# Mange Ram and another v. State of U.P. and others

- **Citation:** (2010) 2 ILRA 420
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-09
- **Case number:** Civil Misc. Writ Petition No. 473 of 2004
- **Bench:** Rajes Kumar, Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mange-ram-and-another-v-state-of-u-p-and-others-41564
- **Pages:** 14

## Headnote

Revenue Recovery Act, 1890,Section
3(a)-read with U.P. Z.A. and L.R. Act,
1950-Section 279-Recovery of excise
dues-petitioner already deposited much
excess amount than demand of excise
duty-demand of collection charges of
10%-unless
service
rendered
by
collection/revenue department-levy of
Collection Charges-illegal, unjustified.

Held: Para 24

In view of the legal position enumerated
above, we are of the opinion that in the
instance case as no recovery of the
excise dues has been made by the
Collector, Ghaziabad and the amount
sought to be recovered through his office
has been paid directly by the petitioners
to
the
Excise
Commissioner,
Sikar
Rajasthan partly of their own and partly
through
remittances
made
by
the
Income Tax Department due to them,
the demand of collection charges to the
tune of Rs.47,47,972/-is wholly illegal
and unjustified. We accordingly, issue a
writ of certiorari quashing the impugned
sale proclamation (Annexure XXI to the
writ petition) and a writ in the nature of
mandamus to respondent No.2 for the
refund of any amount which may have
been realised as collection charges in
connection
with
the
recovery
in
question.
Case law discussed:
1999 (2)awc, 1999(3) AWC 1885, AIR 1983
Alld. 234,

## Text

_Characters 0–39,998 of 46,096. This is a partial read: ask again with offset=39998 for what follows._

420 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
litigation between the parties. Already
sufficient time has expired in the litigation
between the parties. Under the provisions
of law, learned D.D.C. is also empowered
to permit the parties to file documentary
evidence in support of their respective
cases and opposite party may rebut by
filing the documents.

10. In the facts and circumstances of
the case, Interference by this Court in writ
jurisdiction in the matter is required.
Accordingly, the writ petition is allowed
and the judgment and order passed by the
learned D.D.C. is hereby set aside and
matter is remitted back to the learned
D.D.C. to decide the dispute between the
parties on his own level in the light of the
observations made above. However, it is
made clear that no party to the case will
be permitted to get adjourned the hearing
in the Revision. If any party seeks
adjournment of case, not less than Rs.
1,000/- shall be imposed as cost on that
party and it will be pre-condition to
permit that party to join the hearing on
next date subject to he deposits earlier
cost
ordered.
Learned
D.D.C.
will
expedite the disposal of the Revision, if
possible within three months from the
date when the certified copy of this order
is placed before him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.04.2010

BEFORE
THE HON'BLE RAJES KUMAR,J.
THE HON'BLE PANKAJ MITHAL,J.

Civil Misc. Writ Petition No. 473 of 2004

Mange Ram and another ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Mukesh Prasad

Counsel for the Respondents:
C.S.C.

Revenue Recovery Act, 1890,Section
3(a)-read with U.P. Z.A. and L.R. Act,
1950-Section 279-Recovery of excise
dues-petitioner already deposited much
excess amount than demand of excise
duty-demand of collection charges of
10%-unless
service
rendered
by
collection/revenue department-levy of
Collection Charges-illegal, unjustified.

Held: Para 24

In view of the legal position enumerated
above, we are of the opinion that in the
instance case as no recovery of the
excise dues has been made by the
Collector, Ghaziabad and the amount
sought to be recovered through his office
has been paid directly by the petitioners
to
the
Excise
Commissioner,
Sikar
Rajasthan partly of their own and partly
through
remittances
made
by
the
Income Tax Department due to them,
the demand of collection charges to the
tune of Rs.47,47,972/-is wholly illegal
and unjustified. We accordingly, issue a
writ of certiorari quashing the impugned
sale proclamation (Annexure XXI to the
writ petition) and a writ in the nature of
mandamus to respondent No.2 for the
refund of any amount which may have
been realised as collection charges in
connection
with
the
recovery
in
question.
Case law discussed:
1999 (2)awc, 1999(3) AWC 1885, AIR 1983
Alld. 234,

(Delivered by Hon'ble Rajes Kumar, J.)

