Court: MADHYA PRADESH HIGH COURT
Bench: JUSTICE N.K. Gupta
JEEVAN SINGH Vs. SANGEETA BAI On 7 October 2013
Applicant was neither valid wife of non-applicant, nor she had any reason to live away from her husband, to get any maintenance from her husband — She was not ousted but she herself left house of her husband — ACJM rightly held that applicant was not entitled to get any maintenance, without living with non-applicant — ASJ committed an error in considering overt act of appellant when she was residing with her husband — Order passed by revisionary Court for maintenance set aside.
1. Both the matters are related with common cases and common order passed by the revisionary Court as well as the Trial Court, therefore, they are hereby decided by this common order.
2. The applicant of M.Cr.C. No. 9919 of 2005/the applicant in original case has preferred the present petition under Section 482 of the Cr.P.C. against the order dated 16.8.2005 passed by the learned Additional Sessions Judge, Ashtha in criminal revision No. 116/2004, whereby a meagre amount of Rs. 250 was granted as maintenance, whereas the revision was filed by the applicant against the order dated 11.8.2004 passed by the learned ACJM, Ashtha in M.Cr.C. No. 30/2003, whereby the application for maintenance under Section 125 of the Cr.P.C. was dismissed. The applicant has prayed that the maintenance amount be enhanced from a sum of Rs. 250 to a sum of Rs. 5,000 per month.
3. The applicant of Criminal Revision No. 1283 of 2005/the non-applicant of the original case has preferred the present criminal revision against the order dated 16.8.2005 passed by the learned Additional Sessions Judge, Ashtha in criminal revision No. 116/2004, whereby a maintenance of Rs. 250 was granted to the respondent.
4. The facts of the case, in short, are that, the applicant Sangeeta Bai had filed an application under Section 125 of the Cr.P.C. with the pretext that her marriage with the non-applicant took place 4 years ago. In first two years, he kept the applicant with comfort and, thereafter, he started harassing her. He threatened the applicant that he would marry someone else and, therefore, the applicant went to her parents house. Thereafter, she was sent by her parents back but, soon after that incident, she was assaulted and ousted on the festival of Makarsankranti. Thereafter, the non applicant did not visit to take the applicant to his house. It is also submitted that the non-applicant has moved a petition under Section 13 of the Hindu Marriage Act against the applicant on 10.8.2002, which was dismissed because a compromise took place between the parties, out of the Court. In maintenance application, which was registered in the year 2002, a compromise took place between the parties and the non-applicant took the applicant to his house but, thereafter, again she was ousted on 8.3.2003. She had lodged an FIR at Police Station Ashtha, District Sehore and, thereafter, an application under Section 125 of the Cr.P.C. was also moved.
5. The non-applicant in his reply denied the allegations made by the applicant. He accepted the fact relating to the compromise between the parties but, no harassment was done by the applicant thereafter. The behaviour of the applicant was not good. She was not leaving her bed for 8 days continuously, without any reason. She was not doing any work in the house and ultimately, she told that she did not want to stay with the non applicant and, ultimately, she left the house of the non-applicant.
6. The learned ACJM, after considering the entire evidence adduced by the parties, dismissed the application of the applicant in toto. In criminal revision, the learned Additional Sessions Judge partly allowed the revision filed by the applicant Sangeeta Bai and granted a maintenance of Rs. 250 per month.
7. I have heard the learned Counsel for the parties.
8. The learned Counsel for the applicant in criminal revision has submitted that the original applicant Sangeeta Bai was not wife at all in the eye of law. He has placed his reliance upon the judgments passed by Hon’ble the Apex Court in cases of Savitaben Somabhai Bhatiya v. State of Gujarat & Others, I (2005) DMC 503 (SC)=III (2005) SLT 59=II (2005) CCR 10 (SC)=2005 (II) LS CT 113 and Smt. Yamuna Bai v. Anantrao & Others, I (1988) DMC 205 (SC)=1988 MANISA 55 (SC), whereas various orders passed by the Single Bench of this Court in cases of Harinarayan Khati v. Rekhabai, 2004 (4) MPHT 270; Gajraj v. Fulkunwar @ Fulwati Bai and Another, II (2006) DMC 55=2005 (2) Vidhi Bhasvar 193 and Godawari Bai (Smt.) v. Bisahuram Sahu, (1993) VIBHA 245, were also referred. It is also submitted that the applicant Sangeeta Bai left the house of her alleged husband without any reason and therefore, the Trial Court has rightly observed that she was not entitled to get the maintenance.
