Holding

Section 125 of the CrPC confers maintenance rights only on a legally married wife; a woman married under customary rites to a man already married is not a 'wife' and is not entitled to maintenance, though the child is entitled to enhanced maintenance.

Summary

Savitaben Somabhai Bhatiya claimed maintenance under Section 125 of the CrPC, asserting that she was married to the respondent under customary rites while he already had a living wife. The trial court and High Court had granted her maintenance and that for the child, but the High Court held that she was not a legal wife and dismissed her claim. The Supreme Court examined whether the term "wife" in Section 125 includes a woman married under custom to a man with a living spouse and held that it refers only to a legally married wife, making her ineligible for maintenance. The Court rejected the appellant's reliance on estoppel and emphasized that personal law determines the validity of the marriage but does not expand the statutory definition. It affirmed that the child, though illegitimate, is entitled to maintenance and enhanced the quantum to Rs. 850 under Section 127. Consequently, the appeal was dismissed, leaving the maintenance order for the child in place.

Issues considered

The meaning of 'wife' under Section 125 CrPC and whether a woman married under customary rites to a man with a living spouse qualifies.
Whether the principle of estoppel can be invoked to deny maintenance under Section 125.
The role of personal law in determining the applicability of Section 125.
Whether there is any inconsistency between Section 125 CrPC and the Hindu Adoption and Maintenance Act, 1956.
The appropriate quantum of maintenance for an illegitimate child and the power to enhance it under Section 127.

Legislation cited

Code of Criminal Procedure, 1973s. 125, s. 127
Hindu Adoption and Maintenance Act, 1956s. 18

Subjects

maintenanceSection 125wife definitioncustomary marriageillegitimate childestoppelpersonal lawHindu lawquantum of maintenancesocial justice

Judgment

A
SAVITABEN SOMABHAI BHATIYA
v.
STA TE OF GUJARAT AND ORS.

MARCH I 0, 2005
B
[ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]

Code of Criminal Procedure, 1973-Section 125:

C Maintenance- 'Wife '-Meaning of-Held: Expression 'wife' refers only
to a legally married wife-Scope of section 125 cannot be enlarged to include
woman not lawfully married-However, illegitimate child is included

Marriage of woman as per customary rites with a man having a living
spouse-Maintenance to second wife and child-Claim of-Entitlement-Held:
D Earlier marriage of the husband established by sufficient evidence by courts
below, as such marriage of husband with the claimant void and section 12 5
does not include woman not lriwfully married-Also claimant cannot apply
principle of estoppel by taking a plea that she was not informed about the
husband's earlier marriage-Further, the submission that husband was treating
E claimant as his wife is irrelevant--Therefore, claimant not entitled to
maintenance-With regard to the maintenance to the child quantum of
maintenance awarded by High Court enhanced-Ifstoppel-Applicability of

Object of Section 125-Held: Is enacted for social justice to protect
wife, children and parents unable to maintain themselves-Such provision
F should be construed so that social object is fulfilled-Interpretation ofstatutes.

Personal law governing parties, effect ofon Section 125-Held: Personal
law governing parties do not affect the application and enforceability ofsection
125-However, personal law is relevant for deciding the validity ofmarriage-
Once applicant's status is established, her application for maintenance can be
G maintained-Hence, personal law governing parties cannot be ignored
a/together.

Code of Criminal Procedure, 1973, Section 125 and Hindu Adoption
and Maintenance Act, 1956, Section 18-Held: There is no inconsistency

