http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: BAKULBHAI AND ANR.

       Vs.

RESPONDENT: GANGARAM & ANR.

DATE OF JUDGMENT27/01/1988

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) MISRA RANGNATH

CITATION:  1988 SCR  (2) 787        1988 SCC  (1) 537  JT 1988 (1)   197        1988 SCALE  (1)188

ACT:      Code  of  Criminal  Procedure,  1973:  Sections  125  & 397(3)-Maintenance   for    wife   and    child-Entitlement- Maintainability  of   Revision  application-Enhancement   of maintenance to  allowance  to  child-Due  to  inflation  and growing age-Permissibility of.      Hindu Marriage  Act, 1955:  Sections 11  and  16  Hindu woman marrying  a Hindu  male already  married and  his wife living-Validity of-Legitimacy  of the child born out of such wedlock-Entitlement of maintenance for such woman and child.

HEADNOTE: %    The appellant  filed an  application under  Section 125 Cr.P.C. before the Judicial Magistrate, claiming maintenance for herself  and her  son, alleging lawful marriage with the respondent, and  that the  son was  born out of the wedlock. Respondent, however,  denied the  marriage and  paternity of her son.  He claimed  that he  was already married twice and both his wives were alive.      The Judicial  Magistrate accepted  the appellant’s case and granted  maintenance at the rate of 100 per month in her favour and  Rs.50 per  month for her minor son. The Judicial Magistrate held  that appellant  No. t  and respondent lived together in  the same  house  as  husband  and  wife  for  a considerable period,  and appellant  No. 2  was born  out of this union.  He did  not record  a categorical finding as to whether the  respondent was  already married and his wife or wives were  alive on the date of his marriage with appellant No. t.      A revision  application was  filed by the appellant for enhancement of  the rate of maintenance. The respondent also moved the  Sessions Judge  in revision.  The Sessions  Judge reversed  the  findings  of  the  judicial  Magistrate.  The appellant  challenged   the  order  by  way  of  a  revision application before  the Bombay High Court which rejected the same  holding   that  since   it  was  the  second  revision application, it  was not  maintainable, being  barred by the provisions of  S.  397(3)  Cr.  P.C.  The  High  Court  also examined the  merits of the case and concurred with the view of the Sessions Judge. This appeal is by Special Leave. 788      Allowing the appeal, this Court,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

^      HELD: t.  The  plea  that  respondent  could  not  have lawfully married  a third  time in view of the provisions of the Hindu  Marriage Act,  1955 was  rejected by the Judicial Magistrate by  saying that even according to the respondent, his second  marriage was null and void as his first wife was then alive.  As regards  the first  marriage he held that it was not  as a  fact proved. He got rid of the effect of both the marriages by adopting a queer logic. If the story of the first marriage was to be rejected, the second marriage could not have  been held  to be  void on  that ground. It appears that the  respondent has  satisfactorily  provide  his  case about his  earlier marriage  by production of good evidence. Either the  respondent’s first marriage was subsisting so as to  nullify   his  second   marriage,  in   which  case  the appellant’s marriage also was rendered null and void on that ground; or if the respondent’s case of his first marriage is disbelieved the  second marriage  will have to be held to be legal and  effective so as to lead to the same conclusion of the appellant’s  marriage being  void. On  either hypothesis the appellant’s  claim is not covered by Section 125 Cr.P.C. The appellant  cannot, therefore,  be granted  any relief in the present proceedings. [791D-H; 792A-B]      Smt. Yamunabhai  v Anantrao  Shivram Adhav and another, [1988] 2 S.C.R. 809 followed.      2. Besides  holding that the respondent had married the appellant,  the   Magistrate  categorically  said  that  the appellant and  the respondent  lived together as husband and wife for  a number  of years  and that  appellant No.  2 was their child.  If, as  a matter of fact, a marriage, although ineffective in  the eye  of  law,  took  place  between  the appellant and  the respondent, the status of the boy must be held to  be that  of a  legitimate son on account of Section 16(1) of the Hindu Marriage Act, 1955. Even if the factum of marriage of  his mother is ignored, he must be treated as an illegitimate child  of the  respondent on  the basis  of the findings of  the Judicial  Magistrate  and  is  entitled  to relief by  reason of  clauses (b)  and (c) of Section 125(t) Cr. P.C.  specifically referring  to an  illegitimate child. The  order   of  the   Judicial  Magistrate   allowing   the maintenance to appellant No. 2 was correctly passed. But the amount of  Rs.50 per month was allowed as the maintenance of the child  four years  back. In  view of the fact that money value has gone down due to inflation and the child has grown in  age,   the  rate   of  maintenance   is   increased   to Rs.150.[791B-C: 793B]      3. Since  the claim  for  maintenance  was  granted  in favour of the 789 appellant, by the Judicial Magistrate, there was no question of her  challenging  the  same.  Her  challenge  before  the Sessions Judge  was confined  to  that  part  of  the  order assessing the  amount of  maintenance. and  this issue could not  have   been  raised  again  by  her.  Subject  to  this limitation,  she   was  certainly  entitled  to  invoke  the revisional jurisdiction  of the  High Court. The decision on the merits  of her claim went against her for the first time before the  Sessions Judge,  and this was the subject matter of her  revision before  the  High  Court.  She  could  not, therefore, be  said to  be making  a second attempt when she challenged the  order before  the High  Court. The fact that she had  moved the  Sessions Court  against the  quantum  of maintenance could  not be used against her in respect of her right of revision against the Sessions Judge’s order. [790F- H;791A]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

