ORDER
M. Karpagavinayagam, J.
1. Samidurai, the petitioner herein, challenging the award of maintenance of Rs. 400 / – per month in favour of h is wife, the respondent herein, by the order in M.C. No. 26 of 1994 on the file of Judicial Magistrate No. 4, Trichy dated 29.3.1996, confirmed in his revision in Crl. R.C. No. 63 of 1996 on the file of Principal Sessions Judge, Trichy dated 15.4.1998, has filed this petition under Section 482, Cr.P.C.
2. The wife, the respondent herein, filed an application for maintenance claiming maintenance from the petitioner. She examined three witnesses on her side and marked 7 exhibits. The petitioner examined five witnesses on his side and exhibited 10 documents. After the conclusion of the enquiry, the learned Judicial Magistrate No. 4, Trichy awarded the maintenance of Rs. 400/- per month to the respondent. Aggrieved over the said order, the petitioner preferred Crl. R.C. No. 63 of 1996 in the Sessions Court, Trichy. The learned Sessions Judge rejected the revision by confirming the order of the lower Court. Hence, this petition.
3. In order to substantiate the claim of maintenance, the respondent through her three witnesses and seven documents proved her marriage with the petitioner. Though the said marriage was not seriously disputed by the petitioner, he examined the witnesses and marked documents to establish that, he got married to R.W. 2 earlier and the said marriage was in subsistence and that therefore, the marriage between the petitioner and the respondent herein is not a valid marriage. Both the Courts below have rejected the case of the petitioner and awarded the maintenance as claimed by the respondent herein.
4. Mr. Krishnamoorthy, the Counsel for the petitioner would vehemently submit that both the Courts below have miserably failed to consider the factum that the respondent herein has failed to establish that her marriage with the petitioner was a valid one, in the light of the materials produced by the petitioner that he got already married to R.W. 2.
5. In reply to the said submission, Mr. Padmanabhan, the Counsel for the respondent, would argue that the lower Court specifically would hold that the petitioner did not adduce any acceptable material to prove that the marriage between himself and R.W. 2 was subsisting during the time at which the marriage between himself and the respondent was solemnised and that the said factual finding cannot be disturbed either by the Revisional Court or by this Court under Section 482, Cr.P.C.
6. Both the parties would cite various authorities, in order to substantiate their arguments.
7. Admittedly, the petitioner has failed in both the Courts below. As against the order of maintenance dated 29.3.1996 passed under Section 125 of Cr.P.C, the petitioner preferred a revision under Sections 397 and 399, Cr.P.C. before the learned District and Sessions Judge, Trichy in Crl. R.C. No. 63 of 1996 on 13.6.1996. The same was admitted on 11,7.1996 by the Sessions Court. After hearing the parties the learned Sessions Judge dismissed the revision on 15.4.1998. Challenging both the orders, the petitioner has filed this application under Section 482, Cr.P.C. and the same was admitted on 9.7.1998 and notice was ordered by this Court.
8. It has to be noticed that till now the petitioner has not paid any maintenance amount to the respondent. Thus, though the learned Magistrate directed the petitioner/husband to pay maintenance by the order dated 29.3.1996 from the date of the application, namely 22.6.1993, still single pie has not been paid to the respondent by the petitioner.
9. Before going to the merits, let me go into the question of maintainability of the petition, as raised by the Counsel for the respondent.
10. As indicated earlier, the first revision was disposed of by the Principal Sessions Judge under Section 399, Cr.P.C. Section 399(3) would provide that where any revision was made by a person before the Sessions Judge, the decision of the Sessions Judge thereof shall be final and no further proceeding by way of revision by the said person shall be entertained by the High Court.
11. As held by the Apex Court in Dharampal v. Ramshri, 1993 SCC (Cri.) 333=1 (1993) CCR 47 (SC), it is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly baned under Sections 397(3) and 399(3), Cr.P.C.
12. In yet another judgment of the Apex Court rendered in Krishnan v. Krishnaveni, 1997 Cri. L.J. 1519=1 (1997) CCR 146 (SC), ii is observed that ordinarily, when revision has been barred under Section 397(3) of the Code, a person cannot be allowed to take recourse to the revision to the High Court under inherent powers of the High Court under Section 482, Cr.P.C, since it may amount to circumvention of the provisions of Section 397(3), Cr.P.C.
