Court:Gujarat High Court
Bench: JUSTICE N Shelat
Bai Bhanbai Mavji vs Kanbi Karshan Devraj And Anr. on 17 June, 1969
Wife not Eligible for Maintenance if it falls under HMA 11.
1. Bai Bhanbai of Sukhpar, the applicant, filed Criminal Miscellaneous Application No. 24 of 1966 in the Court of the Judicial Magistrate, First Class, Bhuj for claiming maintenance at the rate of Rs. 150 per month against the opponent No. 1 under Section 488 of the Criminal Procedure Code, inter alia, alleging that she was the wife of the opponent and that she was ill-treated by her husband and ultimately driven out. She also alleged that she had two daughters and that she was pregnant at the date of the application. The application was resisted by the opponent, inter alia contending that she was not his lawfully married wife and that she was merely staying with him as his mistress, and that, therefore, she was not entitled to claim any maintenance from him. He also denied the allegations about ill-treatment etc. The learned Magistrate after considering the effect of the evidence adduced in the case found that the petitioner was not lawfully married wife of the opponent and consequently she was not entitled to claim any maintenance from him. As to the claim for maintenance of the children, the opponent was directed to pay at the rate of Rs. 15 per month to the applicant from the date of the application. Feeling dissatisfied with that order passed on 15h May 1968 by Mr. D. L. Vora, Judicial Magistrate, Bhuj, the applicant preferred Revision Application No. 33 of 1968 in the Court of Sessions Judge, Kutch at Bhuj. The contention before him was that she had her first husband alive and therefore, her alleged marriage with him was void. She cannot therefore, be said to be his lawfully married wife, even if she had contracted re-marriage with him. That was upheld by the Court and consequently it was found in agreement with the trial Court, that she was not entitled to claim any maintenance for herself from the opponent as his wife under Section 488 of the Criminal Procedure Code. The application thus came to be rejected. Feeling dissatisfied with that order passed on 14th October 1968 by Mr. V. J. Japee, Sessions Judge, Kutch at Bhuj, the applicant has come in revision before this Court.
2. Mr. Hathi, the learned advocate for the applicant urged that the learned Sessions Judge has omitted to take into consideration the material evidence with regard to the divorce said to have been given by Kanji, the previous husband of the applicant. Besides, it was urged that in the opponent’s first written statement filed by his Advocate in the case on 23-2-1966, he had admitted the applicant’s status as that of his wife, and that has been wrongly not taken into account, holding it to be inadmissible in evidence as hit by Section 129 of the Indian Evidence Act. That has resulted in an error of law and it has seriously affected the decision on the point in the case. It was on the other hand contended by M. Mankad, the learned advocate for the opponent, that the concurrent findings of both the Courts below about the applicant having failed to establish her status as wife of the opponent is one based on proper appreciation of the evidence and it cannot be interfered with in revision by this Court. He also urged that even if the written statement filed by the Advocate were statement filed by the Advocate were taken into account, it cannot establish the fact of her marriage with him as required in law. Now it is conceded that Section 129 of the Indian Evidence Act sought to be applied by the learned Sessions Judge in holding that written statement as inadmissible in evidence, cannot apply. The effect thereof has, therefore, to be considered. Thus there was an error of law in rejecting that part of evidence in the case, and it would, therefore, be open to consider the question by taking in the account this piece of evidence along with other evidence in the case. I shall deal with that part of evidence hereafter.
3. In order that the applicant is entitled to claim maintenance under Section 488 of the Criminal P.C. It is essential for her to establish that she was the “wife” of the opponent and that her husband had refused to maintain her. Mr. Hathi urged that all that Section 488(1) requires is that she was the wife of the opponent and if that is established, the validity or otherwise of the marriage on account of certain other factors was not required to be gone into. According to him, it was an undisputed fact that she had contracted remarriage with the opponent and that she had given birth to two children by him. She was living with him for about 2 1/2 years before the date of the application as his wife and was recognised as such in the society. That such evidence on record was enough to hold that she was his wife and that since her husband, she was entitled to maintenance under Section 488 of the Criminal P.C. On a plain perusal of Section 488 (1) of the Criminal P.C., it appears abundantly clear that what is contemplated by the term “wife” referred to therein is the lawfully wedded wife and that term at any rate does not cover any other person much though she was living with him as if she was his wife. It need not say the lawfully married wife as when the term “wife” is used, it has to be taken as a legitimate wife by reason of a valid marriage according to the law governing the parties. That becomes all the more clear from the expressions used in the second part thereof wherein reference is made to ‘legitimate or illegitimate child’ who can claim maintenance under Section 488(1) of the Code. In other words the Legislature was clear in its mind to apply this provision in respect of children, either legitimate or illegitimate, born of a woman neglected or refused to be maintained by his or her father. If it intended to include any illegitimate wife, the Legislature could have said so just as it said in respect of children. It is thus clear that no illegitimate wife is given any such right to claim maintenance under Section 488(1) of the Act. In the Law Lexicon of British India, by P. R. Aiyar, ‘wife’ has been defined as ‘a married woman.’ For conferring the status of ‘wife’ on the woman, marriage must be valid under law. It does not say any ‘woman’, but speaks of ‘wife’ – and to be a wife of any person, she must have been married with him according to the law affecting the parties in that regard. No authority is needed for such a proposition. However, I may refer to a decision in the case of Smt. Savithramma v. N. Ramanarasimhaih, 1963 Cri LJ 131 (Mys), where it was held:
“The term “wife” in Section 488 includes only a legitimate wife and excludes any illegitimate one. If the intention of the legislature was that provision is to be made for even the illegitimate wife just as in the case of children where the expression ‘legitimate’ or ‘illegitimate’ is used similar expression would have been employed.”
