The strict proof of marriage is not a requirement in the case under Section 125 of the Cr. P.C: Chattisgarh High Court

 1 HIGH COURT OF CHHATTISGARH BILASPUR CRR No. 490 of 2020 Reserved on 12.04.2021 Delivered on 19.05.2021 Meghraj Sahu S o. Brijlal Sahu aged about 50 years Alleged Occupation Service 1 SCC 530 in which it has been held that a woman marrying a man who is already married and his wife is living is not entitled under Section 125 of the Cr.P.C. as such marriage is void ab initio. It is submitted by counsel for the applicant that it has been similarly held in the cases of Savitaben Somabhai Bhatiya vs. State of Gujarat and Others reported in 3 SCC 636 and D Velusamy vs. D. Patchaiammal reported in 10 SCC 469 that for the purpose of Section 125 of the Cr.P.C. the wife must be legally wedded wife. It is further submitted that the impugned order is unsustainable therefore the revision petition be allowed and the impugned order be set aside 3 4. Learned counsel appearing for the respondent opposes the submissions so made and submits that the respondent has proved her case to show her entitlement for maintenance under Section 125 of the Cr.P.C. After the dispute arose between the applicant and the respondent a compromise had taken place between them. Copy of that compromise deed Ex.P 7 C has been produced in the evidence which shows that the applicant admitted that the respondent is his wife. The applicant has made admissions in his cross examination that name of the respondent is mentioned in the ration card Ex.P 1 C in the post office saving account Ex.P 2 C in the Dena Bank Saving Account Ex.P 3 C and in the Aadhar Card Ex.P 4 C which shows the applicant as her husband. It is also submitted that in the case of Smt. Motim Bai Borkar vs. Arjun Singh Borkar reported in 2017(2) C.G.L.J.330 it was held by this Court that the respondent husband having married the lady lived together as husband and wife and cohabited with her now cannot be permitted to turn around and say that the petitioner is not his legally wedded wife. This ratio has been laid down in the judgment of Supreme Court in the case of Badshah vs. Urmila Badshah Godse and Anotherand also followed in the judgment of this High Court in the case of Smt. Teras Dongare vs. Avinash Dongare in CRR No. 3419 decided on 10.2.2021 therefore on the basis of this ratio of law the respondent has the entitlement for grant of maintenance Hence the petition is without any substance which may be dismissed In reply it is submitted by counsel for the applicant that the case laws cited by the respondent side are not applicable in this case. It is very much clear that the respondent was already married and her husband was living when she married to the applicant whose previous wife was 4 also living. Therefore it is a clear case of invalid marriage because of which the respondent has no entitlement 6. Heard counsel for both the parties and perused the documents present 7. Learned Family Court has drawn a conclusion that the respondent is wife of the applicant on the basis of the ratio laid down by the Madhya Pradesh High Court in the case of Sumitra Bai vs. Bheekam reported in AIR 1985 SC 765 and on the judgment of Supreme Court in the case of Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and Another reported in7 SCC 675 in which it has held that the strict proof of marriage is not a requirement in the case under Section 125 of the Cr.P.C. The fact established that the parties were living as husband and wife is sufficient to draw presumption about their marriage. On the basis of the submissions made and the evidence present it is found that now it is undisputed that the applicant and the respondent had resided together as husband and wife for sometime. The only ground of contest of the applicant is that his marriage with the respondent was not lawful The admission of respondent Smt. Lata Bai in her cross examination about her previous marriage with Bisahu Ram and that she has not legally divorced him has been further clarified that she has obtained customary divorce from her previous husband. Halif Khan AW 2) has stated in his cross examination that he had no knowledge of previous marriage of the respondent. Hemlal Sahuhas stated that he was present when the marriage of the applicant with the respondent was performed. He has also stated about her ignorance regarding the previous marriage of the respondent 8. Applicant Meghraj Sahu has stated in his examination in chief about the previous marriage of the respondent and also about his marriage 5 with Devki Bai which was subsisting. Although he has made denial to all the suggestions put to him in cross examination but he has admitted about the presence of name of the respondent in ration card Ex. P 1 C in the saving account of the post office Ex.P 2 C in the Dena Bank saving account Ex.P 3 C and in the Aadhar Card Ex.P 4 C which shows the name of the respondent as his wife regarding which he was unable to give any explanation. On the basis of this oral statement of the applicant and his witness it is clear that the applicant was previously married and in support of the same one document Ex.D 1 C has been exhibited which is a copy of ration card mentions Devki Bai as wife of this applicant. 9. The applicant had filed a reply to the application under Section 125 of the Cr.P.C. in which he has mentioned about his marriage with Devki Bai in the year 1992 93 denying the statement in the application of the respondent. In the evidence of Lata Bairespondent has not made a single statement in her examination in chief to deny the statement of the applicant regarding his previous marriage which was subsisting however in her cross examination she has admitted that the applicant was married to one Devki Bai and he had two children from her. There is no statement to deny that the marriage of the applicant with Devki Bai was continuing. In the case of Badshah vs. Urmila Badshah Godse and Another observed in paragraphs 13.1 and 13.2 which is as follows ‘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 6 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 solemnized the petitioner had kept the 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 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 marries 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.’ 