13. However, it is further observed in the same decision that when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected or else grave miscarriage of justice would ensue.
14. These observations would clearly reveal that the inherent power of the High Court is preserved to meet the ends of justice or to prevent abuse of the process in an appropriate case but shall be exercised sparingly when there is no delaying tactics or malpractice adopted by the parties by way of invoking the powers under Section 482, Cr.P.C.
15. In the light of these principles, the merits of the case have got to be looked upon.
16. The main plank of argument advanced by the Counsel for the petitioner is that the respondent herein did not establish that the marriage held between the petitioner and the respondent was a valid marriage. As stated earlier, both the Courts below having taken into consideration the evidence adduced by the respondent herein through her three witnesses and seven exhibits, concluded that the marriage was performed between them and were living together as husband and wife and after some years, the wife, the respondent herein was driven out from the matrimonial home.
17. The lower Court, while coming to the conclusion that the wife has established her marriage with the petitioner, has specifically observed that the petitioner/husband had not placed adequate materials to show that he already got married to one Maruthambal and the said marriage was subsisting at the time of the second marriage with the respondent. The relevant observation is as follows :
"xxx xxx xxx xxx xxx xxx xxx xxx" The conclusion with reference to this factual aspect would make it clear that the petitioner has not discharged his burden of proving that the earlier marriage was subsisting.
18. In the decision in Vimala v. Veeraswamy, , the Supreme Court would specifically observe that it is for the husband to prove that the marriage was void due to subsistence of an earlier marriage and the burden of proof of the earlier marriage shall be entirely upon the husband. The relevant portion of the observation is as follows :
“Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the Court would insist on strict proof of the earlier marriage. The term “wife’ in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term “wife’ consistent with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is not a legally wedded wife and is, therefore, not entitled to maintenance under this provision. Therefore, the law which disentitles the second wife from receiving maintenance from her husband under Section 125, Cr. P.C, for the sole reason that the marriage ceremony though performed in the customary form lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is a measure of social justice intended to protect women and children. We are unable to find that the respondent herein has discharged the heavy burden by tendering strict proof of the fact in issue.”
19. In the light of these principles propounded by the Apex Court, in the instant case, it can be very well concluded that the petitioner/husband failed to discharge the burden by proving subsistence of the earlier legal and valid marriage. The lower Court has also, while considering the evidence of R.W. 2, given elaborate reasons as to why her evidence has to be disbelieved.
20. Both the Trial Court and the lower Appellate Court have taken into consideration the decision in Rudramma v. Puttaveerabhadrappa, 1987 Cri. L.J. 677. The Karnataka High Court in this decision, while interpreting Section 125, Cr. P.C., would observe that in cases where the validity of the marriage solemnised is disputed in proceedings under Section 125, the Magistrate should not convert himself into a Civil Court and sit like a Civil Court to decide such a question. The Magistrate should not also, at the same time, make it an easy course to dismiss the application made to him for maintenance, leaving the wife to establish her status as a wife in a Civil Court.
21. Therefore, while agreeing with the view expressed in the said decision, I may point out that when the wife comes to the Court claiming maintenance, the husband should not be allowed to take advantage of his own wrong alleging that there is first marriage and to avoid his liability to pay maintenance and walk out of the Court on the ground that the marriage between him and the wife claiming maintenance is a nullity.
22. In the instant case, on the strength of some materials which were rejected by the lower Court and the Revisional Court, the petitioner/husband has virtually taken advantage of his own wrong. The same wrong has been perpetuated for a long number of years till date by not having paid a single pie to the respondent/wife by giving scant respect to the orders of both the Courts below.
23. Furthermore, in Pathumma v. Muhammad, the Apex Court would specifically hold that the High Court cannot make re-assessment of the evidence which were already appreciated by the lower Court even in the revisional jurisdiction. It is observed by the Supreme Court that the question whether the appellant was the married wife of the respondent is a pre-eminently question of fact and the same has to be decided only by the enquiry Court. Therefore, when this fatuat aspect cannot even be disturbed by the Revisional Court, how can the High Court, that too, under inherent powers to disturb the said finding of fact which was correctly decided ?
24. In the result, the petition is dismissed as not maintainable under law and not sustainable on merits. Consequently, Crl. M.P. No. 4353 of 1998 is also dismissed.