REPORTABLE  

IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 219 OF 2007

PYLA MUTYALAMMA @ SATYAVATHI      .. Appellant

Versus

PYLA SURI DEMUDU & ANR.       ..Respondents

J U D G M E N T  

GYAN SUDHA MISRA, J.

Under the law, a second  wife  whose marriage is void  

on  account  of  survival   of  the  previous  marriage  of  her  

husband with a living wife is not a legally wedded wife and  

she is, therefore, not entitled to maintenance under Section  

125 Cr.P.C. for the sole reason that “law leans in favour of  

legitimacy  and frowns upon bastardy1”.  But, the law also  

presumes in favour of  marriage and against concubinage  

when a man and woman   have  cohabited continuously  for  

1 AIR 1929 P.C. 135

a long number of years and when the man and woman are  

proved to have lived together  as man and wife, the law will  

presume, unless the contrary  is clearly proved, that they  

were living  together  in consequence  of a valid marriage  

and  not  in  a   state  of  concubinage.   Several  judicial  

pronouncements  right from the Privy Council  up to this  

stage, have considered  the scope of the presumption that  

could be drawn as to the  relationship of marriage between  

two persons living together.  But, 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 and this is intended to protect  

women and children from  living as destitutes and this is  

also clearly the  object  of incorporation of Section 125 of  

the  Code  of  Criminal  Procedure  providing  for   grant  of  

maintenance.

2. This appeal at the instance of an estranged wife,  

once again has beseeched this Court to delve and decide the  

question regarding grant of maintenance under Section 125  

Cr.  P.C.  which  arises  after  grant  of  special  leave  under  

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Article 136 of the Constitution and is directed against the  

judgment and order dated 19.09.2005 passed by a learned  

single  Judge  of  the  High  Court  of   Andhra  Pradesh  at  

Hyderabad in Criminal Revision No. 234/2004 whereby the  

learned single Judge had been pleased to set aside the order  

of  the  Family  Court,  Visakhapatnam  awarding  a  sum of  

Rs.500/-  per  month  to  the  appellant-wife   by  way  of  

maintenance  to  her  under  Section  125  Cr.P.C.  The  

respondent-husband  assailed  this  order  by  way  of  a  

criminal revision before the High Court of Andhra Pradesh  

which was allowed and  the order granting  maintenance to  

the appellant-wife was set aside.

3. The  appellant-Pyla  Mutyalamma  @  Satyavathi  

initially  filed  an  application  bearing  M.C.No.145/2002  

under  Section  125,  Cr.P.C.  claiming  Rs.500/-  per  month  

from  her  husband  Pyla  Suri  Demudu-the  respondent  

herein,  on  the  ground that  she  married  him in  the  year  

1974 at Jagannadha Swamy Temple at Visakahapatnam as  

per the Hindu rites and customs after which they lived as a  

normal couple and out of the wedlock  they were blessed  

with two daughters and  a son of whom one daughter died.  

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The surviving daughter  is  married  and the  son aged 22  

years is also employed in the Dock Labour Board who was  

engaged  as  such  by  his  father  the  respondent-husband  

himself.  However, the relationship of the appellant-wife and  

the  respondent-husband  subsequently  got  strained  when  

the respondent got addicted to vices and started ignoring  

and neglecting the appellant-wife as he failed to provide her  

even  the   basic  amenities  like  food  and  clothing  and  

indulged in beating her frequently under the  influence of  

liquor.  He thus deserted her and also started living  with  

another woman due to which the appellant was compelled  

to  claim  maintenance  from  the  husband-the  respondent  

herein.  

4. The respondent-husband herein,  however,  flatly  

denied the allegations and went to the extent of stating that  

the appellant is not his wife  as he was already married  to  

one  Kolupuru Mutyalamma  in a native of Lankivanipalem  

in  the  year  1970  and  had  children  through  her  first  

marriage and that he never married the present appellant.  

He also   alleged that the appellant  is married  to another  

man  and  as  she   owns  a   sum  of  Rs.2.50  lac  to  the  

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respondent which he had given to her by way of  a loan at  

the time of  construction of her  house in the year 1991-

1992, she started the litigation in order to evade making the  

repayment of loan amount.

