Durga Dass vs Anju Devi and Others

Hasnain Massodi, Judge

Smt. Anju Devi and her daughter baby Guria on 20.9.1999 filed an application u/s 488 CrPC against Shri Durga Dass-petitioner herein, before

Judicial Magistrate 1st Class (JMIC) City Judge, Jammu, for grant of maintenance allowance. The case set up against the present petitioner was

that Smt. Anju Devi was legally wedded wife of the petitioner and baby Guria was born out of the wedlock. It was further pleaded that the

petitioner though possessed of sufficient means had neglected to maintain his wife and minor daughter, who had no source to fall back upon. Smt.

Anju Devi also pleaded that she was carrying a child of the petitioner and the petitioner was also under an obligation to maintain the child on his/her

birth. Smt. Anju Devi gave birth to male child, during pendency of the application. It was alleged that the petitioner was having illicit relations with

the lady named in the application and that on her objection the petitioner threw out his wife and minor daughter from its house.

The application was resisted by the present petitioner on the grounds that Smt. Anju Devi was not his legally wedded wife and her minor

daughter was not legitimate child of the petitioner. The petitioner alleged that Smt. Anju Devi having relations with another person, and was leading

an adulterous life. The petitioner admitted that on divorcing his wife, he had shown interest in marrying Smt. Anju Devi and conveyed it to her

brother in law; that Smt. Anju Devi and her brother in law on the basis of interest shown by the petitioner had hatched conspiracy to declare the

petitioner as husband of Smt. Anju Devi, so as to burden him with the obligation to maintain her and her minor daughter. Smt. Anju Devi to prove

that she was legally wedded wife of the petitioner and her two children born out of the wedlock examined five witnesses including Chowkidar and

Lambardar of the Village. The petitioner on the other hand examined four witnesses to substantiate his stand.

The Trial Magistrate on going through the evidence brought on the file concluded that the petitioner and Smt. Anju Devi solemnised marriage at

Talwara Reasi and that the petitioner while entering into wedlock with Anju Devi had concealed from Anju Devi that his marriage with Rita Devi

was subsisting. Learned Trial Magistrate also arrived at the conclusion that two children were born out of the wedlock. Learned Trial Magistrate

accordingly, held the marriage between petitioner and Anju Devi to be void inasmuch as the marriage was contracted when the petitioner had a

spoused living and his marriage with Rita Devi was subsisting.

Learned Trial Magistrate relying on law laid down in Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Another, and 1986 KLJ

595 held Anju Devi not entitled to claim maintenance from the petitioner inasmuch as her marriage with the petitioner was not valid in terms of

Section 5 of the Hindu Marriage Act. However, the minor children of the petitioner were held entitled to get maintenance from the petitioner on the

ground that the children though illegitimate had in terms of Section 488 CrPC, a right to get maintenance from their father. The Court accordingly,

allowed the application qua minors and directed the petitioner to pay monthly allowance of Rs. 1,000/- each, to baby Guria and her younger

brother.

The petitioner aggrieved with the order of Trial Magistrate dated 31.03.2005 filed a Criminal Revision in Sessions Court, Jammu. The revision

petition did not meet any success and was dismissed on 24.11.2008. Learned Revisional Court recorded disagreement with the observation made

by the Trial Magistrate that the children born out of void marriage are illegitimate, pointing out that in terms of Section 18 of the Hindu Marriage

Act a child born out of a marriage solemnised during subsistence of an earlier marriage is legitimate. Learned revisional court nonetheless held the

order of the Trial Magistrate not to suffer from any illegality or irregularity so as to warrant interference in exercise of revisional powers.

The petitioner has now come up with instant petition u/s 561-A CrPC invoking inherent powers of the Court to seek quashment of the Trial

Court order dated 31.03.2005 and the order of Learned Sessions Judge dated 24.11.2008 whereby the revision petition against the Trial Court

order was dismissed. The petitioner pleads that the revisional court failed to appreciate that the application u/s 488 CrPC was not maintainable in

terms of decree passed by the Civil Court on 30th March, 2007. The petitioner reiterates the stand taken before the Trial Court and the Revisional

Court that his marriage with Rita Devi was subsisting on the date the respondent No. 1 claimed to have contracted marriage with the petitioner and

that he had never any relationship with the respondent No. 1 and nothing to do with respondent 2 and 3 who were neither his legitimate nor

illegitimate children. The petitioner denies that he is under any legal obligation to maintain the respondents. It is pleaded that the respondent No. 1

is living with her brother in law and leading an adulterous life.