H 638
S.S. BHATIYA v. STATE OF GUJARAT 639

between the two laws, the scope being different. A
The question which arose for consideration in the appeal was with
regard to the status of marriage of a woman according to the customary rites
and rituals of their caste with a man having a living spouse and her entitlement
to maintenance under section 125 of the Code of Criminal Procedure, 1973
and also the quantum of maintenance to be awarded to the child born to them. B
Disposing of the appeal, the Court
HELD: I.I. The expression 'wife' as per Section 125 of the Code of
Criminal Procedure, 1973 refers to only legally married wife and does not
give protection to woman who unwittingly gets into relationship with a C
married man. The word 'wife' is not defined in the Code except indicating in
the Explanation to Section 125 its inclusive character so as to cover a divorcee.
A woman cannot be a divorcee unless there was a marriage in the eye of law
preceding that status. Therefore, the expression must be given the meaning
in which it is understood in Jaw as applicable to the parties. The marriage of
a woman in accordance with the Hindu rites with a man having a living spouse D
is a complete nullity in the eye of law and therefore, she is not entitled to the
benefit of Section 125 of the Code or the Hindu Marriage Act, 1955.
[643-G-H; 646-C-D)
Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr., AIR
(1988) SC 644, relied on. E
1.2. Law operates harshly against the woman who unwittingly gets into
relationship with·a married man. This may be an inadequacy in law, which
only the legislature can undo. The legislature has included within the scope
of the provision an illegitimate child but it has not done so with respect to
woman not lawfully married. The legislative intent being clearly reflected in F
Section 125 of the Code, there is no scope for enlarging its scope by introducing
any artificial definition to include woman not lawfully married, in the
expression 'wife'. [643-G, 647-B-C)

1.3. In the instant case, the courts below found sufficient evidence on
record by recording findings of fact that earlier marriage of respondent- G
husband was established and as such the marriage of the respondent with
the appellant-claimant was void. Further, the plea that the appellant was not
informed about the respondent's earlier marriage when she married him is
of no avail. The principle of estoppel cannot be pressed into service to defeat
the provision of Section 125 of the Code. Also the submission that the husband H
640 SUPREME COURT REPORTS [2005] 2 S.C.R.

A was treating the appellant as his wife even if accepted, is really inconsequential.
It is the intention of the legislature which is relevant and not the attitude of
the party. [646-G, H; 647-A, DI

Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr., AIR (1999)·SC
3348; Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr., AIR
B (1988)SC 644 and Vimala(K.) v. Veeraswamy(K.)' [199112 sec 375, referred
to.

1.4. With regard to the claim of enhancement of quantum of
maintenance to the child born to the appellant and the respondent, Section
127 of the Code permits increase in the quantum. The plea that there was no
C amendment made to the claim petition seeking enhancement is too technical.
Judicial Magistrate awarded Rs. 350 as maintenance and High Court
enhanced the maintenance to Rs. 500. No dispute has been raised regarding
enhancement and in fact there was a concession to the prayer for enhancement
before the High Court. Further when the amount was claimed as maintenance
D there was statutory limitation prescribed at Rs. 500 which has been done away
with by omitting the words of limitation so far as the amount is concerned
by amendment in 2001 to the Cr.P.C. Therefore, in view of the peculiar facts
of the case, the· amount of maintenance to the child is enhanced to Rs. 850.
Furthermore, as the father of the child has agreed to pay a lump sum amount
to settle the dispute, he is directed accordingly. [647-G-H; 648-A-BI ..
.....
E
2.1. Section 125 of the Code of Criminal Procedure, 1973 is enacted for
social justice and specially to protect women and children as also old and
infirm poor parents and falls within the constitutional sweep of Article 15(3)
reinforced by Article 39 of the Constitution of India, 1950. The provision giv-es
effect to the natural and fundamental duty of a man to maintain his wife,
F children and parents so long as they are unable to maintain themselves.
[644-A-B[
Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr., AIR (1999) SC
3348, referred to.
2.2. The provisions of section 125 Cr.P.C are applicable and enforceable
G whatever may be personal law by which the persons concerned are governed.
However, the attempt to exclude altogether the personal law applicable to
the parties from consideration is improper. The issue with regard to the
validity of marriage, that she is the wife of the person concerned, can be
decided only by a reference to the law applicable to the parties. It is only where
H an applicant establishes such status or relationship with reference to the
S.S. BHATIY Av. STATE OF GUJARAT 641

personal law that an application for maintenance can be maintained. Once A
the right under the provision in Section 125 of the Code is established by proof
of necessary conditions mentioned therein, it cannot be defeated by further
reference to the personal law. 1644-B, 646-D, E, Fl

