Holding

A revisional court cannot disturb a magistrate’s finding of a valid marriage and maintenance award under Section 125 Cr.P.C. unless there is illegality, material procedural irregularity, or error of jurisdiction, and the husband bears the burden of proving any prior subsisting marriage.

Summary

The appellant, Pyla Mutyalamma, filed a Section 125 Cr.P.C. application for maintenance against her husband, alleging a valid marriage in 1974 and desertion after 25 years. The trial magistrate found her to be the lawful wife with two surviving children and awarded Rs.500 per month. The husband appealed, claiming a prior subsisting marriage in 1970, and the High Court set aside the award, holding the second marriage void. On appeal, the Supreme Court held that the burden of proving a prior subsisting marriage lies on the husband and that the High Court, in revision, cannot re‑appreciate the magistrate’s factual findings or substitute its own view absent illegality, material irregularity, or jurisdictional error. Consequently, the High Court’s order was set aside and the magistrate’s maintenance order restored.

Issues considered

Whether a second wife is entitled to maintenance under Section 125 Cr.P.C. when the husband claims a prior subsisting marriage.
Whether the High Court, exercising revisional jurisdiction, can re‑evaluate evidence and overturn a magistrate’s finding of a valid marriage and grant of maintenance.
Who bears the burden of proving the existence of an earlier subsisting marriage.
Whether the validity of the marriage is a ground to deny maintenance under Section 125 Cr.P.C.
Scope of revisional jurisdiction under the Code of Criminal Procedure, 1973 in maintenance matters.

Legislation cited

Subjects

maintenanceSection 125revisional jurisdictionsecond marriageburden of proofde facto marriagemagistrateCriminal Procedure

Judgment

1
[2011] 9 S.C.R. 996

... ""'
A PYLA MUTYALAMMA @ SATYAVATHI
v.
PYLA SURI DEMUDU & ANR.
(Criminal Appeal No. 219 of 2007)

8
AUGUST 9, 2011 ~
.
[HARJIT SINGH BEDI AND GYAN SUDHA MISRA, JJ.]

Code o;f Criminal Procedure, 1973:

c s.125 - Maintenance -· Claim for, entitlement - Held:
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 maintEmance by the second wife cannot
<
be entertained - But proof and evidence of subsistence of an
earlier marriage at the time of solemnizing the second
D
mam·age, has to be adducec1 by the husband taking the plea
of subsistence of an earlier marriage and when a plea of
subsisting marriage is raised by the respondent-husband, it
has to be satisfactorily provEid by tendering evidence - In the
instant case, respondent-husband failed to establish his plea
E that his earlier marriage was at all in subsistence which he
claims to have been perfonned in the year 1970 as he has
not led even an iota of evidence in support of his earlier
marriage - This strong circumstance was heavily against the
respondent.. husband. '
F
s.125 -- Essential req11irements of - Held: When the
husband denies that the applicant is not his wife, all that the
Magistrate has to find, in a proceeding uls.125 is whether there
was some marriage ceremony between the parties, whether
G they lived as husband and wife in the eyes of their neighbours,
whether children were borne, out of the union - If the evidence '
I

led in a proceeding uls. 125 raises a presumption that the
applicant was the wife of the, respondent, it would be sufficient
for the Ma!1istrate to pass an order granting maintenance
H 996
PYLA MUTYALAMMA @ SATYAVATHI v. PYLA SURI 997
'""")
DEMUDU & ANR.
-\