1. The petitioners along with certain
other persons were granted licenses for
vending country made liquor, foreign liquor
and bear for the years 1999-2001 in District
2 All] Mange Ram and another V. State of U.P. and others
421
Sikar, Rajasthan. In the year 1999-2000,
petitioners defaulted in the payment of
excise
dues
of
Rs.8,36,49,712/-.
Accordingly, Collector, Sikar on 1.11.2000
sent a recovery certificate to the Collector,
Ghaziabad, where the petitioners were said
to be residing and having immovable
property, to recover the aforesaid amount as
arrears of land revenue. A citation for the
said amount was issued by the Tehsildar,
Ghaziabad on 6.12.2000. The properties of
the petitioners at Ghaziabad were put to
auction vide sale proclamation dated
15.5.2001 fixing 14.6.2001 but the auction
could not be held. The District Excise
Officer, Sikar vide letter dated 9.7.2001
addressed to the Collector, Ghaziabad
instructed not to auction the properties of
the petitioners for the time being. In the
meantime, income tax department released
sums
of
(i)
Rs.1,61,43,984.00,
(ii)
Rs.1,80,26,031.00, (iii) Rs.1,40,38,395.00,
(iv)
Rs.1,77,54,741.00
and
(v)
Rs.1,10,61,845.00 total Rs.7,70,24,996.00
in favour of District Excise Officer, Sikar,
Rajasthan which it had realised from the
petitioners as Tax Deducted at Source
(TDS). The petitioners deposited a further
sum of Rs.1,64,63,768/-, Rs.75,23,500/- and
Rs.89,49,600/- on 7.9.2003 before the
District Excise Officer, Sikar. In this way,
petitioners
deposited
a
total
of
Rs.9,34,89,036/- as against the original
recovery of Rs.8,36,49,712/-. In spite of the
above, a sale proclamation for the recovery
of Rs.77,10,000/- as excise dues and
Rs.47,47,972 as collection charges by the
sale of house No.KK-116, Kavi Nagar,
Ghaziabad of the petitioners was issued by
the S.D.M. Ghaziabad fixing 10.4.2004 for
the auction.

2. The above sale proclamation is
under challenge by the petitioners in this
writ petition with a further prayer to direct
the respondents not to realise any
collection charges from the petitioners
and to refund the collection charges
already paid by them on the ground that
the excise dues were paid by the
petitioners voluntarily and there was no
realisation by the Collector, Ghaziabad so
as to entitle the respondent Nos. 2 and 3
to recover any collection charges.

3. The writ petition was entertained
and an interim order was passed on
31.3.2004 staying the sale proclamation
and the sale of the properties of the
petitioners in pursuance thereof. A
counter affidavit was also invited. In the
counter affidavit filed on behalf of the
respondent Nos. 1, 2 and 3 the issuance of
the recovery citation of the aforesaid
amount of Rs.77,10,000/- as excise dues
and Rs.47,47,972 as collection charges is
admitted. It is however, stated that in
view of Section (3-a) of the Revenue
Recovery Act, 1890, as amended to its
application in U.P., Collector is fully
authorised
to
recover
the
amount
indicated in the recovery certificate and to
realise 10% of the amount as collection
charges.

4. It is abundantly clear from the
above facts that the petitioners were
facing recovery of excise dues to the tune
of Rs.8,36,49,712/- only and a sum of
Rs.9,34,89,096/- was paid and as such
there was, in fact, excess payment. This
fact has not been denied by respondent
Nos. 1, 2 and 3 in the counter affidavit.
No counter affidavit on behalf of
respondent No.4 has been filed. Thus, the
above fact remains uncontroverted which
has to be accepted. Even then the
petitioners have been chased with a
recovery of Rs.77,10,000/- as excise dues
plus Rs.47,47,972/- as collection charges.
422 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
In the absence of any material on record
to
indicate
how
in
the
above
circumstances
a
recovery
of
Rs.77,10,000/- as excise dues has been
issued against the petitioners, the said
recovery of excise dues can not be
sustained in law and deserves to set aside.

5. In respect of the collection
charges, the submission of Shri Mukesh
Prasad, learned counsel for the petitioners
is that the excise dues which were
recoverable as arrears of land revenue
have been paid voluntarily and directly to
the Excise Officer, Sikar, Rajasthan and,
therefore, the Collector, Ghaziabad is not
authorised under law to recover the same.

6. On the other hand, Sri A.C.
Tripathi,
learned
Standing
Counsel
contended that respondent Nos. 2 and 3
are legally entitled to recover collection
charges to the extent of 10% of the
amount
mentioned
in
the
recovery
certificate, as the citation to recover as
well as a sale proclamation was issued for
recovering the excise dues.

7. It would be profitable to address
to the procedure prescribed for recovering
land revenue or as a matter of fact any
other dues which can be recovered as
arrears of land revenue before dwelling
upon the respective submissions of the
parties.

8. The procedure for settlement and
recovery of land revenue was previously
contained in Chapter V to Chapter VIII of
the U.P. Land Revenue Act, 1901 but the
provisions of the aforesaid chapter were
repealed vide Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950
(in short U.P.Z.A. & L.R. Act) in its
application to the areas where the said Act
was made applicable. However, by virtue
of the chapter X of the said Act and the
Rules framed under the said Act, a similar
mechanism for recovery of land revenue
has been provided.

