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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL MISCELLANEOUS PETITION No.19530/2013 IN

SPECIAL LEAVE PETITION (CRL.) No.8596/2013

Badshah    ….Petitioner

Versus

Sou.Urmila Badshah Godse & Anr.    …Respondents

J U D G M E N T

A.K.SIKRI,J.

1. There is a delay of 63 days in filing the present Special Leave Petition  

and further delay of 11 days in refilling Special Leave Petition.  For the  

reasons contained in the application for condonation of delay, the delay in  

filing and refilling of SLP is condoned.

2. The petitioner seeks leave to appeal against the judgment and order  

dated 28.2.2013 passed by the High Court of Judicature at Bombay, Bench  

at Aurangabad in Criminal Writ Petition No.144/2012.  By means of the  

impugned order, the High Court has upheld the award of maintenance to  

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respondent No.1 at the rate of Rs.1000/- per month and to respondent No.2  

(daughter) at the rate of Rs.500/- per month in the application filed by them  

under  Section  125 of  the  Code  of  Criminal  Procedure  (Cr.P.C.)   by  the  

learned Trial Court and affirmed by the learned Additional Sessions Judge.  

Respondents herein had filed proceedings under Section 125, Cr.P.C. before  

Judicial Magistrate First Class (JMFC) alleging therein that respondent No.1  

was  the  wife  of  the  petitioner  herein  and  respondent  No.2  was  their  

daughter, who was born out of the wedlock.   

3. The respondents had stated in the petition that respondent No.1 was  

married with Popat Fapale. However, in the year 1997 she got divorce from  

her first husband. After getting divorce from her first husband in the year  

1997 till the year 2005 she resided at the house of her parents.  On demand  

of the petitioner for her marriage through mediators, she married him on  

10.2.2005 at Devgad Temple situated at Hivargav-Pavsa. Her marriage was  

performed with the petitioner as per Hindu Rites and customs.  After her  

marriage,  she  resided  and  cohabited  with  the  petitioner.   Initially  for  3  

months,  the petitioner  cohabited  and maintained her  nicely.   After  about  

three months of her marriage with petitioner, one lady Shobha came to the  

house of the petitioner and claimed herself to be his wife.  On inquiring from  

the petitioner about the said lady Shobha, he replied that if she wanted to  

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cohabit with him, she should reside quietly.   Otherwise she was free to go  

back to her parents house.  When Shobha came to the house of petitioner,  

respondent No.1 was already pregnant from the petitioner.   Therefore, she  

tolerated the ill-treatment  of  the petitioner  and stayed alongwith Shobha.  

However,  the petitioner  started giving mental  and physical  torture  to  her  

under the influence of liquor.  The petitioner also used to doubt that her  

womb is begotten from somebody else and it should be aborted.  However,  

when the ill-treatment of the petitioner became intolerable, she came back to  

the  house  of  her  parents.   Respondent  No.2,  Shivanjali,  was  born  on  

28.11.2005.  On  the  aforesaid  averments,  the  respondents  claimed  

maintenance for themselves.

4. The petitioner contested the petition by filing his written statement.  

He dined his relation with respondent Nos.1 and 2 as his wife and daughter  

respectively.  He alleged that he never entered with any matrimonial alliance  

with respondent No.1 on 10.2.2005, as claimed by respondent No.1 and in  

fact respondent No.1, who was in the habit of leveling false allegation, was  

trying to blackmail him.  He also denied co-habitation with respondent No.1  

and claimed that he was not the father of respondent No.2 either.  According  

to  the  petitioner,  he  had  married  Shobha  on  17.2.1979  and  from  that  

marriage he had two children viz. one daughter aged 20 years and one son  

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aged  17  years  and  Shobha  had  been  residing  with  him  ever  since  their  

marriage.  Therefore, respondent No.1 was not and could not be his wife  

during the subsistence of his first marriage and she had filed a false petition  

claiming her relationship with him.