under the proceeding - In a case u/s. 125, the Magistrate has A
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 - s. 125 proceeds on de facto marriage and not marriage
'
"' de jure - Thus, validity of the marriage will not be a ground B
for refusal of maintenance if other requirements of s. 125 are
fulfilled - In the instant case, appellant had 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 were major and well-settled ""'." It was further proved that the c
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 D
jurisdiction to set aside the finding of the trial court and
absolve the respondent from paying the maintenance of
Rs.5001- per month to the appellant-wife.
Revisional jurisdiction: Scope of - Maintenance
application filed u/s.125 Cr.P.C. by the appellant against the E
respondent on the ground that the appellant married the
j respondent in the year 1974 as per Hindu rites and customs
~
after which they lived as a normal couple and out of the
wedlock 3 children were born - Trial court awarded Rs.500
p.m. in favour of the appellant - On revision, High Court set F
aside the award on the ground that there was no valid
marriage between the respondent and the appellant, as an
earlier marriage between the respondent with his previous wife
was subsisting and since the marriage with the appellant was
performed without repudiation of the earlier marriage, the G
subsequent marriage with the appellant was not a valid one
and, therefore, no maintenance was payable to her ...:- On
appeal, held: High Court in its revisional jurisdiction ought not
to have entered into a scrutiny of the finding recorded by the
trial court that the appellant was a married wife of the H
998 SUPREME COURT REPORTS [2011) 9 S.C.R.
,_ ......
A respondent 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 - High Court under its revisional jurisdiction is
not required to enter into re-·appreciation of evidence recorded
B in the order granting maintEmance - In a case where the trial
courl has granted maintenance holding that the wife had been
neglected and she was entitled to maintenance, the scope of
interference by the revisional courl is very limited - The
questions whether the appJ'icant is a married wife and whether
c the children are legitimat19/illegitimate, being pre-eminently
questions of fact, cannot be reopened and the revisional court
cannot substitute its own views - High Courl, therefore, is not
required in revision to interfere with the positive finding in
favour of the marriage and patronage of a child - The order
of High Court is set aside and order passed by trial court is
D
restored.
The ;appellant fjled mainte'lance application under
Section 125 Cr.P.C. claiming Rs.500 per month from the
respondent on the grnund that she married him in- the
E year 197 4 as per Hindu rites and customs after which
they lived as a normal c:ouple and out of the wedlock they
were blessed with twi:> daughters and one son, out of
which one daughter diE~d. The trial court passed an award
of Rs.500 per month in favour of the appellant. On •
F revision, the High Court set aside the award on the ground
that there was no valicl marriage between the respondent
and the appellant, as an earlier marriage between the
respondent with his p1revious wife was subsisting and as
the marriage with the! appellant was performed without
G repudiation of the e!arlier marriage, the subsequent j
marriage with the appellant was not a valid one and, I

therefore, no- maintenance was payable to the appellant.
The instant appeal was filed challenging the order of the
High Court.
H

' ..
PYLA MUTYALAMMA @ SATYAVATHI v. PYLA SURI 999
DEMUDU & ANR.
~
.... Allowing the appeal, the Court A
HELD: 1. 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
\ B
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
c
order granting maintenance; at the most it could correct
a patent error of j4risdiction. In a case where the
>
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 D
court is very limited. The revisional court would not
substitute its own finding and upset the maintenance ·
order recorded by the Magistrate. Under revisional
jurisdiction, the questions whether the applicant is a
married wife and whether the children are legitimate/ E
illegitimate, being pre-eminently questions of fact, cannot
be reopened and the revisional court cannot substitute
j 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 F
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 the Magistrate are legally sustaina.ble or not as
negative finding has evil consequences on the life of both G
child and the woman. [Paras 9, 10] [1007-F-H; 1008-A-E]
Santosh (Smt.) v. Naresh Pal (1998) 8 SCC 447;
Parvathy Rani Sahu v. Bishnu Sahu (2002) 10 SCC 510 -
relied on.
H
1000 SUPREME COURT REPORTS [2011) 9. S.C.R.

A Mohabbat Ali Khan v. Muhammad Ibrahim Khan & Ors.
AIR 1929 P.C. 135; Vimala (K) v. Veeraswamy (K) (1991) 2
SCC 375: 1991 (1) SCR 904; Suresh Monda/ v. State of
Jharkhand 2006 (1) AIR Jhar. R. 153 - referred to
2. There is no quarrel with the legal position that
8
during the subsistence o,f the first marriage and existence
of a living wife (first wifeJ, 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 seccmd marriage, has to be adduced
C by the husband takin~1 the plea of subsistence of an
earlier marriage and when a plea of subsisting marriage
Is raised by the resp1ondent-hu~band, it has to be
satisfactorily proved by tendering evidence. The
respondent-husband failed to establish his plea that his
D 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 evidenc1e in support of his earlier marriage
including the fact tha1t he has not produced a single
witness except the soi-called first wife as a witness of
E proof of his earlier marriage. This strong circumstance
goes heavily against the respondent-husband. [Para 12)
[1009-D-H; 1010-A]

Savitaben Somabhai Bhatiya v. State of Gujarat and Ors.
F (2005) 3 SCC 636: 20Cl5 (2) SCR 638 - distinguished.