7 10. In the case of Savitaben Somabhai Bhatiya vs. State of Gujarat and Othersit was held that even if the wife makes a plea that she was not informed about the previous marriage of her husband that shall be of no avail. In the case of Smt. Motim Bai Borkar vs. Arjun Singh Borkarthis High Court has held in paragraph 5 is as follows ‘5. Having held so I am clearly of the view that Arjun Singh the second husband cannot escape from his liability to maintain his wife. The reason is that he married Motim Bai knowing fully well that she had a female child from earlier husband and at the time when he got married he did not ask to produce a decree of divorce and at that time he was willing to marry her probably on oral submission that she had obtained a divorce. It is not a case where the wife had hoodwinked the husband.’ 11. After appreciating the evidence and on the basis of the legal precedents cited the facts in this case reveal that the applicant had knowledge that the respondent was already married to one Bisahu Ram Sahu regarding which the respondent claims that she has obtained divorce in customary manner. This also is a fact that the applicant was married to one Devki Bai in the year 1992 93 but there is no evidence present to show that the previous marriage of the applicant was continuing and subsisting when the marriage of the applicant with the respondent had in the year 2009. The witnesses of the respondent have stated about performance of marriage of the respondent with the applicant and also about the social meeting which was held on account of dispute between the applicant and the respondent in which the applicant had admitted that the respondent is his wife and he had taken the responsibility for the respondent in compromise. The applicant side has not brought any evidence or examined the previous wife of the applicant to show that the marriage of the applicant with his previous wife was continuing. In 8 the case of Badshah vs. Urmila Badshah Godse and Another supra) the Supreme Court has held in paragraphs 13.3 and 20 which is as follows ‘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 a destitute wife or hapless children or parents under this provision the Court is dealing with the marginalized sections of the society. The purpose is to achieve “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 the 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. 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’s Case which became the historical source of purposive interpretation. The court would also invoke the legal maxim construction of ut res magis valeat quam 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 9 legislate only for the purpose of bringing about an effective result. If this interpretation is not 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.’ 12. After taking into consideration all the facts and circumstances the evidence of the case and the position of law as settled the finding of the learned Family Court that the respondent has entitlement in grant of maintenance cannot be said to be erroneous in any respect. Hence I am of this view that this revision petition is devoid of any substance and the impugned order does not call for any interference 13. Accordingly the revision petition is dismissed (Rajendra Chandra Singh Samant Judge

Summary: The parties had lived as a wife and spouse, enough to draw their marriage suppositions. It is found that the claimant and the respondent have lived together as a husband and wife for some time, based on the submissions and the present facts. It is undisputed now. The applicant’s only ground of dispute is that he was not legal when he married the respondent. The judgement was passed by the High Court of Chattisgarh in the case of Meghraj Sahu v. Smt. Lata Bai [CRR No. 490 of 2020] by Single Bench consisting of Hon’ble Justice Rajendra Chandra Singh Saman. This criminal revision petition has been brought against the order Passed in M.J.C, granting monthly maintenance of Rs.3,000/- to the respondent. Learned Counsel for the applicant submitted that the impugned order is erroneous and illegal. The respondent has failed to prove that she was the legally wedded wife of this applicant. Learned Family Court has erroneously held that although the respondent is not a legally wedded wife of the applicant even then, she was entitled to maintenance. Counsel further referred to Badshah vs. Urmila Badshah Godse and Another, wherein it was submitted that “it is not a case in which the respondent was ignorant about the previous marriage of the applicant, therefore, she cannot be deemed as the legally wedded wife of the applicant.” Learned counsel for the respondent opposes the submissions so made and submits, that the respondent has proved her case to show her entitlement for maintenance under Section 125 of the Cr.P.C. After the dispute arose between the applicant and the respondent, a compromise had taken place between them. He further referred to Smt. Motim Bai Borkar vs. Arjun Singh Borkar, wherein it was held by this Court that “the respondent had married the lady lived together as husband and wife and cohabited with her, now cannot be permitted to turn around and say that the petitioner is not his legally wedded wife.”