Himachal Pradesh High Court
Ajay Kumar vs Meena Devi on 10 June, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No.171 of 2024 Date of Decision: 10.06.2024 .
_______________________________________________________ Ajay Kumar .......Petitioner Versus Meena Devi ... Respondent _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1.
For the Petitioner: r Ms. Anu Tuli, Advocate.
For the Respondent: Nemo.
_______________________________________________________ Sandeep Sharma, Judge(oral):
Instant Criminal Revision petition filed under Section 19(4) of the Family Court Act, 1984, lays challenge to order dated 30.12.2023 passed by learned Principal Judge (Family Court) Shimla, District Shimla, H.P., whereby petition bearing No.48 of 2020, having been filed by the respondent under Section 125 of the Code of Criminal Procedure for grant of maintenance, came to be allowed, petitioner-husband has approached this Court in the instant proceedings, praying therein to set aside the aforesaid order.
2. Precisely, the facts of the case, as emerge from the record are that respondent claiming herself to be legally wedded wife of the petitioner, filed petition under Section 125 of Cr.P.C., in the 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 13/06/2024 20:30:03 :::CIS 2Court of learned Principal Judge (Family Court) Shimla, District Shimla, H.P., claiming therein maintenance to the tune of Rs.30,000/-
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per month for maintaining herself (Annexure P-1). Respondent alleged in the petition that she after having obtained divorce from her previous husband, solemnized marriage with the petitioner in the month of July, 2007 and since then they both have been living happily at Shoghi, Shimla. Respondent alleged that after solemnization of her marriage, petitioner used to keep her with love and affection and he also used to take her to his native village twice in a month. She claimed that though there has been long cohabitation interse her and the petitioner, but no issue was born out of their wedlock. She alleged that till December, 2019 relation interse her and petitioner remained cordial, but thereafter, petitioner unnecessarily started picking up quarrels and started ignoring her. She alleged that petitioner not only maltreated her, but also did not provide her with sufficient means to sustain herself, as a result thereof, she was compelled to live without food for days together. She alleged that in the month of March 2020, petitioner left her alone at Shoghi and never turned back. She alleged that though she repeatedly tried to contact the petitioner on phone, but he avoided her phone calls. She also alleged that she also visited native village of the petitioner at Nerwa, but there she was not only maltreated by the petitioner, but other family members also gave her ::: Downloaded on - 13/06/2024 20:30:03 :::CIS 3 beatings. Respondent alleged that petitioner being able bodied person had been earning more than Rs. 35,000/- per month as salary .
as he was working as a Chef in Mayur Hotel, Shimla. She also alleged that apart from aforesaid income, he has income from agriculture as well as orchard and his total income is more than Rs.65, 000/- per month. Respondent claimed that since despite means petitioner is not maintaining her, she is entitled to be provided adequate maintenance.
3. Aforesaid claim put forth by the respondent came to be seriously refuted by the petitioner, who by way of reply, though admitted that he and respondent had been living together w.e.f. 2011 till 2020, but specifically denied factum, if any, with regard to marriage interse him and the respondent. He also admitted that respondent had informed him that she was divorced and her ex-
husband has expired. He admitted that w.e.f. 2011 to 2020, he was working in Hotel Mayur and was residing in rented accommodation at Shoghi. He submitted that due to late shifts in the Hotel, he used to go to Shoghi hardly on holidays or Sunday. He specifically denied claim of the respondent that he used to take her to his native village. He also alleged that respondent had two sons from her earlier marriage and both are working. He also submitted in his reply that though initially, having taken note of the fact that respondent is alone and ::: Downloaded on - 13/06/2024 20:30:03 :::CIS 4 requires help, he extended financial help, but subsequently he was abused sexually and was blackmailed by the respondent. He .
submitted that on account of lockdown, he left his job and became pennyless and as such, for survival shifted to his native village and at present is residing there for the last two years. He submitted that he is unemployed and working in fields alongwith his parents and does not possess sufficient means to maintain himself as well as respondent as is being claimed by her. He also alleged that respondent is working in Bahra University and her one son is also earning.
