit summons and had appeared through learned advocate, for

: 15 :

reasons best known, he did not file his written statement, neither he entered the witness box in the said suit. Decree passed in O.S. No.249/2005 would indicate that marriage between respondent and 1^stpetitioner herein has been declared as null and void and 1^stpetitioner has been restrained from representing herself to be the legally wedded wife of defendant No.2 therein or respondent herein.

11. It is not in dispute that said judgment and decree came to be challenged by the respondent (husband) herein in R.A. No.1/2009 and said appeal came to be dismissed for default on 12.01.2011 and same has attained finality, since it has not been pursued by respondent (husband) herein to its logical end. This would also create a cloud over bona fides of said appeal filed by respondent (husband) particularly same having been allowed to be dismissed for default and not taking steps to get the appeal restored.

: 16 :

12. Be that as it may. The fact remains that respondent - husband had denied his relationship with 1^st petitioner herein and one of the issue which came to be formulated in O.S. No.249/2005 namely issue No.1 reads as under:

"Whether plaintiff proves that the marriage between defendant Nos.1 and 2 is void ab initio?"

13. In the said suit defendant No.2 therein i.e., respondent herein had totally denied his marriage with 1^st petitioner herein. 1^stpetitioner who came to be examined as D.W.1 in the said case (O.S. No.249/2005), has stated that respondent herein i.e., defendant No.2 in O.S. No.249/2005 while marrying her had represented that his wife had expired in an accident. In fact, one witness also came to be examined on behalf of 1^stpetitioner herein as D.W.2 in O.S. No.249/2005 who has stated in her examination-in-chief at paragraph 1 about respondent herein having informed her about his wife having expired

: 17 :

at the time of delivery. A clear finding has been recorded about misrepresentation made by 2^nddefendant therein i.e., respondent herein to 1^stpetitioner at the time of their marriage in 1999. Finding recorded by Civil Court in that regard reads as under:

"13. DW1 in her chief examination xxxxxxxxxx defendant No.2. These oral statements of D.W.1 and 2 shows that, the defendant No.1 was knowing that, defendant No.2 was married prior to 1999 and a female baby was born from his wife to the defendant No.2 and she came to know that, the plaintiff is the first wife of defendant No.2 and therefore, defendant No.2 has misrepresented her about the death of his first wife when he proposed for marriage of defendant No.1."

(emphasis supplied)

14. Yet again, while examining the contentious issue relating to solemnization of marriage between defendant Nos.1 and 2 in O.S. No.249/2005 i.e., between respondent and 1^stpetitioner herein Civil Court at paragraph 22 onwards of its judgment which has been

: 18 :

marked in the present proceedings as Ex.P-12, has held there was marriage and out of their wedlock 2^ndpetitioner was born. Finding recorded by Civil Court is to the following effect:

"22. The plaintiff has alleged that, defendant No.1 is claiming herself as legally wedded wife of defendant No.2, which is not correct and the defendant No.1 is also ascertaining that, she is the legally wedded wife of defendant No.2 and a issue has been born through defendant No.2. In view of these contentions it is to be seen whether the defendant No.1 married defendant No.2 and if so, whether that marriage is legal and valid and thereby the defendant has acquired any status. The defendant No.1 in order to prove her marriage with defendant No.2 has adduced the evidence of her two witnesses D.W.2 and D.W.3 and produced so many photographs, negatives, telephone bill, birth certificate, petition filed for maintenance and private complaint, etc., in Ex.D. series. The D.W.1 to 3 have state that, defendant No.1 married defendant No.2 on 12-09-1999 at Goa and both of them lead marital life at Hubli in a rented house of Morab and a child by name Hrithika born to them. In their cross-examination D.W.1 to 3 have reiterated the said fact".

: 19 :

15. After having analysed entire evidence succinctly, it has arrived at a conclusion to the following effect:

"25. The perusal of these documentary evidence and the oral evidence of either of the parties clearly show that, the defendant No.2 married the defendant No.1 in 1999 and lead marital life and therefore, Hrithika was born to them. Therefore, these materials on records are sufficient to hold that, there was marriage between defendants No.1 and 2 in the year 1999".

16. Perusal of this documentary evidence available on record and the oral evidence of both parities would clearly show that, defendant No.2 had married defendant No.1 in 1999 and had lead marital life and Hritika - 2^nd petitioner was born to them. This material evidence on record is sufficient enough to hold that, there was solemnization of marriage between respondent and 1^st petitioner in the year 1999.

