REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2368-2369 OF 2009
KAMALA AND OTHERS …. Appellants
VERSUS
M.R. MOHAN KUMAR …. Respondent
J U D G M E N T
R. BANUMATHI, J.
These appeals arise out of the judgment dated 16.06.2009
passed by the High Court of Karnataka at Bangalore in R.P.F.C.
Nos. 103 of 2008 and 21 of 2009 in and by which the High Court
has set aside the judgment of the family court which has directed
the respondent to pay maintenance to the appellants – wife and
children.
2. Case of the appellants is that marriage between appellant
No.1 and respondent was solemnized on 18.07.1998 against the
wishes of their parents at Karrighatta temple near Sri Rangapattana
and appellant No.2-daughter and appellant No.3-son were born out
of the wedlock on 09.05.2001 and 18.07.2003 respectively and they
1
lived in a house on rent in Saraswasthipuram, Mysore. Further case
of the appellants is that while the marriage between appellant No.1
and respondent was subsisting, the respondent married one
Archana, who was his colleague on 01.04.2005, after which the
appellants were neglected by the respondent and he was harassing
appellant No.1. Being aggrieved of such treatment from
respondent, appellant No.1 filed a police complaint and upon the
direction of police, the respondent was paying Rs.3,000/- per month
to the appellants towards their maintenance. It is further averred
that when they shifted from Saraswathipuram to Chamundipuram,
the respondent continued to neglect them. Since appellant No.1
could not maintain herself and her children, she filed a Criminal
Miscellaneous No.297/2006 under Section 125 Cr.P.C. claiming
maintenance for herself and the children from the respondent.
3. The respondent resisted the maintenance claim contending
that he has never married appellant No.1 and denied her contention
that appellants No.2 and 3 were born out to him and appellant No.1.
The respondent contended that when there is no valid marriage
between the parties, petition for maintenance under Section 125
Cr.P.C. cannot be maintained.
2
4. Upon consideration of evidence, the family court held that
appellant No.1 has proved that there is husband-wife relationship
between appellant No.1 and respondent and that appellants No.2
and 3 are the children born out of the said wedlock and that the
respondent was giving her a monthly maintenance of Rs.3,000/- per
month. The family court further held that the case of the appellants
is supported by the evidence of PW-2 and PW-3 which clearly
establish that they lived under the same roof and the society also
accepted them as husband and wife. On those findings, the family
court vide its order dated 12.08.2008 allowed the appellant’s claim
and ordered maintenance of Rs.3,000/- per month to appellant No.1
and Rs.2,500/- per month to each of the appellants No.2 and 3
from the date of petition till the date of judgment i.e. 12.08.2008.
From the date of judgment i.e. 12.08.2008, the respondent was
directed to pay maintenance of Rs.2,500/- per month each to
appellants No.1 to 3.
5. In appeal, the High Court has set aside the order of the
family court and held that appellant No.1 was unable to prove that
she is the legally wedded wife of the respondent. The High Court
further held that she has not produced any evidence to show that
3
the marriage was solemnized as per custom and she, not being
the legally wedded wife, is not entitled for any maintenance.
6. Mr. Girish Ananthamurthy, learned counsel for the appellants
submitted that when the parties live as husband and wife under
one roof, a presumption arises in favour of the person who asserts
the existence of valid marriage. It was submitted that in the instant
case, parties have entered into a wedlock in a temple and lived
together and begot two children, hence, presumption arises in
favour of appellant No.1 and the respondent failed to rebut the
said presumption. The learned counsel for the appellants further
submitted that the family court after analysing the evidence
brought on record, has recorded a finding of fact that appellant
No.1 is the legally wedded wife of respondent and that appellants
No.2 and 3 are their children born out of the wedlock and the High
Court in exercising revisional jurisdiction ought not to have
interfered with the said findings of fact.
7. Per contra, Mr. M.N. Rao, learned senior counsel for the
respondent submitted that under Section 125 (1)(a) Cr.P.C., an
application for maintenance can be maintained only by a “wife”
who is a legally wedded wife. It was submitted that no valid
marriage had taken place between appellant No.1 and the
4
respondent and hence, appellant No.1 is not entitled to claim any
maintenance under Section 125 Cr.P.C. It was submitted that the
evidence on record does not disclose any marriage having taken
place between the parties and hence, claim of maintenance under
Section 125 Cr.P.C. was not maintainable and the High Court
rightly reversed the judgment of the family court ordering
maintenance. In support of the contention, reliance was placed
upon Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav
and another (1988) 1 SCC 530.
