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Raj Rani And Anr vs Om Kumar Kaushik on 14 February, 2018

Crl. Revision (F) No. 215 of 2015 1

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

Crl. Revision (F) No. 215 of 2015 (OM)
Date of Decision: February 14, 2018

Raj Rani and another
…Petitioners

Versus
Sh. Om Kumar Kaushik

…Respondent

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present:- Mr. N.K. Malhotra, Advocate
for the petitioner.

Mr. Kulvir Narwal, Advocate,
for the respondent.

JAISHREE THAKUR, J.

1. The present revision petition has been filed seeking to

challenge order dated 11.06.2015 by which the District Judge, Family

Court, Rohtak, has declined to give interim maintenance to the petitioners

herein under Section 125 of the Code of Criminal Procedure (for short ‘the

Code’).

2. In brief, the facts as stated are, that petitioner No. 1 solemnized

her marriage with the husband of her elder sister Dhanpati on 20.2.1977,

and out of this wedlock two children were born, a son Deepak and a

daughter petitioner No. 2 herein. This marriage was performed on account of

the fact that the elder sister gave birth to a deformed child and as per the

advice of a tantric the respondent was advised to remarry in case he wanted

a normal child. It is stated that the petitioner requires medical treatment for

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which she has no source of income and that the respondent herein is failing

in his duty to maintain her and her daughter, who is unmarried. The

application was contested by the respondent on the ground that the

petitioner being the second wife would not be entitled to maintenance and

the daughter being a major and well qualified would not be entitled to any

maintenance at all. The application for interim maintenance was dismissed

resulting in the present revision petition.

3. The learned counsel appearing on behalf of the petitioners

contend that the respondent, who has retired as foreman from Electricity

Department, Government of Haryana, has more than adequate means of

supporting petitioner No. 1, who might be his second wife but would still be

entitled to claim maintenance being his legally wedded wife . It is argued

that petitioner No. 2 is unmarried without a job and wholly dependent upon

her father and, therefore, would be entitled to maintenance under Section

125 of the Code of Criminal Procedure. Reliance in this regard is placed

upon a judgment rendered in Badshah versus Sou. Urmilla Badshe

Ghoshe (2014) 1 Supreme Court cases 188, where it has been held that

even second wife would be entitled to maintenance. Furthermore, learned

counsel for the petitioner relies upon a judgment rendered in Chand Patel

Versus Bismillah Begum 2008 (2) RCR (Criminal) 321, where the

Supreme Court held in a situation where a Muslim husband married his

wife’s sister when wife was alive and marriage subsisted, the marriage was

held to be irregular but not void and second wife and child born to her

would be entitled to maintenance under Section 125 of the Code.

4. Per contra, Mr. Kulvir Narwal, learned counsel appearing on

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behalf of the respondent submits that the aforesaid judgment cannot be

relied upon as it is not applicable to the facts of the present case. It is argued

that in the case of Badshah (supra), it was a case where a second marriage

was solemnized without disclosing to his wife of his prior marriage, which

is not so in the instant case.

5. I have heard the counsel for the parties and with their assistance

have perused the pleadings of the case.

6. Two questions arise for determination by this court namely:-

i) Whether a second wife can claim maintenance under
Section 125 of the Code, especially when she has
performed all duties as that of a legally wedded wife?

ii) Whether a daughter, who has attained majority, can claim
maintenance from her father ?

7. Section 125 of the Code has been enacted to ensure that a wife,

minor child or old-age parents are maintained and not subjected to vagrancy

and destitution. Grant of maintenance to the wife has been perceived as a

measure of social justice by the courts and the said section falls within the

Constitutional sweep of Article 15 (3) reinforced by Article 39 of the

Constitution of India. It provides speedy remedy for supply of food court

clothing shelter to the deserted wife, while ensuring that the husband fulfils

his moral and legal obligation to support his family, be it a minor child, wife

or aged parents.

8. Section 125 Cr.P.C. reads as under:

125. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses
to maintain-

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(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married
daughter) who has attained majority, where such child
is, by reason of any physical or mental abnormality or
injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or
herself, a Magistrate of the first class may, upon proof of
such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or
such child, father or mother, at such monthly rate not
exceeding five hundred rupees in the whole, as such
Magistrate thinks fit, and to pay the same to such person
as the Magistrate may from time to time direct: Provided
that the Magistrate may order the father of a minor
female child referred to in clause (b) to make such
allowance, until she attains her majority, if the
Magistrate is satisfied that the husband of such minor
female child, if married, is not possessed of sufficient
means. Explanation.- For the purposes of this Chapter,-

(a) ” minor” means a person who, under the provisions of
the Indian Majority Act, 1875 (9 of 1875 ); is deemed not
to have attained his majority;

(b) ” wife” includes a woman who has been divorced by, or
has obtained a divorce from, her husband and has not
remarried.

