BAD SHAHversusSOU.URMILA BADSHAH GOOSE & ANR

                   [2013] 10 S.C.R. 259


                         BAD SHAH                                A
                              V.
       SOU.URMILA BADSHAH GOOSE & ANR.
 CRIMINAL MISCELLANEOUS PETITION No.19530/2013
                      IN
   SPECIAL LEAVE PETITION (CRL.) No.8596/2013                    B
                    OCTOBER 18, 2013
   [RANJANA PRAKASH DESAI AND A.K. SIKRI, JJ.]

      Code of Criminal Procedure, 1973 - s.125 -Application C
under, of respondent no. 1 for maintenance - Contested by
petitioner on ground of maintainability - Plea of petitioner that
he was already married and the said marriage was subsisting
on the date of his alleged marriage with respondent no.1, who,
therefore was not the legally wedded wife of petitioner and D
therefore had no right to move application u/s. 125 CrPC -
Held: In the instant case, the marriage between the parties was
proved - However, the petitioner was already married - He
duped respondent no. 1 by suppressing the factum of alleged
first marriage - On these facts, the petitioner cannot be E
permitted to deny the benefit of maintenance to respondent
no.1, taking advantage of his own wrong - 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 - "fibre recherche sceintifique» i.e. F
"free Scientific research" - Purposive interpretation needs to
be given to the provisions of s. 125, CrPC - At least for the
purpose of s. 125 CrPC, respondent no. 1 would be treated as
the wife of the petitioner- If this interpretation is not accepted,
it would amount to giving a premium to the petitioner for G
defrauding respondent no. 1 - Maxims - "construction ut res
magis valeat guam pereat" - Hindu Law.

    The respondents filed application under Section 125,

                             259                                 H
    260     SUPREME COURT REPORTS              [2013] 10 S.C.R.


A Cr.P.C. alleging that respondent No.1 was the wife of the
  petitioner and respondent No.2 was their daughter, who
  was born out of the wedlock.

       The petitioner contended that he never entered with
  any matrimonial alliance with respondent No.1 in 2005, as
8
  claimed by respondent No.1 and also denied co-
  habitation with her and claimed that he was not the father
  of respondent No.2 either. According to the petitioner, he
  had married 'S' in 1979 and from that marriage he had two
  children and 'S' had been residing with him ever since
C their marriage.

       The trial court arrived at the finding that the petitioner
  was married to 'S' and was having two children out of the
  wedlock, however, at the time of solemnizing the
D marriage with respondent No.1, the petitioner intentionally
  suppressed this fact from her and co-habited with
  respondent No.1; and awarded maintenance to
  respondent No.1 at the rate of Rs.1000/- per month and
  to respondent No.2 (daughter) at the rate of Rs.500/- per
E month. The order was upheld by the revisional Court and
  the High Court, and therefore the present petition.

      Before this Court, the petitioner disputed the legal
  obligation qua respondent No.1 only. The petitioner
  contended that since he had proved that he was already
F married and the said marriage was subsisting on the date
  of marriage with respondent No.1, this marriage was void
  and respondent No.1 was not legally wedded wife and
  therefore had no right to move application under Section
  125 Cr.P.C.
G
      Dismissing the petition, the Court

       HELD: 1. In so far as respondent No.2 is concerned,
    who is proved to be the daughter of the petitioner, in no
H
    BADSHAH v. SOU.URMILA BADSHAH GOOSE                 261


 case he can shun the liability and obligation to pay          A
 maintenance to her. [Para 8] [268-D-E]

      2.1. The marriage between the parties has been
 proved. However, the petitioner was already married. But
 he duped the respondent no.1 by suppressing the factum
                                                               B
 of alleged first marriage. On these facts, the Petitioner
 cannot be permitted to deny the benefit of maintenance
 to the respondent no.1, taking advantage of his own
 wrong. At least for the purpose of Section 125 Cr.P.C.,
 respondent No.1 would be treated as the wife of the
 petitioner. [Paras 14, 16] [272-B-C; 273-8]                   c
       2.2. Further, 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       D
  dealing with the marginalized sections of the society. The
  purpose is to achieve "social justice" which is the
  Constitutional vision, enshrined in the Preamble of the
  Constitution of India. While giving interpretation to a
  particular provision, the Court is supposed to bridge the    E
  gap between the law and society. 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         F
  legislations giving special protection and benefits to
  vulnerable groups in the society. 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     G
  dealing with cases under this provision, drift in the
  approach from "adversarial" litigation to social context
  adjudication is the need of the hour. [Paras 17, 18 & 19]
  [273-E-G; 274-A-B, E-F]

     Yamunabai Anantrao Adhav vs. Anantrao Shivram             H
   262     SUPREME COURT REPORTS             [2013] 10 S.C.R.


A Adhay & Anr. (1988) 1 SCC 530: 1988 (2) SCR 809;
  Savitaben Somabai Bhatiya vs. State of Gujarat & Ors. (2005)
  3 SCC 636: 2005 (2) SCR 638 - held inapplicable.