5. The learned trial  Magistrate  on an appreciation  

and scrutiny of evidence held that the appellant in fact is  

the  wife  of  respondent  No.1  who   was  deserted  by  the  

respondent and, therefore, fixed a maintenance of Rs.500/-  

per  month  to  the  appellant  and the  respondent-husband  

was directed to pay this  amount to the appellant-wife.  As  

already  stated,  this  was  resisted  by  the  respondent-

husband who assailed the order of the trial court by filing  a  

revision petition before the High Court.  The learned single  

Judge of the High Court was pleased to hold that there was  

no  valid marriage between the respondent-husband  and  

the  appellant-wife,  as  an  earlier  marriage   between   the  

appellant and one another lady-Kolupuru Mutyalamma was  

subsisting  and  as  the  marriage  with  the  appellant  was  

performed without  repudiation of  the  earlier   marriage  of  

1970, the subsequent marriage was  not a valid one and  

hence  no maintenance could be paid to the appellant-wife.  

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Feeling  aggrieved   with  this  view  of  the  High  Court,  

expressed  in  the  impugned  order,  the  appellant-wife  has  

preferred this appeal.    

6. Learned  counsel  for  the  appellant-wife   in  

substance has contended  that the learned single Judge of  

the  High  Court  erred  in  reversing   the  finding  of  fact  

rendered  by  the  trail  court   and  interfered  with  a  pure  

question of fact in spite of clinching evidence available on  

record to show that the appellant was the legally married  

wife  of  the  respondent-husband  who  had  been  living  

together  ever  since  their  marriage  in  1974  as  any  other  

usual couple and it is only in the year 2001, the respondent  

started deserting  the appellant  due to his vices which he  

picked up much after  his marriage with the appellant.   The  

High Court  also ignored the evidence of  the son and the  

daughter of the appellant  but relied upon the evidence of  

Respondent-husband.  The High Court further relied on the  

defence  case  of  the  respondent  -husband  that   he  was  

already  married to another lady in the year 1970, although  

no  other  witness  except  the  so-called  first  wife  was  

produced as a witness before the courts below.

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7. The counsel for the appellant further laid much  

emphasis on the fact that the order granting maintenance to  

the  appellant  by  the  trial  court   should  not  have  been  

interfered with by the High Court as it was merely raised to  

circumvent the order granting maintenance by setting up  a  

false story regarding   the existence of previous marriage of  

the  appellant   in  the  year  1970  ignoring  the  clinching  

evidence  led by the appellant regarding her marriage which  

was creditworthy. In support of his submission, the counsel  

also   relied  upon  a  decision   delivered  in  the  matter  of  

Vimala (K) vs. Veeraswamy (K)2, wherein  a  Bench of three  

learned Judges of this Court had been pleased to hold  that  

when  a husband takes a plea that the marriage was void  

due  to  subsistence   of  an  earlier  marriage,  the  same  

requires clear  and strict proof and the burden of strict proof  

of  earlier marriage  is on the husband to discharge. It may  

be  relevant  and  worthwhile  at  this  stage  to  quote  the  

observations  of  their  Lordships  in  the  aforesaid  matter  

which was to the following effect:

“Section  125   of  the  Code  of  Criminal  Procedure    is  meant  to  achieve  a  social  

2 (1991) 2 SCC 375

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purpose.  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.   Under  the Hindu Law, a second marriage  is void  on  account of the  survival of the first marriage  and is  not  a legally  wedded wife.    She is,  therefore, not entitled to maintenance under  Section 125.   Such a provision in  law  which  disentitles   a  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  Section  125  is  a  measure  of  social  justice  intended to protect women and children.”

    8. In  the  case  under  consideration  herein,  the  

respondent-husband  has  sought to repudiate the marriage  

of  the appellant as void  on account of subsistence  of an  

earlier marriage.  But while  doing so he has also set up  

another  cooked  up  story   that  the  appellant   is  already  

married to another woman and as she is owing an amount  

of Rs.2.50 lakhs to the appellant  which he had advanced to  

her by way of a loan, the appellant has raised a false plea  

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of claim of maintenance.  Thus, the respondent-husband  in  

one  breath   states  that  the   second  marriage   with  the  

appellant is void in view of the subsistence   of his earlier  

marriage and in the next one he states that the appellant-

wife  has set up a false plea  as she wants to  get away from  

the  liability  of  repayment  of  the  amount  which  she  was  

owing  to the respondent.   

