No Maintenance to Woman as Marriage or Live in not Proven by her. Maintenance only to children. - Shonee Kapoor

Court: ALLAHABAD HIGH COURT

Bench: JUSTICE Sangeeta Chandra

KAHKASHAN & ORS. Vs. UMESH KUMAR GUPTA @ ABBAS HUSAIN KAHKASHAN On 18 April 2022

Law Point:
Section 125 — Maintenance — Grant of — No proof of marriage by Muslim rites and rituals of revisionist No. 1 with respondent — Revisionist could not prove even live-in relationship in separate matrimonial home, and of revisionist being recognized as wife of respondent by public at large — No proof of first marriage having been concealed by respondent before alleged marriage to revisionist No. 1 — Photographs submitted in original and CD and mobile phone set submitted by revisionist No. 1 could prove familiarity to extent of intimacy of respondent with revisionist No. 1 and with her family members — Concubinage can be presumed from careful examination of mobile phone set and Compact Disc submitted — Children, revisionist Nos. 2, 3 and 4 entitled to maintenance of Rs. 10,000/- p.m. each from respondent till their respective marriages.

JUDGEMENT

Heard Mr. Mohd. Arif Khan, learned Senior Counsel assisted by Mr. Mohiuddin Khan, learned Counsel for the revisionists and  Mr. Lokendra Kumar Gupta, learned Counsel for the respondent.