Nan.ak Chandv. Chandra Kishore, Am (1970) SC 446 and Smt. Yamunabai
Anantrao Adhav v. Anantrao Shivram Adhav and Anr., Am (1988) SC 644, relied B
on.
2.3. The sections of statutes calling for construction by courts are not
petrified print but vibrant words with social functions to fulfill. The brooding
presence of the constitutional empathy for the weaker sections like women
and children must form interpretation if it has {.:> have social relevance. So C
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.
1646-A-BI
Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors., AIR
(1978) SC 1807, relied on. D
4. There is no inconsistency between Section 125 of the Code of Criminal
Procedure and the provisions in the Hindu Adoption and Maintenance Act,
1956. The scope of the two laws is different [644-C-D)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 399 E
of 2005.
t ' ·-•· • ' ; ; 1 '11 \ j •.'tt,,'JtfJ:_:~ ~I ; , , ..

, . , From the Judgfllert ..aqd Order dated 25.2.2002 of the Gujarat High
Court in Cr I.A. No. 568 ~f 200 I.

S.C. Patel, (SCLSC) for the Appellant.
F
H.A. Raichura, Mrs. H.A. Raichura, Himinder Lal, Ms. Hemantika Wahi
and Mayur Shah for the Respondents.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Leave granted. G
A brief reference to the factual position would suffice because essentially
the dispute has to be adjudicated with reference to scope and ambit of Section
125 of the Code of Criminal Procedure, 1973 (in short the 'Code').

The case at hand according to appellant is a classic example of the H
642 SUPREME COURT REPORTS [2005] 2 S.C.R.

A inadequacies of !aw in protecting a woman who unwittingly entered into
relationships with a married man.

Factual position as projected by the appellant is as follows :~

Appellant claims that she was married to respondent No. 2 some time
B in 1994 according to the customary rites and rituals of their caste. Though
initially, the respondent No. 2 treated her nicely, thereafter he started ill-
treating her and she was subjected to mental and physical torture. On enquiry
about the reason for such a sudden change in his behaviour, the appellant
came to know that respondent No. 2 had developed illicit relationship with
a lady named Veenaben. During the period the appellant stayed with the
C re~pondent, she became pregnant and subsequently, a child ·was born. As
respondent No. 2 neglected the appellant and the child born, an application
in terms of Section 125 of the Code was filed claiming maintenance. The
application was filed before the learned Judicial Magistrate, First Class
(hereinafter referred to as the 'JMFC') Himmatnagar. Respondent No. 2
D opposed the application by filing written statements taking the stand that the
appellant was not his legally married wife and the child (respondent No. 3)
was not his son. He also denied having developed illicit relationship with
Veenaben. He claimed that actually she was married to him more than 22
years back and two children were born. Their son Hament had died in the
road accident in July 1990. In the Claim Petition name of Veenaben was
E mentioned as the legal heir and in the Voters List, Ration Card and Provident
Fund records, Veenaben was shown as the wife of respondent No. 2. On
23.6.1998 learned JMFC allowed the Claim Petition and granted maintenance.
A criminal revision was filed by respondent No. 2 before learned Additional
Sessions Judge, Sabaakatha, Dist. Himmatnagar, who by his order dated
F 26.11.1998 set aside the judgment dated 23.6.1998 as passed by the ka:O'ed
JMFC and remanded the matter to the trial Court for adjudication afresh after
affording an opportunity to respondent No. 2 to cross examine the witnesses
of the appellant. By order dated 31. 7 .1999, learned JMFC after considering
the matter afresh awarded maintenance to both the appellant and the child.