      Dwarika Prasad Satpathy vs. Bidyut Prava Dixit & Anr.
B (1999) 7 SCC 675: 1999 (3) Suppl. SCR 684; Chanmuniya
  vs. Virendra Kumar Singh Kushwaha & Anr. (2011) 1 SCC
  141: 2010 (12) SCR 223 - referred to.

      3.1. The role of the Court is to understand the
  purpose of law in society and to help the law achieve its
C purpose. Indeed, when social reality changes, the law
  must change too. 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 recherche sceintifique" i.e. "free
D Scientific research". There is a non-rebuttable
  presumption that the 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
E circumstances. This approach is particularly needed
  while deciding the issues relating to gender justice.
  [Paras 20, 22 & 23] [274~G; 276-8-D]

      3.2. While interpreting a statute the court may not
  only take into consideration the purpose for which the
F statute was enacted, but also the mischief it seeks to
  suppress. It is this mischief rule, first propounded in
  Heydon's Case which became the historical source of
  purposive interpretation. The court would also invoke the
  legal maxim construction ut res magis valeat guam
G 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
H
                                      ,_.




   BADSHAH v. SOU.URMILA BADSHAH GOOSE                   263


between two interpretations, the narrower of which              A
would fail to achieve the manifest purpose of the
legislation should be avoided. One 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       8
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      C
wedded wife. [Para 25] [276-F-G; 277-A-D]

    Mohd. Ahmed Khan v. Shah Sano Begum. AIR (1985)
SC 945: 1985 (3) SCR 844; Shabana Bano v. lmran Khan
AIR (2010) SC 305: 2009 (16) SCR 190 and Rameshchandra
Daga v. Rameshwari Daga AIR 2005 SC 422: 2004 (6)               D
Suppl. SCR 888 - relied on.
     "The Nature of Judicial Process", by Cardozo; "The
Nature and Sources of the Law" by John Chipman Gray -
referred to.                                                    E
    4. 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 F
the members of 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 G
need to subserve the social and individual morality
measured for maintenance. [Para 26] [277-D-F]

    Capt.Ramesh Chander Kaushal vs. Veena Kaushal
(1978) 4 SCC 70: 1978 (3) SCR 782 - relied on.                  H
    264        SUPREME COURT REPORTS              [2013] 10 S.C.R.


A                          Case Law Reference:
          1988 (2) SCR 809               held inapplicable Para 9
          2005 (2) SCR 638               held inapplicable Para 9
          1999 (3) Suppl. SCR 684        referred to      Para 10
B
          2010 (12) SCR 223              referred to      Para 12
          1985 (3) SCR 844               relied on        Para 23
          2009 (16) SCR 190              relied on        Para 23
c         2004 (6) Suppl. SCR 888        relied on        Para 24
          1978 (3) SCR 782               relied on        Para 27

        CRIMINAL APPELLATE JURISDICTION: Criminal
    Miscellaneous Petition No. 19530/2013
0
          IN

          Sepical Leave Petition (CRL.) No.8596/2013.

E       From the Judgment & Order dated 28.02.2013 of the High
    Court of Bombay, Bench at Aurangabad in Crl. Writ Petition
    No. 144 of 2012.

          Prity Kumar (for Shivaji M. Jadhav) for the Petitioner.

F         The Judgment of the Court was delivered by

         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
G 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
H Petition No.144/2012. By means of the impugned order, the
    BADSHAH v. SOU.URMILA BADSHAH GOOSE                    265
                 [A.K. SIKRI, J.]
High Court has upheld the award of maintenance to respondent      A
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         B
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.                                                          c . '·



      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 D
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 E
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 cohabit with F
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 G
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. H
    266      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A   Respondent No.2, Shivanjali, was born on 28.11.2~05. 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
8
  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
C 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 aged 17 years and Shobha had been residing with him
D ever since their marriage. Therefore, respondent No.1 was not
  and could not be his wife during the subsistent;e of his first
  marriage and she had filed a false petition claiming her
  relationship with him.

E         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      Yes
F       she is a wife and applicant No.2 Shivanjali
        is daughter of non applicant?

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




     3. Whether applicant No.1 Urmila and               Yes
        Applicant No.2 Shivanjali are entitled to
        get maintenance from non-applicant?
H
   BADSHAH v. SOU.URMILA BADSHAH GOOSE                      267
                [A.K. SIKRI, J.]
 4. If yes, at what rate?                          Rs. 1,000/-     A
                                                   p.m. to
                                                   Applicant
                                                   No. 1 and
                                                   Rs. 500/-
                                                   p.m. to         9
                                                   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 C
Court. We say so because of the reason that 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 D
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 E
 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, F
 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 G
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.
                                                                   H
    268       SUPREME COURT REPORTS             [2013] 10 S.C.R.


A         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
8   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 an~ the said marriage was still
  subsisting. Therefore, under the provisions of Hindu Marriage
C 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
D 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
E maintenance to her. Th~ learned counsel ventured to dispute
  the legal obligation qua respondent No.1 only.