9. Any land revenue which remains
unpaid after the date on which it becomes
payable it termed as an "arrears of land
revenue".

10. The excise dues are not part of
land revenue though it may be termed as
revenue. "Revenue" is a broader and a
general term which is applicable to the
income of the Government including
public monies which the State collects
and receives, from whatever source and in
whatever manner. "Land revenue" is a
narrower term and signifies tax on land
and its produce which is paid annually to
the Government. It is a charge upon the
land payable to the Government. In other
words, revenue derived by the State by
taxation of lands and of profits on land is
land revenue.

11. The excise dues though revenue
in broader sense cannot be technically
termed as land revenue recoverable under
the provisions of the U.P.Z.A. & L.R. Act
but for Section 11 of the Central Excise
Act, 1944 read with provisions of
Revenue Recovery Act, 1890 (hereinafter
referred to as an 'R.R. Act') which permits
recovery of such excise dues as arrears of
land revenue. Section 3 of the said Act
empowers the Collector of the District,
where an arrear of land revenue or a sum
recoverable as an arrear of land revenue is
payable, to send a certificate under his
signature in the prescribed form to the
Collector of the other district wherein the
property of the defaulter is situate to
recover the said amount whereupon it is
2 All] Mange Ram and another V. State of U.P. and others
423
obligatory upon the Collector to whom
such a certificate has been sent to proceed
to recover the amount stated therein with
the costs of recovery in accordance with
the provisions of Chapter X of U.P.Z.A.
& L.R. Act and the Rules. Similarly,
Section 5 and 5-A of the R.R. Act
provides
that
where
any
sum
is
recoverable as an arrear of land revenue
by any public officer other than a
Collector or by any local authority, such
officer or authority may make a request to
the Collector concerned of the district
where their office is situate for sending a
certificate for the recovery of the said
amount to the Collector of the district
where the property of the defaulter is
situate.

12. Section 279 of the U.P.Z.A. &
L.R. Act, 1950 elaborates the various
methods by which the land revenue may
be recovered, namely - by issuance of writ
of demand or a citation to appear, arrest
and detention, attachment and sale of
movable and immovable property etc. It
also provides that the costs incurred in
adopting the procedure mentioned therein
shall be added in amount due and
recoverable and shall be recoverable in
the same manner as arrears of land
revenue. For the sake of convenience
Section 279 of the U.P.Z.A. & L.R. Act is
reproduced hereinbelow:

"279. Procedure for recovery of an
arrear of land revenue.- (1) An arrear of
land revenue may be recovered by any
one or more of the following processes-

(a) by serving a writ of demand or a
citation to appear on any defaulter,
(b) by arrest and detention of his
person,
(c) by attachment and sale of his
movable property including produce,
(d) by attachment of the holding in
respect of which the arrear is due,
(e) [by lease or sale] of the holding
in respect of which the arrear is due,
(f) by attachment and sale of other
immovable property of the defaulter,
[and],
[(g) by appointment a receiver of
any property movable or immovable of
the defaulter.]
[(2) The costs of any of the processes
mentioned in sub-section (1) shall be
added to and be recoverable in the same
manner as the arrear of land revenue.]

13. Further Section 294 (2)(ee)
authorises the State Government to make
Rules with regard to the costs to be
recovered in respect of the process
mentioned in sub section (1) of Section
279 in exercise of its rule making power.
Accordingly, Rule 243 of the U.P.Z.A. &
L.R. Rules provides for a fee of 2/- for the
issuance of a writ of demand or citation to
appear which shall be added to the arrears
sought to be recovered and shall be
included in the amount specified therein.
Similarly, Rule 248 of the Rules provides
for a fee of Rs.5/- for a warrant of arrest.
The fee for attachment of moveable
property is Rs.0.75 and cost for every
such sale is 6 paise in a rupee calculated
on the amount of arrear etc. as per Rule
255 and 258 of the Rules respectively. A
lesser rate is provided where the officer
goes to conduct sale of movable property
but no sale takes place. The rate of charge
for the costs of every sale of immovable
property is provided in Rule 284 of the
Rules.

14. The aforesaid rates of collection
charges were probably not found to be
424 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
sufficient with the passage of time
therefore, the State Government vide G.O.
dated 30.8.1974 provided for a flat rate of
collection charges @ 10% of the dues.
The aforesaid G.O. was the subject matter
of controversy before a Division Bench of
this Court in the case of Mahalakshmi
Sugar Mills Co. Ltd. Vs. State of U.P. and
others. On difference of opinion between
the two judges, the matter was referred to
the third judge and on the basis of the
opinion of the third judge, the Division
Bench ultimately vide judgment reported
in 1999 (2) AWC 120 Mahalakshmi
Sugar Mills Co. Ltd. Vs. State of U.P.
and others held the aforesaid G.O. to be
bad and the demand of collection charges
@ 10% was struck down.