G A Criminal Revision Application No. 65195 was filed by respondent
No. 2 against the order dated 31.7.1999. By order dated 12.7.2001, learned
Additional District .Tudge, Sabarkatha dismissed the application. The respondent
No. 2 filed a Special Criminal Application No. 568/2001 before the Gujarat
High Court which by the impugned order held that the appellant was not
H legally wedded wife of respondent No. 2. Reliance was placed on documents
S.S. BHA TIY Av. STATE OF GUJARAT [PASA YAT, .I.] 643

filed by respondent No. 2 to conclude that before the alleged date of marriage A
between the appellant and respondent No. 2, the latter was already married
to Veenaben with reference to the documents produced. However, maintenance
granted to the child (respondent No. 3) was maintained and amount as awarded
to him i.e. Rs. 350 was enhanced to Rs. 500. A direction was also given to
pay the enhanced amount from the date of order of the learned JMFC i.e. B

- 31.7.1999.

In support of the appeal, learned counsel for the appellant submitted
that the High Court has taken a too technical view in the matter. Strict proof
about a valid marriage is not the sine qua non for getting maintenance under
Section 125 of the Code. The documents produced by respondent No.2 to C
substantiate the plea of earlier marriage with Veenaben should not have been
given primacy over the clinching evidence adduced by the appellant to show
that she was unaware of the alleged marriage. Since respondent No.2 is guilty
of fraud and mis-representation, the equity should not weigh in his favour.
Law is intended to protect destitute and harassed woman and rigid
interpretation given to the word 'wife' goes against the legislative intent. In D
any event, nothing has been shown by respondent No.2 to show that there is
any customary bar for a second marriage. Customs outweigh enacted law.
That being the position, the order passed by the learned JMPC should be
restored. It was residually submitted that when the amount was claimed as
maintenance there was statutory limitation prescribed at Rs. 500 which has E
been done away with by omitting the words of limitation so far as the amount
is concerned by amendment in 2001 to the Cr.P.C. Therefore, taking into
account the high cost of living the quantum of maintenance should be enhance.d
for the child.

In response, learned counsel for respondent No.2 submitted that law is F
fairly well settled regarding the definition of the expression 'wife' and there
is no scope for giving an extended meaning to include a woman who is not
legally married.

There may be substance in the plea of learned counsel for the appellant
that law operates harshly against the woman who unwittingly gets into G
relationship with a married man and Section 125 of the Code does not give
protection to such woman. This may be an inadequacy in law, which only the
legislature can undo. But as the position in law stands presently there is no
escape from the conclusion that the expression 'wife' as per Section 125 of
the Code refers to only legally married wife.
H
644 SUPREME COURT REPORTS [2005] 2 S.C.R.

. A The provision is enacted for social justice and specially to protect women
and children as also old and infirm poor parents and falls within the
constitutional sweep of Article 15(3) reinforced by Article 39 of the
Constitution of India, 1950 (in short the 'Constitution'). The provision gives
effect to the natural ahd fundamental duty of a man to maintain his wife,
B children and parents so long as they are unable to maintain themselves. Its
provisions are applicable and enforceable whatever may be personal law by
which the persons concerned are governed. [See Nanak Chand v. Chandra
Kishore, AIR (1970) SC 446]. But the personal law of the parties is relevant
for deciding the validity of the marriage and therefore cannot be altogether
excluded from consideration. [See Smt. Yamunabai Anantrao Adhav v.
C Anabtrao Shivram Adhav and Anr., AIR (1988) SC 644].

There is no inconsistency between Section 125 of the Code and the
provisions in the Hindu Adoption and Maintenance Act, 1956 (in short the
'Adoption Act'). The scope of the two laws is different.

