CrPC S. 125

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Hindu Marriage Act, 1955 (25 of 1955) - Section 15  - Cr.P.C. - Section 125 - Second marriage performed during the pendency of an appeal from a decree of divorce, filed after limitation, even though there were no stay of operation of the decree, is not a Nullity  - It could never have been the legislative intent that a marriage validly contracted after the divorce and after expiry of the period of limitation to file an appeal from the decree of divorce should rendered void on the filing of a belated appeal – Entitled to maintenance from husband in the second marriage  under Section 125, Cr.P.C.  2020 SCeJ 435 

Held, Section 15 clarifies that when a marriage has been dissolved by a decree of divorce, and there is no right of appeal against the decree, or if there is such a right of appeal, the time for appealing has expired without an appeal having been preferred, or an appeal has been presented but the same has been dismissed, it shall be lawful for either party to the marriage to marry again. Had it been the legislative intent that a marriage during the pendency of an appeal should be declared void, Section 11 would expressly have provided so.2020 SCeJ 435  [Para 31]

Further held, bar of Section 15 is not at all attracted in the facts and circumstances of this case, where the appeal from the decree of divorce had been filed almost a year after expiry of the period of limitation for filing an appeal. Section 15 permits a marriage after dissolution of a marriage if there is no right of appeal against the decree, or even if there is such a right to appeal, the time of appealing has expired without an appeal having been presented, or the appeal has been presented but has been dismissed. In this case no appeal had been presented with the period prescribed by limitation.  The bar, if any, under Section 15 of the Hindu Marriage Act applies only if there is an appeal filed within the period of limitation, and not afterwards upon condonation of delay in filing an appeal unless of course, the decree of divorce is stayed or there is an interim order of Court, restraining the parties or any of them from remarrying during the pendency of the appeal. 2020 SCeJ 435   [Para 34, 35]

Further held, If the marriage of the Appellant's ex-husband in 2006 was a valid marriage in law recognizing that he had no living spouse, the subsequent re-marriage of the Appellant could also not be void. We are in full agreement with the view of this Court in Leela Gupta v. Laxmi Narain reported in (1978) 3 SCC 258,  that the effect of the prohibition against one of the parties from contracting a second marriage for a certain period is not to nullify the divorce and continue the dissolved marriage, as if the same were subsisting.2020 SCeJ 435 [Para 37]

 

Facts

K filed appeal against order of dissolution of marriage with first husband AC, In August, 2006, i.e. almost a year after expiry of the period of limitation, against the order dated 26.8.2005 - In the meanwhile, in 2006 the said AC had remarried and appeal filed by the Appellant (K)  against the decree of divorce with first husband (AC) was, formally dismissed as withdrawn on 02.09.2016 having become infructuous -  Appeal was infructuous for all practical purposes, from the inception, since the Appellant's ex-husband had lawfully remarried after expiry of the period of limitation for filing an appeal, there being no appeal till then - On 13.12.2014, over 9 years after the Appellant's (K)  first marriage with the said AC was dissolved she married the respondent (PR) - Appellant's second marriage also did not work – Criminal complaint filed by K against PR under Sections 406, 498A & 500 of the IPC, quashed by High Court  under Section 482, CRPC on the ground that the marriage of the Appellant (K)  with the Respondent (PR), solemnised during the pendency of an appeal from the decree of dissolution of the appellant's (K)  marriage with her first husband (AC) , was null and void - In 2015 application filed by K under Section 125 the Code of Criminal Procedure (Cr.P.C.) for maintenance before the family Court – Application dismissed,   upheld by High Court on the ground that the criminal proceedings stand quashed -  Order set aside -  Second marriage held to be valid – Entitled for maintenance, under   Section 125, Cr.P.C. .