17. This finding recorded by competent Civil Court in O.S. No.249/2005 vide Ex.D-12 having been assailed by husband i.e., respondent in R.A. No.1/2009, as already

: 20 :

observed herein above has not been pursued by him to its logical end. This smacks of his conduct and would indicate that respondent having made a show of filing an appeal, as though being aggrieved by said judgment and decree has allowed said appeal to be dismissed for default vide order dated 12.01.2011 and undisputedly, said order has reached finality. Thus, defence put up by respondent - husband that there exists no relationship between himself and 1^stpetitioner cannot be accepted and it is hereby rejected.

18. Keeping these factual aspects in mind, it requires to be examined as to whether 1^stpetitioner herein who having suffered a decree in O.S. No.249/2005 declaring her marriage with respondent as being void, on account of same being a nullity, still would she be entitled to seek maintenance from her husband? Section 5 of Hindu Marriage Act, 1955 lays down the conditions for a marriage to be solemnized between any two Hindus. If a

: 21 :

marriage contravenes any one of the conditions specified in clauses (i), (iv) and (v) of said Section, the marriage is null and void vide Section 11 of the Act. In other words, if either party has a spouse living at the time of the marriage or if the parties are within the degrees of prohibited relationship or sapindas (unless the custom or usage governing each of them permits such a marriage) the marriage will be null and void. If on the other hand, the marriage contravenes clause (ii) of Section 5 such marriage is voidable vide Section 12 of the Act. However, the Act does not provide for any contingency where clause

(iii) of Section 5 is attracted. The omission of clause (iii) of Section 5 from the category of void marriages under Section 11 or voidable marriages under Section 12 appears to be deliberate on the part of the Legislature. In fact, this is the view taken by the Hon'ble Apex Court in the case of the LEELA GUPTA vs LAKSHMINARAYAN reported in AIR 1978 SC 1351 AT PAGE 1358. Section 11 of Hindu Marriage Act would clearly indicate that

: 22 :

marriages which contravenes Section 5(i), (iv) and (v) are declared void.

19. In the instant case, it is not required to be examined as to whether clause (ii) to (v) are applicable or attracted to the facts of the case, inasmuch as, it is the specific case of respondent - husband that there was no marriage between himself and 1^stpetitioner and even otherwise said marriage is a nullity on the ground that he had already contracted marriage with Smt. Kalpana, whom he claims to be the first wife and same was in subsistence and as such, marriage with Smt. Surekha (second wife) would be in violation of Section 5(i) of the Act.

20. Hon'ble Apex Court in catena of judgments has held that such marriage which is in contravention of Section 5(i) would attract Section 11 and thereby such marriage would be a void marriage. It has been held to be so in the following judgments:

: 23 :

i) AIR 2005 SC 180 (Savitaben Somabhai Bhatiya vs. State of Gujarat)

"8. But it does not further the case of the appellant in the instant case. Even if it is accepted as stated by learned counsel for the appellant that husband was treating her as his wife it is really inconsequential. It is the intention of the legislature which is relevant and not the attitude of the party.

In Smt. Yamunabai's case (supra) plea similar to the one advanced in the present case that the appellant was not informed about the respondent's earlier marriage when she married him was held to be of no avail. The principle of estoppel cannot be pressed into service to defeat the provision of Section 125 of the Code. It may be noted at this juncture that the legislature considered it necessary to include within the scope of the provision an illegitimate child but it has not done so with respect to woman not lawfully married. However, desirable it may be, as contended by learned counsel for the appellant to take note of the plight of the unfortunate woman, the legislative intent being clearly reflected in Section 125 of the Code, there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression 'wife'."

: 24 :

ii) AIR 2011 SC 47 (D.Velusamy vs. D.Patchaiammal)

"15. Some countries in the world recognize common law marriages. A common law marriage, sometimes called de facto marriage, or informal marriage is recognized in some countries as a marriage though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry (see details on Google).

In our opinion a 'relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married :-

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

(see 'Common Law Marriage' in Wikipedia on Google) In our opinion a 'relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirements, and in addition the parties must have

: 25 :

lived together in a 'shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a 'domestic relationship'.