4. On the basis of aforesaid pleadings adduced on record, learned trial Court after having framed issues provided adequate opportunity to both the parties to lead evidence, however, fact remains that petitioner herein despite sufficient opportunity failed to lead cogent and convincing evidence, rather to prove his defence as set up in his reply, he only examined himself.
5. To the contrary, respondent, while examining herself as PW-1 tendered in evidence her affidavit Ex.PW-1/A, wherein she successfully proved the case as was setup by her in the petition, as detailed hereinabove. She also tendered photographs Mark P-1 to Mark P-4 and P-7 to P-9, copy of Aadhaar Card, Mark P-5 and Panchayat Certificate, Mark P-6 in evidence, perusal whereof clearly reveals that petitioner and respondent had prior acquaintance and ::: Downloaded on - 13/06/2024 20:30:03 :::CIS 5 they had been living together. If cross-examination of the respondent conducted by the petitioner is perused in its entirety, this Court finds it .
difficult to agree with Ms. Anu Tuli, learned counsel for the petitioner that marriage interse petitioner and respondent was never solemnized, rather evidence led on record by the respondent, clearly establishes factum with regard to marriage interse petitioner and her in the year, 2007. No doubt, as per the cross-examination of the respondent, her first marriage was solemnized in the year, 1993 and out of such wedlock, two children were born, who though have become major, but do not reside with her. She in her cross-
examination deposed that she was introduced to the petitioner at Shoghi and at that time petitioner used to work at Waknaghat. She also deposed that earlier petitioner did not use to reside in Modgil Bhawan, but after solemnization of marriage with her, he started living with her. She admitted that petitioner had been working as a Cook, but during the Covid, he lost his job. She also admitted that she had been working in Bahra University w.e.f. the year 2008 to 2019, and was getting salary of Rs. 5000-6000/-. She categorically denied the suggestion put to her that no marriage was solemnized interse her and the petitioner and she had been residing with the petitioner without solemnization of marriage. She categorically deposed that her marriage was solemnized with the petitioner at his house in ::: Downloaded on - 13/06/2024 20:30:03 :::CIS 6 accordance with Hindu rites and custom. While deposing that she had obtained divorce from her previous husband Sh. Rajesh Kumar in the .
month of April, 2007,respondent specifically admitted that she had not prepared new Ration Card because her name was not entered anywhere. She deposed that petitioner used to pay room rent, whereas she used to bear the expenses of the ration. She admitted that she did not make any complaint to the police regarding beatings given to her by the petitioner. She also admitted that during Covid petitioner had deposited sum of Rs. 1, 30,000/- in her account.
6. Besides above, respondent also examined his landlord as PW-2, Sh. Diwakar Dutt and PW-3, Smt. Kanta Kaundal, who apart from having tendered their evidence by way of affidavits Ex.PW2/A and Ex.PW3/A. PW-2 ,subjected themselves to cross-examination by the petitioner. PW-2 in his cross-examination specifically stated that in the year, 2007 parties had taken the room on rent at the rate of Rs.3000/- per month from him and they resided there till the year, 2020. This witness categorically deposed that petitioner used to claim that the respondent is his wife. He also deposed that earlier the respondent was working at Bahra University, but now she has left the job. PW-3, Smt. Kanta Kaundal in her cross-examination deposed that she was tenant in the building of Diwakar Dutt and respondent was her neighbour since the year 2006 to 2020. This witness further ::: Downloaded on - 13/06/2024 20:30:03 :::CIS 7 deposed that marriage interse petitioner and respondent was solemnized in her presence and 30-35 people had participated in the .
marriage. She also admitted that earlier the respondent was married to some other person and out of such wedlock, children were born, but she also deposed that in the year, 2007 she had visited the village of the petitioner on account of marriage of the parties and their marriage was solemnized in accordance with Hindu rites and ceremonies. She also deposed that petitioner used to work in the Hotel on monthly salary of Rs.30000-35000/-, but in the year, 2020 he had left the company of the respondent.