2. Kahkashan, the revisionist No. 1 alongwith her three minor daughters filed an application under Section 125 of the Cr.P.C. on 3 August, 2009 claiming maintenance from the respondent of Rs. 20,000 per month for herself and 10,000 per month each for her three daughtersi.e. a total of Rs. 50,000 per month. The facts as mentioned by her were that the applicant had married the respondent-Umesh Kumar Gupta @ Abbas Hussain ‘Khun Khun’ on 24 October, 2002 as per Muslim rites and rituals at the residence of the applicant. The Nikahnamma had been filed as an annexure to the application. After such wedding the applicant started living in the respondent’s home and three daughters, namely, Neha aged about seven years, Kiran aged about five years, and baby Hina aged about two months, were born out of the wedlock. Initially the respondent took good care of the applicant and her children but later on started neglecting them as three daughters were born to her one after another and he wanted a son. The youngest daughter baby Hina was born on 15 May, 2009 and the respondent left the applicant 20 May, 2009. Because of financial difficulty faced by the applicant she had to withdraw her daughters from City Montessori School and get them admitted in a cheaper school. She was facing great hardship as she did not have any skill and no income of her own, whereas the respondent was a very well-known businessman having a factory for manufacturing of batteries by the name of Kaali Power and he earned about Rs. 4 lakh per month. As such the respondent was having sufficient means to look after his wife and children i.e. the applicants.
3. The respondent filed an objection to such Application Paper No. Kha-9, where he denied having converted to Islam and marrying the applicant. It was stated that a forged Nikahnama had been produced in Court by the applicant and her father. Since there was no wedding performed, there was no question of the applicant going and living in his home or three daughters being born out of the wedlock. The applicant had herself stated that the wedding took place on 24 October, 2002. However the eldest daughter was seven years old at the time of filing of the application under Section 125, Cr.P.C. in August, 2009, which was not possible. It was alleged that the respondent had no concern at all with the children of the applicant. The respondent was a staunch Hindu by birth. He had got married some eighteen years ago and his wife was still alive and he had two children from the said wedlock and they were living a happy family life. The Application had been filed by the applicant as a result of a conspiracy between her and her father, Mohd. Raees Hussain. Forged documentary evidence like receipts of school fees had been produced. The names of all three daughters were of Hindu origin whereas the applicant herself stated that she was Muslim and the respondent had converted to Islam and performed Nikaah with her. The applicant was a scheming lady of loose character who had been caught by the Police for immoral flesh trade. The news regarding the same was also published in the newspapers on 24 March, 2001 much before the alleged marriage on 24.10.2002 and Case Crime No. 18 of 2001 under Section 3(1), 5/7 of Immoral Traffic (Prevention) Act, 1986 had been registered and Charge sheet had been filed against her and other accused in the Competent Court. A certified copy of the FIR and also the news item published in the newspapers were filed along with the objections by the respondent. The respondent was never named Abbas Hussain, Khun Khun and he had never converted to Islam. The applicant and her father were used to extorting money from people, On the basis of threats to lodge false cases against them. The applicant had also mentioned wrong residential address of the respondent only to prevent the respondent from coming to know of the filing of the application for maintenance and responding to the same appropriately and on time. The Application was filed with deliberate concealment and misrepresentation of facts and ought to be dismissed on this ground alone.
4. The applicant filed her reply, Paper Number 15, and also documentary evidence. Most of the documentary evidence that were filed were photocopies. One Compact Disc and One Mobile Phone, and several photographs were however also filed as originals.
5. In the documentary evidence filed by the respondent were certified copies of the Chargesheet and FIR filed in the case under a Immoral Traffic (Prevention) Act, 1986. A certified copy of a Sale Deed of a property bought by the applicant subsequently showing herself as daughter of Raees Hussain was also filed.
6. After taking evidence of the applicant and the respondent the learned Trial Court proceeded to consider the matter on merits. The Trial Court noted that the very first issue that needed to be determined was whether there was any actual marriage performed between the parties. The applicant had stated that such marriage had taken place on 24 October, 2002 as per Muslim rites and rituals. Although Nikaahnama had been filed in original by her as evidence, the same had not been proved as per Section 75 of the Evidence Act. As per the applicant, the respondent at the time of marriage, had converted to Islam and had adopted the name of Abbas Hussain Khun Khun. The applicant got herself examined as PW-01. In her Examination-in-Chief the applicant stated that they had a love marriage and that before such marriage the respondent had already married one lady by the name of Ragini Gupta and from her two daughters had been born to him. Ragini Gupta had also filed FIR against the respondent and sent him to jail for having married the applicant.
7. In her cross-examination the applicant had admitted that her Nikaah had been performed with Abbas Hussain “Khun Khun”, but the respondent continued to be a Hindu and the Nikaahnama was not in the name of Umesh Gupta. She also admitted in her Cross-Examination that she had not gone to the house of the respondent to live with him as his wife and she continued to live with her parents. The applicant had not filed any documentary evidence for example, Identity Card or any proof of residential address to show that she started living with Umesh Gupta who after conversion to Islam came to be known as Abbas Hussain “Khun Khun”. The learned Trial Court noted several contradictions between what was stated on affidavit in the support of the Application filed under Section 125, Cr.P.C. by the applicant and in her Examination-in-Chief and Cross-Examination conducted in Court. In support of the allegation of the applicant that respondent had been sent to jail on a complaint being made by Ragini Gupta his first wife, the applicant had filed a photo copy of a newspaper item only without submitting any proof of the same. The respondent on the other hand stated that the applicant had been accused of flesh trade and news regarding her arrest by the Police on 24 March, 2001 was published in the Newspapers. Newspaper cutting in this regard was also filed. Certified copy of the FIR in the Case Crime Number 18 of 2001 under Section 3(1), 5/7, of the Immoral Traffic (Prevention) Act and the certified Chargesheet filed therein were also brought on record. The Competent Court had taken cognizance of such offence and the trial was still pending before the CJM.The contentions raised by the respondent No. 1 was denied vaguely by the applicant.
8. The learned Trial Court thereafter also recorded his findings from the documentary evidence produced by both the parties and discussed three things that are necessary for a claim under Section 125 of the Cr.P.C. to succeed. Firstly, the claimant has to prove that the respondent had married her. Secondly, she had to prove that she had no independent source of income to maintain herself. Thirdly, she had to prove that the respondent had enough income to give maintenance to the Claimant.
9. The learned Trial Court found from evidence on record that initially the claimant had stated in her application that she got married as per Muslim Rites and Rituals to Umesh Gupta who had converted to Islam and changed his name to Abbas Hussain Khun Khun. She also claimed that she went to the matrimonial home and started living with the respondent as his wife. However in her cross-examination she had admitted that she had not left her paternal home and continued to live with her parents and two brothers although in a different house. The Nikahnama being a private document, had also not been proved as required under Section 75 of the Indian Evidence Act.
10. The learned Trial Court observed on the basis of Sections 101, 102 & 103 of the Evidence Act, which he quoted in the order impugned, that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist and when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Also, that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proof of that fact shall lie on any particular person. In this case the Burden of Proof lay upon that person who would fail if no evidence at all were given on either side.
11. Learned Trial Court thereafter referred to the only facts that could be proved by the claimant during the course of hearing. Firstly, that the respondent was familiar and friendly towards the claimant, her parents and daughters, and secondly, that he also used to converse with her parents on phone even during the pendency of the claim under Section 125, Cr.P.C. It could not be proved by her that the respondent had converted to Islam and changed his name to Abbas Hussain ‘Khun Khun’. She could also not prove that she had started living with him as his wife in the matrimonial home and that the three children were born out of the wedlock. She also could not prove that she was recognized by the Society at large as the wife of Umesh Gupta. She also could not prove that she had no knowledge of the respondent being already a married person with two children before her alleged marriage with him.
12. The respondent had stated that the Nikahnama produced before the Court did not bear his name as Umesh Gupta but had noted the name of one Abbas Hussain ‘Khun Khun’ whereas he continued to use the name of Umesh Gupta and had remained a Hindu. The applicant had filed photocopies of few fee receipts issued by City Montessori School and also Birth Certificate issued by the Nagar Nigam but such photocopies were of no consequence. The applicant had also filed photocopies of documents relating to New St. John’s Inter College where Kumari Neha Gupta and Kiran Gupta were allegedly studying. In such papers the Trial Court noticed interpolations in the surnames and the name Abbas Hussain was easily visible which had been scored out and “Khun Khun Gupta” was written in a different handwriting. In the column meant for noting the name of the father of the child initially “Khun Khun” was mentioned but later on struck-off. Such documentary evidence being only photocopies was also not admissible as evidence. The applicant in her cross-examination had stated that photographs of the respondent and the applicant had been filed to show that they were married. However, the learned Trial Court observed that only because a man and a woman were shown in a close proximity in the photographs, would not prove that they were married. The photograph showing the respondent with appellants’ daughter in his arms would also not determine that the respondent was the actual father of such a child. Only because the respondent was standing with a girl child in his arms, the Nikaah with applicant could not be proved. The applicant had referred to a CD (Compact Disc) being filed as evidence which allegedly recorded a conversation between the respondent and the applicant to prove that they were living together. The Trial Court observed that only because a man and woman were living together would not prove beyond doubt that they were living as husband and wife. It only established a livein relationship. For the presumption of marriage to arise it was necessary that the man and woman should be recognised as a couple by the society at large. The applicant had not produced any evidence to show that in the eyes of the general public the applicant and the respondent were treated to be husband and wife. As such, neither the applicant’s case of having married the respondent, nor the case set up later on of a live-in relationship between the parties could be proved by the applicant. Also, admittedly the first wife of the respondent was alive and if the respondent was living in adultery then he would be guilty under Section 494, IPC, but he would not be liable to give maintenance to the applicant.