5.   Evidence was led by both the parties and after hearing the arguments  

the learned JMFC negatived the defence of the petitioner.   In his judgment,  

the JMFC formulated four points and gave his answer thereto as under:

1. Does applicant no.1 Urmila proves that she is a wife  and  applicant  No.2  Shivanjali  is  daughter  of  non  applicant?

Yes

2. Does  applicant  No.1  Urmila  proves  that  non- applicant  has  deserted  and   neglected  them  to  maintain them through having sufficient means?

Yes

3. Whether applicant No.1 Urmila and Applicant No.2  Shivanjali are entitled to get maintenance from  non- applicant?

Yes

4. If yes, at what rate? Rs. 1,000/-  p.m. to  Applicant  No. 1 and  Rs. 500/-  p.m. to  Applicant  No. 2.

6. It  is  not  necessary to discuss  the reasons which prevailed with the  

learned JMFC in giving his findings on Point Nos.1 and 2 on the basis of  

evidence produced before the Court.  We say so because of the reason that  

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these findings are upheld by the learned Additional Sessions Judge in his  

judgment while dismissing the revision petition of the petitioner herein as  

well  as  the  High  Court.  These  are  concurrent  findings  of  facts  with  no  

blemish or perversity.  It was not even argued before us as the argument  

raised was that in any case respondent No.1 could not be treated as “wife” of  

the petitioner as he was already married and therefore petition under Section  

125 of  the Cr.P.C.  at  her  instance  was not  maintainable.   Since,  we are  

primarily concerned with this  issue,  which is the bone of  contention,  we  

proceed on the basis that the marriage between the petitioner and respondent  

No.1 was solemnized; respondent No.1 co-habited with the petitioner after  

the said marriage; and respondent No.2 is begotten as out of the said co-

habitation, whose biological father is the petitioner.  However, it would be  

pertinent  to  record  that  respondent  No.1  had  produced  overwhelming  

evidence,  which  was  believed  by  the  learned  JMFC  that  the  marriage  

between  the  parties  took  place  on  10.2.2005  at  Devgad  Temple.   This  

evidence included photographs of marriage.  Another finding of fact was  

arrived at, namely, respondent No.1 was a divorcee and divorce had taken  

place in the year  1997 between her and her first husband, which fact was in  

the clear knowledge of the petitioner, who had admitted the same even in his  

cross-examination.

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7. The  learned  JMFC proceeded  on  the  basis  that  the  petitioner  was  

married  to  Shobha  and  was  having  two  children  out  of  the  wedlock.  

However, at the time of solemnizing the marriage with respondent No.1, the  

petitioner intentionally suppressed this  fact  from her and co-habited with  

respondent No.1 as his wife.

8. The aforesaid facts emerging on record would reveal that at the time  

when the petitioner married the respondent No.1, he had living wife and the  

said marriage was still subsisting.  Therefore, under the provisions of Hindu  

Marriage Act, the petitioner could not have married second time.   At the  

same time,  it has also come on record that the petitioner duped respondent  

No.1 by not revealing the fact of his first marriage and pretending that he  

was single.  After this marriage both lived together and respondent No.2 was  

also born from this wedlock.  In such circumstances, whether respondents  

could filed application under Section 125 of the Cr.P.C., is the issue.  We  

would like to pin point that in so far as respondent No.2 is concerned, who is  

proved to  be  the  daughter  of  the  petitioner,  in  no  case  he  can  shun  the  

liability  and obligation  to  pay maintenance  to  her.   The  learned counsel  

ventured to dispute the legal obligation qua respondent No.1 only.   

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9. The learned counsel for the petitioner referred to the judgment of this  

Court in Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhay & Anr.  1    

In that case, it was held that a Hindu lady who married after coming into  

force Hindu Marriage Act, with a person who had a living lawfully wedded  

wife cannot be treated to be “legally wedded wife” and consequently her  

claim for maintenance under Section 125, Cr.P.C. is not maintainable.  He  

also referred to later judgments in the case of Savitaben Somabai Bhatiya vs.  