7. From the bare reading of the evidence led on record by the respondent, it can be safely concluded that though respondent was married in the year, 1993 to one Sh. Rajesh Kumar, but in the year, 2007 she after having obtained divorce from his previous husband, solemnized marriage with the petitioner. PW-3 has categorically stated in her cross-examination that in the year, 2007, she had participated in the marriage of the petitioner and the respondent. If the cross-examination conducted upon aforesaid witnesses is perused in its entirety, it nowhere suggests that petitioner was able to extract anything contrary to what this witness stated in her examination-in-chief. Similarly, PW-2, Sh. Diwakar Dutt, also categorically deposed before the Court below that petitioner herein ::: Downloaded on - 13/06/2024 20:30:03 :::CIS 8 had been claiming respondent to be his wife and they had been living in one accommodation for almost 14 years w.e.f. 2006 to 2020.
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8. Despite sufficient opportunity petitioner failed to lead cogent and convincing evidence to rebut aforesaid evidence led on record by the respondent. While examining himself as RW-1 though petitioner attempted to carve out a case that no marriage interse him and the respondent was ever solemnized, but he was unable to dispute that he had been living with the respondent for almost 14 years in one accommodation . He also admitted that he had taken accommodation at Shoghi on rent. He deposed that he was working at a Bar Restaurant in Lakkar Bazar and earlier he used to work at Waknaghat in a Resort as a Waiter. He deposed that he has acquaintance with Diwakar Modgil i.e.PW-2. He also admitted that when he left his job from Mayur Hotel, he was getting salary of Rs.
18000/- per month. He denied that he has landed property at two places and an apple orchard from where he has income of Rs.15,000 to 20,000/- per annum. While specifically denying factum with regard to marriage interse him and the respondent, he in his cross-
examination categorically admitted that he and respondent used to reside together at Shoghi as husband and wife. He also admitted in his cross-examination that respondent visited his native place Nerwa once or twice. He also admitted that when he alongwith respondent ::: Downloaded on - 13/06/2024 20:30:03 :::CIS 9 were residing at Shoghi, then Ration Card, Mark P-4 was issued in his name as well as in the name of respondent Meena. While denying .
that he has not paid any maintenance to the petitioner, he self stated that sum of Rs. 1, 30,000/- was taken by the respondent on account of maintenance. He admitted that he has contacted his first marriage with Mamta at his native village, Nerwa, but denied that the lady shown in photographs Ex. RX-4 and Ex. RX-5 is his second wife.
9. Zimini orders placed on record by the petitioner itself suggest that despite repeated opportunities, petitioner herein failed to adduce any evidence in support of his claim. If the statement of petitioner, as has been taken note hereinabove, is read in its entirety, it nowhere proves that marriage interse him and respondent was not solemnized. No doubt, evidence adduced on record by both the parties, nowhere suggest that respondent herein had ever adduced evidence of her divorce with her previous husband, but such omission, if any may not be of much relevance, especially in view of the candid admission made by the petitioner that he was informed by the respondent with regard to her earlier marriage with Rajesh Kumar and thereafter, he had started extending helping hand to the respondent.
10. Leaving everything aside, there is categorical admission on the part of the petitioner that for almost 14 years, he lived with ::: Downloaded on - 13/06/2024 20:30:03 :::CIS 10 respondent in one accommodation and during this time, he had been proclaiming in public that respondent is his legally wedded wife, as .
has been stated by PW-2 and PW-3. If the statement of PW-3, which remained un-rebutted throughout, clearly establishes factum with regard to marriage interse petitioner and the respondent.
