Holding

A husband must strictly prove the existence of a subsisting earlier valid marriage; failure to do so means the second wife is a legally wedded wife entitled to maintenance under Section 125.

Summary

K. Vimala filed a petition for maintenance under Section 125 of the Code of Criminal Procedure against her husband, K. Veeraswamy. The husband contended that the marriage was void because he was already married to Veeramma, and therefore he was not liable to maintain Vimala. The trial magistrate dismissed the husband's claim, finding no proof of an earlier valid marriage and awarding Vimala Rs.400 per month. The Andhra Pradesh High Court reversed this decision, accepting the husband's contention based on an insurance policy and a family identity card. On appeal, the Supreme Court held that the husband bore a heavy burden to prove the subsistence of a prior valid marriage and that the documents relied upon were not conclusive. Since the husband failed to meet this burden, the Court restored the magistrate’s order, allowing Vimala to receive maintenance.

Issues considered

Whether the husband has discharged the burden of proving a subsisting earlier marriage to render the second marriage void under Section 125 CrPC.
Whether documents such as an insurance policy nomination and a family identity card constitute conclusive proof of a valid earlier marriage.
Whether a woman whose marriage is void due to a prior subsisting marriage is entitled to maintenance under Section 125.

Legislation cited

Code of Criminal Procedure, 1973s. 125

Subjects

maintenanceSection 125 CrPCvoid marriageproof of earlier marriageinsurance policy evidencefamily identity carddomestic desertionHindu rites

Judgment

K. VIMALA
A
V.
K. VEERASWAMY

MARCH 20, 1991

B (A.M. AHMADI, V. RAMASWAMI AND M. FATHIMA
BEEVI, JJ.]
'\

Code of Criminal Procedure, 1973: Section 125-Scope and
object of-Wife's application for maintenance-Husband's plea of mar-
riage being void on account of subsistence of his earlier marriage-Held
Court should insist on strict proof of earlier marriage-Insurance nomi-
c nation and entry in Jndenty Card are not conclusive of subsistence of
earlier marriage.

The appellant-wife filed an application for maintenance against "y
respondent-husband under section 125 of the Code of Criminal Proce-
D dure, 1973. The respondent contested the application on the ground
that appellant was not his legally wedded wife since their marriage was
void on account of subsistence of respondent's earlier marriage. The
Magistrate awarded a monthly maintenance of Rs.400 to the wife by
holding that the respondent has not proved his first marriage. The
order of the Jfagistrate was set aside by the 'High Court in revision
E accepting the respondent's plea that his first rttarriage was subsisting J.
when the respondent married the appellant.

In appeal to this Court it was contended on behalf of the respon-
dent that the High Court had no material before it for arriving at the
finding that there was an earlier valid marriage on the date the respon-
F dent married the appellant.

Allowing the appeal, this Court,

HELD: 1. Section 125 of the Code of Criminal Procedure is meant
to achieve a social purpose. The object is to prevent vagrancy and
G destitution. It provides a speedy remedy for the supply of food, clothing
and shelter to the deserted wife. The term 'wife' 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. However, under the law a second wife
H whose marriage is void on account of the survival of the first marriage is

904
K. VIMALA v. K. VEERASWAMY [FATHIMA BEEVI, J.] 905

not a legally wedded wife and is, therefore, not entitled to maintenance
under this provision. Therefore, the law which disentitles the second A
wife from receiving maintenance from her husband for the sole reason
that the marriage ceremony though performed in the customary form
lacks legal sanctity can be appllied only when the husband satisfactorily
proves the subsistence of a legal and valid marriage particularly when
the provision in the Code is ameasure of social justice intended to pro- B
tect women and children. Accordingly, 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 should insist on strict proof of the earlier marriage. [907D-H]
.._.
2. The respondent has not discharged the heavy burden by
tendering strict proof of the fact in issue. He clearly admitted his mar- c
riage with the appellant according to Hindu rites. But there is no clear
admission of his earlier marriage to dispense with the proof of subsist-
ing valid first marriage when the second marriage was solemnised. In
the absence of such an admission, the statement that the respondent was
living with another woman as husband and wife cannot persuade was D
court to hold that the marriage duly solemnised between the appellant
and the respondent suffers from any legal infirmity. [906C-H]

3. The· ~omination in the Insurance Policy and Entry in the
Identity Card, referred to by the High Court are not conclusive of the
subsistence of a valid· marriage between the respondent and his earlier k 1
wife. The High Court has failed to consider the standard of proof
required and has proceeded on no evidence whatsoever in determining
the question against the appellant. Accordingly the order of the High
Court is set aside and the order of the Magistrate is restored. [907B-C]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal p
No. 664 of 1990.

From the Judgment and Order dated 13.3.1990 of the Andhra
Pradesh High Court in Criminal Revision Case No. 532 of 1989.