(2) Such allowance shall be payable from the date of the
order, or, if so ordered, from the date of the application
for maintenance.

(3) If any person so ordered fails without sufficient cause to
comply with the order, any such Magistrate may, for
every breach of the order, issue a warrant for levying the

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amount due in the manner provided for levying fines, and
may sentence such person, for the whole or any part of
each month’ s allowances remaining unpaid after the
execution of the warrant, to imprisonment for a term
which may extend to one month or until payment if
sooner made: Provided that no warrant shall be issued
for the recovery of any amount due under this section
unless application be made to the Court to levy such
amount within a period of one year from the date on
which it became due: Provided further that if such
person offers to maintain his wife on condition of her
living with him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal stated
by her, and may make an order under this section
notwithstanding such offer, if he is satisfied that there is
just ground for so doing. Explanation.- If a husband has
contracted marriage with another woman or keeps a
mistress, it shall be considered to be just ground for his
wife’ s refusal to live with him.

(4) No Wife shall be entitled to receive an allowance from
her husband under this section if she is living in adultery,
or if, without any sufficient reason, she refuses to live
with her husband, or if they are living separately by
mutual consent.

(5) On proof that any wife in whose favour an order has
been made under this section is living in adultery, or that
without sufficient reason she refuses to live with her
husband, or that they are living separately by mutual
consent, the Magistrate shall cancel the order.

9. The term “wife” has not been defined, however, the term cannot

be stretched to mean anyone other than a “legally wedded wife”. As per

Section 5 of the Hindu Marriage Act 1955, a marriage may be solemnized

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between any two Hindus, if neither party has a spouse living at the time of

the marriage. Therefore, any marriage performed in contravention of Section

5 of the Hindu Marriage Act would be deemed to be a void marriage.

10. Learned counsel appearing on behalf of the petitioner has placed

reliance upon a judgment rendered in Badshah (supra) and Chand Patel

(supra) to contend that the second wife would be entitled to maintenance. A

reading of the said judgment would reflect that the facts are not applicable to

the instant case. In the case referred to, the contention of the husband that

second marriage being void under the Hindu Marriage Act 1955 would not

entitle the second wife to maintenance as she was not his legally wedded

wife, was negated since the husband had not informed his second wife that

he was married earlier. It was held that husband cannot be permitted to take

advantage of his own wrong by raising the aforesaid contention. In Badshah’s

case (supra), the Supreme Court held as under:-

“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 martial 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 Criminal Procedure
Code, 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

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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.”

11. In Chand Patel’s case (Supra) the facts are not applicable to the

case in hand. A question of law arose “whether a marriage performed by a

person professing the Muslim faith with his wife’s sister, while his earlier

marriage will be other sister was still subsisting, would be void in law or

merely irregular or voidable even though the subsequent marriage may

have been consummated”. An application had been preferred seeking

maintenance under Section 125 of the Code. The applicant Bismillah Begum

was the younger sister of Mashaq Bee the wife of Chand Patel. She stated

that her marriage had been performed with the appellant with the consent of

the first wife by reading a ‘Nikkanamah’ and after the marriage was

consummated daughter was born from the wedlock. Over a passage of time

the relationship between the appellant and Bismillah Begum deteriorated

and he started neglecting the applicant and the minor daughter who had no

means to support themselves. It was in this background that an application

under Section 125 of the Code was filed. It was urged on behalf of Chand

Patel that Muslim law specifically prohibits ‘unlawful conjugation’ which

has been interpreted to mean that a man could not marry his wife’s sister in

his wife’s lifetime and, therefore, even if marriage had been performed the

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same was void in law and would not confer any rights upon the applicants.

After discussing the distinction between void and irregular marriages under

the Muslim faith it was held “that the bar of unlawful conjugation (jama

bain-al-mahramain) renders a marriage irregular and not void.

Consequently, under the Hanif law as far as Muslims in India are

concerned, and an irregular marriage continues to subsist till terminated in

accordance with law and the wife and the children of such marriage would

be entitled to maintenance under the provisions of section 125 of the Code

of Criminal Procedure.” Therefore, the case relied upon is not relevant to

the facts of the instant case.