State of Gujarat & Ors.  2   wherein the aforesaid judgment was followed.  On  

the strength of  these  two judgments,  the learned counsel  argued that  the  

expression “wife” in Section 125 cannot be stretched beyond the legislative  

intent, which means only a legally wedded-wife.   He argued that Section  

5(1)  (i)  of  the  Hindu  Marriage  Act,  1955  clearly  prohibits  2nd marriage  

during the subsistence of the 1st marriage, and so respondent No.1 cannot  

claim any  equity;  that  the  explanation  clause  (b)  to  Section  125 Cr.P.C.  

mentions the term “divorce” as a category of claimant, thus showing that  

only a legally wedded-wife can claim maintenance.  He, thus, submitted that  

since the petitioner had proved that he was already married to Shobha and  

the said marriage was subsisting on the date of marriage with respondent  

No.1,  this  marriage  was  

1 (1988) 1 SCC 530 2 (2005) 3 SCC 636

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void and respondent No.1 was not legally wedded wife and therefore had no  

right to move application under Section 125 of the Cr.P.C.

10. Before we deal with the aforesaid submission, we would like to refer  

two more judgments of this Court.  First case is known as Dwarika Prasad  

Satpathy vs. Bidyut Prava Dixit & Anr.  3     In this case it was held:

“The validity of  the marriage for  the purpose of  summary proceeding under s.125 Cr.P.C. is to be determined on  the basis of the evidence brought on record by the parties. The  standard of proof of marriage in such proceeding is not as strict  as is required in a trial of offence under section 494 of the IPC.  If the claimant in proceedings under s.125 of the Code succeeds  in showing that she and the respondent have lived together as  husband and wife, the court can presume that they are legally  wedded spouse, and in such a situation, the party who denies  the marital status can rebut the presumption. Once it is admitted  that  the  marriage  procedure  was  followed  then  it  is  not  necessary to further probe into whether the said procedure was  complete  as  per  the  Hindu  Rites  in  the  proceedings  under  S.125,Cr.P.C.  From the evidence which is led if the Magistrate  is  prima  facie  satisfied  with  regard  to  the  performance  of  marriage  in  proceedings  under  S.125,  Cr.P.C.  which  are  of  summary nature strict proof of performance of essential rites is  not required.

It is further held:

It is to be remembered that the order passed in an  application  under  section  125  Cr.P.C.  does  not  finally  determine the rights and obligations of the parties and the said  section is enacted with a view to provide summary remedy for  providing maintenance to a wife, children and parents. For the  purpose of getting his rights determined, the appellant has also  filed Civil Suit which is spending before the trial court.  In such  

3 (1999) 7 SCC 675

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a  situation,  this  Court  in  S.Sethurathinam  Pillai  vs.  Barbara  alias  Dolly Sethurathinam, (1971)  3 SCC 923,  observed that  maintenance  under  section  488,  Cr.P.C.  1898  (similar  to  Section 125, Cr.P.C.) cannot be denied where there was some  evidence on which conclusion for grant of maintenance could  be reached. It was held that order passed under Section 488 is a  summary order which does not finally determine the  rights and  obligations of the parties; the decision of the criminal Court that  there was a valid marriage between the parties will not operate  as decisive in any civil proceeding between the parties.”

11. No doubt, it is not a case of second marriage but deals with standard  

of proof under Section 125, Cr.P.C. by the applicant to prove her marriage  

with the respondent and was not a case of second marriage.  However, at the  

same  time,  this  reflects  the  approach  which  is  to  be  adopted  while  

considering  the  cases  of  maintenance  under  Section  125,Cr.P.C.  which  

proceedings are in the nature of summary proceedings.

12. Second case which we would like to refer is Chanmuniya vs. Virendra  

Kumar Singh Kushwaha & Anr.  4      The Court has held that the term “wife”  

occurring in Section 125, Cr.P.C. is to be given very wide interpretation.  

This is so stated in the following manner:

“A broad and expansive interpretation should be given to the  term “wife” to include even those cases where a man and woman have been  living together as husband and wife for reasonably long period of time, and  strict proof of marriage should not be a pre-condition for maintenance under  Section 125 of the Cr.P.C. so as to fulfill the true spirit and essence of the  beneficial provision of maintenance under Section 125.”