13. The learned Trial Court has observed that even if the respondent had been arrested for Bigamy, it would not prove the respondent’s Nikaah with the applicant as per Islamic law. Even if any Nikahnama was actually signed by both the parties, such marriage would be void, as the respondent never converted to Islam, and continued to remain a Hindu. He had married one lady by the name of Ragini Gupta in 1992 and the said marriage was still subsisting. If any physical relations had been established by the respondent with the applicant, it would not raise the presumption of a valid marriage but would rather be a live-in relationship. Having a live-in relationship with another woman or living in adultery, would not make the respondent liable to pay maintenance to such other woman or her children.
14. The learned Trial Court thereafter discussed Muslim law specifically Surah No. 2.221 of the Quran which said that if a Muslim of Shia belief marries a person who is an idol worshipper or a fire worshipper such marriage would bevoid. Although the claimant had not stated in her application initially that she was a believer in Shia Sect during her cross-examination it had come out that she was a Shia. The learned Trial Court thereafter referred to judgment of the Supreme Court given in Sarla Mudgal v. Union of India, II (1995) DMC 351 (SC)=1995 (SLT SOFT) 726=(1995) 3 SCC 635; wherein it was held that Hindu Marriage Act only recognized one marriage and during the subsistence of first marriage and during the lifetime of the first wife, if a Hindu married a second time, such marriage would be void and that person would be liable to be prosecuted under Section 494, IPC. Such law would be applicable also in cases where a Hindu converts to Islam and marries a second time. It also meant that if a person continues to be a Hindu and marries a Muslim then also he would be liable to be prosecuted under Section 494, IPC. If such a person converts to Islam and marries a second time then also he shall be liable for conviction under Section 494, IPC and the second marriage would be void. The learned Trial Court also referred to the judgment rendered by the Supreme Court in the case of Lily Thomas v. Union of India, II (2000) DMC 1 (SC)=IV (2000) SLT 620=(2000) 6 SCC 224, holding that the Hindu Marriage Act does not recognize more than one marriage and if a person marries a second time during the lifetime of his first wife then such marriage would be void under Section 11 of the Hindu Marriage Act. The learned Trial Court having found that the claimant was unable to prove a valid marriage with the opposite party, has rejected the claim of the revisionist.
15. Mr. Mohd. Arif Khan, learned Senior Advocate for the revisionists has argued that the Trial Court had granted an order of interim maintenance dated 03.08.2009 giving Rs. 200/- per month to the revisionist No. 1 and, Rs. 100/- per month each to the two minor daughters, yet not even a single penny was paid by the respondent. A distress warrant was also issued on 12.10.2011. The respondent had denied the marriage and fatherhood, despite ample documents being submitted before the learned Trial Court showing that the respondent had married the revisionist No. 1 after conversion to Islam and during the subsistence of his first marriage with one Ragini Gupta. Learned Counsel for the revisionists has referred to the documents on record summoned from the lower Courti.e. papers No. C37/7, C37/8, C37/2, C38/2 and A16/3. He has also referred to a CD and mobile phone submitted before the learned Trial Court, which was not appreciated at all by the learned Trial Court. It has also been argued that an application for a DNA test of the daughters was also moved, but it was kept pending and the case disposed of by the learned Trial Court. Referring to certain judgments of the Supreme Court and it was argued that a hyper technical view was taken by the learned Trial Court whereas it is settled law by the Supreme Court that even if the children are illegitimate, they are still entitled to maintenance and that even if a marriage is not proved, live-in relationship itself, if recognized by the society at large, would entitle the revisionist No. 1 for an order granting maintenance.
16. Mr. Lokendra Kumar Gupta, learned Counsel appearing for the respondent has pointed out from the pleadings on record, in the Application under Section 125 of the Cr.P.C. that the revisionist No. 1 had claimed marriage with the respondent according to muslim rites and rituals, but the Nikaahnama was never proved. The Nikaahnama was itself doubtful as the name of Abbas Hussain has been written in Hindi and thereafter, in a different handwriting altogether the word “Khun Khun” in English has been added. Four witnesses were alleged to have attended the Nikaah, but none of these witnesses were produced.
17. It has been submitted by Sri Lokendra Kumar Gupta that all other documents that were filed, for example, Birth Certificates and copies of Scholar Register,etc., were filed as photocopies and not in their original, because in the original Birth Certificate, the revisionist No. 1 has been shown as W/o Khun Khun Gupta and not W/o Umesh Kumar Gupta. In the High School certificate that has been produced in its original during the course of the arguments by the learned Counsel for the revisionists, there is a mention of the child being the daughter of Khun Khun Gupta and not Umesh Kumar Gupta. The revisionist could not prove before the learned Trial Court that she was living with the respondent as husband and wife in a live-in relationship which was recognized by the society. She could also not prove that Umesh Kumar Gupta was the person she had married i.e. Abbas Hussain was the same as Khun Khun Gupta who was the same as Umesh Kumar Gupta, the respondent to this revision.
18. Mr. Lokendra Kumar Gupta, learned Counsel for the respondent says that there is no application on record allegedly moved by the revisionist for getting DNA test conducted of her three daughters. He has vehemently argued that there was a conscious attempt at concealment of evidence, as the original certificates were in the possession of the revisionist No. 1, which were not produced intentionally before the learned Trial Court as the original certificates showed that Kahakashan was the wife of Khun Khun Gupta and Hina Gupta, Kiran Gupta and Neha Gupta were the daughters of Khun Khun Gupta and not the Umesh Kumar Gupta. The revisionist also could not prove that Khun Khun Gupta was the same person as Umesh Gupta and she ever shared the same matrimonial home with the respondent.
19. On a specific query being made by this Court as to whether, the learned Trial Court could not see that the revisionist No. 1 may have been kept as a concubine, the learned Counsel for the respondent has pointed out that the Trial Court had only to see whether the applicant had proved her pleadings as mentioned in the application under Section 125 of the Cr.P.C. It was the applicant’s duty to prove the CD and the Mobile Phone that were produced as evidence, and to connect and prove that evidence during her statement recorded by the learned Trial Court. The revisionist No. 1 had stated about marriage with the respondent which she could not prove. She had not pleaded concubinage. She had also not proved that Umesh Kumar Gupta was living with her for a long period and they had been living openly in such a relationship and had been recognized as a married couply by the Society at large. He has pointed out that the case laws that has been cited by the learned Counsel for the revisionist all relate to persons who were living together for a long time and were recognised by the society/public at large as husband and wife. He has pointed out that the sale deed was executed by the revisionist No. 1 and she had bought property as daughter of Rahees Hussain and not as wife of Umesh Kumar Gupta.
20. Mr. Lokendra Kumar Gupta, learned Counsel for the respondent No. 2 has read out from the plaint and from the Examination-in-Chief and cross-examination of the applicant that she failed to prove that her marriage with Umesh Gupta took place on 24.10.2012 and for getting married to the applicant the respondent had converted to Islam and changed his name to Abbas Husain. She had also failed to prove that she was ever living with the applicant in his home or was recognized as his wife by the public. According to the Counsel for the respondent No. 2, the applicant was involved in flesh trade and was arrested alongwith her father and seven other persons in 2001, and a Charge Sheet has been filed before the Competent Court against the applicant and her father as also seven other accused for immoral trafficking.
21. It has also been argued by the learned Counsel for the respondent that neither the Nikaahnama was proved nor was any other documentary evidence which was filed alongwith application by the applicant. It is evident from the order passed by the learned Trial Court that except for the Nikahnama, all other documents that were filed were only photocopies which are inadmissible in evidence. Nikahnama being a private document, was not proved as per Chapter V of the Indian Evidence Act.
22. It has also been argued that the applicant is quite well off and had bought property and a certified copy of the sale deed was also filed before the learned Trial Court showing herself to be the daughter of Rahees Hussain and not as wife of Umesh Kumar Gupta or Abbas Husain thealias which was allegedly adopted by the respondent to get married to the applicant.
23. Mr. Mohd. Arif Khan, learned Senior Counsel after going through the record relating to the lower Court has very fairly submitted that there is no application on record for the DNA test of the children and he has been wrongly instructed in the matter. He however, says that the CD and the Mobile Phone are also on record which remained in a sealed cover and those should have been seen by the learned Trial Court before coming to a conclusion that there was no relationship between the revisionist No. 1 and the respondents. He has also pointed out that the charge of bigamy and of Umesh Kumar Gupta being sent to jail on the complaint of his first wife, Ragini Gupta, has not been denied anywhere by Sri Umesh Kumar Gupta in his written statement or in his statement before the learned Trial Court. Therefore, it could not be said that the respondent had not been sent to jail on the complaint of his first wife with regard to bigamy being lodged at Police Station Thakurganj. He has referred to photocopies of newspaper cuttings filed as evidence.
24. Mr. Lokendra Gupta has denied the evidentiary value of photocopies of newspaper cuttings submitted before the learned Trial Court. He says that there was no complaint ever lodged against his client by any person, let alone his first wife, regarding bigamy and that he was never arrested. There is no evidence on record that Umesh Kumar Gupta had ever been sent to jail or was granted or released on bail by the Competent Court.
25. After having heard the learned Counsel for the parties and having perused the order impugned, this Court considers it appropriate to consider the case law referred to by learned Counsel for the revisionists. InSumitra Devi v. Bhumikan Chaudhry, 1985 (SLT SOFT) 313=AIR 1985 SC 765, the Supreme Court was considering an appeal against an order passed by the High Court rejecting the revision of the appellant against an order passed by the District Judge. The Revisional Court had reversed the grant of maintenance under Section 125, Cr.P.C. given to the appellant by the Judicial Magistrate. It was the case of the appellant that she had been married to the respondent in 1971 and out of the wedlock, a child had been born. The respondent was already a married man, which fact was not known. Relations between the parties soured and the appellant had no option left, but to ask for maintenance for herself and also for her child. The respondent did not dispute their marriage as a fact, though he pleaded that such marriage was void, being a result of concealment and fraud, and also for non-performance of religious rites necessary for a valid Hindu marriage. He also pleaded that the child was not his, as the appellant was already pregnant for about three months before the marriage with the respondent.

