BAKULBHAI AND ANR. versus GANGARAM & ANR.

Citation: [1988] 2 S.C.R. 787 · Decided: 27-01-1988 · Supreme Court of India · Bench: RANGANATH MISRA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

-t 
T 
-•, 
·-r· 
f. 
I 
BAKULBHAI AND ANR. 
A 
v. 
GANGARAM & ANR. 
JANUARY 27, 1988 
[RANGANATH MISRA AND L.M. SHARMA, JJ.] 
B 
Code of Criminal Procedure, 1973: Sections 125 & 397(3)-
Maintenance for wife and child-Entitlement-Maintainability of 
Revision application-Enhancement of maintenance• 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. 
c 
The appellant filed an application under Section 125 Cr.P.C. 
D 
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 Rs. tOO per month in her favour and Rs.50 
E 
per month for her minor son. The Judicial Magistrate held that appel-
lant No. 1 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 
F 
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 Judi-
G 
cial 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. 
H 
787 
A 
B 
c 
D 
E 
F 
G 
H 
788 
SUPREME COURT REPORTS 
[1988) 2 S.C.R. 
Allowing the appeal, this Court, 
HELD: l. 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 prowd 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. [7910-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 appel-
lant, the Magistrate categorically said that the appellant and the re-
spondent lived together as husband and wife for a number of years and 
~1 
L
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, 
' 
1 
1955. Even if the factum of marriage of his mother is ignored, he must 
-1,1 
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(1) Cr. P.C. specifically referring to an 
illegitimate child. The order

Excerpt shown. Read the full judgment & AI analysis in Lexace.