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Madhya Pradesh High Court

Shrikrishna Urf Raju vs Smt. Shyama on 21 March, 2023

Author: Pranay Verma

Bench: Pranay Verma

                                                             1
                           IN     THE       HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                       BEFORE
                                         HON'BLE SHRI JUSTICE PRANAY VERMA
                                                ON THE 21 st OF MARCH, 2023
                                              MISC. PETITION No. 1668 of 2023

                          BETWEEN:-
                          SHRIKRISHNA URF RAJU S/O NATHUJI CHHAPARWAL
                          AKA CHAUHAN, AGED ABOUT 67 YEARS, OCCUPATION:
                          RETIRED WARD NO. 32, SHAHID DEEP SINGH
                          CHAUHAN WARD, HARDA (MADHYA PRADESH)

                                                                                          .....PETITIONER
                          (BY SHRI AMAR SINGH RATHORE - ADVOCATE)

                          AND
                          SMT. SHYAMA W/O SHRIKRISHNA URF RAJU
                          CHAUHAN, AGED ABOUT 55 YEARS, OCCUPATION:
                          HOUSE WIFE BHAI SITARAM KA MAKAAN, 455-C,
                          PRAJAPAT NAGAR, INDORE (MADHYA PRADESH)

                                                                                       .....RESPONDENTS


                                This petition coming on for admission this day, th e court passed the
                          following:
                                                              ORDER

1. Learned counsel for the petitioner is heard on the question of admission.

2. By this petition preferred under Article 227 of the Constitution of India the petitioner has challenged the order dated 24.01.2023 passed by the Family Court whereby his objection to the maintainability of the proceedings instituted by respondent under Section 125 of the Code of Criminal procedure has been rejected.

3. The respondent has instituted proceedings before the Court below for Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 25-Mar-23 3:16:55 PM 2 award of maintenance to her from the petitioner. The petitioner filed an application taking objection to the maintainability of the petition on the ground that as per the respondent herself she was earlier married to Ramesh Karwal and admittedly no divorce has taken place between them hence respondent continues to be his legally wedded wife. For that reason she is not the legally wedded wife of the petitioner hence is not entitled for award of maintenance under Section 125 of the Cr.PC. Reliance has been placed on the decision of the apex Court in 2005 (3) SCC 636, Savita Somabhai Bhatiya Vs. State of Gujarat and others.

4. I have heard learned counsel for the petitioner and have perused the record.

5. In paragraph-1 of her application under Section 125 of the Cr.PC the respondent has stated that about 26 years ago her husband Ramesh had deserted her and thereafter the petitioner had accepted her as his wife on 30.10.1998 and had also taken her daughter as his daughter and had agreed to take care of them during their life time. A document in that regard was also executed by him. Thus, the contention of respondent is that she has been living as wife of the petitioner ever since 1998 hence he is entitled for award of maintenance.

6. The Supreme Court in Kamla and others Vs. M.R. Mohan Kumar (2019) 11 SCC 491 has considered the issue where a man and woman have lived as husband and wife for a considerable length of time and has held that long cohabitation between a woman and man leads to presumption of marriage entitling the woman and children born to them for maintenance. The said case was specifically under the provisions of Section 125 of the Code of Criminal Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 25-Mar-23 3:16:55 PM 3 Procedure. In paragraph No.15 to 20 it was held as under :-

"15. Unlike matrimonial proceedings where strict proof of marriage is essential, in the proceedings under Section 125 Cr.P.C., such strict standard of proof is not necessary as it is summary in nature meant to prevent vagrancy. In Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1999) 7 SCC 675, this Court held that “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.†When the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance of wife under Section 125 Cr.P.C. Applying the well- settled principles, in the case in hand, appellant No.1 and the respondent were living together as husband and wife and also begotten two children. Appellant No.1 being the wife of the respondent, she and the children appellants No.2 and 3 would be entitled to maintenance under Section 125 Cr.P.C.

16. It is fairly well settled that the law presumes in favour of marriage and against concubinage when a man and woman have Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 25-Mar-23 3:16:55 PM 4 cohabited continuously for a number of years. After referring to various judgments, in Chanmuniya v. Virendra Kumar Singh Kushwaha (2011) 1 SCC 141, this Court held as under:-

œ11. Again, in Sastry Velaider Aronegary v. Sembecutty Vaigalie (1881) 6 AC 364, it was held that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.

12. In India, the same principles have been followed in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy AIR 1927 PC 185, in which the Privy Council laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.

13. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan AIR 1929 PC 135 the Privy Council has laid down that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.

14. In Gokal Chand v. Parvin Kumari AIR 1952 SC 231, this Court held that continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 25-Mar-23 3:16:55 PM 5 that presumption, the Court cannot ignore them.

"15. Further, in Badri Prasad v. Director of Consolidation (1978) 3 SCC 527, the Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin.

16. Again, in Tulsa v. Durghatiya (2008) 4 SCC 520, this Court held that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock.

17.ÂÂ​ This Court in Chanmuniya case further held as under:-

œ24. Thus, in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent.†[underlining added]

18. Chanmuniya case referred to divergence of judicial opinion on the interpretation of the word wife in Section 125 Cr.P.C. In paras (28) and (29) of Chanmuniya case, this Court referred to other judgments which struck a difficult note as under:-

œ28. However, striking a different note, in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (1988) 1 SCC 530, a two-Judge Bench of this Court held that an attempt to exclude altogether personal law of the parties in proceedings under Section 125 is improper (see para 6). The learned Judges also held (paras 4 and 8) that the expression œwife 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 (2005) 3 SCC 636, this Court held that however desirable it may be to take note 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 œwifeÂÂ. 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 (1988) 1 SCC 530.

19. After referring to the divergence of judicial opinion on the interpretation of the word œwife in Section 125 Cr.P.C., speaking for the Bench A.K. Ganguly J. held that the Bench is inclined to take a broad view of the definition of œwifeÂÂ, having regard to the social object of Section 125 Cr.P.C.

20. In Chanmuniya case, 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 interpretation should be given Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 25-Mar-23 3:16:55 PM 7 to the term wifeÂÂ​ under Section 125 Cr.P.C. and held as under:-

œ42. We are of the opinion that a broad and expansive interpretation 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 maintenance 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.

7. Thus in view of the aforesaid pronunciation of the legal principles by the Supreme Court to the effect that living together of a man and woman as husband and wife gives rise to legal presumption of marriage entitling the woman to grant of maintenance under the provisions of Section 125 of the Cr.PC, I do not find that the Court below has erred in any manner in rejecting the objection as raised by the petitioner. The question whether first husband of respondent had divorced her and whether there can be a presumption of marriage between petitioner and respondent would be considered by the Court below at the time of final adjudication. Mere rejection of objection of the petitioner would not be a bar for him to raise these questions at the appropriate stage. The Court below would also consider these matters without being influenced by the impugned order.

8. The petition being devoid of merits is hereby dismissed.

(PRANAY VERMA) JUDGE rashmi Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 25-Mar-23 3:16:55 PM