15. In Mahalakshmi Sugar Mills Co.
Ltd. (supra) the Court was of the opinion
that collection charges of 10% of the
amount
mentioned
and
recovery
certificate cannot be recovered from the
defaulter as there is no provision to this
effect in the U.P.Z.A. & L.R. Act and the
Rules, and the costs of recovery has to be
realised in accordance with the rates
prescribed under the aforesaid Act and the
Rules.
The
aforesaid
decision
was
followed by the learned single Judge in
the case of Smt. Viddya Devi Vs.
Collector, Mohaba and others reported
in 1999(3) AWC 1885.

16. However, the law so laid down
in the case of Mahalakshmi Sugar Mills
Co. Ltd. (supra) was short-lived. The
State Legislature in order to nullify the
effect of the aforesaid decision enacted
Revenue Recovery (U.P. Amendment
Act) 2001 i.e. U.P. Act No. 37 of 2001
amending the provisions of the Revenue
Recovery Act, 1890 by inserting sub
section (3-a) in Section 3 and 5-A of the
said Act thereby providing for imposition
of maximum of 10% of the amount
referred in the recovery certificate/citation
as collection charges. This amendment
was made with retrospective effect from
30.8.1974, the date on which earlier the
Government Order was brought about to
the same effect which was struck down. A
conjoint reading of the decision in
Mahalakshmi Sugar Mills Co. Ltd.
(supra) and the amendment made in the
Act demonstrates that the restrictions of
levying cost/collection charges over and
above the rates prescribed under the
U.P.Z.A. & L.R. Act and the Rules has
been done away with and the Collector
has been authorised to demand 10% of the
amount
mentioned
in
the
recovery
certificate/citation as collection charges.

17. A Division Bench of this Court
in Mirza Javed Murtaza Vs. U.P.
Financial Corporation and another
AIR 1983 Alld. 234, which has been
relied upon from the side of the
petitioners, lays down that the Collector
while recovering any amount as arrears of
land revenue cannot include the collection
charges in the certificate as the costs of
collection are not known at the time when
the certificate is sent to the Collector and
the actual costs of the proceedings could
be determined only when the costs are
actually incurred i.e. after the sale.
Accordingly, the inclusion of collection
charges in the recovery certificate/citation
even before the sale takes place were held
to be illegal. The aforesaid decision is not
an authority on the point as to whether
collection charges can be levied and
recovered from the defaulter even where
no recovery has been made through the
process of the Collector or by sale of any
property of the defaulter.
2 All] Mange Ram and another V. State of U.P. and others
425

18. In view of the aforesaid facts
and circumstances, a very important
question of law of a fundamental nature
arises for determination i.e whether the
costs of collection of recovering land
revenue or a sum as an arrear of land
revenue can at all be recovered or realised
from the defaulter when the recovery has
not
been
made
through
the
process/machinery of the Collector under
the provisions of U.P.Z.A. & L.R.
Act/Rules despite provisions under the
Act to realise 10% of the amount as
collection charges.

19. The answer to the above
question though intricate is very simple.

20. It is an admitted position that
costs of collection or collection charges
are not in the nature of tax. The same are
levied in lieu of the services rendered by
the revenue department of the State in
recovering the amount due as an arrear of
land revenue. Therefore, undisputedly an
element of 'quid pro quo' comes into play,
meaning thereby that the collection
charges has to be for the services rendered
by the Collector in recovering the amount
and not otherwise. Therefore, where no
such amount is recovered by the Collector
or the machinery of the Collector/revenue
department, it cannot be said that they
have rendered any service so as to
authorise them to levy collection charges.

21. The provisions of R.R. Act as
amended to its application in U.P. or the
U.P.Z.A. & L.R. Act and its Rules does
not mandate that the collection charges
can be realised even when the amount has
not been recovered by adopting coercive
method as envisaged under Section 279 of
the U.P.Z.A. & L.R. Act or precisely by
sale of any property, rather the Rules
stipulate a lower rate of charges than
prescribed for the cost of sale of movable
or immovable property when the officer
goes for conducting the sale but fails to
conduct it which element is missing in the
R.R. Act. The R.R. Act is completely
silent as to what will happen when no
amount is recovered by any of the
coercive means and actually the amount is
directly paid by the defaulter to the
authority concerned. In the absence of any
specific mandate providing for levying
and realising of collection charges even if
no sale takes place, the authorities are not
empowered in law to recover such
collection charge as costs of recovery
without rendering any service.

