Santosh vs State Of U.P. And Another on 20 December, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 55

Reserved

Case :- CRIMINAL REVISION No. – 2476 of 2015

Revisionist :- Santosh

Opposite Party :- State Of U.P. And Another

Counsel for Revisionist :- S.P. Sharma

Counsel for Opposite Party :- Govt.Advocate,R.D. Dauholia

Hon’ble Ravindra Nath Kakkar,J.

Heard Sri S.P. Sharma, learned counsel for the revisionist, Sri R.D. Daubolia, learned counsel for opposite party no. 2 and learned A.G.A. for the State.

In this case counter and rejoinder affidavit have been exchanged between the parties.

This criminal revision has been filed against the judgment and order dated 8.5.2015 passed by learned Principal Judge, Family Court, Lalitpur in Case No. 894 of 2013 (Smt. Janki Vs. Santosh) under section 125 Cr.P.C. whereby the learned Principal Judge, Family Court, Lalitpur partly allowed the application of maintenance of opposite party no. 2 and directed to the revisionist to pay Rs. 2,000/- per month as maintenance to the opposite party No. 2. 

The only point submitted by learned counsel for the revisionist is that opposite party no. 2 is not legally wedded wife of the revisionist. Further contended that his first wife Smt. Guddi, daughter of Panna Lal, is living with the revisionist and the marriage of revisionist with the first wife Smt. Guddi had not been annulled by decree of divorce, hence the order passed passed by the court below is absolutely unjust, illegal and is liable to be quashed.

Learned counsel for opposite party no. 2 submits that revisionist and the opposite party no. 2 are legally wedded husband and wife. Further, revisionist has deserted his wife due to non fulfillment of demand of dowry, on account of which opposite party no. 2 filed a petition under section 125 Cr.P.C. claiming maintenance from her husband and learned court below awarded Rs. 2,000/- per month as a maintenance allowance which is proper and legal order and further, argued that in reply of the petition filed under section 125 Cr.P.C. the revisionist himself has admitted his legally wedded wife. In addition to the above argument, learned counsel has submitted that even if the first wife of the revisionist is still alive even then opposite party no. 2 is entitled for the maintenance. So, neither there is any infirmity nor perversity in the impugned judgement, it lacks merit and is liable to be dismissed. 

On the basis of the argument raised by both the parties, the crux of the matter in the revision is whether opposite party no. 2 is legally wedded wife of revisionist or not.

I have perused the impugned judgement and record annexed with the affidavit in this revision.

Perusal of the impugned judgement reveals that the court below has framed five points for determination in this case in which the first point of determination is whether applicant (opposite party no. 2) is legally wedded wife of revisionist? On the basis of the admission in para-1 of objection 14-Ka, the court below comes to the conclusion that opposite party no. 2 is legally wedded wife  of  revisionist. In addition to it the statement of OPW 2 Devendra Singh has been recorded, in which he stated that a complaint case No. 1130 of 2005 Santosh Singh Vs. Shyamlal and others) has been filed under section section 452, 504, 506 IPC along with statement of opposite party no. 2 has also been considered on the basis of findings with regard to the legally wedded wife found to be the admission of the opposite party no. 2 in the objection as stated above.

In order to appreciate the contentions raised by both the parties, I would like to refer the legal preposition as held in 2000 SCC (Crl.) 748 Khemchand Om Prkash Sharma Vs. State of Gujarat and another. In this case Hon’ble Apex Court held that if the marriage of the first wife had not been annulled by decree of divorce or otherwise and the first wife was alive  then second wife is not entitled to get maintenance under section 125 Cr.P.C. The learned lower court in his judgement referred the above relying to distinguish it on the fact that the claim for maintenance under section 125 Cr.P.C. had not been made as a second wife of the revisionist (opposite party). Undoubtedly, the perusal of the application and the objection filed against the application under section 125 Cr.P.C. the opposite party had admitted the fact that he had married with the applicant by the Hindi ritual rites  that itself is not sufficient to disbelieve the other evidence. The point which is to be considered for awarding the maintenance under section 125 Cr.P.C. is whether the applicant is legally wedded wife or not?  In order to appreciate this controversy between the parties, I would like to refer the legal position. Section 11 of Hindu Marriage Act 1955 states as follows:

“11.Void marriages.-Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.”

