N Criminal Appeal No 664 of 1990
From the Judgement and Order dated 1331990 of the Andhra Pradesh High Court in Criminal Revision Case No 532 of 1989
K Ramkumar for the Appellant
B Kanta Rao for the Respondent
The Judgment of the Court was delivered by FATIMA BEEVI J
The appellant and the respondent got 906 married according to Hindu rites and customs on June 30 1983
They lived together until the appellant started complaining of desertion and ill treatment
She moved the court for maintenance by an application under Section 125 of the Code of Criminal Procedure
Though the claim was resisted on the ground that the appellant is not the legally wedded wife of the respondent who had earlier married one Veeramma the learned magistrate awarded a monthly maintenance of Rs400 holding that the first marriage has not been proved
The order was however set aside by the High Court in revision accepting the plea that the first marriage was subsisting when the respondent married the appellant
We have granted special leave to appeal against the order of the High Court
We have been taken through the pleadings and the evidence by the learned counsel for the appellant for the purpose of satisfying that the High Court had no material before it for arriving at the finding that there was a valid marriage between Veeramma and the respondent on the day the respondent married the appellant
It is pointed out that the appellant had nowhere admitted the subsistence of a valid marriage which would render her marriage illegal
The appellant stated in her petition that one year after her marriage she came to know that respondent married Veeramma and lived with her in Hyderabad and soon thereafter Veeramma started living along with the appellant and the respondent and thus extra marital relationship of the respondent with Veeramma has disrupted her family life
In fact the respondent had in his counter flatly denied all the averments made by the appellant in the petition and maintained that a marriage ceremony was performed between Veeramma and the respondent when both were children and the appellant is only his kept mistress
The respondent has however clearly admitted that he married the appellant according to Hindu rites
When that marriage is repudiated as void on account of the subsistence of an earlier marriage the respondent was bound to prove that he married Veeramma in the customary form and the marriage was subsisting in the year 1983 when the appellant was married to him
As rightly pointed out by the learned counsel for the appellant there is no clear admission of an earlier marriage between the respondent and Veeramma to dispense with the proof of subsisting valid first marriage when the second marriage was solemnised
In the absence of such an admission the statement that the respondent is living with another woman as husband and wife cannot persuade the court to hold that the marriage duly solemnised between the appellant and the respondent suffers from any legal infirmity
The High Court has referred to exhibit R 12 and R 13 relied on 907 by the respondent to prove that he was already married
exhibit R 12 is the insurance policy issued On 5 12 1975 where the name of the nominee is shown as Veeramma indicating that she is the wife of the respondent
exhibit R 13 is the family identity card issued by the Road Transport Corporation where the respondent was working in 1977
These documents are issued on the basis of what the respondent himself had stated
The entries are not conclusive of the subsistence a valid marriage between the respondent and Veeramma
If they had been living together as husband and wife even without performing a ceremonial marriage and the respondent represented that Veeramma was his wife it is possible that such entries would come into existence
Therefore these documents by themselves cannot prove any marriage or the subsistence of a valid marriage when the admitted marriage with the appellant was solemnised
Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose
The object is to prevent vagrancy and destitution
It provides a speedy remedy for the supply of food clothing and shelter to the deserted wife
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
The term wife  in Section 15 of the Code of Criminal Procedure includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried
The woman not having the legal status of a wife is thus brought within the inclusive definition of the term wife  consistent with the objective
However under the law a second wife whose marriage is void an account of the survival of the first marriage is not a legally wedded wife and is therefore not entitled to maintenance under this provision
Therefore the law which disentitles the second wife from receiving maintenance from her husband under Section 125 Cr
PC 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
We are unable to find that the respondent herein has discharged the heavy burden by tendering strict proof of the fact in issue
The High Court failed to consider the standard of proof required and has proceeded on no evidence whatsoever in determining the question against the appellant
We are therefore unable to agree that the appellant is not entitled to maintenance
908 We find that there is no dispute that the appellant was married to the respondent in the customary form
They lived together as husband and wife and of late the respondent had neglected to maintain her
The respondent has no case that the appellant has means to maintain herself or that the amount she has claimed is not commensurate with the means of the respondent
The learned magistrate was therefore justified in awarding an amount of Rs400 per mensem towards the maintenance of the appellant
That order of the magistrate has to be restored
In the result we allow the appeal set aside the order of the High Court and restore that of the trial court
T N A Appeal allowed


Summary:
Section 5A of the Prevention of Corruption Act 1947 pro vided  No police officer below the rank of a deputy Superintendent shall investigate any offence punishable under section 161 section 165 or section 165A of the Indian Penal Code or under section 52 of the Act without the order of a magistrate of the first class   
1 1880 LR 7 IA 107
26 202 On January 11 1955 B the manager of a company gave information to the Sub Inspector of Police Special Police Establishment that the respondent an Assistant Station Master was demanding a bribe for sending the goods belonging to the company by rail
The Sub Inspector after assisting B to trap the respondent came on the scene questioned the latter searched his person and recovered the marked notes and other articles from him
The Sub Inspector filed an application before the District Magistrate stating that he had been deputed to investigate the case and the permission might be given to him to do so under section 5A of the Act
On the application the Magistrate passed the order permission given
 Neither the application nor the order made thereon disclosed that any material was placed before the Magistrate on the basis of which he gave permission
A charge sheet was filed before the Special judge
The respondent filed objections questioning inter alia the validity of the Magistrate giving permission to the Sub Inspector to make the investigation
The Special judge disallowed the objection
On revision the High Court set aside the order of the Special judge with a direction that  in order to rectify the defects and cure the illegality  he should order the Deputy Superintendent of Police to carry on the investigation himself while the case remained pending on his file
The State preferred an appeal against the order of the High Court by special leave Held that the statutory safeguards under section 5A of the Prevention of Corruption Act must strictly be complied with for they were conceived in public interest and were provided as a guarantee against frivolous and vexatious prosecutions
A Magistrate cannot surrender his discretion to a police officer but must exercise it having regard to the relevant material made available to him at the stage of granting permission
He must also be satisfied that there is sufficient reason owing to the exigencies of the administrative convenience to entrust a subordinate officer with the investigation
Where an officer other than the designated officer seeks to make an investigation he should get order of a Magistrate empowering him to do so before he proceeds to investigate and it is desirable that the order giving the permission should ordinarily on the face of it disclose the reasons for giving permission
Where objection is taken by the accused that the order giving permission was invalid the prosecution at the earliest opportunity must adduce evidence to support the contention that the Magistrate gave the permission only after having satisfied himself on the advisability of doing so on the material placed before him
H N Rishbud  Inder Singh vs State of Delhi  and Viswabhusan Naik vs The State of Orissa   relied on
203 Held further that an investigation starts after the police officer receives information in regard to an offence and that as under section 5 Of the Act attempt to obtain from any person any gratification is in itself an offence any steps taken by the Sub Inspector after the information was given to him amounted to investigation