16. In our opinion not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a 'keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage' No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression 'relationship in the nature of marriage' and not 'live in relationship'. The Court in the grab of interpretation cannot change the language of the statute.

In feudal society sexual relationship between man and woman outside

marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy's novel 'Anna Karenina', Gustave Flaubert's novel 'Madame Bovary' and the novels of the great Bengali writer Sharat Chandra

Chattopadhyaya."

: 26 :

iii) 2011 (1) SCC 141 (Chanmuniya vs. Chanmuniya Virendra Kumar Singh Kushwaha and another)

"14. Again in Sastry Velaider Aronegary & his wife v. Sembecutty Viagalie & Ors. [(1881) 6 AC 364, it was held that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.

15. In India, the same principles have been followed in the case of A. Dinohamy v. W.L. Balahamy AIR 1927 P.C. 185, in which the Privy Council laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.

16. In Mohabbat Ali Khan v. Muhammad Ibrahim Khan and Ors. AIR 1929 PC 135, the Privy Council has laid down that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.

: 27 :

17. In the case of Gokal Chand v. Parvin Kumari AIR 1952 SC 231, this Court held that continuous co-habitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long co-habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them."

21. It is no doubt true in Chanmuniya's case referred to herein supra, the issue regarding strict proof of marriage has been held essential for claiming maintenance under Section 125 Cr.P.C. However, having regard to the provisions of Domestic Violation Act, 2005 matter was requested to be referred to a Larger Bench by their Lordships, referring the following questions amongst others, to be decided by a Larger Bench:

(1) Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C.?

: 28 :

(2) Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr.P.C. having regard to the provisions of Domestic Violence Act, 2005?

(3) Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.?

22. The Hon'ble Apex Court in the case of Badshah vs. Urmila Badshah Godse and another reported in (2014) 1 SCC 188 has held that where the husband dupes the second wife by not revealing to her the fact of his earlier marriage would not be entitled to deny maintenance to her on the ground that he cannot be permitted to take advantage of his own wrong by raising such a contention. It has been held that by applying purposive construction to Section 125 Cr.P.C. and applying mischief rule, it has been held that atleast for the purposes of maintenance under Section 125 Cr.P.C. said woman has to be treated as a legally wedded wife. It has

: 29 :

been further held by the Hon'ble Apex Court that judgments rendered in Yamunabai - (1988)1 SCC 530 and Savitaben - (2005 ) 3 SCC 636 supporting the contention of husband would apply only in those circumstances where a woman marries a man with full knowledge of subsistence of his first marriage. It has also been held that if it is proved by evidence same to be otherwise, such marriage being a nullity would not entitle the wife to seek for maintenance in a petition filed under Section 125 of Cr.P.C. It has been held by the Hon'ble Apex Court in Badshah's case as under:

"13.2. Secondly, as already discussed above, when the marriage between respondent No.1 and petitioner was solemnised, the petitioner had kept respondent No.1 in dark about her first marriage. A false representation was given to respondent No.1 that he was single and was competent to enter into marital tie with respondent No.1. In such circumstances, can the petitioner be allowed to take advantage of his own wrong and turn around to say that the respondents are not entitled to maintenance by filing the petition under

: 30 :

Section 125 Cr.P.C. as respondent No.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 Cr.P.C., respondent No.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.

Thus, it boils down to the fact, if in the facts and circumstances of a case, evidence on record would indicate in a petition filed by wife under Section 125 Cr.P.C. claiming maintenance from her husband, a plea were to be put up by the husband contending interalia

: 31 :

that his marriage being a nullity under Section 11 of Hindu Marriage Act, 1955 and as such, he is not required to pay maintenance, requires to be examined in the background of pleadings as well as evidence available on record. If in a given case evidence would indicate that wife who is claiming maintenance from her husband knew about the fact that her husband was already married and said marriage was subsisting, then her claim has to fall to the ground. On the other hand, if it is demonstrated or proved by the wife in a maintenance claim, by tendering evidence to the effect that she was unaware of her husband having a living spouse or the husband having induced her to the marriage either by not revealing to her the fact of his earlier marriage or suppressing the fact of earlier marriage, then she would be definitely entitled to claim maintenance from her husband. Where marriage takes place by deceit, suppression of fact, inducement or projecting distorted facts, then in such an event, husband cannot be heard to contend that on account of he being