9. In fact,  we also find sufficient substance in the plea  

that the High Court in its revisional jurisdiction  ought not  

to have entered into  a scrutiny of the finding recorded  by  

the Magistrate that the appellant was a married wife of the  

respondent,   before  allowing   an  application  determining  

maintenance as it  is well-settled that the revisional court  

can interfere only if there is any illegality in the order  or  

there is any material irregularity  in the procedure  or there  

is  an  error  of  jurisdiction.   The  High  Court  under  its  

revisional  jurisdiction  is  not  required  to  enter  into  re-

appreciation  of  evidence  recorded  in  the  order  granting  

maintenance; at the most it could correct a patent  error of  

jurisdiction.  It has been laid down in a series of decisions  

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including  Suresh Mondal vs.  State of Jharkhand3 that in a  

case where the learned Magistrate has granted maintenance  

holding  that the wife had been neglected and the wife was  

entitled  to  maintenance,  the  scope  of  interference  by the  

revisional court  is very limited.  The revisional court  would  

not substitute its own finding  and upset the maintenance  

order recorded by the Magistrate.   

10. In revision against the maintenance order passed in  

proceedings under Section 125, Cr.P.C., the revisional court  

has no power to re-assess evidence and substitute  its own  

findings.   Under  revisional  jurisdiction,  the  questions  

whether the applicant  is a married wife, the children are  

legitimate/illegitimate,  being   pre-eminently  questions  of  

fact, cannot be reopened and the revisional court  cannot  

substitute its own views.  The High Court, therefore, is not  

required in revision to interfere with the positive finding  in  

favour of the marriage and patronage of a child.  But where  

finding is  a negative one, the High Court  would entertain  

the  revision,  re-evaluate   the  evidence   and  come  to  a  

conclusion whether the findings or conclusions reached by  

3 2006 (1) AIR Jhar. R. 153  

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the Magistrate are legally sustainable or not  as negative  

finding has evil consequences  on the life of both child and  

the woman.  This was the view expressed by the Supreme  

Court in the matter of  Santosh (Smt.) vs.  Naresh Pal4 , as  

also in the case of  Parvathy Rani Sahu vs.  Bishnu Sahu5.  

Thus, the ratio decidendi which emerges out of a catena of  

authorities on the efficacy  and value of  the order passed  

by  the  Magistrate  while  determining  maintenance  under  

Section 125, Cr.P.C. is that it should not be disturbed while  

exercising revisional jurisdiction.

11. However,   learned  counsel  for  the  respondent-

husband  on his part has also cited the case  of  Savitaben  

Somabhai Bhatiya  vs.  State of Gujarat & Ors.6, in support  

of his plea  that claim of maintenance  by the second wife  

cannot  be sustained unless the previous marriage of the  

husband  performed  in  accordance  with  the   Hindu  rites  

having  a living spouse is proved to be a nullity and the  

second wife,  therefore,  is  not  entitled   to   the  benefit  of  

Section of 125 Cr.P.C. or the Hindu Marriage Act, 1955.

4  (1998)  8 SCC 447 5  (2002) 10 SCC 510  6  (2005) 3 SCC 636  

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12. It is no doubt true that the learned Judges in this  

cited case had been pleased to hold that  scope of Section  

125   cannot  be  enlarged  by  introducing   any  artificial  

definition to include a second woman  not legally married,  

in the expression ‘wife’.  But it has also been held therein  

that evidence showing that the respondent-husband  was  

having  a living spouse at the time of alleged marriage with  

the second wife, will have to be discharged by the husband.  

Hence, this authority is of no assistance to the counsel  

for the respondent-husband herein as it  is nobody’s case  

that  the  appellant-wife  should  be  held  entitled  to  

maintenance  even  though   the  first  marriage  of  her  

husband was subsisting and the respondent-husband was  

having  a living wife as there is  no quarrel with the legal  

position that during the subsistence of  the first  marriage  

and  existence   of  a  living  wife  (first  wife),  the  claim  of  

maintenance   by  the  second  wife  cannot  be  entertained.  

But  proof  and  evidence  of   subsistence  of  an  earlier  

marriage at the time of solemnizing  the second marriage,  

has  to  be  adduced  by  the  husband   taking  the  plea  of  

subsistence  of  an  earlier  marriage  and  when  a  plea  of  

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subsisting marriage is raised by the respondent-husband, it  

has to be satisfactorily proved by tendering  evidence.   This  

was the view taken by the  learned Judges in  Savitaben’s  

case   (supra)  also  which  has  been  relied  upon  by  the  

respondent-husband.  Hence, even  if the ratio of this case  

relied  upon  by  the  respondent-husband  is  applied,  the  

respondent-husband herein has failed to establish his plea  

that his earlier marriage was at all in subsistence which he  

claims to have performed in the year 1970 as he has not led  

even an iota of evidence in support of his earlier marriage  

including the fact that he has not produced a single witness  

except the so-called first wife  as a witness  of proof of his  

earlier marriage.  This strong circumstance apart from the  

facts  recorded  herein  above,  goes  heavily  against  the  

respondent-husband.