The Supreme Court observed that it was impressed by the fact that the respondent had not seriously disputed the fact of marriage but had taken the stand that such marriage was void. It also observed that the Sessions Judge and the High Court adopted a hypertechnical approach while considering the question of marriage which was not denied by the respondent himself. The Sessions Judge as well as the High Court did not consider the fact that for about a decade the parties had lived together. Public records including Voters List, described them as husband and wife, and competent witnesses of the village of the wife as also of the husband had supported the factum of marriage. Witnesses had also spoken about the reputation of the appellant being known in the locality as wife of the respondent. No doubt performance of certain religious ceremonies/rites were essential for traditional Hindu wedding but in the case of the appellant whether or not such rites were performed had also not been determined by the Sessions Judge and the High Court. The matter was remanded to the learned Magistrate for a fresh enquiry regarding evidence of both sides already on record and also both sides being given an opportunity to lead further evidence in support of the respective stands.

The Supreme Court observed in paragraph 4 that “under Section 125 of the Cr.PC even an illegitimate minor child is entitled to maintenance. Even if the fact of marriage is discarded, the minor child having been found to be illegitimate daughter of the respondent would still be entitled to maintenance.” The Supreme Court observed in paragraph 5 that in such matters “the role of the Court is not that of a silent spectator or of a passive agency – particularly – when maintenance of a neglected wife or a  minor child is in issue, the Court must take genuine interest to find out the truth of the matter – .”