22. In this respect it would be
relevant to pay attention to Section 10 of
the R.R. Act which in clear term provides
that the Collector shall remit to the
authority concerned the sum recovered
after deducting the costs of recovery.
Section 11 of the R.R. Act provides for
making rules for carrying out the objects
of the Act. In exercise of the said rule
making power U.P. Revenue Recovery
Rules, 1966 have been framed. Rule 8 of
the aforesaid Rules also provides that on
recovery of any amount under the Act it
shall be deposited in government treasury
or remitted to the authority concerned after
deducting the collection charges, if any,
unless wholly or partly exempted. A plain
reading of Section 10 along with Rule 8 of
the Rules clearly brings out that the
Collector i.e. the Recovering Authority has
to remit the amount to the authority
concerned after deducting the collection
charges, if any. This envisages deducting of
collection charges only after recovering the
amount and before remitting the same to the
authority
concerned.
The
necessary
corollary of the above is that in the absence
426 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
of any recovery of the amount due as an
arrear of land revenue, no collection charge
can be levied and realised. That being the
position, there is no question of levying and
recovering collection charges in respect of
the amount which has not been recovered
by the Collector by adopting any of the
modes prescribed under Section 279 of the
U.P.Z.A. & L.R. Act.

23. There is no provision under any of
the Acts for levying any collection charge
for mere issuance of citation or sale
proclamation. The cost of these items have
been taken adequate care in the U.P.Z.A. &
L.R. Rules and as such there is no scope for
any additional charge in this respect.

24. In view of the legal position
enumerated above, we are of the opinion
that in the instance case as no recovery of
the excise dues has been made by the
Collector, Ghaziabad and the amount
sought to be recovered through his office
has been paid directly by the petitioners to
the Excise Commissioner, Sikar Rajasthan
partly of their own and partly through
remittances made by the Income Tax
Department due to them, the demand of
collection charges to the tune of Rs.
47,47,972/-
is
wholly
illegal
and
unjustified. We accordingly, issue a writ
of certiorari quashing the impugned sale
proclamation (Annexure XXI to the writ
petition) and a writ in the nature of
mandamus to respondent No.2 for the
refund of any amount which may have
been realised as collection charges in
connection with the recovery in question.

25. The writ petition is accordingly,
allowed.

Parties to bear their own costs.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.05.2010

BERORE
THE HON'BLE ASHOK SRIVASTAVA, J.

Criminal Revision No. 571 of 2008

Sant Pratap Singh
 ...Revisionist
Versus
State of U.P. and others ...Opposite Parties

Counsel for the Revisionist:
Mr. Prashant Saxena
Mr. S.D. Kautilya.

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure: Section 125-
maintenance claimed by a wife-marriage
itself in contravention of section 11 of
Hindu marriage Act-void from its very
inception-not
entitled
but
the
illegitimate children even after void
marriage-entitled
for
maintenanceaccordingly
the
application
by
the
children
party
allowed-but
rejection
order relating to the claim of wife
voidable marriage held proper.

Held: Para 22

Now the position of law is clear. Law
recognizes the claim of maintenance by
an illegitimate child, but it does not
recognize a claim by an illegitimate wife.
Section 16 of the Hindu Marriage Act,
1955 clearly says that a child born out of
a void or voidable marriage shall be a
legitimate child in the eye of law.
Therefore, he is always entitled to a
claim of maintenance under section 125
of Cr. P.C.
Case law discussed:
1988(25) ACC 119
AIR 1988 SC 664
2005 (51) ACC 923
1969 (6) ACC 200 (SC)
2 All] Sant Pratap Singh V. State of U.P. and others
427
(Delivered by Hon'ble Ashok Srivastava, J.)

1. A brief reference to the factual
position would suffice because essentially
the dispute has to be adjudicated with
reference to scope and ambit of section
125 of the Code of Criminal Procedure,
1973 (in short the 'Code').

2. A petition under section 125
Cr.P.C. was moved before the learned
Judicial
Magistrate,
Court
No.14,
Farrukhabad by opposite party no.2 Smt.
Sanju and opposite party no.3 Vipin
Kumar against the revisionist Sant Pratap
Singh which was registered in that Court
as Crl. Case No.20/12/07. The said
petition was decided by the learned
Judicial Magistrate on 7.5.2007. The
learned Magistrate dismissed the claim of
opposite party no.2 whereas he awarded
maintenance of Rs.2000/-p.m. to opposite
party no.3. Feeling aggrieved by the said
judgment the revisionist filed a criminal
revision before the learned Sessions
Judge, Farrukhabad who after hearing the
case allowed the revision, set aside the
judgment and order passed by the learned
Judicial Magistrate and remanded back
the case for fresh hearing to the learned
trial court. Thereafter the matter was
heard by the learned Judicial Magistrate,
City, who vide his judgment and order
dated 13.11.2007 allowed the petition
under section 125 Cr.P.C. and directed the
revisionist to pay a sum of Rs.2200/- p.m.
to opposite party no.2 and a sum of
Rs.2100/-p.m. to opposite party no.3.
Feeling aggrieved by all the three orders
the revisionist has filed the present
revision.

