Husband must prove existence of first marriage: SC
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Last Updated: Friday, August 26, 2011, 22:22
New Delhi: A husband has to prove the existence of an earlier marriage by sufficient evidence in order to avoid paying maintenance to the second wife, the Supreme Court has ruled.

"Proof and evidence of subsistence of an earlier marriage at the time of solemnising the second marriage has to be adduced by the husband taking the plea of subsistence of an earlier marriage.

"When a plea of subsisting marriage is raised by the respondent-husband, it has to be satisfactorily proved by tendering evidence," the apex court said.

A bench of justices H S Bedi and Gyan Sudha Mishra passed the ruling while setting aside an Andhra Pradesh High Court judgement which had ruled that husband Pyla Suri Demudu was not required to pay Rs 500 per month maintenance ordered by a magistrate as there was no proof of marriage as claimed by first wife.

The apex court rejected the argument of the husband that claim of maintenance by the second wife cannot be sustained 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 entitled to the benefit of Section of 125 Cr PC (maintenance) or the Hindu Marriage Act, 1955.

"It is no doubt true that the learned judges in this cited case (Savitaben) 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 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", the apex court said.

In the present case, the apex court said though the husband claimed to have married another woman there was no evidence to prove the same.

"The respondent-husband 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.

"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 circumstance apart from the facts recorded herein above, goes heavily against the respondent-husband", Justice Sudha writing the judgement said.

The bench said that 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 findings.

"Under revisional jurisdiction, the questions whether the applicant has 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 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 the magistrate are legally sustainable or not as negative finding has evil consequences on the life of both the child and the woman," the bench added.


First Published: Friday, August 26, 2011, 22:22

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