Kerala High Court
Rosy Anesh vs Anesh @ Aneesh on 12 September, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
R.P.(F.C.) No.76 of 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 12TH DAY OF SEPTEMBER 2025 / 21ST BHADRA, 1947
RPFC NO. 76 OF 2022
AGAINST THE ORDER DATED 21.12.2021 IN MC NO.414 OF
2018 OF FAMILY COURT, NEDUMANGAD
REVISION PETITIONER/PETITIONER:
ROSY ANESH
AGED 47 YEARS
W/O. ANESH, ARCHANA, BLOCK NO. 42, EX-SERVICEMEN
COLONY, ANAKUDI MURI, PONGODU VILLAGE,
THIRUVANANTHAPURAM - 695609.
BY ADVS.
SRI.K.K.DHEERENDRAKRISHNAN
SMT.N.P.ASHA
RESPONDENT/COUNTER PETITIONER:
ANESH @ ANEESH, AGED 50 YEARS
S/O. BALAN, ARCHANA, BLOCK NO. 42, EX-SERVICEMEN
COLONY, ANAKUDI MURI, PONGODU VILLAGE, NOW
RESIDING AT B.S. MANDIRAM, EX-SERVICEMEN COLONY,
PONGODU VILLAGE, THIRUVANANTHAPURAM - 695609.
BY ADVS.
SRI.D.KISHORE
SRI.R.MURALEEKRISHNAN (MALAKKARA)
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR
ADMISSION ON 12.09.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
R.P.(F.C.) No.76 of 2022
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P.V.KUNHIKRISHNAN, J
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R.P.(F.C.) No.76 of 2022
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Dated this the 12th day of September, 2025
ORDER
This Revision Petition is filed by the petitioner in M.C. No.414 of 2018 on the file of the Family Court, Nedumangadu. It was a petition filed by the revision petitioner under Section 125 Cr.P.C. claiming maintenance before the Family Court, Nedumangad against the respondent.
2. The petitioner's case in brief as follows:
"The petitioner is the wife of the Counter Petitioner and their marriage was on 01.12.2006. Thereafter the Counter Petitioner deserted the Petitioner on 01.12.2017. Now the petitioner is having no means of livelihood. The Counter Petitioner was working as store keeper abroad and now he is working as a mechanic and further he is getting Rs.75,000/- per month. So the petitioner need Rs.10,000/- per month as maintenance."
3. The respondent appeared before the Family Court and filed a counter affidavit denying the averments in the petition. Before the Family Court, the petitioner herself was examined as DW1 and the respondent was examined as DW2. Two documents R.P.(F.C.) No.76 of 2022 3 2025:KER:68121 were marked on the side of the petitioner as Exts.P1 and P2 and Ext.D1 is marked on the side of the respondent. After going through the evidence and documents, the Family Court found that the petitioner is not entitled to maintenance because she is not a legally wedded wife of the respondent. Aggrieved by the same, this revision is filed.
4. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
5. The learned counsel for the petitioner submitted that, in the light of Exts.P1 and P2 coupled with the evidence of PW1, it is clear that the petitioner and the respondent were living together as married couple. The Family Court erred in rejecting maintenance to the petitioner is the contention. The learned counsel appearing for the petitioner relied on the judgment of the Apex Court in Kamala and Others v. M.R.Mohan Kumar [2018 (5) KHC 914].
6. The learned counsel for the respondent submitted that the Family Court relied the judgment of the Apex Court in Savitaben Somabhai Bhatiya v. State of Gujarat [2005 KHC 534].
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7. This Court considered the contention of the petitioner and the respondent.
8. According to the petitioner, the counter petitioner married the petitioner on 01.12.2006 at Mumbai and thereafter they were residing as husband and wife.
9. The petitioner relied on Ext.P1, which is the joint affidavit of the petitioner and the respondent. The affidavit was attested by a Notary. In the affidavit, it is stated that the petitioner and the respondent were living together and their marriage was solemnized on 01.12.2006 at Mumbai. It is also stated in the affidavit that the petitioner and the respondent were living together as husband and wife.
10. Ext.P2 is the ration card issued in the name of the petitioner, in which the respondent is shown as the husband of the petitioner. Based on Exts.P1 and P2 and also the evidence of PW1, it is clear that the petitioner and the respondent were living together as husband and wife. But the Family Court found that there is no legal marriage. But the Apex Court in Kamala's case (supra) observed like this. Paragraph Nos.15, 16, 17, 18 and 19 which reads as follows:
R.P.(F.C.) No.76 of 20225
2025:KER:68121 "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 KHC 1360 : 1999 (7) SCC 675 : 1999 SCC (Cri) 1345: AIR 1999 SC 3348 : 2000 CriLJ 1, 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 cohabited continuously for a number of years. After referring to various judgments, in Chanmuniya v. Virendra Kumar Singh Kushwaha, 2010 KHC 4753 : 2011 (1) SCC 141 : 2010 (4) KLT SN 35 : 2011 CriLJ 96 : (2011) 2 SCC (Cri) 666 : 2011 (1) SCC (Civ) 53 : 2011 (1) CHN 92: 2011 (101) AIC 149 : 2011 (1) CTC 101 :
2010 (95) AIC 40 this Court held as under:-R.P.(F.C.) No.76 of 2022 6
2025:KER:68121 "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 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.R.P.(F.C.) No.76 of 2022 7
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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." 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." [underlining added]
17. 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 R.P.(F.C.) No.76 of 2022 8 2025:KER:68121 coming to the aforesaid finding, the learned Judges relied on the decision in Yamunabai case (1988) 1 SCC 530."
18. 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.
19. 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 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."
11. In the light of the above principle, it is clear that the strict proof of marriage is not necessary. In the light of the evidence of PW1 coupled with Exts.P1 and P2, I am of the considered opinion that the petitioner and the respondent were living together as married couple. Therefore the impugned order R.P.(F.C.) No.76 of 2022 9 2025:KER:68121 is unsustainable.
12. Considering the facts and circumstances of the case and also considering the capacity of the respondent to pay maintenance, an amount of Rs.4,000/- can be fixed as maintenance to be paid by the respondent.
Therefore, this Revision Petition is allowed in part with the following manner:
1. The impugned order dated 21.12.2021 in M.C. No.414 of 2018 on the file of the Family Court, Nedumangad is set aside.
2. The respondent is directed to pay maintenance to the petitioner at the rate of Rs.4,000/- from the date of the petitioner filed by the petitioner under Section 125 Cr.P.C. before the Family Court.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE SMF