11. Having scanned entire evidence, as has been discussed hereinabove, this Court is not persuaded to agree with learned counsel for the petitioner that Court below, while evaluating the evidence wrongly arrived at a conclusion that respondent was legally wedded wife of the petitioner. Though, there is ample evidence adduced on record by the respondent suggestive of the fact that she was legally wedded wife of the petitioner, but even at this stage, it is presumed that there was no marriage interse petitioner and respondent, petitioner cannot deny factum with regard to his having lived with the respondent under one roof for almost 14 years, which fact itself is sufficient to suggest an intimate relationship interse petitioner and the respondent. Moreover, there is no explanation on record that if respondent was not the legally weeded wife of the petitioner, where was the occasion for the petitioner to deposit sum of Rs. 1, 30,000/- in her account, which otherwise has been claimed to be deposited by the petitioner on account of maintenance.
::: Downloaded on - 13/06/2024 20:30:03 :::CIS 1112. Now the next question, which arises for determination, before this Court, is about the fact, as to what type of proof is required .
in the proceedings under Section 125 Cr.P.C.
13. The requirement of strict proof of marriage has also been dispensed with by the Hon'ble Apex Court in Kamala and others vs. M.R. Mohan Kumar (2019)11 SCC 491. The relevant paras of the judgment are reproduced as under:
15. Unlike matrimonial proceedings where strict proof of marriage is es-
sential, in the proceedings under Section 125 CrPC, such strict stan- dard of proof is not necessary as it is summary in nature meant to pre- vent vagrancy. In Dwarika Prasad Satpathy v. Bidyut Prava Di-
xit [Dwarika Prasad Satpathy v. Bidyut Prava Dixit, (1999) 7 SCC 675 :
1999 SCC (Cri) 1345] , this Court held that "27. ... the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. The learned Judges explained the reason for the aforesaid finding by holding that an order passed in an application under Section 125 does not really determine the rights and obligations of the parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. The learned Judges held that maintenance cannot be denied where there was some evidence on which conclusions of living together could be reached." [Ed.: As observed in Chanmuniya case, (2011) 1 SCC 141, SCC p. 147, para 27.] When the parties live together as husband and wife, there is a pre-
sumption that they are legally married couple for claim of maintenance of wife under Section 125 CrPC. Applying the well-settled principles, in the case in hand, Appellant 1 and the respondent were living together as husband and wife and had also begotten two children. Appellant 1 being the wife of the respondent, she and the children, Appellants 2 and 3 would be entitled to maintenance under Section 125 CrPC.
17. This Court in Chanmuniya case [Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141 : (2011) 1 SCC (Civ) 53 : (2011) 2 SCC (Cri) 666] further held as under: (SCC p. 146, para 24) "24. Thus, in those cases where a man, who lived with a wom- an for a long time and even though they may not have under- gone legal necessities of a valid marriage, should be made lia- ble to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by en- joying the advantages of a de facto marriage without undertak- ing the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provi- sion of maintenance in Section 125 is meant to prevent."
::: Downloaded on - 13/06/2024 20:30:03 :::CIS 12(emphasis supplied)
18.Chanmuniya case [Chanmuniya v. Virendra Kumar Singh Kushwa- ha, (2011) 1 SCC 141 : (2011) 1 SCC (Civ) 53 : (2011) 2 SCC (Cri) 666] referred to divergence of judicial opinion on the interpretation of the word "wife" in Section 125 CrPC. In paras 28 and 29 of Chanmuniya .
case [Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141 : (2011) 1 SCC (Civ) 53 : (2011) 2 SCC (Cri) 666] , this Court re- ferred to other judgments which struck a difficult note as under: (SCC p.
147) "28. However, striking a different note, in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav [Yamunabai Anantrao Ad-
hav v. Anantrao Shivram Adhav, (1988) 1 SCC 530 : 1988 SCC (Cri) 182] , a two-Judge Bench of this Court held that an at- tempt to exclude altogether personal law of the parties in pro- ceedings under Section 125 is improper (see para 6). The learned Judges also held (paras 4 and 8) that the expression "wife" in Section 125 of the Code should be interpreted to mean only a legally wedded wife.