9. On the other hand, the learned Counsel for the applicant Sangeeta Bai has submitted that the marriage was valid and it was done according to the customary rites. The applicant was harassed by her husband and, therefore, she was bound to leave the house of her husband. The revisionary Court has rightly directed a maintenance of Rs. 250. However, the amount granted is a meager amount and, therefore, the maintenance amount be enhanced.
10. After considering the submissions made by learned Counsel for the parties and looking to the facts and circumstances of the case, it would be apparent that Hindu Marriage Act permits various forms of marriage and customary marriage also and, therefore, if there was a custom of Natara in the caste of the parties then, marriage performed on the basis of that custom should be treated as a valid marriage. In this case, it is also admitted that the non applicant husband had moved a petition under Section 13 of the Hindu Marriage Act to obtain divorce from his wife and, therefore, according to that action, the factum of marriage was accepted by the non applicant himself and therefore, at the later stage, the non-applicant could not challenge the factum of marriage of the applicant and himself. He has accepted the factum of marriage done by customary method and, therefore, it is accepted by him that such custom exists in his caste and a marriage took place accordingly. All the judgments and orders submitted by the learned Counsel for the applicant/respondent cannot be applied in the present case due to factual differences. In the present case, marriage between the parties was an admitted fact and therefore, it cannot be challenged thereafter.
11. However, the non-applicant husband could challenge the validity of marriage on the ground that first husband of the applicant was alive and no divorce took place between the applicant and her first husband. The applicant Sangeeta Bai (P.W.1) and her father Harinarayan (P.W.2) have accepted that marriage of the applicant Sangeeta Bai took place with one Parmanand who is alive. It is told by the applicant that a divorce took place according to the customs of her caste but, it was not established by her father and her uncle that divorce took place according to the custom. The witnesses were required to be examined before whom such custom of divorce took place. If there is a custom of divorce in a particular caste then, divorce must be declared before the caste Panchayat and the witnesses who attended the panchayat could have been examined to confirm the statements of the applicant Sangeeta Bai that she took a divorce from her previous husband Parmanand. Under such circumstances, though the non-applicant accepted Sangeeta Bai as his wedded wife, the second marriage of Sangeeta Bai was not valid in eye of law because her previous husband was alive and no divorce has been established between the applicant Sangeeta Bai and her previous husband Parmanand. Under such circumstances, a customary marriage was proved but, it was not a valid marriage in the eye of law and, therefore, the applicant did not get the status of wife as required under Section 125 of the Cr.P.C. The learned ACJM has rightly held in the order that the applicant could not get any maintenance under Section 125 of the Cr.P.C. because she was not a valid wife of the non-applicant.
12. The second contention raised by the non-applicant is that the applicant left his house, without any reason. The applicant Sangeeta Bai (P.W.1) and her witnesses told about the harassment done by the non-applicant but, the applicant Sangeeta Bai and her uncle accepted that she was not working in the house at all. She was interested to take his food, without doing anything. Uncle of the applicant has accepted that behaviour of the applicant was not good with her husband and parents-in-law. A complaint was made by the parents-in-law to the father and uncle of the applicant at that time and, thereafter, the applicant left the house of her husband. Under such circumstances, it would be apparent that behaviour of the applicant herself was unnatural towards the non-applicant and his parents. She was not ousted but, she herself left the house of her husband and, therefore, the learned ACJM has rightly held that the applicant was not entitled to get any maintenance, without living with the non applicant. The learned Additional Sessions Judge has committed an error in considering the overt act of the applicant when she was residing with her husband.
13. On the basis of the aforesaid discussion, it is apparent that the applicant was neither a valid wife of the non-applicant, nor she had any reason to live away from her husband, so that she could get any maintenance from her husband. Consequently, it is a fit case, in which the revision filed by the husband may be accepted and order passed for grant of maintenance by the revisionary Court may be set aside. Since, the applicant was not entitled to get any maintenance, therefore, her petition cannot be accepted. In the light of aforesaid discussion, the petition under Section 482 of the Cr.P.C. filed by the applicant Sangeeta Bai is hereby dismissed, whereas criminal revision filed by the applicant Jeevan Singh is hereby allowed. The order dated 16.8.2005 passed by the learned Additional Sessions Judge, Ashtha in criminal revision No. 116/2004 is hereby set aside. Consequently, the maintenance application under Section 125 of the Cr.P.C. filed by the applicant Sangeeta Bai is also hereby dismissed by confirming the order passed by the learned ACJM, Ashtha.
14. A copy of the order be sent to both the Courts below along with their records for information.
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