3.1. 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 proceeding for an
offence under Sectio11 494 IPC since, the jurisdiction of
G the Magistrate under ~>ectlon 125 Cr.P.C. being preventive
In nature, the Magistr·ate 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
H parties being subject: to a final determination of the civil
PYLA MUTYALAMMA@ SATYAVATHI v. PYLA SURI 1001
DEMUDU & ANR.
'_..
-4
. court, when the husband denies that the applicant is not A
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 B
' union. 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 c
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. In a case under Section 125 D
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 orCter
to deny maintenance to the claimant wife. Section 125,
Cr.P.C. proceeds on de facto marriage and not marriage
E
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. [Paras 13, 14] [1010-B-G;
1011-A·B]
r
Jamuna Bai v. Anant Rai AIR 1988 SC 793; Sethu F
Rathinam vs. Barbad (1970) 1 SCWR 589; Rajathi v. C.
Ganesan AIR 1999 SC 2374: 1999 (3) SCR1047- relied on.

3.2. When the appellant's case is tested on the anvil
of the said legal position, it is sufficiently clear that the G
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 are well-settled: It was further proved that the
respondent-husband started deserting the appellant-wife
H
,
1002 SUPREME COURT REPORTS [2011] 9 S.C.R.
~
~

~
A 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
B the trial court and abse1lve the respondent from paying
the maintenance of Rs.!)00/- per month to the appellant-
wife. The High Court wrongly exercised its jurisdiction
while entertaining the revisiQn petition against an order
granting maintenance tc1 the appellant-wife under Section
c 125 Cr.P.C. The judgment and order of the High Court is
set aside and the order passed by the Magistrate in favour
of the appellant granting her maintenance is restored.
[Paras 15 and 16] [101 'l-C-G]
•
Case Law Reference:
D
AIR 1929 P.C. 135 Referred to Para 1
1991 (1) SCR 904 Referred to Para 7
2006 (1) AIR Jhar. R. 153 Referred to Para 9
E (1998) 8 sec 447 Relied on Para 10
(2002) 10 sec 51<1 Relied on Para 10
2005 (2) SCR 638 Distinguished Para 11
F AIR 1988 SC 793 Relied on Para 13
"
(1970) 1 SCWR 5fl9 Relied on Para 14
1999 (3) SCR 104'7 Relied on Para 14

G CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 21H of 2007.
J
From the Judgment'& Order dated 09.09.2005 of the High
Court of Andhra Pradesh at Hyderabad in Criminal Revision
Case No. 234 of 2004.
H
PYLA MUTYALAMMA@ SATYAVATHI v. PYLA SURI 1003
DEMUDU & ANR.
....
..\
Y. Raja Gopalan Rao, Vismai Rath, Hitendra Nath Raja, A
V.N. Raghupathy, D. Mahesh Babu, Ramesh Allanki, Savita
Dhanda for the appearing parties.

· The Judgment of the Court was delivered by
i
1 GYAN SUDHA MISRA, J. 1. Under the law, a second B
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 c
bastardy1". But, the law also presumes in favour of marriage
and against concubinage when a man and woman have
, ~
cohabited continuously for 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 cle;nly D
proved, that they were living together in consequence of a valid
marriage and not in a state of concubinage ..sev1ral 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 E
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,
1'
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
F
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 G
question regarding grant of maintenance under Section 125 Cr.
P.C. which arises after grant of special leave under Article 136
of the Constitution and is directed against the judgment and ·
order dated 19.09.2005 passed by a learned single Judge of
1. AIR 1929 P.C. 135. H
1004 SUPREME COURT REPORTS [2011] 9 S.C.R.

A the High Court of Andhra Pradesh at Hyderabad in Criminal
Revision No. 234/2004 wh1~reby the learned single Judge had
been pleased to set asidle 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
B 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
C 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 res•pondent 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
D after which they lived as a 1:1ormal couple and out of the wedlock
they were blessed with twio daughtPrs and a son of whom one
daughter died. 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
E himself. However, the relationship of the appellant-wife and the
respondent-husband sulbsequently 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
F 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
G the allegations and went tc1 the extent of stating that the appellant
is not his wife as he wa1s 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 appelllant. He also alleged that the appellant
H is married to another main and as she owns a sum of Rs.2.50
PYLA MUTYALAMMA@ SATYAVATHI v. PYLA SURI 1005
DEMUDU & ANR. [GYAN SUDHA MISRA, J.]
...... lac to the respondent which he had given to her by way of a 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 B
' .. 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 responden.t-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
c
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 D
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.
Feeling aggrieved with this view of the High Court, expressed E
in the impugned order, the appellant-wife has preferred this
appeal.
!
6. Learned counsel for the appellant-wife in substance has
r
contended that the learned single Judge of the High Court erred F
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
G
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.
H
1006 SUPREME COURT REPORTS [2011] 9 S.C.R.

