When second wife can be granted maintenance under S 125 of CRPC?
Cr.P.C. do not determine and are not intended to determine the civil
rights and obligations of the parties. The decisions under Section 125
of Cr.P.C. are obviously tentative decisions subject to any final order in
any civil proceeding, if the parties are so advised to adopt. This is
what was held by the Hon'ble Apex Court in the case of Santosh w/o
Naresh Pal Vs. Naresh Pal 4 (1998) 8 SCC 447
, in the context of contention that the wife
had not proved that she was legally married wife because her first
husband was living and there was no dissolution of her marriage. In
the case of Dwarika Prasad Satpathy (supra), the Hon'ble Apex
Court has held that where from the evidence which is led before the
Magistrate, the Magistrate is prima facie satisfied with regard to the
performance of marriage in proceedings under Section 125, Cr.P.C.
which are of summary nature, strict proof of performance of essential
rites is not required.
Applying the aforesaid principles, it is clear that the
respondent no.1 has not been able to make out a case that the
marriage between himself and the petitioner no.1 was not legal and
valid, because the petitioner no.1 was allegedly his second wife.
In the case of Savitaben (supra), it has been held that the
expression 'wife' referred to under Section 125 of the Cr.P.C. means
only 'legally married wife'. In the present case, the learned JMFC, on
the basis of material on record, had clearly returned a finding that the
petitioner no.1 was the legally wedded wife of the respondent no.1.
The learned ASJ, by purporting to reassess the material on record,
has substituted a different finding. Such jurisdiction of reassessment
of evidence was not at all vested in the learned ASJ. Therefore, it
cannot be said that the approach of the learned JMFC was, in an
manner, contrary to the dictum of the Hon'ble Apex Court in the case
of Savitaben (supra). That apart, it is required to be noted that yet
another bench of the Hon'ble Apex Court, in the case of Chanmuniya
Versus Virendra Kumar Singh Kushwaha and Another (2011) 1 Supreme Court Cases 141, upon
consideration of several other decisions, including the decisions in the
case of Dwarika Prasad (supra) and Savitaben (supra), has
expressed an opinion that an expansive interpretation should be given
to term 'wife' to include even those cases where a man and woman
had been living together as husband and wife for a reasonably long
period of time and strict proof of marriage should not be a precondition
for maintenance under Section 125 of Cr.P.C., so as to fulfill
true spirit and essence of beneficial provision of maintenance under
Section 125. The Hon'ble Apex Court has itself said that such an
interpretation would be a just application of the principles enshrined
in the Preamble to our Constitution, namely, social justice and
upholding the dignity of the individual.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.2121 OF 2005
Sou. Shantabai Bhimrao Bauchkar, ]
Kum. Jayashree Bhimrao Bauchkar.
Versus
Bhimrao Pandu Bauchkar,
CORAM : M. S. SONAK, J.
DATE : DECEMBER 09, 2015
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