JHARKHAND HIGH COURT
JUSTICE D.K. Sinha
Vineeta Devi Vs. Bablu Thakur & Anr. On 25 April 2011
Law Point:
Statutory provision by which “wife” has been defined cannot be liberalized in terms of Section 125, Cr.PC — Statute sanctions an illegitimate child from father is entitled for maintenance but such sanction of maintenance not provided under law in respect of woman not lawfully married with a person.
JUDGEMENT
1. This criminal revision is directed against the order impugned dated 20.4.2007, passed by the learned Principal Judge, Family Court, Dhanbad, in a proceeding under Section 125 of the Code of Criminal Procedure, arising out of M.P. Case No. 256 of 2004, by which the petition filed by the petitioner for her maintenance from the opposite party No. 1 Bablu Thakur was rejected.
2. Petitioner had filed a petition for initiation of a proceeding under Section 125 of the Code of Criminal Procedure before the Principal Judge, Family Court, Dhanbad seeking maintenance at the rate, of Rs. 3,000 per month from the opposite party No. 1 Bablu Thakur. She has admitted that she was married to the opposite party No. 1 Bablu Thakur as per Hindu rites and customs in the year 2002 after the death of her first husband Lakhan Rai and she also admitted that she was having four children from her first husband. After her marriage with Bablu Thakur after the death of her first husband she went to her matrimonial home with all her children where it was alleged that Bablu Thakur started subjecting her to mental and physical harassment, as a result of which, she returned back to her mother’s house at Katras, Dhanbad. As her father was not alive, her mother tried to resolve the dispute and made several attempts by pursuing the opposite party Bablu Thakur to maintain his wife, but he flatly refused saying that he would perform marriage with another woman. Opposite party was a owner of a hotel having his earning about Rs. 15,000 per month, whereas complainant-petitioner had no source of income and her mother was also a poor lady, hence, she demanded and claimed maintenance at the rate of Rs. 3,000 per month from the opposite party Bablu Thakur.
3. Heard the learned Counsel appearing on behalf of the petitioner and the learned Counsel on behalf of the opposite party No. 1 Bablu Thakur.
4. Learned Counsel, Mr. Pratiush Lala appearing for the petitioner submitted that in course of the proceeding, two witnesses were examined on behalf of the petitioner, who consistently supported that Vineeta Devi was married to Bablu Thakur and they were living together. A show-cause was also filed on behalf of the opposite party Bablu Thakur, in which he flatly denied that the petitioner was his legally married wife.
5. Assailing the order, passed by the Principal Judge, Family Court, in a proceeding under Section 125 of the Code of Criminal Procedure, the learned Counsel submitted that Principal Judge erroneously held that in absence of legal and valid marriage, a mere fact that the parties lived together as husband and wife to the knowledge of the people or otherwise could not confer on such a woman a status of a wife. Petitioner Vineeta Devi had admitted in her evidence in the proceeding that Bablu Thakur was the friend of her first husband Lakhan Rai but she was married to Bablu Thakur at Maa Kali Mandir, Lillori Asthan at Katras (Dhanbad).
6. On the other hand in the causes shown by the opposite party Bablu Thakur, it was explained that Vineeta Devi with her children used to take food in his hotel, to which sometimes she used to pay the cost of the meal, but some times she requested for credits which was allowed.
7. Mr. Lala, the learned Counsel, submitted that sanction has been granted by the society and the law in respect of prolonged ‘live-in’ relationship, which has been propounded by the Hon’ble Supreme Court in Chanmuniya v. Virendra Kumar Singh Kushwaha and Another, reported in 2011 Cr.LJ 96, wherein it was held:
“10. One of the major issues which cropped up in the present case is whether or not presumption of a marriage arises when parties live together for a long time, thus giving rise to a claim of maintenance under Section 125, Cr.PC. In other words, the question is what is meant by ‘wife’ under Section 125 of Criminal Procedure Code especially having regard to explanation under Clause (b) of the Section.
11. 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 a woman to maintenance.