3. The petition under section 125
Cr.P.C. was moved before the Court of
learned Magistrate with the allegations
that opposite party no.2 was married to
the revisionist on 10.2.1994 and out of
this wedlock opposite party no.3 was
born. The revisionist is posted in the
police department. After having a married
life of some 6-7 years the revisionist due
to certain reasons turned out opposite
party nos. 2 & 3 from his house after
abusing and assaulting them. On enquiry
the opposite party no.2 came to know that
the
revisionist
was
having
illicit
relationship with one Smt. Kamlesha.
Opposite party nos. 2 & 3 have further
alleged in the petition that both of them
are not in a position to maintain
themselves. It has further been contended
therein that opposite party no.2 is the
legally wedded wife of the revisionist
whereas opposite party no.3 is his
legitimate son. The revisionist contested
the claim. He denied the allegations and
averments leveled against him in the
claim petition. He further stated that he
was married to Smt. Kamlesha in the year
1977 and both of them are living together
since then as husband and wife and they
have two children out of this wedlock.
The revisionist has further stated in his
objection moved before the learned
Magistrate that Dhan Singh is his real
brother and a property dispute is there
between the two. It has also been stated
that opposite party no.2 is a kept of Dhan
Singh and opposite party no.3 is his
illegitimate child. The revisionist has
further stated that on the instigation of
Dhan Singh opposite party no.2 has filed
the petition under section 125 Cr.P.C.
with false allegations in order to extract
money from the revisionist.

4. After hearing both the parties the
picture which emerged before the learned
Magistrate was that the revisionist had
married Smt. Kamlesha in the year 1977
428 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
but unfortunately the couple could not
beget a child. Thereafter in the year 1994
the revisionist married opposite party
no.2. This was his second marriage. Out
of this second wedlock a son was born
who is opposite party no.3. After the birth
of opposite party no.3 Smt. Kamlesha the
first wife of the revisionist became
pregnant and she also gave birth to a male
child. Thereafter another child was also
born to Smt. Kamlesha. After a few years
the revisionist started avoiding his second
wife, opposite party no.2 and after
sometime started maltreating her and one
day he turned her out of his house
alongwith opposite party no.3. Thereafter
opposite party no.2 alongwith her son
went to her father's home and since then
she is living there having no means to
maintain herself and her minor son.

5. I have heard learned counsel for
the parties and perused the records.

6. The first point which has been
submitted before me by the learned
counsel for the revisionist is that the
learned
lower
court
has
failed
to
appreciate the evidence adduced from his
side whereby he had contended before the
learned lower court that opposite party
no.2 Smt. Sanju was a concubine of one
Dhan Singh, younger brother of the
revisionist. It has been further submitted
in this regard that the revisionist had
certain property dispute with Dhan Singh
and this dispute was of such a nature that
once Dhan Singh had fired upon the
revisionist by his gun, but the fire missed
its target. In this reference it has also been
submitted from the side of the revisionist
that due to intervention of his mother, the
revisionist did not lodge an F.I.R. in the
matter or take any action.

7. I have examined the judgment
dated 13.11.2007 of the learned lower
court who has given a categorical finding
regarding this contention. The learned
Magistrate has found that but for the bald
statement of the revisionist and his first
wife Smt. Kamlesha there is nothing on
the record which may indicate that
opposite party no.2 was a concubine of
Dhan Singh. The learned lower court has
referred the statement of the mother of
Dhan Singh in this regard and also
various documents which indicated that
marriage had taken place in between the
revisionist and opposite party no.2. There
is also a categorical finding of the learned
lower court in which it has held that proof
of property dispute or firing by Dhan
Singh upon the revisionist have not been
proved by the revisionist. In this regard I
have examined the judgment of the lower
court and other materials available on
record. I find that this finding of the lower
court is based on evidence and it can not
be said that this finding of fact is
perverse. Therefore, in revision this court
is not inclined to interfere with this
factual aspect of the matter. It is sufficient
to say that on both the occasions both the
Magistrates have given a clear-cut finding
that a marriage had taken place in
between the revisionist and opposite party
no.2. They have also given categorical
findings that opposite party no.3 Vipin
Kumar is the minor son of the revisionist
and opposite party no.2.