8. We have carefully considered the rival contentions and
perused the impugned judgment and materials placed on record.
9. In her evidence, appellant No.1 (PW-1) has clearly deposed
that before marriage she and the respondent were neighbours and
they loved each other and their wedding took place in Karrighatta
temple near Sri Rangapattana according to Hindu rituals on
18.07.1998 and that both the families were against their marriage.
PW-1 further stated that out of the wedlock, two children a girl and
a boy were born on 09.05.2001 and 18.07.2003 respectively.
PW-1 further stated that the respondent was working as a
Manager in Birla Sun Life Insurance Company and that he had
developed illicit relationship with one Archana who was working
5
with him and thereafter, the respondent gradually started
harassing appellant No.1 and also neglected her children. PW-1
further stated that she had given a police complaint who had
warned the respondent and asked him to pay Rs.3,000/- per
month to the appellants and thereafter, they shifted from
Saraswasthipuram to Chamundipuram and took a house on rent.
PW-1 further stated that the respondent neglected to take care of
the appellants and the appellant No.1 not being able to maintain
herself and her children, filed a petition under Section 125 Cr.P.C.
claiming maintenance.
10. To prove the marriage and her claim, appellant No.1 marked
exhibits P1 to P20. Exts.P1 to P3 are the photos of the appellants
and the respondent; Exts.P7-P8 are the birth certificates of the
appellants No.2 and 3 namely the daughter and son and Exts.P9
and P11 are the copies of the complaint given to the police; other
exhibits are the receipts acknowledging the maintenance amount
given by the respondent; and other documents.
11. Exts.P7-P8 are the birth certificates of the appellants No.2
and 3 – the daughter and son showing that out of the wedlock, a
girl and a boy were born on 09.05.2001 and 18.07.2003
respectively. In Exts.P7 and P8, father’s name is stated as
6
“Mohan Kumar M.R.” and mother’s name is stated as “Kamala”.
The birth certificates of the children clearly show that appellant
No.1 and the respondent are the husband and wife and appellants
No.2 and 3 are their children. The family court recorded a finding
of fact that the respondent has admitted that Exts.P1 to P3 are
their photos. As rightly observed by the family court, Exts.P1 to P3
does not look like brother-sister relationship or simple neighbours
relationship and the said photos lead to an inference that
respondent and appellant No.1 were living as husband and wife.
As pointed out earlier, appellant No.1 gave Ext.-P9-complaint and
the police settled the matter between the parties and asked the
respondent to pay maintenance of Rs.3,000/- per month to
appellant No.1. Exts. P13 to P17 are the receipts showing that the
respondent has been paying money regularly to appellant No.1.
Unless the respondent was the husband of appellant No.1, why
should he pay the amount to appellant No.1 every month. As
rightly observed by the family court, there is no merit in the
explanation of the respondent that appellant No.1 was his
neighbour and therefore, he used to help her. The evidence of
PW-1 coupled with the documents raise a strong presumption of a
valid marriage.
7
12. Appellant No.1 has also examined K.R. Narayan Iyengar
(PW-2) who has stated that he was working as Manager in
Samruddhi Finance where appellant No.1 was also working with
him. In his evidence, PW-2 further stated that the respondent
used to drop and pick up appellant No.1 and that he used to talk to
respondent whenever he had time and have coffee with him.
PW-2 further stated that the respondent and appellant No.1 were
living happily as husband and wife and were leading a happy
married life.
13. House owner (PW-3) has also stated that appellant No.1 and
the respondent were living in his house on rent during 2005 and
they took the house on rent by informing him that they were
husband and wife. PW-3 further stated that appellant No.1 and
the respondent stayed till April, 2006 and that when they came to
his house, they had two children and appellant No.1 and
respondent were leading a happy married life.
14. Based on the evidence of PW-1 and the number of
documents in particular, the birth certificates of the children
(Exts.P7-P8) and the photos (Exts.P1 to P3), the family court
rightly held that appellant No.1 has proved valid marriage between
her and the respondent. From the evidence of PW-2 and PW-3, it
8
is established that appellant No.1 and the respondent were
cohabitated as husband and wife and that the people around them
treated them as husband and wife and the family court rightly held
that appellant No.1 being a wife and appellants No.2 and 3 being
their children are entitled to claim maintenance under Section 125
Cr.P.C.
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) 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
9
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 (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.”
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
11
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.”
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.”