D Section 125 of the ·Code at the point of time when the petition for
maintenance was filed reads as follows:

"125(1)- If any person having sufficient means neglects or refuses to
maintain-

(a) his wife, unable to maintain herself, or
E
(b) his legitimate or illegitimate minor child, whether married or
not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married
daughter) who has attained majority, where such child is, by reason
F of any physical or mental abnormality or injury unable to maintain
itself, or

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or
G refusal, order such person to make a monthly allowance for the
maintenance of his wife or such child, father or mother at such monthly
rate not exceeding five hundred rupees in the whole, as such Magistrate
thinks fit, and to pay the same to such person as the Magistrate may
from to time direct:

H
S.S. BHATIYA v. STATE OF GUJARAT [PASAYAT, J.] 645
Provided that the Magistrate may order the father of a minor A
female child referred to in clause (b) to make such allowance, until
she attains her majority, if the Magistrate is satisfied that the husband
of such minor female child, if married, is not possessed of sufficient
means.

Explanation :- For the purposes of this Chapter- B
(a) 'minor' means a person who, under th_e provisions of the
Indian Majority Act, 1875 is deemed not to have attained his majority;

(b) 'wife' includes a woman who has 6een divorced by, or has
obtained a divorce from, her husband and has not remarried.'' C
By the Code of Criminal Procedure (Amendment) Act, 2001 (Central
Act 50 of 2001) the words 'not exceeding five hundred rupees in the whole'
have been omitted w.e.f. 24.9.2001.

In Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr., AIR (1999) D
SC 3348 it was held that the validity of the marriage for the purpose of
summary proceedings under Section 125 of the Code is to be determined on
the basis of the evidence brought on record by the parties. The standard of
proof of marriage in such proceedings is not as strict as is required in a trial
of offence under Section 494 oflndian Penal Code, 1860 (in short the 'IPC').
If the claimant in proceedings under Section 125 succeeds in showing that E
she and the respondent have lived together as husband and wife, the Court
has to presume that they are legally wedded spouses, and in such a situation
one 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 as to whether the said procedure was complete as per the Hindu F
rites, in the proceedings under Section l 25 of the Code. It is to be noted that
when the respondent does not dispute the paternity of the child and accepts
the fact that marriage ceremony was performed though not legally perfect, it
would hardly lie in his mouth to contend in proceedings under Section 125
of the Code that there was no valid marriage as essential rites were not
performed at the time of said marriage. The provision under Section 125 G
cannot be utilized for defeating the rights conferred by the legislature on the
destitute women, children or parents who are victims of social environment.
The provision is a measure of social justice and as noted above specially
enacted to protect women and children and falls within the constitutional
sweep of Article 15(3) reinforced by Article 39 of the Constitution.
H
646 SUPREME COURT REPORTS [2005] 2 S.C.R.

A The sections of statutes calling for construction by courts are not petrified
print but vibrant words with social functions to fulfill. 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
B which advances the cause-the cause of the derelicts. (See Captain Ramesh
Chander Kaushal v. Mrs. Veena Kaushal and Ors., AIR (1978) SC 1807).

In Smt. Yamunab' s case (supra), it was held that expression 'wife'
used in Section 125 of the Code should be interpreted to mean only a legally
wedded wife. The word 'wife' is not defined in the Code except indicating
C in the Explanation to Section 125 its inclusive character so as to cover a
divorcee. A woman cannot be a divorcee unless there was a marriage in the
eye of law preceding that status. The expression must therefore be given the
meaning in which it is understood in law applicable to the parties. The marriage
of a woman in accordance with the Hindu rites with a man having a living
spouse is a complete nullity in the eye of law and she is therefore not entitled
D to the benefit of Section 125 of the Code or the Hindu Marriage Act, 1955
(in short the 'Marriage Act'). Marriage with person having living spouse is
null and void and not voidable. However, the attempt to exclude altogether
the personal law applicable to the parties from consideration is improper.
Section 125 of the Code has been enacted in the interest of a wife and one ..
E who intends to take benefit under sub-section (l)(a) has to establish the I
~
necessary condition, namely, that she is the wife of the person concerned.
The issue can be decided only by a reference to the law applicable to the
parties. It is only where an applicant establishes such status or relationship
with reference to the personal law that an application for maintenance can be
maintained. Once the right under the provision in Section 125 of the Code
F is established by proof of necessary conditions mentioned therein, it cannot
be defeated by further reference to the personal law. The issue whether the
Section is attracted or not cannot be answered except by reference to the
appropriate law governing the parties.