4 (2011) 1 SCC 141

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13. No doubt, in Chanmuniya (supra), the Division Bench of this Court  

took the view that the matter needs to be considered with respect to Section  

125,Cr.P.C., by larger bench and in para 41, three questions are formulated  

for determination by a larger bench which are as follows:

“1. Whether  the  living  together  of  a  man  and  woman  as  husband and wife for a considerable period of time would  raise the presumption of a valid marriage between them  and whether such a presumption would entitle the woman  to maintenance under Section 125,Cr.P.C.?

2. Whether strict proof of marriage is essential for a claim  of maintenance under Section 125,Cr.P.C. having regard  to the provisions of the Domestic Violence Act, 2005?

3. Whether  a  marriage  performed  according  to  the  customary rites and ceremonies, without strictly fulfilling  the requisites of Section 7(1) of the Hindu Marriage Act,  1955, or any other personal law would entitle the woman  to maintenance under Section 125,Cr.P.C.?”

14. On this basis, it was pleaded before us that this matter be also tagged  

along with the aforesaid case.  However, in the facts of the present case, we  

do not deem it proper to do so as we find that the view taken by the courts  

below is  perfectly  justified.   We  are  dealing  with  a  situation  where  the  

marriage between the parties has been proved.  However, the petitioner was  

already married.  But he duped the respondent by suppressing the factum of  

alleged first marriage.  On these facts, in our opinion, he cannot be permitted  

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to deny the benefit of maintenance to the respondent, taking advantage of his  

own wrong.  Our reasons for this course of action are stated hereinafter.   

15. Firstly, in Chanmuniya case,  the parties had been living together for a  

long time and on that basis question arose as to whether there would be a  

presumption of marriage between the two because of the said reason, thus,  

giving  rise  to  claim  of  maintenance  under  Section  125,Cr.P.C.  by  

interpreting the term “wife” widely.  The Court has impressed that if man  

and woman have been living together for a long time even without a valid  

marriage, as in that case,  term of valid marriage entitling such a woman to  

maintenance should be drawn and a woman in such a case should be entitled  

to maintain application under Section 125,Cr.P.C.  On the other hand, in the  

present case,  respondent No.1 has been able to prove, by cogent and strong  

evidence,  that  the petitioner and respondent  No.1 had been married each  

other.

16. Secondly,  as  already  discussed  above,  when  the  marriage  between  

respondent No.1 and petitioner was solemnized, the petitioner had kept the  

respondent No.1 in dark about her first marriage.  A false representation was  

given to respondent No.1 that he was single and was competent to enter into  

martial tie with respondent No.1.  In such circumstances, can the petitioner  

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be allowed to take advantage of his own wrong  and turn around to say that  

respondents  are  not  entitled  to  maintenance  by  filing  the  petition  under  

Section 125,Cr.P.C. as respondent No.1 is not “legally wedded wife” of the  

petitioner?  Our answer is in the negative.  We are of the view that at least  

for the purpose of Section 125 Cr.P.C., respondent No.1 would be treated as  

the wife of the petitioner, going by the spirit of the two judgments we have  

reproduced above.  For this reason, we are of the opinion that the judgments  

of  this  Court  in  Adhav  and  Savitaben  cases  would  apply  only  in  those  

circumstances where a woman married a man with full knowledge of the  

first  subsisting  marriage.   In  such  cases,  she  should  know  that  second  

marriage with such a person is impermissible and there is an embargo under  

the Hindu Marriage Act and therefore she has to suffer the consequences  

thereof.  The said judgment would not apply to those cases where a man  

marriages second time by keeping that lady in dark about the first surviving  

marriage.  That is the only way two sets of judgments can be reconciled and  

harmonized.

