Declaration suit.
basavaraj shiromani
(Querist) 10 November 2012
This query is : Resolved
A and B are the husband and wife. B, the husband was serving in KEB. He was having an illicit contact with one married lady by name C who is having 6 months female child. The husband of C left her due to illicit contact. C succeeded to get enter the name of her paramour in the school records of her child as father. subsequently dispute arose between B and C. She filed a maintenance petition u/s 125 which was allowed exparte. Thereafter B died. In order to get his service benifits, C filed a suit for declaration to declare that she is the legally wedded wife of B and the child is belongs to B only. She is entitle to get all service benifits of deceased B on the strength of order under sec 125 of Cr.P.C.
My question is, the order passed under sec 125 of Cr.P.C is a conclusive proof of relationship between B and C and what is the evidencery value of order under 125 of Cr.P.C in civil suit.
ajay sethi
(Expert) 10 November 2012
C has to prove that she was legally wedded wife of B . you have mentioned that B was already married . that he was only having an affiar with C . at most she must have been his mistress . order passed under 125 Cr Pc was an exparte order . presumption of marriage would arise only when B and C have lived together for long time .
Vimala (K) v. Veeraswamy (K) [(1991) 2 SCC 375], a three-Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word `wife’ the Court held:
“…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 125 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… ” 26.Thus, in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage
ajay sethi
(Expert) 10 November 2012
in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another, reported in AIR 1988 SC 644, a two-Judge Bench of this Court held that an attempt to exclude altogether personal law of the parties in proceedings under Section 125 is improper. (See para 6). The learned Judges also held (paras 4 & 8) that the expression `wife’ in Section 125 of the Code should be interpreted to mean only a legally wedded wife.
31.Again in a subsequent decision of this Court in Savitaben Somabhat Bhatiya v. State of Gujarat and others, reported in AIR 2005 SC 1809, this Court held however desirable it may be to take note of plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of `wife’.
basavaraj shiromani
(Querist) 11 November 2012
Thank you Ajay Sethijee, for rendering a good rulings on the relevant point.
ajay sethi
(Expert) 11 November 2012
thanks for the complement
Raj Kumar Makkad
(Expert) 15 November 2012
I do agree with the detailed advice of Ajay.
