Madhya Pradesh High Court
Dinesh Mourya vs Ashu Mourya on 27 February, 2020
Equivalent citations: AIRONLINE 2020 MP 1776
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.R. No. 3656/2019
Dinesh Mourya
Vs
Ashu Mourya
------------------------------------------------------------------------------------
Shri D.N. Pandey, learned counsel with Shri Shailendra
Dwivedy learned counsel for the petitioner.
Shri A.K. Dwivedi, learned counsel for the respondents.
------------------------------------------------------------------------------------
ORDER
(27/02/2019) The petitioner/non-applicant filed this criminal revision under Section 397 read with Section 401 of the code of criminal procedure to set aside the order dated 24.05.2019 passed by First Additional Principal Judge, Family Court, Bhopal in M.Cr.C. No. 509/2014 whereby learned First Additional Principal Judge, Bhopal allowed the petition presented by the respondent under Section 125 of Cr.P.C. and petitioner/non-applicant is directed to pay the maintenance amount of Rs. 2500/- per month to the respondent No.1 and respondent No.2 each.
2. Case of respondent No.1 in short is that the respondent No. 1 has filed an application under Section 125 of Cr.P.C. against the petitioner in which she mentioned that the marriage of respondent No.1 was solemnized with the petitioner/non-applicant on 22.11.2011. Before marriage, respondent No.1 and petitioner were live in relationship and blessed with one child also i.e. respondent 2 Cr.R. No. 3656/2019 No.2. After some time, petitioner/non-applicant used to abuse and beat her in drunken condition and also compelled the respondents No. 1 to consume liquor. He also assassinated her character. The Petitioner/non-applicant deserted the respondent No.1 and also taken appliance installed in the house of respondent No.1. Respondent No.1 has no source of income. Petitioner has sufficient means of income. Therefore, respondents are entitled to get maintenance to the petitioner.
3. In reply the petitioner denied all the allegation levelled against him stating that the they have never performed marriage and the respondent No. 1 never lived with him as a wife. He also stated that he had not committed any cruelty towards the respondent No.1. He further stated that the respondent No.1 belongs to Muslim religion and her marriage was performed with one Mehmood Khan on 22.11.2011 and since then the respondent No. 1 is residing with him as a wife. He has also produced documents of her Nikah. He also submitted before the Family Court, the respondent No. 1 was blessed with one male child, who has died and he has produced receipt of cemetery. He also stated that he is already married having two children and on account of grab money, the respondent No. 1 has filed false case.
4. Learned counsel for the petitioner submits that the learned Family Court has failed to see that no marriage was taken place between the parties, thus, no question arises to give the maintenance under Section 125 of Cr.P.C. He submits that the learned Family Court failed to consider that the respondent No. 1 is already 3 Cr.R. No. 3656/2019 married with one Mehmood Khan and she had one child to him who has died, the petitioner has also filed graveyard receipt dated 28.02.2014. He also submits that the petitioner is already married person having two children. The marriage certificate produced by the respondent No.1 is fake document. He also submits that the non- applicant witness No. 2 Sayed Ameer Hassan who was the Kazi and performed the marriage of respondent No. 1 with one Mehmood Khan has supported the contention of petitioner. The Kazi has clearly identified the respondent No.1 as well as Nikahnama and other documents have also submitted by the petitioner in this regard. So far as income of the petitioner is concerned, the respondent No. 1 has failed to prove of the income of the petitioner even then the learned Family Court has awarded the maintenance amount. The respondent No. 1 has field the application only to fulfill her greed of money and she wants to extract the money from the petitioner by misusing process of law whereas the petitioner has proved that no marriage had taken place between them. He also stated that the respondent No. 2 is not his child. Therefore, the awarded maintenance amount is improper, unjustified and contrary to law and same deserves to be quashed.
5. On the other hand, learned counsel for respondents opposes the same and submits that the respondent No.1 is a legally waded wife of the petitioner and due to cruelty committed by the petitioner, she compelled to live separately with her daughter. The marriage of petitioner and respondent No. 1 was solemnized on 22.11.2011 but they were living in live in relationship prior to and 4 Cr.R. No. 3656/2019 from their cohabitation, they have born out respondent No.2 on 29.07.2010. After some time of marriage, the petitioner committed cruelty with the respondent No.1 due to this the respondent No.1 is compelled to live separate to him. The petitioner is not maintaining the respondents due to this the respondents are unable to survive. The income of the petitioner is more then one lakh rupees, hence, the maintenance amount awarded by the learned Family Court is itself meager and does not deserve to interfere. With the aforesaid, he prays for dismissal of this revision petition.