8. The revisionist had filed his
objection on the petition filed by opposite
party no.2 under Section 125 Cr.P.C. in
the Court of the learned Magistrate. In his
objection the revisionist has said that he
even does not know opposite party no.2
but at the same time he has also stated
that opposite party no.2 is a concubine of
2 All] Sant Pratap Singh V. State of U.P. and others
429
his younger brother. In his crossexamination before the learned Magistrate
a photograph was shown to him regarding
which he has admitted that he was sitting
in the photograph alongwith opposite
party no.2, his mother and his nephew.
These facts go to show that on material
points the revisionist had tried to mislead
the court by speaking lies.

9. From the perusal of judgments
impugned it is evident that both the
learned Magistrates have given a distinct
finding that opposite party no.2 Smt.
Sanju had married the revisionist in the
year 1994. The Magistrates have also
given
categorical
findings
that
the
revisionist was married to one Kamlesha
Devi in the year 1977 i.e. much before the
marriage of the revisionist with opposite
party no.2.

10. Mr. Lokesh Varun, learned
Judicial
Magistrate,
Court
No.14,
Farrukhabad vide his judgment and order
dated 7.5.2007 passed in complaint case
No.20/12/07 has said that since opposite
party no.2 was the second wife of the
revisionist, she is not entitled to get a
maintenance from the revisionist because
the second marriage was a void marriage.
He had relied upon the judgment of
Supreme Court reported as Bakulabai and
another Vs. Ganga Ram and another. This
judgment of Mr. Lokesh Varun was
challenged before the learned Sessions
Judge, Farrukhabad, who did not agree
with the finding given by the learned
Magistrate and with certain unreasonable
findings and without considering the ratio
of Bakulabai's case, the learned Sessions
Judge allowed the revision and remanded
the case back for fresh consideration by
the
learned
Magistrate.
It
is
very
astonishing
that
before
passing
his
revisional judgment the learned Sessions
Judge did not try even to read the ratio
given by the Apex Court in Bakulabai's
case and by adopting a queer logic he
remanded the matter for fresh trial.

11. In my opinion the learned
Sessions Judge should have behaved in a
more matured manner while giving
certain directions to the lower court. It
appears that he forgot that the court of a
magistrate is judicially subordinate to a
Sessions Judge and it is bound to follow
the directions given by him in revision. I
find that because of illogical directions
given by him in his revisional judgment to
the lower court the learned judicial
magistrate, City, was forced to give
certain findings which probably he would
not have given while he was deciding the
remanded petition Under Section 125
Cr.P.C. had he been properly directed by
the learned Sessions Judge.

12. Mr. Chandra Pal the learned
Judicial Magistrate City, Farukhabad has
on
13.11.2007
passed
the
relevant
judgment in case No.127/12/2007 which
is actually and substantially impugned
herein. The learned Magistrate has given
a clear-cut finding that respondent no.2 is
the second wife of the revisionist. From
his judgment it also appears that when
opposite party no.2 married the revisionist
she had knowledge that the revisionist
was
already
married
to
one
Smt.
Kamlesha Devi. The learned Judicial
Magistrate City, has also given a
categorical finding that opposite party
no.3, is the son of opposite party no.2 and
the
revisionist.
He
has
allowed
maintenance to opposite party no.3 but at
the
same
time
he
also
allowed
maintenance to opposite party no.2
430 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
holding that she is a legally married wife
of the revisionist.

13. The only legal issue involved in
the instant case is that whether opposite
party no.2 Smt. Sanju is entitled to get
any maintenance from the revisionist or
not.

14. Factually, it has been established
that the revisionist was married to one
Smt. Kamlesha Devi in the year 1977. He
did not have a surviving child from Smt.
Kamlesha and it appears that in these
circumstances he had decided to marry
opposite party no.2 and did marry her in
the year 1994. It also appears that
opposite party no.3 was born out of the
second marriage of the revisionist. Facts
also show that after the birth of opposite
party no.3 Smt. Kamlesha Devi gave birth
to a male child, who is alive. After the
birth of this child, it appears, that the
revisionist had started misbehaving with
opposite party no.2 and opposite party
no.3 and he turned them out of his house
forcing opposite party no.2 to go back to
her father's house where she is living with
her son, opposite party no.3. In the instant
case factually it has been established that
opposite party no.2 is the second wife of
the revisionist and opposite party no.3 is
his illegitimate son.

15. Now let us examine the status of
opposite party no.2. Section 11 of The
Hindu Marriage Act, 1955 states as
follows:-

"11.Void marriages.-Any marriage
solemnised after the commencement of
this Act shall be null and void any may,
on a petition presented by either party
thereto against the other party, be so
declared by a decree of nullity if it
contravenes any one of the conditions
specified in clauses (i), (iv) and (v) of
Section 5."