13. We may further take note of an important legal  

aspect as laid down by the Supreme Court in the matter of  

Jamuna Bai vs.  Anant Rai7,  that the nature of the proof of  

marriage  required  for  a  proceeding  under  Section  125,  

Cr.P.C. need not be so strong or conclusive as in a  criminal  

7  AIR 1988 SC 793 (paras 4, 5 and 8)  

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proceeding for an offence under Section  494 IPC since, the  

jurisdiction  of  the  Magistrate  under  Section  125  Cr.P.C.  

being preventive in nature, the Magistrate cannot usurp the  

jurisdiction in matrimonial dispute  possessed by the civil  

court.   The  object  of  the  section being  to  afford a swift  

remedy, and the determination by the Magistrate  as to the  

status of the parties  being subject to a final determination  

of  the  civil  court,  when  the  husband  denies  that   the  

applicant is not his wife, all that the Magistrate has to find,  

in  a    proceeding  under  Section  125 Cr.P.C.,  is  whether  

there  was  some  marriage  ceremony  between  the  parties,  

whether they have lived as husband and wife in the eyes of  

their  neighbours,  whether children were borne out of  the  

union.   

14. It was still  further laid down in the case of Sethu  

Rathinam vs. Barbara8 that if there was affirmative evidence  

on the aforesaid points, the Magistrate would not enter into  

complicated  questions  of  law  as  to  the  validity   of  the  

marriage according to the sacrament  element or personal  

law and the like, which are questions for determination by  

8  (1970) 1 SCWR 589

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the civil  court.  If  the evidence led in a proceeding under  

Section 125 Cr.P.C. raises a presumption that the applicant  

was the wife of the respondent, it would be sufficient for the  

Magistrate to pass an order granting  maintenance under  

the proceeding.  But if the husband   wishes to impeach the  

validity  of the marriage, he will have to  bring a declaratory  

suit in the civil court  where the whole questions may be  

gone into wherein he can contend that the marriage was not  

a valid marriage or was a fraud or  coercion practiced upon  

him.  Fortifying this view, it was further laid down by the  

Supreme Court  in  the  matter  of  Rajathi vs.  C.  Ganesan9  

also,  that  in  a  case  under  Section  125  Cr.P.C.,  the  

Magistrate has to take prima facie view  of the matter  and  

it is not necessary for the Magistrate to go into  matrimonial  

disparity  between  the  parties  in  detail  in  order  to  deny  

maintenance  to the claimant  wife.  Section 125, Cr.P.C.  

proceeds on  de facto marriage  and not  marriage  de jure.  

Thus,  validity  of  the  marriage  will  not  be  a  ground  for  

refusal of maintenance if other requirements of Section 125  

Cr.P.C. are fulfilled.

9  AIR 1999 SC 2374

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15. When the appellant’s case is tested on the anvil  

of the aforesaid legal position, it is sufficiently clear that the  

appellant   has  succeeded  in  proving   that  she  was  the  

legally  married wife of the respondent  with three children  

out of which one had expired while the other two who are  

major and well-settled.  It has further been proved that the  

respondent-husband  started  deserting  the  appellant-wife  

after almost 25 years of marriage and in order to avert the  

claim of maintenance, a story of previous marriage was set  

up for which he failed to furnish any proof much less clear  

proof. Thus, it was not open for the High Court  under its  

revisional  jurisdiction to set  aside the finding of  the trial  

court   and  absolve  the  respondent  from  paying   the  

maintenance of Rs.500/- per month to the appellant-wife.  

16. Having   thus   considered  the  contradictory  

versions of the contesting parties and deliberating over the  

arguments advanced  by them in the light of the evidence  

and circumstances, we are  clearly led to the  irresistible  

conclusion  that  the  High  Court    wrongly  exercised  its  

jurisdiction while  entertaining the revision petition  against  

an  order    granting   maintenance  to  the  appellant-wife  

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under  Section  125  Cr.P.C.   We,  therefore,  set  aside  the  

judgment  and order of  the High Court   and restore  the  

order passed by the Magistrate in favour of   the appellant  

granting  her  maintenance.   The  appeal   accordingly  is  

allowed.

                …………………….. J

    (Harjit Singh Bedi)

        ………………………J      (Gyan Sudha Misra

New Delhi, August 9, 2011

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