12. The Supreme Court in Yamunabai Anantrao Adhav Vs

Anantrao Shivram Adhva (1988) 1 SCC 530 and in Savitaben Somabhai

Bhatiya versus State Of Gujrat (2005) 5 SCC 636 has held that a Hindu

lady who married after coming into force of the Hindu Marriage Act 1955,

with a person who had a living lawfully wedded wife, cannot be treated to

be the legally wedded wife. It is only in the exception where the second

marriage takes place while keeping the second wife in dark about the

subsistence of the first marriage, that maintenance has been allowed as in

the case of Badshah (supra). Therefore, the petitioner herein being the

second wife of respondent who married the respondent with full knowledge

that his first wife was still alive and no divorce had been granted, will not

be entitled to maintenance. She may have recourse under another statute but

not maintenance under Section 125 of the Code.

13. The second question that would arise for consideration is,

whether an unmarried daughter who has attained majority would be entitled

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to maintenance under Section 125 of the Code. As has been noticed above,

the section provides for maintenance to be given to a wife, legitimate or

illegitimate minor child, whether married or not, who are unable to maintain

themselves. In Amarendra Kumar Paul vs. Maya Paul and others (2009)

8 SCC 359, it has been held that once children attain majority, they would

cease to get any benefit under Section 125 of the Code. The High Court of

Karnataka in Bhagamma Alias Bhagyashree Vs, Bhimraya 2017 ILR

Karnataka 3090 has gone to the extent of holding that the term ‘injury’ as

defined under section 125 (1) (c) of the Code is to be interpreted in a wider

sense and not to be construed only in its legal sense of physical or mental

injury, but could also include an economic or financial deprivation.

14. However, it cannot be lost sight of that under Section 20 (3) of

the Hindu Maintenance and Adoption Act 1995, there is an obligation of a

person to maintain his or her aged or infirm parent or a daughter who is

unmarried extends insofar as the parent or the unmarried daughter, as the

case may be, is unable to maintain himself or herself out of his or her own

earnings or other property.

15. Petitioner No. 2 is undoubtedly the unmarried daughter of the

respondent from his second wife. As long as she remains unmarried and

unable to support her herself, even though qualified, an obligation is cast

upon her father respondent herein to maintain her. In Jagdish Jugawat vs

Manjula lata (2002) 5 SCC 422 it has been held as under:-

“4. Applying the principle to the facts and circumstances of the

case in hand, it is manifest that the right of a minor girl for

maintenancefrom parents after attaining majority till her

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marriage is recognised in section 20 (3) of the Hindu Adoption

And Maintenance Act. Therefore, no exceptions can be taken to

the judgement/order passed by the Ld. single judge for

maintaining the order passed by the family court which is

based on a combined reading of section 125 CR PC and

section 20 (3) of the Hindu adoption and maintenance act. For

the reasons aforesaid stated we are of the view that on facts

and in the circumstances of the case no interference with the

impugned judgement/order of the High Court is called for.”

16. Since petitioner No. 2 being the unmarried major daughter of

respondent, had preferred an application under Section 125 of the Code for

grant of maintenance, whereas she would have been entitled to claim

maintenance under the Hindu Adoption And Maintenance Act 1955, to now

relegate her to that remedy would amount to unnecessary harassment and

multiplicity of litigation. It is a well settled principle of law that mentioning

of a wrong provision or non-mentioning of a provision does not invalidate

an order if the court and/or statutory authority had the requisite jurisdiction

thereof. Reliance is placed upon N. Mani v. Sangeetha Theatres Ors.

(2004) 12 SCC 278 and P.K.Palanisamy Vs. N.Arumugham Anr.,

reported in 2007(9) SCALE 197. Therefore, this court is of the view that

the impugned order qua petitioner No. 2 deserves to be set aside.

17. For the reasons stated above, the present revision is dismissed qua

petitioner No.1, however, allowed qua petitioner No.2. Consequently, the

parties are directed to appear before the Family Court, Rohtak, on the

28.2.2018, who is directed to treat the application filed as an application for

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maintenance under the Hindu Maintenance and Adoption Act 1955 and

proceed to decide the maintenance payable to petitioner No.2. However,

before parting with this judgement the Family court is to decide the matter

on its own merit and not be influenced by any observations made herein. All

pleas, rights and defence on merits are left open for adjudication.

18. The petition stands partly allowed with the aforesaid observation.

(JAISHREE THAKUR)
February 14, 2018 JUDGE
prem

Whether speaking/reasoned Yes
Whether reportable Yes

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