26. InChaturbhuj v. Sita Bai, I (2008) DMC 22 (SC)=IX (2007) SLT 592=(2008) 2 SCC 316, the Supreme Court was considering the appellant’s case that the deserted wife had personal income which was sufficient to maintain herself under Section 125,Cr.P.C. The Trial Court had directed payment of Rs. 1,500/- per month to the respondent as maintenance. Revision filed against such order was rejected. The appellant filed an application under Section 482, Cr.P.C. which was also dismissed by the High Court, noticing that conclusions had been arrived at by the Trial Court on the basis of appreciation of evidence. It was argued by the learned Counsel for the appellant that he was a retired Assistant Director of Agriculture and he had bought a house and land in the name of the respondent. The land had been sold off by the respondent and she had also let out the house on rent and was residing with one of their sons. The Hon’ble Supreme Court considered the language of Section 125, Cr.P.C. and observed that the object of maintenance proceedings is not to punish a person for his past neglect but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves, and who have a moral claim to such support. The phrase “unable to maintain herself“ would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125, Cr.P.C. is a measure of social justice and is specially enacted to protect women and children. The objective is to prevent vagrancy and destitution. It provides a speedy remedy for supply of food, clothing and shelter to the deserted wife and children if any. Under the law the burden is in the first place upon the wife to show that the means of her husband are sufficient. Secondly the applicant has to show that she was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. Only because the wife was earning some income was not sufficient to rule out the application of Section 125, Cr.P.C. It has to be established that with the amount she earned, the respondent-wife was able to maintain herself in the way she was used to in the house of her husband. In Bhagwan Dutt v. Kamla Devi, 1974 (SLT SOFT) 447=1975(2) SCC 386 the Supreme Court had observed that the wife should be in a position to maintain a standard of living which is neither luxurious nor penurious, but what is consistent with the status of the family. The expression “unable to maintain herself” does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125, Cr.P.C.
27. InChanmuniya v. Virendra Kumar Singh Kushwaha, I (2013) DMC 131 (SC)=IX (2012) SLT 534=(2011) 1 SCC141, Supreme Court was considering a matter where the appellant had been married as per Kushwaha community customs by Katha and Sindoor to her brother-in-law after her husband‘s death in 1996. They started living together as husband and wife but after sometime the first respondent stopped looking after her and refused to discharge his marital obligations. As a result she initiated proceedings under Section 125, Cr.P.C. for maintenance. This proceeding remained pending. She also filed a Suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. The Trial Court decreed the suit for restitution in 2004. The first respondent preferred an appeal under Section 28 of the Hindu Marriage Act saying that there was no evidence that the appellant after being widowed had remarried the first respondent. The High Court in its judgment reversed the order of the Trial Court on the ground that the essentials of a valid Hindu marriage as required under Section 7 of the Hindu Marriage Act had not been performed. The appellant‘s Review was also dismissed in 2009. The appellant thereafter filed appeal before the Supreme Court. The Supreme Court observed in Para 7, thus :

