SUPREME COURT OF INDIA

Before:- S.B. Majmudar and S.P. Kurdukar, JJ.

Civil Appeal No. 1289 of 1998 (arising out of SLP (C) No. 19572 of 1997). D/d. 2.3.1998.

Smt. Santosh - Appellant

Versus

Naresh Pal - Respondent

Criminal Procedure Code, 1973, Section 125 - Maintenance - Prima facie case - Marital status - Finding of fact - Interference - Magistrate was expected to pass appropriate orders after being prima facie satisfied marital status of parties - Said decision subject to final decision in Civil Court - High Court not justified in interfering with pure finding of fact reached by Magistrate in a proceedings - Order of High Court set aside.

[Para 2]

JUDGMENT

Leave granted.

2. We have heard learned counsel for the parties finally by their consent. The short question is whether the appellant is the married wife of the respondent who had failed and neglected to maintain her and therefore, she is entitled to maintenance under Section 125 of the Code of Criminal Procedure. Learned counsel for the respondent was right when he contended that unless there is a legal marriage between the parties order under Section 125, Criminal Procedure Code, 1973 cannot be passed. However, learned Judicial Magistrate after considering this question came to the conclusion that the respondent was already divorced from his first wife and thereafter he had entered into second marriage with the appellant who was also a divorcee. The High Court took the contrary view and observed that the appellant had not proved that she was the married wife of the respondent and that she had her first husband, Satendra and there was no dissolution of her marriage with him. These are the questions which are required to be thrashed out finally in civil proceedings. In a proceeding for maintenance under Section 125, Criminal Procedure Code, 1973 the learned Magistrate was expected to pass appropriate orders after being prima facie satisfied about the marital status of parties. It is obvious that the said decision will be tentative decision subject to final order in any civil proceedings, if the parties are so advised to adopt. Consequently, in our view the High Court was not justified in interfering with the pure finding of fact reached by learned Judicial Magistrate in a proceeding under Section 125, Criminal Procedure Code, 1973 and therefore only on this short ground and without expressing any opinion on the marital rights of the parties which may have to be adjudicated in civil proceedings, the order of the learned Magistrate passed under Section 125, Criminal Procedure Code, 1973 will have to be affirmed and the judgment and order of the High Court is set aside. The appeal is allowed. No costs.

Appeal allowed.