Another decision in the case of A.T. Lakshmi Ambalam v. Andiammal, AIR 1938 Mad 66, may well be referred to. In that case, the person claiming maintenance was living with the man since long and had even a child by him as it is in the present case, and it was held that:
“Under Section 488, Criminal P.C., a woman is not entitled to maintenance even if she has lived with a man as his wife for 12 years and has also borne him a child. Only legally married women are entitled to maintenance under Section 488, Criminal P.C.”
4. Mr. Mankad had then invited a reference to the decision in the case of Naurang Singh Chuni Singh v. Smt. Sapla Devi. AIR 1968 All 412. One Sapla Devi claimed maintenance under Section 488 of the Criminal P.C. from Naurang Singh on the ground that she was his married wife, and that she was neglected by him. That was resisted by the husband-opponent saying that she was not his legally wedded wife and that he was actually married to one Kalpa Devi about 15 years ago and had children by her. He had developed illicit intimacy with her and on that account she was not entitled to claim any maintenance. The trial Court found her to be the wedded wife of the opponent, and granted her maintenance. In revision before the Sessions Judge, it was held that though she was married with him, her marriage was not valid as opponent’s marriage with Smt. Kalpa Devi still subsisted. He found, therefore, the marriage of Salpa Devi void under S. 5 read with S. 11 of the Hindu Marriage Act, 1955. That led him to make a reference to the High Court and the reference was accepted and she was held not entitled to maintenance she being not the legally wedded wife of the opponent. In the case before us it is the reverse in the sense that the applicant had a living husband when she contracted re-marriage with the opponent. That question has, therefore, to be considered with a view to find out if she was the wife meaning the legally wedded wife of the opponent when claim for maintenance was made. Now it is not in dispute that the parties are Hindus and they are governed by the provisions of the Hindu Marriage Act No. 25 of 1955 which came in force on 18th May 1955. The applicant is said to be married with the opponent thereafter in the year 1963-1964. Section 5 thereof provides that a marriage may be solemnized between any two Hindus, if the following conditions are fulfiled, and then Cl (i) thereof says that “neither party has a spouse living at the time of marriage.” Section 11 of the Act declares certain marriages as null and void. As stated therein, any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes anyone of the conditions specified in Cls (i), (iv) and (v) of Section 5. It is followed by Section 12 which relates to voidable marriages. The contention is that at the time when the applicant contracted re-marriage with the opponent, her previous husband was alive, and if that were so, her marriage that took place with the opponent was null and void under Section 11 of the Act inasmuch as it was in violation of the condition specified in Cl (i) of Section 5 of the Act. It need not be declared as void by any Court. It is to be taken as null and void and that way ineffective in law as no marriage between any two Hindus can be soleminzed if either party has a spouse living at the time of marriage after the Act came in force. If, therefore on the evidence it is found that at the time when she contracted re-marriage with the opponent, her previous husband Kanji was alive and that she had not obtained any valid divorce from him, her marriage with the opponent would be ab initio void and therefore, it would not make her his lawfully wedded wife. Consequently it would not create between them any rights and obligations which must normally arise from a valid marriage except such rights as are expressly recognised by the Act. A voidable marriage remains no doubt valid and it continues to subsist for all purposes unless a decree is passed by the Court annulling the same on any of the grounds mentioned in Section 12. But that would not be so in any case governed under Section 11 which declares the marriage null and void if it is solemnised in contravention of the conditions set out in Cls (i), (iv) and (v) of Section 5 of the Act.