: 32 :

already married to another lady and as such, 2^ndwife would not be entitled to seek maintenance. If such stand taken by the husband is allowed to stand, it would add insult to the injury or in other words, it would amount to granting a premium to a wrong doer. As such, this Court is of the considered view that such plea when raised will have to be examined in the facts and circumstances of each case and there cannot be any straight jacket formula either to arrive a conclusion that merely because petitioners or the applicant had married during the subsistence of first marriage would debar the wife from claiming maintenance from her husband. Courts cannot also lose sight of the fact of large scale illiteracy, ignorance being prevalent in the Country and also the fact that domineering influence a man exercises over a woman in the present day of Indian society and particularly amongst rural folk. There may be instances where the gullible women are victims of such inducements and fall prey to such inducements made by the husband and are being led

: 33 :

to believe such words on account of they being ignorant of worldly knowledge. Thus, it would be the duty of Courts to find out from the pleadings by dissecting the evidence to extract truth from falsehood namely, to separate chaff from grain.

23. Keeping these aspects in mind, when attention is turned back to the facts on hand, it would be required to be noticed at the cost of repetition that finding recorded by a competent Civil Court in O.S. No.249/2005 at paragraph 22 which has already been extracted herein above declaring that there was solemnization of marriage between 1^stpetitioner and respondent herein needs no further elaboration. However, respondent has contended that there was no suppression of fact of he having married earlier or having 1^stwife at the time of marrying 2^ndwife i.e., 1^st petitioner herein. This version is to be found from his evidence and not from the pleadings. A perusal of statement of objections filed by the husband to the

: 34 :

petition filed by wife under Section 125 of Cr.P.C. would clearly indicate that it is a case of total denial. Respondent who had entered Box as R.W.1 admits in his cross- examination dated 20.09.2013 about finding having been recorded by Competent Civil Court in O.S. No.249/2005 about he having married 1^stpetitioner and out of said wedlock 2^ndpetitioner Kum. Hrithika having been born out of said marriage. In fact, he goes to the extent of contending that he is not able to say as to whether he had filed any appeal i.e., R.A. No.1/2009 challenging said judgment and decree which would only go to show that he intends to avoid and evade answering even undisputed facts. Photograph Ex.R1 which depicts presence of 1^st petitioner and respondent together has also been denied by him in his cross-examination. Though he admits 1^st petitioner having visited his home earlier in his cross- examination which is to the following effect.

"ZÉÆ¥Áæ ªÀiÁ§ð®ì£À°è £Á£ÀÄ ¸ÀÄgÉÃSÁ MnÖUÉ PÀÆr Hl ªÀiÁqÀÄwÛzÉݪÀÅ. DzÀgÉ PÉ®ªÀÇ0zÀÄ ¸À® ªÀiÁvÀæ. ¸ÀÄgÉÃSÁ £À£Àß ªÀÄ£ÉUÉ 2-3 ¸À® §0¢gÀ§ºÀÄzÀÄ.

: 35 :

CªÀ¼ÀÄ £À£Àß ªÀÄ£ÉAiÀÄ ¥ÁægÀ0 s̈ÉÆÃvÀìªÀPÉÌ §0¢zÀݼÀÄ. E£ÀÄß M0zÉgÀqÀÄ ¸À® vÀ£Àß ¸ÉßûvÀgÉÆ0¢UÉ zsÁgÀªÁqÀPÉÌ §0¢zÁÝUÀ £ÀªÀÄä ªÀÄ£ÉUÉ §0¢zÀݼÀÄ."

He has pleaded total ignorance in his statement of objections about he having known her.

24. In the cross-examination of PW1 (1^stpetitioner before Family Court) it has been suggested to her as though 1^stpetitioner and respondent were known to each other and she knew about the fact respondent herein having a living spouse. Evidence recorded by Family Court in that regard reads as under:

"ZÉÆ¥Áæ PÀ0¥À¤AiÀÄ°è PÉ®¸À ªÀiÁqÀÄwÛgÀĪÁUÀ 4 d£À ºÉtÄÚ ªÀÄPÀ̼ÀÄ ªÀÄvÀÄÛ 3 d£À UÀ0qÀÄ ªÀÄPÀ̼ÀÄ £ËPÀj ªÀiÁqÀÄwÛzÉݪÀÅ. CzÉà PÀ0¥À¤AiÀÄ°è JzÀÄj ±ÉÆà gÉƪÀiï£À°è PÉ®¸À ªÀiÁqÀÄwÛzÀÝ. ¸Éïïì JPÉìPÀÆånªï DV PÉ®¸À ªÀiÁqÀÄwÛgÀĪÁUÀ PÀ0¥À¤¬Ä0zÀ CªÀ¤UÉ M0zÀÄ ªÁºÀ£À PÉÆnÖzÀÄÝ JzÀÄjAiÀÄ RÄzÀÝ HgÀÄ zÁgÀªÁqÀ. PÀ0¥À¤AiÀÄ ªÁºÀ£ÀzÀ°è zÁgÀªÁqÀPÉÌ ºÉÆV §gÀÄwÛzÀÝ. PÀ®à£Á JzÀÄjAiÀÄ ºÉ0qÀw D ¸ÀªÀÄAiÀÄzÀ°è ºÀħâ½îAiÀÄ°è PÉ®¸À ªÀiÁqÀÄwÛzÀݼÀÄ J0zÀgÉ ¸ÀļÀÄî. vÀ£Àß ºÉ0qÀw wÃj PÉÆ0rzÁÝ¼É J0zÀÄ ºÉýzÀÝ."

25. This suggestion made to PW1 would clearly go to show that she has denied the fact of she being aware of first marriage of respondent with Smt. Kalpana. Burden

: 36 :

cast on respondent - husband has not been discharged and he has not been able to prove that 1^stpetitioner was fully aware of respondent being already married to Smt. Kalpana and yet she had contracted marriage with him, with full knowledge of first marriage still subsisting.

26. Though Shri K.L.Patil, learned counsel appearing for respondent has made a valiant effort to contend that admission made by P.W.1 in her cross- examination dated 16.01.2013 about she having attended the marriage of respondent's brother in the year 1997 itself is sufficient to arrive at a conclusion that 1^st petitioner was aware of the marriage between Smt. Kalpana and respondent, cannot be accepted for the simple reason, namely, perusal of cross-examination of P.W.1 does not even remotely suggest about such suggestion having been made about the fact of respondent being already married to Smt.Kalpana and PW1 being aware of it. On the other hand, what came to be suggested

: 37 :

to her in the cross-examination relates to identification of persons present in the photograph - Ex.R1 by confronting the same and nothing more or nothing less. As such, contention of Shri K.L.Patil cannot be accepted.

27. It requires to be noticed that respondent was residing at 1^stpetitioner's house immediately after he married her in the year 1999 and was paying rents to the house where they were residing as stated by P.W.1 in her evidence and it has remained uncontroverted. Further, documentary evidence namely photographs Ex.P3 to Ex.P9, receipt issued by Mahamaye Temple, Goa, Ex.P-1 birth certificate of 2^ndpetitioner - Kum.Hritika - Ex.P-2 would clearly indicate the name of her father as Sri Panduranga Prabhu i.e., respondent herein. These documents would clearly establish not only solemnization of marriage between respondent and 1^stpetitioner, but also the fact that 1^stpetitioner was not aware of the fact that first wife of respondent namely, Smt. Kalpana being

: 38 :

alive or living. In fact, Smt.Kalpana has not entered the witness box in the present proceedings. Thus, evidence on hand would clearly indicate that it is a oath against oath. When such evidence available on record is examined in the background of all other attendant circumstances, one and only conclusion which can be arrived at is that respondent herein had depicted before 1^stpetitioner as though he was not having a living spouse and thereby he was successful in convincing 1^stpetitioner to get married to him. Thus, evidence on record would indicate respondent had married the first petitioner by not revealing to her the fact of his first wife being alive and thereby the marriage being subsisting. On the other hand, he has married first petitioner by deceit. When parties are living together continuously for long time and out of said wedlock, 2^ndpetitioner - child having been born and there being a presumption of marriage between two persons and respondent - husband having neglected to maintain them, it would give rise for cause of action to

: 39 :

claim maintenance under Section 125 Cr.P.C. and as held by Hon'ble Apex Court by interpreting the word "wife"

broadly and widely.

28. In Badshah's case referred to supra, it has been held by Hon'ble Apex Court that where the husband has duped the wife by not revealing to her the fact of his earlier marriage, he cannot deny maintenance to her or he cannot be permitted to take advantage of his own wrong by raising a contention of such marriage being a nullity. It has been held by the Hon'ble Apex Court in the said case to the following effect:

"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. 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

: 40 :

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 No.1 has been able to prove, by cogent and strong evidence, that the petitioner and respondent No.1 had been married each other.