K. Ramkumar for the Appellant. G

B. Kanta Rao for the Respondent.

The Judgment of the Court was delivered by

FATHIMA BEEVI, J. The appellant and the respondent got H
906 SUPREME COURT REPORTS (1991] 1 S.C.R.

married according to Hindu rites and customs on June 30, 1983. They
A
lived together until the appellant started complaining of desertion and
ill-treatment. She moved the court for maintenance by an application
under Section 125. of the Code of Criminal Proced\.lre. Though the
claim was resisted on the ground that the appellant is noi the legally
wedded wife of the respondent who had earlier married one
B Veeramma, the learned magistrate awarded a monthly maintenance of
'Rs.400 holding that the first marriage has not been proved. The order
was, however, set-aside by the High Court in revision accepting the
plea that the first marriage was subsisting when the respondent mar-
ried the appellant.

We have granted special leave to appeal against the order of the
c High Court. We have been taken through the pleadings and the evi-
dence by the learned counsel for the appellant for the purpose of
satisfying that the High Court had no material before it for arriving at
the finding that there was a valid marriage between Veeramma and the
respondent on the day the respondent married the appellant. It is
D pointed -0ut that the appellant had nowhere admitted the subsistence
of a valid marriage which would render her marriage illegal. The
appellant stated in her petition that one year after her marriage, she
came to know that respondent married Veeramma and lived with her
in Hyderabad and soon thereafter Veeramma started living along with
the appellant and the respondent and, thus extra-marital relationship
E of tl'!.e respondent with Veeramma has disrupted her family life. In
fact, the respondent had in his counter flatly denied all the averments .
mad·e by the appellant in the petition and maintained that a marriage
ceremony was performed between Veeramma and the respondent
when both were children and the appellant is only his kept-mistress.
The respondent has, however, clearly admitted that he married the
F appellant according to Hindu rites. When that marriage is repudiated
as void on account of the subsistence of an earlier marriage, the ·
respondent was bound to prove that he married Veera.mma in the
customary form and the marriage was subsisting in the year 1983 when
the appellant was married to him. As rightly pointed out by the
learned counsel for the appellant, there is no clear admission of an
G earlier marriage between the respondent and Veeramma to dispense
with the proof of subsisting valid first marriage when the second mar-
riage was solemnised. In the absence of such an admission, the state-
ment that the respondent is living with another woman as husband and
wife cannot persuade the court to hold that the marriage duly solem-
nised between the appellant and the respondent suffers from any legal
H infirmity. The High Court has referred to Ex. R-12 and R-13 relied on
K. VIMALA v. K. VEERASWAMY [FATHIMA BEEVI, J.) 907

'>< by the respondent to prove that he was already married. Ex. R-12 is A
the insurance policy issued on 5.12.1975 where the name of the
nominee is shown as Veeramma indicating that she is the wife of the
respondent. Ex. R-13 is the family identity card issued by the Road
Transport Corporation where the respondent was working in 1977.
These documents are issued on the basis of what the respondent him-
B
self had stated. The entries are not conclusive of the subsistence of a
_>... yalid marriage between the respondent and Veeramma. If they had
been living together as husband and wife even without performing a
ceremonial marriage, and the respondent represented that Veeramma

.. ,.,__ was his wife, it is possible that such entires would come into existence.
Therefore, these documents by themselves cannot prove any marriage
or the subsistence of a valid marriage w~en the admitted marriage with
the appellant was solemnised.
c

Y Section 125 of the Code of Criminal Procedure is meant to
achieve a social purpose. The object is to prevent vagrancy and
destitution. It provides a speedy remedy for the supply of food,
D
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 ofJ~e 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
E
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. However,
under the law a second wife whose marriage is void an account of the
survival of the first marriage is not a legally wedded wife and is, there-
i
fore, not entitled to maintenance under this provision. Therefore, the
F
( ~ law which disentitles the second wife from receiving maintenance from
~ her husband under Section 125, Cr. P.C., for the sole reason that the
marriage ceremony though performed in the customary form lacks
legal sanctity can be applied only when the husband satisfactorily
proves the subsistence of a legal and valid marriage particularly when
the provision in the Code is a measure of social justice intended to
G
protect women and children. We are unable to find that the respon-
-~-dent herein has discharged the heavy burden by tendering strict proof
of the fact in issue. The High Court failed to consider the standard of
proof required and has proceeded on no evidence whatsoever in
determining the question against the appellant. We are, therefore,
unable to agree that the appellant is not entitled to maintenance. H
908 SUPREME COURT REPORTS [1991] 1 S.C.R.

A We find that there is no dispute that the appellant was married to ';mo<
the respondent in the customary form. They lived together as husband
and wife and of late the respondent had neglected to maintain her. The
respondent has no case that the appellant has means to maintain
herself or that the amount she has claimed is not commensurate with
the means of the respondent. The learned magistrate was, therefore,
B
justified in awarding an amount of Rs.400 per mensem towards the
maintenance of the appellant. That order of the magistrate has to be ~
restored. ·

Iri the result, we allow the appeal, set-aside the order of the High
Court and restore that of the trial court. ---.lo:__
c ~
T.N.A. Appeal allowed.

..