    4. No  error of  law appears to have been discovered in the judgment  of the Magistrate and so the revisional courts were not  justified in making a reassessment of the evidence and substitute  their own views for those of the Magistrate. [792C]      Pathumma v. Mohammad, [1986] 2 SCC 585, followed.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal No . 579 of 1986      From the  Judgment and  order dated  15.4.1986  of  the Bombay High Court in Crl. R. Appln. No. 160 of 1985.      Rakesh Upadhyay, M.M. Kashyap and N.A. Siddiqui for the Appellants.      V.N. Ganpule,  S.K. Agnihotri  and A.S.  Bhasme for the Respondents.      The Judgment of the Court was delivered by      SHARMA, J.  The appellant  No.  1  Bakulabai  filed  an application under  s. 125 of the Code of Criminal Procedure, 1973 (hereinafter  referred  to  as  the  Code)  before  the Judicial Magistrate, Degloor, alleging that she was lawfully married to  the respondent  No. 1  Ganga Ram  and  that  the appellant No.  2 Maroti  was born  out of  this wedlock. She claimed maintenance  both for herself and for her son. Ganga Ram denied  the marriage  as well  as the  paternity of  the appellant No. 2. He also averred that he was already married twice before the wedding 790 pleaded by Bakulabai and that both his wives were living.      2. The  Judicial Magistrate  accepted Bakulabai’s  case and granted  maintenance at the rate of Rs. 100 per month in her favour and additional Rs.50 per month for the minor boy.      3. Ganga  Ram moved  the Sessions  Judge  in  revision. Bakulabai also  filed a revision application for enhancement of the  rate  of  maintenance.  The  two  applications  were registered respectively  as Criminal Revision No. 83 of 1984 and Criminal  Revision No.  110  of  1984,  and  were  heard together. The  Sessions Judge  accepted  the  defence  case, reversed  the   findings  of  the  Judicial  Magistrate  and dismissed the application for maintenance. Revision case No. 83 of  1984 was  thus allowed and the wife’s application was dismissed. Bakulabai  challenged the order before the Bombay High Court  by  a  revision  application.  By  the  impugned Judgment the High Court rejected the same holding that since it was  the second  revision application  by the wife it was not maintainable,  being barred  by  the  provisions  of  s. 397(3) of  the Code.  The Court further proceeded to examine the merits  of the  case and  concurred with the view of the Sessions Judge.  The appellants  have now come to this Court by special leave.      4. On  the maintainability  of the revision application before it,  the High  Court  took  an  erroneous  view.  The provisions of  sub-section (3) of s. 397 relied upon, are in the following terms:           "(3) If an application under this section has been           made by  any person either to the High Court or to           the Sessions  Judge, no further application by the           same person  shall be  entertained by the other of           them." The main  judgment of  the Judicial Magistrate upholding the appellants’ claim  for maintenance  was in  her  favour  and there was  no question  of her  challenging  the  same.  Her challenge before the Sessions Judge was confined to the part