Heard and considered.

The petitioner's case that he had nothing to do with the respondent No. 1 and did not have any relationship whatsoever with the respondent No.

1 has been rejected by the Trial Magistrate having regard to the evidence brought on the file. The Trial Court has held the petitioner have

solemnised marriage with the respondent No. 1 though while his marriage with Rita Devi was subsisting. In view of subsistence of the first

marriage, the second marriage contracted by the petitioner with respondent No. 1 while his spouse was living, has been held to be void.

Notwithstanding status of the petitioner's marriage with the respondent No. 1, the children born out of the relationship according to the Trial

Magistrate though illegitimate were entitled to get maintenance from the petitioner. The Revisional Court recording its agreement with the

conclusions drawn by the Trial Court has gone a step further and held the respondents 2 and 3 to be legitimate children within meaning of Section

18 of the Hindu Marriage Act. This Court in exercise of inherent powers is not expected to re-appreciate the evidence. What is expected of this

court while exercising inherent powers is to examine whether the impugned orders amount to abuse of process of the Court or have resulted in

miscarriage of justice. The petitioner as a last resort propose to rely on judgment and decree of the civil suit commenced by the petitioner in the

Court of Sub Judge, Jammu on 04.05.2001 and decided on 30.03.2007. The civil court after making a survey on the evidence adduced by the

petitioner to prove that he had no relationship with the respondent No. 1 and that the respondents 2 and 3 were not from his loins observed:-

But the evidence is deficient to disprove relationship Marriage generally has got a presumption of law. The defendant's relationship with plaintiff as

his wife could be presumed. But it is her admission regarding her marriage with the plaintiff during the life time of his (plaintiff's) first wife, that this

marriage has lost legal sanctity. Her admission in the pleadings has admitted the marriage and relationship, but at the same time defendant has not

concealed that she was marriage during the life time of his first wife. There is truth in her stand and falsehood in the attempt of the plaintiff to

disprove even his physical relationship with defendant No. 1 on the basis of second marriage. Defendant No. 1 may be living with Parkash as

stated by the plaintiff in his plaint statement made before the Court as witness after her strained relationship with plaintiff. But there is no specific

denial of the defendant's pleadings or any replica filed by the plaintiff which would disprove the averments made by the defendant that their

marriage took place at Reasi and thereafter they came to live at Rajpura Mandi, Jammu.

Thus, defendant No. 2 is held to be born by the defendant No. 1 out of the relationship with the plaintiff, which is not the result of legal and valid

marriage between them.

The judgment and decree banked upon by the petitioner thus belie the petitioner's stand that he had no relationship with respondent No. 1 and

did not father the respondents No. 2 and 3. The conclusions drawn by the Trial Court while dealing with Section 488 CrPC and the civil court

while adjudicating upon the suit that the marriage between the petitioner and respondents No. 1 was void, is not to be confused with absence of

any relationship though not legitimate in the eye of law.

So viewed, merely because relationship between petitioner and respondents No. 1 out of which respondents 2 and 3 were born is held by the

courts below to be not one recognized by law and not to constitute a valid marriage, does not lead to the conclusion that petitioner can escape

statutory obligation to maintain the respondents.

Section 488 CrPC essentially is an emergency provision intended to deal with the claim that warrants immediate attention and cannot be

postponed or deferred till the rights of the parties are determined by a civil court after long drawn civil proceedings. Having regard to nature, spirit,

purpose and object of the provision, it is to be taken to saddle a person with statutory obligation to maintain a woman with whom he is proved to

be living, giving impression to the society that they are husband and wife, irrespective of the nature of relationship. It is equally duty of such person

to maintain the children born out of such relationship. The imperatives of societal interest can ill-afford, to absolve such person of his obligation to

maintain the woman or children, pushing them to starvation, till intricate and complex questioning of law and fact are determined in civil proceeding.

Restricting the ambit and scope of Section 488 CrPC to legitimacy of relationship is bound to have negative spill over for the society - a result not

expected to be intended by law.

For the reasons discussed above, the petition is without any merit and is accordingly dismissed.