16. The above Section clearly states
that any marriage solemnised after the
commencement of the Hindu Marriage
Act, 1955 shall be null and void if it
contravenes any one of the conditions
specified in Clauses (i), (iv) and (v) of
Section 5 of the Hindu Marriage Act,
1955 which is as follows:-

"5.Conditions
for
a
Hindu
Marriage.-
A
marriage
may
be
solemnised between any two Hindus, if
the following conditions are fulfilled,
namely:-

(i) neither party has a spouse living at
the time of the marriage
(ii) at the time of the marriage, neither
party-
(a) is incapable of giving a valid consent
to it in consequence of unsoundness of
mind; or
(b) though capable of giving a valid
consent, has been suffering from mental
disorder of such a kind or to such an
extent as to be unfit for marriage and the
procreation of children; or
(c) has been subject to recurrent attacks
of insanity.
(iii) The bridegroom has completed the
age of twenty one years and the bride, the
age of eighteen years at the time of the
marriage;
(iv) The parties are not within the degrees
of prohibited relationship unless the
custom or usage governing each of them
permits of a marriage between the two;
(v) the parties are not sapindas to each
other, unless the custom or usage
governing each of them permits of a
marriage between the two;
2 All] Sant Pratap Singh V. State of U.P. and others
431

17. From the perusal of the sections
it is evident that a marriage can not be
solemnised between any two Hindus if
either party has a spouse living at the time
of the marriage. If section 5 and section
11 of the Hindu Marriage Act, 1955 are
read together it is evident that any
marriage solemnised between any two
Hindus shall be null and void if any of the
parties has a spouse living at the time of
the marriage. In 1988(25) ACC 119,
Bakulabai and another vs. Ganga Ram
and another the Apex Court has said that
the marriage of a Hindu woman with a
Hindu male with a living spouse,
performed after the commencement of the
Hindu Marriage Act, 1955 is null and
void and the woman is not entitled to
maintenance under section 125 of the
Cr.P.C. The judgment was passed by the
Supreme Court on 27.1.1988. On the
same date the same Bench of the Supreme
Court passed another judgment reported
in AIR 1988 SC 664, Smt. Yamunabai
Anantrao Adhav vs. Anantrao Shivram
Adhav and another. This judgment is a
detailed judgment in which the Supreme
Court has stated that Section 5 of the
Hindu Marriage Act, 1955 lays down the
necessary
conditions
for
a
lawful
marriage.

18. It is a necessary condition for a
lawful marriage that neither party should
have a spouse living at the time of the
marriage. A marriage in contravention of
this condition, therefore, is null and void.
Section 11 of the Hindu Marriage Act,
1955 deals with void marriages. A
marriage covered by Section 11 of the Act
is void ipso jure i.e. void from the very
inception, and has to be ignored as not
existing in law at all if and when such a
question arises. Such a question also
arises when a petition under Section 125
Cr.P.C. is dealt with by the court of a
Magistrate. From the perusal of the
provisions of Section 125 Cr.P.C. it is
evident
that
the
Magistrate,
before
granting
maintenance
to
a
woman
claiming herself to be married to the
person from whom she is claiming
maintenance has to hold that such woman
is wife. Wife means a legally wedded
wife. If the woman claiming maintenance
is not legally wedded wife of the person
form whom the maintenance is being
claimed her petition for maintenance can
not be allowed. Therefore in such
circumstances personal law of the parties
has to be considered. In Hindus marriage
with person having living spouse is null
and void and not voidable. Therefore, an
attempt to exclude altogether the personal
law applicable to the parties from
consideration is improper. In 2005 (51)
ACC 923 Savitaben Somabhai Bhatiya
vs. State of Gujrat and others the Apex
Court while referring 1969 (6) ACC 200
(SC)Nanak
Chand
vs.
Chandra
Kishore Agarwala & Others has said
that the provisions of personal law are
applicable and enforceable where parties
are governed by such Act. Referring the
Yamunabai's case (supra) the Supreme
Court has further held that the personal
law is relevant for deciding the validity of
the marriage and therefore, it can not be
altogether
excluded
from
the
consideration.

19.

The
Apex
Court
in
Smt.Yamunabai's case (supra) has finally
held that the marriage of a woman in
accordance with the Hindu rites with a
man having a living spouse is a complete
nullity in the eye of law and she is,
therefore, not entitled to the benefit of
Section 125 of the Code. Further in
Savitaben's case (supra) the Supreme
432 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Court has said that the expression 'wife'
used in Section 125 of the Code should be
interpreted to mean only a legally wedded
wife.