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

of the  order assessing  the amount of maintenance, and this issue could  not have  been raised  again by her. Subject to this limitation  she was,  certainly entitled  to invoke the revisional jurisdiction  of the  High Court. The decision on the merits  of her claim went against her for the first time before the  Sessions Judge,  and this was the subject matter of her  revision before  the  High  Court.  She  could  not, therefore, be  said to  be making  a second attempt when she challenged this  order before  the High Court. The fact that she had  moved before the Sessions Judge against the quantum of maintenance 791 could not  be used  against her  in respect  of her right of revision against  the Sessions  Judge’s order.  Accordingly, the decision of the High Court on this question is set aside and it  is held  that the revision petition of the appellant before the  High Court,  except the prayer for enhancing the amount was maintainable.      5. Now,  coming  to  the  other  aspect,  the  Judicial Magistrate on  a consideration of the evidence led on behalf of the  parties accepted  the appellants’ case. He held that Bakulabai and Ganga Ram had lived together in the same house as husband  and wife  for a considerable period, and the boy Maroti was born of this union. On the question as to whether Ganga Ram  was already  married and  his wife  or wives were living on the date the marriage with the appellant Bakulabai is alleged,  the Magistrate  did not  record  a  categorical finding. According  to the  case of  Ganga Ram, he was first married with  Rajabai, and  again with  Kusumbai in 1969. It was, therefore,  argued on  his behalf  that as  he had  two living spouses in 1972, he could not have lawfully-married a third time  in view  of the provisions of the Hindu Marriage Act, 1955.  The Judicial  Magistrate rejected  the  plea  by saying that  the second  marriage  of  the  respondent  with Kusumbai was  on his  own showing null and void as his first wife was  then alive.  Dealing with  the effect of the first marriage he held that it was not as fact proved. Thus he got rid of  the effect of both the marriages by adopting a queer logic. If  the  story  of  the  first  marriage  was  to  be rejected, the second marriage could not have been held to be void on  that ground. The finding of the Judicial Magistrate on the  validity of  the  marriage  of  the  appellant  was, therefore, illegal.      6. We  have by  our judgment in Criminal Appeal No. 475 of 1983  (Smt.  Yamunabai  v.  Anantrao  Shivram  Adhav  and another) delivered  today held  that the marriage of a Hindu woman with a Hindu male with a living spouse performed after the coming in force of the Hindu Marriage Act, 1955, is null and void  and the woman is not entitled to maintenance under s. 125 of the Code. Coming to the facts of the present case, it appears that the respondent has satisfactorily proved his case about  his earlier marriage with Kusumbai by production of good  evidence including a certificate issued by the Arya Samaj in  this regard.  It is not suggested that Rajabai was living when  Kusumbai was  married and  was dead by the time the appellant’s  marriage took  place.  The  position  which emerges, therefore,  is that  either the  respondent’s first marriage with  Rajabai was  subsisting so  as to nullify his second marriage with Kusumbai, in which case the appellant’s marriage also  was rendered  null  and  void  on  that  very ground; or if, on the other 792 hand, the  respondent’s case of his marriage with Rajabai is disbelieved A  the marriage of Kusumbai will have to be held to be  legal and  effective  so  as  to  lead  to  the  same

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

conclusion of  the appellant’s marriage being void on either hypothesis the appellant’s claim is not covered by s. 125 of the Code.  She cannot,  therefore, be  granted any relief in the present  preceedings. The decision to that effect of the High Court is, R therefore, confirmed.      7. The other findings of the Magistrate on the disputed question of fact were recorded after a full consideration of the  evidence  an  should  have  been  left  undisturbed  in revision. No error of law appears to have been discovered in his judgment and so the revisional courts were not justified in making  a reassessment  of the  evidence  and  substitute their own  views for  those of the Magistrate. (See Pathumma and another  v. Mahammad, [1986] 2 SCC 585). Besides holding that  the   respondent  had   married  the   appellant,  the Magistrate categorically  said that  the appellant  and  the respondent lived  together as  husband and wife for a number of years and the appellant No. 2 Maroti was their child. If, as a  matter of fact, a marriage although ineffective in the eye of  law, took  place between the appellant No. 1 and the respondent No.  1, the  status of the boy must be held to be of a  legitimate son  on account  of s.  16(1) of  the Hindu Marriage Act, 1955, which reads as follows:           "16(1). Notwithstanding  that a  marriage is  null           and void  under Section  11,  any  child  of  such           marriage who  would have  been legitimate  if  the           marriage had  been  valid,  shall  be  legitimate,           whether such  child is  born before  or after  the           commencement of the Marriage Laws (Amendment) Act,           1976 (68  of 1976), and whether or not a decree of           nullity is  granted in  respect of  that  marriage           under this  Act and whether or not the marriage is           held to be void otherwise than on a petition under           this Act." Even if  the factum  of marriage of his mother is ignored he must be  treated as  an illegitimate child of the respondent on the  basis of the findings of the Judicial Magistrate and is entitled to relief by reason of Clauses (b) and (c) of s. 125(1) of the Code specifically referring to an illegitimate child. We,  therefore, hold  that the  order of the Judicial Magistrate allowing  the maintenance  to the appellant No. 2 was correctly passed.      8. The  amount of  Rs.50 per  month was  allowed as the mainte- 793 nance of  the child  in 1984. The revision application filed before the Sessions Judge was rejected. A second application before the  High Court  was, therefore, not maintainable. We will, therefore,  assume that  the  decision  assessing  the amount of  maintenance as  Rs.50 per  month in  1984  became final. However,  on account of change of circumstances, this amount can  be revised after efflux of time. During the last four  years  the  value  of  money  has  gone  down  due  to inflation.  The   child  has  also  grown  in  age.  In  the circumstances, we direct the respondent Ganga Ram to pay the appellant No.  1 the  maintenance amount for appellant No. 2 at the  rate of  Rs.150 per month with effect from February, 1988. The  arrears up  to January, 1988, if not paid, should also be  paid promptly.  The appeal  is allowed in the terms mentioned above. G.N. Appeal allowed. G.N.                                         Appeal allowed. 794