The above Section clearly states that any marriage solemnized after the commencement of the Hindu Marriage Act, 1955 shall be null and void if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of the Hindu Marriage Act, 1955 which is as follows:-

“5.Conditions for a Hindu Marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-

i. neither party has a spouse living at the time of the marriage

ii. at the time of the marriage, neither party-

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity.

iii. The bridegroom has completed the age of twenty one years and the bride, the age of eighteen years at the time of the marriage;

iv. The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

v. the parties are not sapindas to each other, unless the custom or usage governing each of them permits of a marriage between the two;”

Perusal of the provision contained in these sections, it is evident that the marriage can not be solemnized between any two Hindus, if either party has spouse living at the time of marriage. If both the sections 5 and 11 of the Hindu Marriage Act as stated above are read together then it transpires that any marriage solemnized shall be null and void if any of the parties spouse living at the time of marriage. On the touch stone of the above legal preposition, it would be relevant to mention Annexure-4, a certified copy of the application under section 125 Cr.P.C. filed by the first wife of the revisionist Smt. Guddi which is dated 13.05.1993, in this application in para-5 the first wife Smt. Guddi has specifically stated that opposite party (husband) has solemnized second marriage in her life time. Aggrieved against this the applicant (first wife) lodged an FIR under section 494 IPC against her husband Santosh and his family members. Further, annexure-5 which is photostat copy of the application dated 12.07.1995 as well as statement of Smt. Guddi, wife of Santosh which is dated 20.09.1995 reveal that the first wife Smt. Guddi had a settlement with her husband Santosh. Resultantly, the petition filed by her under section 125 Cr.P.C. had been withdrawn. These two documents are sufficient to prove that revisionist had married with first wife Smt. Guddi and further, in the life time of Smt. Guddi (first wife) second marriage was performed with Smt. Janki who is opposite party no. 2 in this revision.

Further, the another relevant fact is that revisionist Santosh has filed the complaint against Shyam Lal, Nihal Singh, Smt. Janki Bai (wife of complainant) and Jagdish under sections 452, 504, 506 IPC in which Shyam Lal, Nihal Singh and Jagdish were convicted only under sections 504, 506 and acquitted under section 452 IPC and further Janki (wife of complainant) acquitted in all sections. Perusal of the judgement of the conviction and order dated 23.4.2007 reveals that in the criminal complaint case revisionist Santosh Singh had admitted this fact that he solemnized two marriages, the name of wives are Janki Bai and Guddi. This fact is further corroborated by the evidence of one Latkan, who has specifically stated that the revisionist Santosh had solemnized two marriages  and the Janki Bai is second wife of the revisionist.

Under these facts situation, the enough evidence was available before the court below which has not been correctly appreciated in a legal prospect.

As it is an established legal preposition that the marriage of a woman in accordance with Hindu Marriage Act with a man having a living spouse is a complete nullity in the eye of law, therefore, she is not entitled to get benefit under section 125 Cr.P.C. I would like to make it more clear, the only point on which learned court below arrived to the conclusion that applicant is married wife of the revisionist because of the admission of the husband but it can not be said to be as a legally wedded wife because solemnization of the marriage is one thing and legal and valid marriage is another thing. The only acceptance by the husband is the marriage with applicant Janki Bai (opposite party). But if this marriage is solemnized having a living first wife Smt. Guddi then Smt. Janki in the legal preposition happens to be wife of a second marriage which is null and void.

In view of the aforesaid reasons and discussions, I am of the view that the impugned judgement and order is against the weight of the evidence and is not sustainable in the eye of law, accordingly, the impugned judgement and order passed by the court below is hereby set aside and the case is remanded back to court below for passing afresh decision in accordance with law after giving opportunity of hearing to both the parties.

Order Date :- 20.12.2017

RPD

 

 

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