6. Heard both the parties and perused the record.
7. On perusal of the record, it appears that the respondent No.1 has filed an application under Section 125 of Cr.P.C. for seeking maintenance from the petitioner on the ground that the petitioner used to maltreat her and he did not take care of her and her child. Further, the petitioner has denied his marriage with respondent No.1, he has also denied his relation with respondent No.2. According to petitioner, respondent No.1 was already married with one Mahmood Khan and since then she is residing with him as his wife. In this regard, the petitioner has filed some documents of her Nikahnama. The petitioner has also filed a graveyard receipt of the son, alleged to be born out from the co-habitation of the respondent No.1 and Mahmood Khan.
8. After hearing of arguments raised by the petitioner's counsel the question arises before this Court is whether the 5 Cr.R. No. 3656/2019 respondent No.1 has succeeded to prove her marriage with the petitioner and is she legally wedded wife of petitioner or not?
9. On perusal of order passed by learned Family Court, it appears that the respondent No. 1 has stated that she knew the petitioner long back and the petitioner was maintaining her as wife. She further stated that from their co-habitation, she born one child i.e. respondent No. 2 and thereafter on 24.11.11 she performed marriage with the petitioner in 'Arya Samaj Mandir'. She alleged that the petitioner never disclosed about his first marriage. Shyama Bai (AW-
2), mother of respondent No. 1 has also supported her version. She also filed a marriage certificate vide Ex. P-1. Further, the respondent No. 1 has also examined Sunil Awasthi (AW-3) who stated that the marriage has been performed by him and he signed the certificate, although, he could not be cross examined because the petitioner was declared ex-parte and his application for permitting him to cross examine the witness, has been rejected. Moreover, the petitioner has denied to give the consent of DNA test of the respondent No. 2. It is also well settled principle of law to give the maintenance under Section 125 of Cr.P.C., strict proof of performance of marriage is not necessary. In this regard in the case of Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit and another reported in (1997) 7 SCC 675, the Hon' ble Apex Court has held as under:-
".........In our view, validity of the marriage for the purpose of summary proceeding under Section 125 Cr.P.C. is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceeding is not as strict as is required in a trial of offence under section 494 of the I.P.C. If the claimant in proceedings under Section 125 6 Cr.R. No. 3656/2019 of the Code succeeds in showing that she and the respondent have lived together as husband and wife, the Court can presume that they are legally wedded spouses, and in such a situation, the party who denies the marital status can rebut the presumption. Undisputedly, marriage procedure was followed in the temple, that too, in the presence of idol of Lord Jagannath, which is worshipped by both the parties. Appellant contended before the learned Magistrate that the said marriage was performed under duress and at the point of knife, he was required to exchange garlands. That contention is not proved by leading necessary evidence. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the said procedure was complete as per the Hindu rites in the proceedings under Section 125 Cr.P.C." (Underlining added)
10. In another recent pronouncement Kamala Vs. M.R. Mohan Kumar reported in 2018 SCC Online SC 2121, after reiterating the case of Dwarika Prasad Satpathy (Supra), the Hon'ble Apex Court has held as under:-
"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.7 Cr.R. No. 3656/2019
16. It is fairly well settled that the law presumes in favour of marriage and against concubinage when a man and woman have 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:-
"11. 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 10 presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy 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."
8Cr.R. No. 3656/2019
17. This Court in Chanmuniya case further held as under:-
"24. 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."
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:-
"28. 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 "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 (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 "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 (1988) 1 SCC 530."
19. After referring to the divergence of judicial opinion on the interpretation of the word "wife" 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 "wife", 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 9 Cr.R. No. 3656/2019 and extensive interpretation should be given to the term "wife" under Section 125 Cr.P.C. and held as under:-
"42. 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." (Underlining added)
11. On perusal of the above quoted citations it is manifest that if the wife proves that she has been living together with the other party (husband) as a wife, the Court presumes that she is legally wedded wife and she is entitled to claim the maintenance from her husband. Therefore, in such circumstances, the learned Family Court has rightly believed that the there was marital relationship between the petitioner and respondent No.1.