13.2. Secondly, as already discussed above, when the marriage between respondent No.1 and petitioner was solemnised, the petitioner had kept respondent No.1 in dark about her first marriage. A false representation was given to respondent No.1 that he was single and was competent to enter into marital tie with respondent No.1. In such circumstances, can the petitioner be allowed to take advantage of his own wrong and turn around to say that the

: 41 :

respondents are not entitled to maintenance by filing the petition under Section 125 Cr.P.C. as respondent No.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 Cr.P.C., respondent No.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.

13.3. Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125 Cr.P.C. While dealing with the application of destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve

: 42 :

"social justice" which is the Constitutional vision, enshrined in the Preamble of the Constitution of India. The 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.

14. Of late, in this very direction, it is emphasised that the Courts have to adopt different approaches in "social justice adjudication", which is also known as "social context adjudication" as mere

"adversarial approach" may not be very appropriate. There are number of social justice legislations giving special protection and benefits to vulnerable groups in the society. Prof. Madhava Menon describes it eloquently:

"It is, therefore, respectfully submitted that "social context judging" is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the social-economic inequalities

: 43 :

accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication".

15. The provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from "adversarial" litigation to social context adjudication is the need of the hour.

16. The law regulates relationships between people. It prescribes patterns of behaviour. It reflects the values of society. The role of the Court is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social

: 44 :

reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society's changing needs. In both constitutional and statutory interpretation, the Court is supposed to exercise direction in determining the proper relationship between the subjective and objective purpose of the law.

17. Cardozo acknowledges in his classic8

"….no system of jus scriptum has been able to escape the need of it" and he elaborates:

"It is true that Codes and statutes do not render the Judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled…. There are hardships and wrongs to be mitigated if not avoided. Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however, obscure and latent, had nonetheless a real and ascertainable pre- existence in the legislator's mind. The process is, indeed, that at times, but it is often something more. The ascertainment of intention may be the least of a judge's troubles in ascribing meaning to a statute...

Says Gray in his lectures:

: 45 :

"The fact is that the difficulties of so- called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges have to do is, not to determine that the legislature did mean on a point which was present to its mind, but to guess what is would have intended on a point not present to its mind, if the point had been present."

18. The Court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonise results with justice through a method of free decision - libre recherché sceintifique i.e. "free Scientific research". We are of the opinion that there is a non-rebuttable presumption that the Legislature while making a provision like Section 125 Cr.P.C., to fulfill its Constitutional duty in good faith, had always intended to give relief to the woman becoming "wife" under such circumstances. This approach is particularly needed while deciding the issues relating to gender justice. We already have examples of exemplary efforts in this regard. Journey from Shah Bano10 to Shabana Bano11

guaranteeing maintenance rights to Muslim women is a classical example.

19. In Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga12, the right of another woman in a similar situation was upheld. Here the Court had accepted that

: 46 :

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 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 Case13 which became the historical source of purposive interpretation. The court would also invoke the legal maxim of construction ut res magis valeat guam 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

: 47 :

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 Cr.P.C., such a woman is to be treated as the legally wedded wife."

29. Purpose which is sought to be achieved under Section 125 of Cr.P.C. is to see that a married woman is awarded maintenance by her husband who has left her in lurch and on account of same she having become a destitute. In such circumstances where husband is refusing to maintain his wife by attempting to take umbrage under hyper technical ground of said marriage having taken place during the subsistence of first marriage cannot be countenanced in the facts and circumstances of the case present case as discussed hereinabove.

30. In the result, point No.1 deserves to be answered by holding that order passed by the Family Court dismissing the petition for maintenance filed by first

: 48 :

petitioner - wife cannot be sustained and it requires to be set aside.

RE.POINT NO.2:

31. As already discussed herein above, Court which has adjudicated O.S. No.249/2005 (Ex.P-12) as well as the Family Court under the order in challenge in these petitions, have analysed the entire evidence in detail and have rightly arrived at a conclusion that 2^ndpetitioner is born out of wedlock between respondent and 1^st petitioner. Though Shri K.L.Patil, learned counsel appearing for the respondent - husband, would contend that paternity of 2^ndpetitioner is disputed and application filed by respondent seeking for DNA test being conducted had been erroneously rejected and as such, till the paternity of second petitioner is proved, respondent would not be liable to pay maintenance cannot be accepted or this Court is not inclined to examine such plea for reasons indicated herein below.