 “One of the major issues which cropped up was whether or not presumption of marriage arises when parties lived together for a long time, thus giving rise to a claim for maintenance under Section 125, Cr.P.C. In other words the question was, what is meant by ‘wife’ under Section 125, Cr.PC, specially having regard to explanation under Clause (b) of Section. Thus the question that arises is whether a man and woman living together for a long time, even without a valid marriage, would raise, as in the present case, a presumption of a valid marriage entitling such woman to maintenance.”

28. The Supreme Court relied upon English case law on the subject and the observations made by the House of Lords that the question of validity of a marriage cannot be tried like any other issue of fact, independent of presumption. The Court had held that law will presume in favour of marriage and such presumption could only be reverted by strong and satisfactory evidence. The House of Lords had observed that “cohabitation, with required repute, as husband-and-wife proved that parties between themselves had mutually contracted the matrimonial relation. A relationship which may be adulterous at the beginning may become matrimonial by consent. This may be evidenced by habit and repute.” Quoting the decisions of the House of Lords the Supreme Court observed that since the appellant and first respondent were related and lived in the same house and by social custom were treated as husband and wife by their community, there was a very strong presumption in favour of marriage. “The presumption of marriage is much stronger than a presumption in regard to other facts. Where a man and woman are proved to have lived together as man and wife, the law will presume, unless contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.” Referring to Indian case law also the Supreme Court observed that “continuous cohabitation of man and woman as husband and wife may lead validly to a presumption of marriage which is rebuttable on evidence to the contrary being led. A heavy burden lies on him who seeks to deprive the relationship of legal origin.”
29. The Supreme Court referring to its earlier judgment inVimala v. Veera Swamy, II (1991) DMC 52 (SC)=1991(2) SCC 375, that Section 125 of the Cr.PC is meant to achieve a social purpose and the object is to prevent vagrancy and destitution.

It observed in paragraph 3 that “…. the term ‘wife’ in Section 125 of the Code includes a woman who has been divorced by her husband or who has obtained a divorce from her husband and has not remarried. A woman not having the legal status of a wife is thus brought within the inclusive definition of the term ‘wife’ consistent with the objective.”

The Supreme Court observed in paragraph 24 :

30. The Supreme Court also observed that in a subsequent decision inDwarka Prasad Satpathy v. Vidyut Prava Dixit, VIII (1999) SLT 508=(1999) 7 SCC 675; the Supreme Court had 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 Court 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 the neglected wives to obtain maintenance. The Supreme Court held that “maintenance cannot be denied where there was some evidence on which conclusion of living together could be reached.”
31. The two Judge Bench inChanmuniya (supra), however observed a contrary note struck by a two Judge Bench of the Supreme Court in Yamuna Bai Anant Rao Aadhav v. Anant Rao Shivram Adhav, I (1988) DMC 205 (SC)=1988 (SLT SOFT) 125=1988(1) SCC 530, where it was held that an attempt to exclude altogether the personal law of the parties in proceedings under Section 125 is improper. The Division Bench had held that the expression ‘wife’ in Section 125 of the Code should be interpreted to mean only a legally wedded wife. Similarly in Savita Ben Soma Bhai Bhatiya v. State of Gujarat, 2019 (SLT SOFT) 14=(2005) 3 SCC 636, the Supreme Court had observed 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 had held that this inadequacy in law can be amended only by the Legislature. While coming to the aforesaid finding the Judges had placed reliance upon the decision in Yamuna Bai’s case.