5. The point that arose to be considered by the Courts below, therefore, was as to whether her previous husband was alive and her marriage with him was subsisting at the date of her re-marriage with the opponent. The case put up by the applicant was that her previous husband had given divorce to her and her marriage ties no longer subsisted. Both the Courts have found on a proper appreciation of the evidence in the case that no such valid divorce had at all taken place between her and her previous husband Kanji and, therefore, she had her previous husband living at the date when she contracted re-marriage with the opponent. In fact she does not refer to any such divorce between her and her previous husband Kanji in her evidence in the case. The other evidence consisting of her father as also of her witness Ratna Naran has been fully considered by the Courts below and on a proper appreciation thereof they have rightly come to the conclusion that the evidence in no way establishes the fact about her having obtained divorce from her previous husband. That finding can hardly be challenged in revision before this Court. It is, therefore, clear that her re-marriage with the opponent which took place in about the year 1963 or 1964 was not a valid marriage and that way she was not the lawfully wedded wife of the opponent as contemplated under S. 488(1) of the Criminal P.C. entitling her to claim maintenance from the opponent.
6. An attempt was made by Mr. Hathi to urge that the learned Sessions Judge has wrongly ignored the admission about her marriage having been admitted by the Advocate of the opponent in the statement Ex. 6. It appears that on receipt of the notice issued by the Court to show cause why the opponent should not be directed to pay maintenance to the applicant, the opponent’s advocate Mr. Vaidya appeared in Court and filed a statement which does not bear the signature of the opponent and it bears only the signature of Mr. Vaidya. The first part refers to his having stated that the applicant was his wife by re-marriage. Later on it has been stated that she was bound to live with him as his Hindu Wife. This statement was prepared by Mr. Vaidya, as per the instructions of his client, as his evidence shows. It was, therefore, said that this admission about the fact of their marriage binds the opponent and he cannot resile therefrom. Now in the first place, I find that the learned Magistrate had made an endorsement that it has been admitted in the proceedings on condition to obtain the signature thereon of the opponent. No such signature was thereafter obtained and in view of that endorsement it can be easily ruled out from any consideration as it cannot be taken on record of the case. Now for the purpose of introducing this statement on record, it is difficult to see how it could not be admitted in evidence in view of Section 129 or even under Section 126 of the Indian Evidence Act. As stated by me at the outset, even Mr. Mankad, the learned Advocate for the opponent, has fairly and in fact rightly conceded that there can be no bar in any such statement being produced and proved as per the evidence of Mr. Vaidya recorded in the case. The question is as to what probative value should be attached to it in the circumstances of the case. Not only the statement has remained to be so signed and verified by the opponent, but on the contrary I find another written statement filed at Ex. 14 in the case wherein he has raised all the relevant contentions challenging the right of the complainant to claim maintenance. From the proceedings of this case, it appears that on that very day i.e. on 23-12-1966, one Mr. Dave appeared for the opponent and has given an application for obtaining time to file the written statement. The matter was adjourned for that purpose to 18-1-1967. On that day again and later on two subsequent dated such as 16-2-1967 and 29-3-1967 the opponent’s advocate had obtained time to file the written statement and it was thereafter that the written statement had come to be filed in the case. Mr. Vaidya was present before the Court on 23-12-1966 when he filed the statement, and if on that very day, as I said above, another advocate Mr. Dave for the opponent had also appeared and prayed for time to file the written statement in the same case, naturally that would have created some curiosity in the mind of Mr. Vaidya as to why time was asked for, particularly when he had already prepared and got typed the written statement for being filed in the case. Any advocate would certainly be expected to safeguard the interest of his client and if his client had chosen to engage some other advocate and obtain time for filing the written statement, it would be difficult to understand why Mr. Vaidya should hasten to put in that written statement on the first date of appearance and that again in his own signature only and without the signature of his client in the case. The Court had also given time to file the written statement not only once but on three occasions and it was thereafter that the written statement under the signature of the opponent had come to be given. In other words, in the absence of the signature of the opponent in the statement filed by Mr. Vaidya justifies us to hold that the opponent may not have agreed to what may have been stated therein as he said in the Court and that he had declined therefore to sign the same. Whatever that be, any such admission contained in a statement of this character cannot inspire any confidence and it would be risky to rely upon the same. After all any such admission of a fact may be relevant and not conclusive of the proof of any such fact in the case. The party affected thereby has every right to explain away the same and he has in fact challenged the marriage on other grounds, namely, about the applicant’s husband being alive at the date of her re-marriage with the opponent. It may well be that sufficient instructions may not have been obtained by him and he might have remained under the impression that she was the wife of the opponent by second marriage without realising at that time about the importance of the existence of her husband or about the absence of any divorce given by her previous husband to her. Whatever that be, the evidence in the case amply establishes that she had her first husband living and that her marriage with him was not dissolved by any valid divorce. When that was so, her second marriage with the opponent was void in view of section 11 read with Section 5(1) of the Hindu Marriage Act. The learned Sessions Judge was, therefore, right in holding that the applicant failed to establish that she was the lawfully married wife of the opponent so as to entitle her to claim maintenance from him under Section 488 of the Criminal Procedure Code.
7. In the result, the application fails and it is dismissed.
8. Revision dismissed.