: 49 :

32. In the suit O.S. No.249/2005 an application came to be filed by the wife i.e., first petitioner in Crl.Misc.No.116/2012 seeking for DNA test being conducted since respondent - husband had denied the paternity of second petitioner. Said application came to be resisted by the respondent - husband and as such, it came to be rejected. In that view of the matter, respondent cannot now turn around and take a contrary stand to the one he had taken before the Family Court and that too, for his convenience. Respondent cannot be allowed to blow hot and cold or permitted to improvise his case stage by stage and step by step.

33. In view of the finding already having been recorded by Courts below accepting that second petitioner is the daughter of respondent and first petitioner as also the birth certificate issued under the provisions of Births and Deaths Act, as per Ex.P2 indicating thereunder that father of 2^ndpetitioner is "Sri Pandurang Prabhu" i.e.,

: 50 :

respondent herein and contents of Ex.P2 having not been challenged by the respondent till date, is an additional factor which would tilt in favour of 2^ndpetitioner to arrive at a conclusion that she is the child born out of the wedlock between respondent and 1^stpetitioner.

34. Secondly, under Section 112 of the Indian Evidence Act, 1872 a presumption arises about legitimacy of birth during the continuance of a valid marriage and it would be conclusive proof that such child born out of the marriage is legitimate unless it is shown that parties did not have access to each other.

35. In the instant case, it can be seen from Ex.P- 12 - judgment and decree passed in O.S. No.249/2005 it has been held that there was solemnization of marriage between respondent and 1^stpetitioner. Further, the Family Court has also held that marriage came to be solemnized between respondent and 1^stpetitioner. However, entitlement to claim maintenance came to be negatived by

: 51 :

Family Court on the ground that said marriage is a nullity vide Section 11 of the Hindu Marriage Act which in the facts and circumstances of the present case has been negatived herein above while answering point No.1. In that view of the matter also this Court is of the considered view that maintenance of Rs.5,000/- per month awarded to the 2^ndpetitioner requires to be affirmed, since there is no infirmity whatsoever committed by the Family Court in this regard.

36. Hence, for the reasons aforestated, I proceed to pass the following:

ORDER

(i) R.P.F.C. No.100061/2014 is hereby allowed with costs.

(ii) R.P.F.C. No.100047/2014 is hereby dismissed.

(iii) Crl. Misc. No.116/2012 (Old No. Crl. Misc. No.201/2004) is hereby allowed as prayed for.

: 52 :

(iv) Respondent - husband in R.P.F.C. No.100061/2014 is hereby directed to pay maintenance @ Rs.5,000/- per month to 1^stpetitioner from the date of filing of petition and continue to pay the same till 1^stpetitioner gets remarried and he shall continue to pay to 2^ndpetitioner *Rs.5,000/- p.m. till she gets married or till she secures an employment whichever is earlier.

(v) Arrears shall be deposited before Jurisdictional Family Court within four weeks from today, failure to do so would enable petitioners in R.P.F.C. No.100061/2014 to recover the same in accordance with law.

(vi) Respondent in R.P.F.C. No.100061/2014 is hereby directed to pay costs of Rs.20,000/- towards the litigation expenses of petitioners within four weeks from today and on failure to pay said amount, petitioners would be at liberty to execute the same and recover it from respondent as if it were a decree. * corrected v.c.o.

dated 05.08.2015

Sd/-

(AKJ)

: 53 :

(vii) Amount in deposit is ordered to be released in favour of 1^stpetitioner by issuance of cheque forthwith by the Registry.

(viii) As ordered by this Court on 19.12.2014 the amounts in deposit shall be kept in a fixed deposit in the name of 2^ndpetitioner at State Bank of Mysore,

Deshpandenagar, Hubli, for a period of 5 years. Mother- 1^stpetitioner would be at liberty to draw periodical interest. The original fixed deposit receipt made shall be handed over to 1^stpetitioner mother, Smt. Surekha, by the registry on proper identification by obtaining suitable acknowledgment from her for receipt of the same. The balance amount shall be deposited by respondent-husband before the jurisdictional Family Court. Sd/-

JUDGE

Jm/Rsh