17. Thirdly, in such cases, purposive interpretation needs to be given to  

the provisions of Section 125,Cr.P.C.  While dealing with the application of  

destitute wife or hapless children or parents under this provision, the Court  

is dealing with the marginalized sections of the society.  The purpose is to  

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achieve “social justice” which is the Constitutional vision, enshrined in the  

Preamble of the Constitution of India.  Preamble to the Constitution of India  

clearly signals that we have chosen the democratic path under rule of law to  

achieve the goal of securing for all its citizens, justice, liberty, equality and  

fraternity.  It specifically highlights achieving their social justice. Therefore,  

it becomes the bounden duty of the Courts to advance the cause of the social  

justice.  While giving interpretation to a particular  provision,  the Court  is  

supposed to bridge the gap between the law and society.   

18. Of late, in this very direction, it is emphasized that the Courts have to  

adopt  different  approaches  in  “social  justice  adjudication”,  which is  also  

known as “social context adjudication” as mere “adversarial approach” may  

not  be  very  appropriate.   There  are  number  of  social  justice  legislations  

giving special protection and benefits to vulnerable groups in the society.  

Prof. Madhava Menon describes it eloquently:

“It  is,  therefore,  respectfully  submitted  that  “social  context  judging”  is  essentially  the  application  of  equality  jurisprudence as evolved by Parliament and the Supreme Court  in  myriad  situations  presented  before  courts  where  unequal  parties are pitted in adversarial proceedings and where courts  are called upon to dispense equal justice. Apart from the social- economic inequalities accentuating the disabilities of the poor  in an unequal fight, the adversarial process itself operates to the  disadvantage of the weaker party.  In such a situation, the judge  has  to  be  not  only  sensitive  to  the  inequalities  of  parties  

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involved but also positively inclined to the weaker party if the  imbalance were not  to  result  in  miscarriage of  justice.   This  result  is  achieved by what  we call  social  context  judging or  social justice adjudication.”5

19. Provision of maintenance would definitely fall in this category which  

aims at empowering the destitute and achieving social justice or equality and  

dignity of the individual.   While dealing with cases under this provision,  

drift  in  the  approach  from  “adversarial”  litigation  to  social  context  

adjudication is the need of the hour.

20.   The  law  regulates  relationships  between  people.   It  prescribes  

patterns of behavior.  It reflects the values of society.  The role of the Court  

is to understand the purpose of law in society and to help the law achieve its  

purpose.  But the law of a society is a living organism.  It is based on a given  

factual and social reality that is constantly changing.  Sometimes change in  

law precedes societal change and is even intended to stimulate it.  In most  

cases, however, a change in law is the result of a change in social reality.  

Indeed,  when  social  reality  changes,  the  law  must  change  too.   Just  as  

change in social reality is the law of life, responsiveness to change in social  

reality is the life of the law.  It can be said that the history of law is the  

history  of  adapting  the  law  to  society’s  changing  needs.   In  both  

Constitutional and statutory interpretation, the Court is supposed to exercise  

5 Delivered a key note address on “Legal Education in Social Context”

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direction in determining the proper relationship between the subjective and  

objective purpose of the law.   

21. Cardozo acknowledges in his classic6

 “….no system of jus scriptum has been able to escape the need  of it”, and he elaborates: “It is true that Codes and Statutes do  not render the Judge superfluous, nor his work perfunctory and  mechanical.   There are gaps to be filled.  There are hardships  and wrongs to be mitigated if  not  avoided.   Interpretation is  often spoken of  as if  it  were nothing but the search and the  discovery  of  a  meaning which,  however,  obscure  and latent,  had none the less a real and ascertainable pre-existence in the  legislator’s mind.  The process is, indeed, that at times, but it is  often something more.  The ascertainment of intention may be  the  least  of  a  judge’s  troubles  in  ascribing  meaning  to  a  stature.”   

Says Gray in his lecture7  

“The fact is that the difficulties of so-called interpretation  arise when the legislature has had no meaning at all; when the  question  which is  raised  on the  statute  never  occurred  to  it;  when what the judges have to do is, not to determine that the  legislature did mean on a point which was present to its mind,  but to guess what is would have intended on a point not present  to its mind, if the point had been present.”   