 

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2020 SCeJ 435

 

 


Cr.P.C., Section 125 – In the proceedings under Section 125 Cr.P.C., strict proof of marriage is not necessary - Unlike matrimonial proceedings where strict proof of marriage is essential, in the proceedings under Section 125 Cr.P.C., such strict standard of proof is not necessary as it is summary in nature meant to prevent vagrancy.(2018)2 SCeJ 1600 / SUPREME COURT OF INDIA  / 24 October, 2018

 

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Cr.P.C., Section 125 – Wife  - A broad and extensive interpretation should be given to the term “wife” under Section 125 Cr.P.C. – Following  Chanmuniya v. Virendra Kumar Singh Kushwaha [(2011) 1 SCC 141, JT 2010 (11) SC 132] – Wife to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 CrPC, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125 - On the basis of the evidence of appellant, birth certificates of the children, other documentary evidence, oral evidence of co-worker of appellant and landlord, the family court rightly held that appellant and the respondent were living together as husband and wife and there is sufficient proof of marriage -  The family court rightly drew the presumption of valid marriage between appellant No.1 and the respondent and that they are legally married couple for claiming maintenance by the wife under Section 125 Cr.P.C. which is summary in nature - High Court erred in demanding strict proof of marriage and in setting aside findings of family court by reassessing evidence in revisionary jurisdiction - Respondent directed to pay maintenance, including arrears.    (2018)2 SCeJ 1600 / SUPREME COURT OF INDIA  / 24 October, 2018


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Cr.P.C. Section 125 – Non Payment of arrears of maintenance for 12 months -Magistrate, in exercise of the powers under Section 125 of Cr.P.C., is empoweredto sentence the defaulting person for a term of one month for each month of default.

Decided  on 16.10.2018

 

(2018) PLR Important Judgements 107

 

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Cr.P.C. Section 125 – Non Payment of arrears of maintenance for 12 months  - Magistrate, in exercise of the powers under Section 125 of Cr.P.C., is empowered to sentence the defaulting person for a term of one month for each month of default-  In other words, it is open for the Magistrate to award the sentence up to maximum one month for each month's default made by the person ordered to pay the maintenance -  Thus, the maximum limit of sentence of one month referred to in Sub-section (3) of Section 125 of Cr.P.C. is applicable for each month of default - Even the Magistrate can entertain separate applications or even entertain a common application for several months of default and pass appropriate order -  If there are arrears of more than one month, then the imprisonment exceeding the period of one month can be imposed -  In the instance case, in lieu of maximum 12 defaults, the Magistrate has imposed imprisonment for 12 months -  However, the same is outer limit and lesser imprisonment can be imposed - Such imprisonment will be followed until the payment is made. In view of the same, I deem it appropriate to reduce the sentence to six months (15 days imprisonment for each month's default). 

 

Decided  on 16.10.2018

(2018) PLR Important Judgements 107

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Criminal Procedure Code, 1974 S. 125 - Explained - That the inherent and fundamental rights behind Section 125 Cr.P.C. is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home - The principles of sustenance gets more heightened when the children are with her. (SC)(178) PLR

Criminal Procedure Code, 1974 S. 125 - Has been rightly held to be applicable by the Family Judge to Muslim Woman - Family Court Act, 1984 (66 of 1984). (SC)(178) PLR

Criminal Procedure Code, 1974 S. 125 - Maintenance - Husband cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning. (SC)(178) PLR

Criminal Procedure Code, 1974 S. 125 - Sustenance - Be it clarified that sustenance does not meant and can never allow to mean a mere survival - A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance - As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband - And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one - As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Cr.P.C., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home - She cannot be compelled to become a destitute or a beggar. (SC)(178) PLR

 

 

Criminal Procedure Code, 1974 S. 125 - There can be no shadow of doubt that an order under Section 125 Cr.P.C. can be passed if a person despite having sufficient means neglects or refuses to maintain the wife - Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well - These are only bald excuses and, in fact, they have no acceptability in law - If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 Cr.P.C., unless disqualified, is an absolute right. (SC)(178) PLR