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