12. Now I take another ground which is raised in the case by the petitioner that the respondent No. 1 is already married with one Mehmood Khan and is living with him. He also raised that respondent No.1 had one child to Mehmood Khan who died but due to absence of cogent evidence by the petitioner, the Family Court does not found the marriage of respondent No. 1 with the Mehmood Khan duly proved. This finding when tested on the evidence available on record, it appears that the statement of Sayed Ameer Hassan (DW-
2) is important who stated that he performed the marriage of the 10 Cr.R. No. 3656/2019 respondent No.1 with Mehmood Khan but to secure their identity, he did not take their identity proof, moreover, in Nikahnama (exhibit D-
8), photographs of the parties is also not found attached, he stated that somebody had taken the photograph but he did not file any complaint in this regard. Further, in the document of Ex. D-5 (grave receipt), the name of respondent No.1 is not mentioned as the mother of died Mohammad Khan, the petitioner has not filed any other evidence to prove that the respondent No.1 gave birth to a child namely Mohammad Khan. On perusal of document of Ex. D-4 (Hindi translation of Nikahnam) and Ex.P-4 (ration card) the name of father of the respondent No. 1 is found different as in ration card, the name is reflected as Matru Khatik whereas in Nikahnam appears as Matru Khan, therefore, the findings of the learned Family Court holding that the marriage of the respondent No.1 with Mahmood Khan is not found prove, found satisfactory.
13. An another fact is also reflected in the record is that the petitioner husband is already married person and having two children, thus, in such circumstances, the issue arises before this Court, whether the respondent No.1 can be treated as a legally wedded wife of petitioner ?
14. In the case of Badshah Vs. Sou-Urmila Badshah Godse and another reported in AIR 2014 SC 869, the Hon'ble Apex Court has held that if the wife has produced cogent and strong evidence regarding their marriage and both lived together, but husband did not reveal the fact of his first marriage and wife was 11 Cr.R. No. 3656/2019 having no knowledge about the same, then she shall be treated as legally wedded wife for purpose of claiming maintenance.
15. In the present case, it is categorically stated by the respondent No. 1, when her marriage was solemnized with the petitioner, she did not know about the first marriage of petitioner.
16. In another case Chanmuniya (Supra), the Hon'ble Apex Court held that in case of live-in-relationship/presumed marriage/defacto marriage/Cohabitation, long cohabitation of the party, without performing valid marriage makes such woman entitle to claim maintenance.
17. On perusal of evidence available on record so also considering the circumstances of the case, this Court is of the opinion that petitioner has failed to prove that the respondent No. 1 is not his wife for the purpose of claiming maintenance. He has also failed to prove that she is living with another person as his wife. It also appears that the respondent No. 1 was living with the petitioner as a wife since number of years. They have cohabited with each other since long back and due to which they have been blessed with one child i.e. respondent No. 2. Though, the petitioner has denied to accept his relation with respondent No. 2, but he has denied to conduct DNA test. Further, on perusal of document of Ex. P-2 (fees card), Ex. P.-3 (Fee receipt) and Ex. P-9 (birth certificate) of respondent No.2, the name of petitioner is mentioned as father of her.
Therefore, it is sufficient to believe that the petitioner is the father of respondent No.2. Hence, in view of the principle laid down in the 12 Cr.R. No. 3656/2019 above cited case, this Court is of the opinion that the petitioner is responsible person to take care of respondent No.1 and 2 and findings of the learned family court is found correct.
18. So far as quantum of maintenance amount is concerned, it is found that according to the respondent No. 1, the petitioner is having three tanker which engaged in transportation of diesel and petrol and he also has 2 four wheeler. Although, the respondent No. 1 has failed to file any documentary evidence in this regard but considering the fact that the petitioner has not denied this above said fact in his examination and also not challenged the same while making cross examination of the respondent, income of the petitioner assessed as Rs. 20000/- per month, is found adequate. Therefore, in such circumstances, total awarded maintenance amount of Rs. 5000/- per month to the respondents (2500/- per month to each), is found proper and not interferrable.
19. Accordingly, this revision petition is devoid of merits, and it is hereby dismissed.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2020.02.28 17:09:02 +05'30'