22. The Court as the interpreter of law is supposed to supply omissions,  

correct uncertainties, and harmonize results with justice through a method of  

free decision—“libre recherché sceintifique” i.e. “free Scientific research”.  

We are of the opinion that there is a non-rebuttable presumption that the  

6 The Nature of Judicial Process 7 From the Book “The Nature and Sources of the Law” by John Chipman Gray

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Legislature while making a provision like Section 125 Cr.P.C., to fulfill its  

Constitutional duty in good faith, had always intended to give relief to the  

woman becoming “wife” under such circumstances.

23. This approach is particularly needed while deciding the issues relating  

to gender justice.  We already have examples of exemplary efforts in this  

regard.   Journey  from  Shah  Bano8 to  Shabana  Bano9 guaranteeing  

maintenance rights to Muslim women is a classical example.   

24. In  Rameshchandra  Daga  v.  Rameshwari  Daga10,  the  right  of  

another  woman  in  a  similar  situation  was  upheld.  Here  the  Court  had  

accepted that Hindu marriages have continued to be bigamous despite the  

enactment of the Hindu Marriage Act in 1955.  The Court had commented  

that though such marriages are illegal as per the provisions of the Act, they  

are  not  ‘immoral’  and  hence  a  financially  dependent  woman  cannot  be  

denied maintenance on this ground.

25. Thus,  while interpreting a statute the court  may not only take into  

consideration the purpose for which the statute was enacted, but also the  

mischief it  seeks to suppress.  It  is  this mischief rule, first  propounded in  

8  AIR 1985 SC 945 9 AIR 2010 SC 305 10 AIR 2005 SC 422

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Heydon’s  Case11 which  became  the  historical  source  of  purposive  

interpretation.  The court would also invoke the legal maxim construction ut   

res  magis  valeat  guam  pereat,  in  such  cases  i.e.  where  alternative  

constructions are possible the Court must give effect to that which will be  

responsible for the smooth working of the system for which the statute has  

been enacted rather than one which will put a road block in its way.  If the  

choice is between two interpretations, the narrower of which would fail to  

achieve  the  manifest  purpose  of  the  legislation  should  be  avoided.   We  

should avoid a construction which would reduce the legislation to futility  

and should accept the bolder construction based on the view that Parliament  

would legislate only for the purpose of bringing about an effective result.  If  

this interpretation is not accepted, it would amount to giving a premium to  

the husband for defrauding the wife.  Therefore, at least for the purpose of  

claiming maintenance under Section 125, Cr.P.C., such a woman is to be  

treated as the legally wedded wife.

26. The  principles  of  Hindu  Personal  Law  have  developed  in  an  

evolutionary way out of concern for all those subject to it so as to make fair  

provision against destitution.  The manifest purpose is to achieve the social  

objectives for making bare minimum provision to sustain the members of  

11 (1854) 3 Co.Rep.7a,7b

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Crl. Misc. Pet. No. 19530 of 2013 In SLP(Crl)No.8596/2013

relatively smaller social groups.  Its foundation spring is humanistic.  In its  

operation field all though, it lays down the permissible categories under its  

benefaction, which are so entitled either because of the tenets supported by  

clear  public  policy  or  because  of  the  need  to  subserve  the  social  and  

individual morality measured for maintenance.

27. In taking the aforesaid view, we are also encouraged by the following  

observations  of  this  Court  in  Capt.Ramesh  Chander  Kaushal  vs.  Veena  

Kaushal 12:  

“The brooding presence  of  the Constitutional  empathy   for the weaker sections like women and children must inform   interpretation if it has to have social relevance.  So viewed, it is   possible to be selective in picking out that interpretation out of   two alternatives which advances the cause – the cause of the   derelicts.”

28. For  the  aforesaid  reasons,  we  are  not  inclined  to  grant  leave  and  

dismiss this petition.

..………………………J. [Ranjana Prakash Desai]

…………….………….J. [A.K.Sikri]

New Delhi, October 18, 2013

12 (1978) 4 SCC 70

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