The Supreme Court after noting the two judgments of Yamuna Bai and Savita Ben (supra), in Chan Munia’s case observed that there was a divergence of judicial opinion on the interpretation of the word ‘wife’ in Section 125 of the Code and referred the matter to the Chief Justice of India to refer the following questions to be decided by a Larger Bench:

32. The Division Bench inChan Munia’s case however expressed a prima facie opinion on the basis of various sections of Protection of Women From Domestic Violence Act 2005, that assigns a very broad and expansive definition to the term ‘domestic abuse’ to include within its purview even economic abuse i.e. deprivation of financial and economic resources. It observed that Under Section 20 of the Act of 2005 the Magistrate may direct the respondent to pay monitory relief to the aggrieved person who may be a harassed woman for expenses incurred and losses suffered by her, which may include, but is not limited to, maintenance under Section 125, Cr.P.C. In addition to this, some compensation may also be granted to the aggrieved person. Such relief can be sought in any legal proceedings before a Civil Court, a Family Court, or a Criminal Court, and the Act gives a very wide interpretation to the term ‘domestic relationship’, to take it outside the confines of a marital relationship, and even includes live-in relationships in the nature of marriage within the definition of domestic relationship under Section 2(f) of the Act. Therefore women in live-in relationships are also entitled to all the reliefs given in the Domestic Violence Act. It observed in paragraph 39 thus:

33. InBadshah v. Urmila Badshah Godse, III (2013) DMC 518 (SC)=I (2014) DLT (CRL.) 486 (SC)=IX (2013) SLT 543=(2014) 1 SCC 188, the Supreme Court was considering the claim of maintenance by the second wife having been upheld by the High Court. The appellant had married the respondent No. 1 during the subsistence of the first marriage. Appellant had performed marriage with the respondent as per Hindu rites and rituals, in a temple, and lived for some time with the respondent. Respondent No. 2 was born out of the wedlock. Later on one lady Shobha came to the house of the petitioner and claimed herself to be his wife. Respondent No. 1 confronted with such a situation filed an Application claiming maintenance under Section 125, Cr.P.C. The appellant contested the petition by filing his written statement wherein he denied having ever married the respondent and claimed that he was not the father of the respondent No. 2 either. According to the appellant, he was married to Shobha a long time ago and he had two children out of the wedlock and respondent No. 1 was not and could not be his wife during the subsistence of his first marriage and she had filed a false petition claiming a marital relationship with him. The Judicial Magistrate Ist class, allowed the application. The learned Additional Session Judge dismissed the Revision. The High Court affirmed the orders passed by the lower Courts. The appellant approached the Supreme Court thereafter. Counsel for the appellant referred to the judgement of the Supreme Court in Yamunabai Anant Rao Adhav Versus Anant Rao Shivram Adhav; and Savita Ben Somabhai Bhatiya versus State of Gujarat, where the Supreme Court had observed that the expression ‘wife’ in Section 125 Cr.P.C. cannot be stretched beyond the legislative intent and would mean only a “legally wedded wife”. The appellant submitted that since the petitioner had proved that he was already married to Shobha and the said marriage was subsisting on the date of marriage with respondent No. 1, such second marriage, if any, was void and the respondent No. 1 was not his legally wedded wife and, therefore, had no right to move an application under Section 125, Cr.P.C. The Supreme Court dealt with the judgments rendered in Dwarka Prasad Satpathy (supra) and Chanmuniya v. Virendra Kumar Singh Kushwaha (supra), and observed that no doubt the Division Bench had referred the matter to a Larger Bench framing three questions formulated by it, but it noticed that the facts in the case were different from those in Chanmuniya. The Supreme Court in Badshah v. Urmila Badshah Godse was dealing with the situation where marriage between the parties had been proved. However the appellant was denying his responsibility to pay maintenance on the ground that the second marriage during the subsistence of the first marriage was void. The Supreme Court observed that he could not be allowed to take benefit of his own wrong. The Court observed in paragraph 13.1 that “firstly in Chanmuniya case, the parties had been living together for a long time and on that basis question arose as to whether there would be a presumption of marriage between the two giving rise to a claim of maintenance under Section 125, Cr.P.C. by interpreting the term ‘Wife’ widely.” The Supreme Court had observed in Chanmuniya (supra) that even if there was no valid marriage, the man and woman had been living together for a long time and such a woman would be entitled to maintenance. In the case of Badshah (supra), however, the respondent No. 1 had been able to prove by cogent and strong evidence that the petitioner and the respondent No. 1 had been married to each other. Secondly, when the marriage between the respondent No. 1 and the petitioner was solemnised, the petitioner had kept the respondent No. 1 in the dark about his first marriage. A false representation was made that he was single and competent to enter into wedlock. The petitioner could not be allowed to take advantage of his own wrong and turn around and say that the respondents are not entitled to maintenance under Section 125, Cr.P.C. and say that the respondent No. 1 is not the legally wedded wife of the petitioner. The Supreme Court therefore observed that at least for the purpose of Section 125, Cr.P.C. the respondent No. 1 would be treated as the wife of the petitioner going by the spirit of the two judgments rendered in Dwarika Prasad Satpathy (supra) and Chanmuniya (supra). The Supreme Court held that the judgments in Adhav (supra) and Savita Ben(supra) would apply only in those circumstances where a woman married a man with full knowledge of the first subsisting marriage. In such cases, she should know that the second marriage with such a person is impermissible and, therefore, she has to suffer the consequences thereof. The said judgment would not apply to those cases where a man marries a second time by keeping that lady in dark about the first surviving marriage. The Supreme Court also observed that in such cases purposive interpretation needs to be given to the provisions of Section 125, Cr.P.C. While dealing with the application of a destitute wife or hapless children or parents under 125, Cr.P.C., the Court is dealing with marginalised sections of the society. “The purpose is to achieve social justice” which is the Constitutional vision enshrined in the Preamble of the Constitution of India. – it becomes the bounden duty of the Court to advance the cause of social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and the society… Of late, and in this very direction, it is emphasised that the Courts have to adopt different approaches in social justice adjudication which is also known as social context adjudication as mere adversarial approach may not be very appropriate. – – in such a situation the judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. The provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, a shift in the approach from adversarial litigation to social context adjudication is the need of the hour…”.
34. It further observed that inRamesh Chandra Ram Pratapji Daga v. Rameshwari Ramesh Chandra Daga, I (2005) DMC 1 (SC)=VII (2004) SLT 632=(2005) 2 SCC 33, the right of the other woman in a similar situation was upheld. Here the Court had accepted that Hindu marriages have continued to be bigamous despite the enactment of the Hindu Marriage Act, 1955. The Court had commented that though such marriages are illegal as per the provisions of the Act, they are not immoral and hence financially dependent woman cannot be denied maintenance on this ground. The Court invoked the doctrine that where alternative constructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the Statute has been enacted rather than one which will put a roadblock in its way. “If the choice is between two interpretations, then one which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. If this interpretation is accepted it would amount to giving a premium to the husband for defrauding the wife. Therefore, at least for the purpose of claiming maintenance under Section 125, Cr.P.C., such a woman would be treated as the legally wedded wife”.