A 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.
B 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
C existence of previous marriage of the appellant in the year 1970
ignoring the clinching evid1ence 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 (f() vs. Veeraswamy (K) 2, wherein a
D 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 eariier marriage, the same
requires clear and strict proof and the burden of strict proof of
earlier marriage is on thH husband to discharge. It may be.
E 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 purpose. The object is to prevent
F 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 neglec:ted wife depicting her as a kept
mistress on the specious plea that he was already married,
G 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

H 2. (1991) 2 sec 375.
PYLA MUTYALAMMA@ SATYAVATHI v. PYLA SURI 1007
DEMUDU & ANR. [GYAN SUDHA MISRA, J.]
...
maintenance under Section 125. Such a provision in law A
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 B
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 c
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 D
a false plea 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 E
of repayment of the amount which she was owing to the
respondent.
y

t
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 F
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 G
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
•urisdiction. It has been laid down in a series of decisions
H
1008 SUPREME COUHT REPORTS [2011) 9 S.C.R.

A including Suresh Monda/ 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 interferenqe by the revisional court
is very limited. The revisional court would not substitute its own
B 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
C 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 •
D 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 tl1e Magistrate are legally sustainable
E 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
Pa/4, as also in the case1 of Parvathy Rani Sahu vs. Bishnu
Sahu5. Thus, the ratio decidendi which emerges out of a catena
F of authorities on the efficacy and value of the order passed by
the Magistrate while deteirmining 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
G on his part has also cited the case of Savitaben Somabhai
Bhatiya vs. State of Gujarat & Ors. 6, in support of his plea that
3. 2006 (1) AIR Jhar. R. 153.
4. (1998) a sec 447.
5. c2002) 10 sec 510.
H 6. c2005) 3 sec 636.
PYLA MUTYALAMMA@ SATYAVATHI v. PYLA SURI 1009
.... ... DEMUDU & ANR. [GYAN SUDHA MISRA, J.]

claim of maintenance by the second wife cannot be sustained A
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
• i
entitled to the benefit of Section of 125 Cr.P.C. or the Hindu
Marriage Act, 1955. B
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 c
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 D
entitled to maintenance even though the first marriage of her
husband was subsisting and the respondenhhusband 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 E
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 subsisting marriage is raised by the respondent-husband, it F
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 G
J 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 H
1010 SUPREME COURT REPORTS [2011) 9 S.C.R.

A 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, thait the nature of the proof of marriage
B required for a proceeding under Section 125, Cr.P.C. need not
be so strong or conclusive as in a criminal 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
C matrimonial dispute pos,sessed 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
D the Magistrate has to find, in a proceeding under Section 125
Cr.P.C., is whether tllere was some marriage ceremony
between the parties, whether they have lived as husband and
wife in the eyes of th,~ir neighbours, whether children were
borne out of the union.
E 14. ·It was still further laid down in the case of Sethu
Rathinam vs. Barbara 11 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 sacrc1ment element or personal law and the
F like, which are questions for determination by 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 bie sufficient for the Magistrate to pass an
order granting maintenance under the proceeding. But if the
G husband wishes to impeach the validity of the marriage, he will
have to bring a declara1tory 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
7. AIR 1988 SC 793 (para 4, 5 and 8)
H 8. (1970) 1 SCWR 589.
PYLA MUTYALAMMA @ SATYAVATHI v. PYLA SURI 1011
DEMUDU & ANR. [GYAN SUDHA MISRA, J.]

practiced upon him. Fortifying this view, it was further laid down A
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 s
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.
15. When the appellant's case is tested on the anvil of the c
( 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 0
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 E
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 F
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 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 G
of the appellant granting her maintenance. The appeal
accordingly is allowed.
D.G. Appeal allowed.
9. AIR 1999 SC 2374. H