       9. The learned counsel for the petitioner referred to the
  judgment of this Court in Yamunabai Anantrao Adhav vs.
F 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 "legarfy wedded wife" and
  consequently her claim for maintenance under Section 125,
  Cr.P.C. is not maintainable. He also referred to later judgments
G 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
    1.   (1998) 1 sec 530.
H   2.   (2005) 3 sec 636.
     BADSHAH v. SOU.URMILA BADSHAH GOOSE                    269
                  [A.K. SIKRI, J.]

that the expression ''wife" in Section 125 cannot be stretched     A
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        B
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 saic;I
marriage was subsisting on the date of marriage with               c
respondent No.1, this marriage was 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   D
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 E
      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 F
      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 G
      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


3.   (1999) 7 sec 675.                                             H
    270       SUPREME COURT REPORTS                [2013] 10 S.C.R.


A         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.
B
          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
c         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 a situation, this Court in
D         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
E         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
F         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,
G 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.

H         12. Second case which we would like to refer is
     BADSHAH v. SOU.URMILA BADSHAH GOOSE                       271
                  [A.K. SIKRI, J.]
Chanmuniya vs. Virendra Kumar Singh Kushwaha & Anr. 4                  A
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
                                                                       8
      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                C
      maintenance under Section 125."

     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              D
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         E
              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      F
              claim of maintenance under Section 125,Cr.P.C.
              having regard to the provisions of the Domestic
              Violence A~t. 2005?

        3.    Whether a marriage performed according to the            G
              customary rites and ceremonies, without strictly
              fulfilling the requisites of Section 7(1) of the Hindu
              Marriage Act, 1955, or any other personal law

4.   c2011) 1 sec 141.                                                 H
    272     SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A               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
B 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,
C in our opinion, he cannot be permitted 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.

0      15. Firstly, in Chanmuniya case, the parties had been living
  together for a long time and on that basis q4estion 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
  maintenarice under Section 125,Cr.P.C. by interpreting the
E 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
F 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
G 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,
H can the petitioner be allowed to take advantage of his own
   BADSHAH v. SOU.URMILA BADSHAH GOOSE                        273
                [A.K. SIKRI, J.]
wrong and turn around to say that respondents are not entitled        A
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         B
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       c
 should know tha\ 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             0
 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    E
or parents under this provision, the Court is dealir:ig with the
marginaliz~d sections of the society. The purpose is to 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         F
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         G
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          H
    274        SUPREME COURT REPORTS                      [2013] 10 S.C.R.


A   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: 5
B
                 "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
c         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
D         not only sensitive to the inequalities of parties 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
E
         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
F   from "adversarial" litigation to social context adjudication is the
    need of the hour.

       20. 'rhe 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
G 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

H   5.   Delivered a key note address on "Legal Education in Social Context"
     BADSHAH v. SOU.URMILA BADSHAH GOOSE                         275
                  [A.K. SIKRI, J.]
stimulate it. In most cases, however, a change in law is the result      A
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.          B
In both Constitutional and statutory interpretation, the Court is
supposed to exercise direction in determining the proper
relationship between the subjective and objective purpose of
the law.
                                                                         c
                                                     6
      21. Cardozo acknowledges in his classic

       " .... 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          o
      work perfun~ory 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            E
      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."
                                                                         F
                                       7
      Says Gray in his lecture

             "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           G
      statute never occurred to it; when what the judges have to
      do is, not to determine that the legislature did mean on a
6.   The Nature of Judicial Process.
7.   From the Book "The Nature and Sources of the Law" by John Chipman
     G~                                                                  H
    276       SUPREME.COURT REPORTS                [2013] 10 S.C.R.


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
B with justice through a method of free decision-"libre recherche
  sceintifique" i.e. ''free Scientific research". We are of the opinion
  that there is a non-rebuttable presumption that the Legislature
  while making a provision like Section 125 Cr.P.C., to fulfill its
  Constitutional duty in good faith, had always intended to give
C 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 Bano
o   to 8 Shabana Bano 9 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
E 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.
F
      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 Haydon's Case 11 which
G became the historical source of purposive interpretation. The

    8.   AIR 1985 SC 945.
    9.   AIR 2010 SC 305.
    10. AIR 2005 SC 422.
H 11. (1854) 3 Co.Rep. 7a, 7b.
    BADSHAl-:f v. SOU.URMILA BADSHAH GOOSE                     277
                    [A.K. SIKRI, J.]

court would also invoke the legal maxim construction ut res            A
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         B
interpretations, the narrower of which would fail to achieve th·e
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       c
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.
                                                                       D
      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 relatively smaller         E
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            F
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 Kausha/1 2 :
                                                                       G
         "The brooding presence of the Constitutional
     empathy for the weaker sections like women and children
     must inform interpretation if it has to have social

12. (1978) 4 sec 10.                                                   H
    278       SUPREME COURT REPORTS                 (2013] 10 S.C.R.


A         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
8   leave and dismiss this petition.

    8.8.8.                                        Petition dismissed.