The Court referred to the judgment rendered by it in Captain Ramesh Chand Kaushal v. Veena Kaushal, 15 (1979) DLT 155 (SC)=1978 (SLT SOFT) 406=(1978) 4 SCC 70, where it was observed:

“…,the brooding presence of the constitutional empathy for the weaker sections like women and children must inform the interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause – the cause of the derelicts.”

35. Now this Court has to see whether the argument made by the learned Counsel for the revisionist on basis of judgments cited by him entitles the revisionists to maintenance.
36. This Court has also gone through the the record of the lower Court which was summoned earlier. Paper No. 16/2 is a copy of photo copy of the Scholar Register/Admission Certificate of Neha Gupta and Kiran Gupta. The name of the child Neha has been followed by scoring out of two words and the writing of the word “Gupta” thereafter. Similarly, the father’s name and occupation also shows scoring out of several words and writing of “Khun Khun Gupta” instead. Paper No. 16/3 is a photo copy of the Birth Certificate issued by Lucknow Nagar Nigam wherein the name of the child has been shown as Heena Gupta and the name of the mother has been shown as Smt. Kehkashaan w/o Shri Umesh Kumar Gupta but the words “Khun Khun” have been added later on in a different Handwriting. Paper No. 16/4 is a photocopy of a news item published in the newspaper. Paper No. 16/7 are two photographs of the respondent holding a girl child in his arms on the terrace of a house. Exhibit No. C-37/2 is a Compact Disc/ CD which has been taped to the record. Exhibit No. C-37/3 is a copy of a complaint made to the Chief Minister and the S.S.P., Lucknow on 24.06.2008 by the revisionist. Paper No. C–37/7 is a photograph of the respondent standing with the revisionist No. 1 by his side. Exhibit No. C – 37/8 is a photograph of the respondent. Exhibit No. 38/7 is a mobile phone set in a yellow envelope sealed with a Cello Tape, which the learned Counsel for the revisionist says was not opened by the learned Trial Court to find out the truth of the revisionist’s claim regarding it containing conversations between the revisionist and the respondent.
37. This Court has found from the evidence on record, which has been considered in great detail by the learned Trial Court, that:-

38. In such a case the children, i.e. the revisionist Nos. 2, 3 and 4 are entitled to maintenance of Rs. 10,000/- per month each from the respondent from the date of this judgment till their respective marriages. The respondent shall also be responsible to bear all their wedding expenses.
39. The Criminal Revision is disposed of with such modification of the judgment and order impugned.

Revision disposed of.

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