But it does not further the case of the appellant in the instant case. Even
G if it is accepted as stated by learned counsel for the appellant that husband
was treating her as his wife it is really inconsequential. It is the intention of
the legislature which is relevant and not the attitude of the party.

In Smt. Yamunabai 's case (supra) plea similar to the one advanced in
H the present case that the appellant was not informed about the respondent's
S.S. BHATIYA v. STATE OF GUJARAT [PASAYAT, J.] 647

earlier marriage when she married him was held to be of no avail. The A
principle of estoppel cannot be pressed into service to defeat the provision of
Section 125 of the Code.

It may be noted at this juncture that the legislature considered it necessary
to include within the scope of the provision an illegitimate child but it has
not done so with respect to woman not lawfully married. However, desirable B
it may be, as contended by learned counsel for the appellant to take note of
the plight of the unfortunate woman, the legislative intent being clearly
reflected in Section 125 of the Code, there is no scope for enlarging its scope
by introducing any artificial definition to include woman not lawfully married
in the expression 'wife'.
c
As noted by this Court in Vimala (K.) v. Veeraswamy (K.), [1991) 2
sec 375 when a plea of subsisting marriage is raised by the respondent-
husband it has to be satisfactorily proved by tendering evidence to substantiate
that he was already married.
D
In the instant case the evidence on record has been found sufficient by
the Courts below by recording findings of fact that earlier marriage of
respondent was established.

In that view of the matter, the application so far as claim of maintenance
of the wife is concerned stands dismissed. E
That brings us to the other question relating to adequacy of the quantum
.of maintenance awarded to the child. It is not in dispute that when the Claim
Petition was filed, Rs. 500 was claimed as maintenance as that was the
maximum amount which could have been granted because of the un-amended
Section 125. But presently, there is no such limitation in view of the F
amendment as referred to above.

Learned counsel for respondent No.2 submitted that there was no
amendment made to the Claim Petition seeking enhancement. We find that
this is a too technical plea. As a matter of fact, Section 127 of the Code
permits increase in the quantum. The application for maintenance was filed G
on 1.9.1995. The order granting maintenance was passed by the learned
JMFC on 31. 7.1999. The High Court enhanced the quantum awarded to the
child from Rs. 350 to Rs. 500 with effect from the order passed by learned
JMFC. No dispute has been raised regarding enhancement and in fact there
was a concession to the prayer for enhancement before the High Court as H
648 SUPREME COURT REPORTS [2005] 2 S.C.R. ,...
,
......
A recorded in the impugned judgment. Considering the peculiar facts of the
case, we feel that the amount of maintenance to the child can be enhanced
to Rs. 850 with effect from today.

Learned counsel for the respondent No.2 has submitted that as a
.....
humanitarian gestun~. the respondent No.2 agrees to pay a lump-sum amount
B to settle the dispute. ln case the respondent No.2 pays a sum of rupees two ,._'•
lakhs only within a period of four months to the appellant, the same shall be
in full and final settlement of the claim of respondent No.3 for maintenance.
·•
While fixing the quantum we have taken note of the likely return as interest
in case it is invested in fixed deposit in a Nationalised Bank, and the likely
C increase in the quantum of maintenance till respondent No.3 attains majority.
Till deposit is made, the quantum fixed by this order shall be paid. If the
respondent No.2 wants to make lump-sum payment in terms of this order, the
amount shall be paid by the Bank draft in the name of respondent No.3 with
appellant as mother guardian. The amount shall be kept in a fixed deposit
with monthly interest payment facility till respondent No.3 attains majority.
D
The appeal is accordingly disposed of.

N.J. Appeal disposed of.

.,
.........