12. On the question of presumption of marriage, we may usefully refer to a decision of the House of Lords rendered in the case of Lousia Adelaide Piers & Florence A.M. De Kerriguen v. Sir Henry Samuel Piers, (1849) II HLC 331, in which Their Lordships observed that the question of validity of a marriage cannot be tried like any other issue of fact independent of presumption. The Court held that law will presume in favour of marriage and such presumption could only be rebutted by strong and satisfactory evidence.”
Hon’ble Apex Court further held:
“26. 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.”
Finally, it was observed:
“42. Therefore, women in live-in relationships are also entitled to all the reliefs given in the said Act.
43. We are thus of the opinion that if the above mentioned monetary relief and compensation can be awarded in cases of live-in relationships under the Act of 2005, they should also be allowed in a proceedings under Section 125 of Cr.PC. It seems to us that the same view is confirmed by Section 26 of the said Act of 2005.
44. We believe that in light of the constant change in social attitudes and values, which have been incorporated into the forward-looking Act of 2005, the same needs to be considered with respect to Section 125 of Cr.PC and accordingly, a broad interpretation of the same should be taken.”
8. However, the Bench of the Apex Court referred the matter before the Chief Justice to be decided by the Larger Bench formulating certain questions and final verdict of the Larger Bench of the Apex Court is yet to come on the interpretation of ‘live-in’ relationship.
9. Contrary to that, Counsel appearing on behalf of the opposite party Bablu Thakur submitted that in the causes shown the opposite party had flatly refused and denied his marriage with the petitioner at any point of time rather, he had shown sympathy by providing meals to the petitioner and his children in his hotel partly on cash and partly on credit. Admittedly, the petitioner was a married woman having four children from her husband, who died subsequently and it was not the fact that he had developed any kind of relationship much less of ‘live-in’ relationship with her at any point of time so as to put any kind of liability upon him to maintain her and any kind of marriage anywhere with her is denied.
10. In Savitaben Somabhai Bhatiya v. State of Gujarat and Others, reported in I (2005) DMC 503 (SC)=III (2005) SLT 59=II (2005) CCR 10 (SC)=2005 (2) East Cr.C 281 (SC), the Apex Court observed:
“The Legislature considered it necessary to include within the scope of Section 125 an illegitimate child but it has not done so with respect to woman, not lawfully married. As such, however, desirable it may be to take note of the plight of the unfortunate woman, who unwillingly enters into wedlock with a married man the legislative intent being clearly reflected in Section 125 of the Code, there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression ‘wife’. This may be an inadequacy in law, which only the Legislature can undo.
Even if it is true that husband was treating the applicant as his wife it is really inconsequential. It is the intention of the Legislature which is relevant and not the attitude of the party. The principle of estoppel cannot be pressed into service to defeat the provision of Section 125 of the Code.”
11. Having regard to the facts and circumstances of the case, I find that the Counsel for the petitioner has argued consistently on the ‘live-in’ relationship between the petitioner and the opposite party, though the petitioner claimed in the proceeding for maintenance that she was legally married to the opposite party in temple after the death of his first husband, but the same which was the issue on facts could not be proved. No evidence could be adduced in support of valid marriage between the parties and that the concept of ‘live-in’ relationship in the background of Indian culture and society, sanction of such relationship is yet to interpret by the Larger Bench of the Apex Court. In view of that matter, the statutory provision, by which the “wife” has been defined in terms of Section 125 of the Code of Criminal Procedure, cannot be liberalized. The statute sanctions that an illegitimate child from the father is entitled for maintenance but such sanction of maintenance has not been provided under law in respect to a woman not lawfully married with a person.
12. Learned Principal Judge, Family Court, Dhanbad by his order impugned has held that the petitioner Vineeta Devi was not legally married wife of the opposite party Bablu Thakur, hence, petition filed on behalf of the petitioner Vineeta Devi for her maintenance under Section 125 of the Code of Criminal Procedure was not maintainable. Learned Counsel appearing for the petitioner failed to satisfy this Court to come to a contrary view so as to call for interference in the order impugned. There being no merit, this criminal revision is dismissed.
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