29. Again, in a subsequent decision of this Court in Savitaben Somabhai Bhatiya v. State of Gujarat [Savitaben Somabhai Bhatiya v. State of Gujarat, (2005) 3 SCC 636 : 2005 SCC (Cri) 787] , this Court held that however desirable it may be to take rnote of plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of "wife". The Bench held that this inadequacy in law can be amended only by the legislature. While coming to the aforesaid finding, the learned Judges relied on the decision in Yamunabai case [Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, (1988) 1 SCC 530 : 1988 SCC (Cri) 182] ."
19. After referring to the divergence of judicial opinion on the interpretation of the word "wife" in Section 125 CrPC, speaking for the Bench A.K. Ganguly, J. held that the Bench is inclined to take a broad view of the definition of "wife", having regard to the social object of Section 125 CrPC.
20. In Chanmuniya case [Chanmuniya v. Virendra Kumar Singh Kush- waha, (2011) 1 SCC 141 : (2011) 1 SCC (Civ) 53 : (2011) 2 SCC (Cri) 666] , this Court formulated three questions and referred the matter to the larger Bench. However, after discussing various provisions of the Criminal Procedure Code, this Court held that a broad and extensive in- terpretation should be given to the term "wife" under Section 125 CrPC and held as under: (SCC p. 149, para 42) "42. We are of the opinion that a broad and expansive interpre- tation should be given to the term "wife" to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for main- tenance under Section 125 CrPC, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual."
14. No doubt, pleadings as well as evidence adduced on record suggest that respondent has two sons from her previous ::: Downloaded on - 13/06/2024 20:30:03 :::CIS 13 marriage, but there is no evidence adduced on record by the petitioner that sons from earlier marriage are taking care of .
respondent and she is not living separately, rather respondent has categorically stated in her examination-in-chief that two sons born from her marriage are living separately and they do not provide any assistance to her. Similarly, there is no cross-examination of the respondent that still she continues to work in Bahra University. If the statement of the respondent is read in its entirety, she though admitted that she had been working in Bahra University, but also deposed that she has quit the job. If it is so, it can be safely concluded at this stage that at present, there are no sufficient means available with the respondent to sustain and maintain herself. Though, petitioner has attempted to carve out a case that after Covid-19 that he had become jobless, but such fact may not be a ground for the petitioner to escape his liability to maintain his legally wedded wife.
15. To the contrary, there is evidence adduced on record suggestive of the fact that petitioner solemnized another marriage and at present, he is living happily with his second wife, if petitioner has sufficient means to maintain and sustain his second wife, this Court sees no reason to accept the contention put forth by learned counsel for the petitioner that petitioner does not possess sufficient means to ::: Downloaded on - 13/06/2024 20:30:03 :::CIS 14 sustain the respondent, with whom admittedly petitioner lived for more than 14 years under one roof.
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16. Interestingly, pursuant to the direction issued by this Court, petitioner has placed on record affidavit with respect to assets and liability, but interestingly perusal thereof, nowhere discloses income, if any, of the petitioner, rather attempt has been made by the petitioner to hoodwink this Court by stating that at present he does not have sufficient means to sustain himself, which plea of him deserves outright rejection for the reason that he after having deserted his earlier wife had contracted another marriage, which fact itself suggest that petitioner has sufficient means. Otherwise also, this Court finds that Court below has awarded a very meager amount i.e. Rs. 3000/- as maintenance to the respondent, which otherwise also by no stretch of imagination, can be said to be on higher side.
17. Consequently, in view of the detailed discussion made hereinabove, this Court finds no reason to interfere in the impugned order, which otherwise appears to have been passed on proper appreciation of facts as well as law and as such, same is upheld. The present petition fails and is accordingly dismissed. Pending applications, if any , also stand disposed of.
(Sandeep Sharma), Judge 10th June, 2024 (shankar) ::: Downloaded on - 13/06/2024 20:30:03 :::CIS 15 .
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