20. On the basis of the evidence of appellant No.1 (PW-1), birth
certificates of appellant Nos.2 and 3 (Exts. P7-P8 dated 25.05.2001
and 06.08.2003), other documentary evidence, oral evidence of
PW-2 who was co-worker of appellant No.1 and PW-3-landlord, the
family court held that appellant No.1 and the respondent were living
12
together as husband and wife and there is sufficient proof of
marriage. The family court rightly drew the presumption of valid
marriage between appellant No.1 and the respondent and that they
are legally married couple for claiming maintenance by the wife
under Section 125 Cr.P.C. which is summary in nature. The
evidence of PW-1 coupled with the birth certificates of appellants
No.2 and 3 and other evidences clearly establish the factum of
marriage.
21. Based upon oral and documentary evidence, when the family
court held that there was a valid marriage, the High Court being the
revisional court has no power reassessing the evidence and
substitute its views on findings of fact. The High Court did not keep
in view that in the proceedings under Section 125 Cr.P.C., strict
proof of marriage is not necessary. The findings recorded by the
family court as to the existence of a valid marriage ought not to
have been interfered with by the High Court.
22. In the result, the impugned judgment of the High Court in
R.P.F.C. No.103 of 2008 and R.P.F.C. No.21 of 2009 dated
16.06.2009 is set aside and these appeals are allowed. The
respondent shall pay arrears of maintenance as directed by the
family court, Mysore to the appellants within a period of two months.
13
Additionally, the respondent shall also continue to pay the
maintenance to the appellants as directed by the family court on or
before 10th of every English calendar month. The appellants are
also at liberty to move the family court for enhancement of the
maintenance.
…………….……………J.
[R. BANUMATHI]
…………….……………J.
[INDIRA BANERJEE]
New Delhi;
October 24, 2018
14
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2368-2369 OF 2009
KAMALA AND OTHERS …. Appellants
VERSUS
M.R. MOHAN KUMAR …. Respondent
J U D G M E N T
R. BANUMATHI, J.
These appeals arise out of the judgment dated 16.06.2009
passed by the High Court of Karnataka at Bangalore in R.P.F.C.
Nos. 103 of 2008 and 21 of 2009 in and by which the High Court
has set aside the judgment of the family court which has directed
the respondent to pay maintenance to the appellants – wife and
children.
2. Case of the appellants is that marriage between appellant
No.1 and respondent was solemnized on 18.07.1998 against the
wishes of their parents at Karrighatta temple near Sri Rangapattana
and appellant No.2-daughter and appellant No.3-son were born out
of the wedlock on 09.05.2001 and 18.07.2003 respectively and they
1
lived in a house on rent in Saraswasthipuram, Mysore. Further case
of the appellants is that while the marriage between appellant No.1
and respondent was subsisting, the respondent married one
Archana, who was his colleague on 01.04.2005, after which the
appellants were neglected by the respondent and he was harassing
appellant No.1. Being aggrieved of such treatment from
respondent, appellant No.1 filed a police complaint and upon the
direction of police, the respondent was paying Rs.3,000/- per month
to the appellants towards their maintenance. It is further averred
that when they shifted from Saraswathipuram to Chamundipuram,
the respondent continued to neglect them. Since appellant No.1
could not maintain herself and her children, she filed a Criminal
Miscellaneous No.297/2006 under Section 125 Cr.P.C. claiming
maintenance for herself and the children from the respondent.
3. The respondent resisted the maintenance claim contending
that he has never married appellant No.1 and denied her contention
that appellants No.2 and 3 were born out to him and appellant No.1.
The respondent contended that when there is no valid marriage
between the parties, petition for maintenance under Section 125
Cr.P.C. cannot be maintained.
2
4. Upon consideration of evidence, the family court held that
appellant No.1 has proved that there is husband-wife relationship
between appellant No.1 and respondent and that appellants No.2
and 3 are the children born out of the said wedlock and that the
respondent was giving her a monthly maintenance of Rs.3,000/- per
month. The family court further held that the case of the appellants
is supported by the evidence of PW-2 and PW-3 which clearly
establish that they lived under the same roof and the society also
accepted them as husband and wife. On those findings, the family
court vide its order dated 12.08.2008 allowed the appellant’s claim
and ordered maintenance of Rs.3,000/- per month to appellant No.1
and Rs.2,500/- per month to each of the appellants No.2 and 3
from the date of petition till the date of judgment i.e. 12.08.2008.
From the date of judgment i.e. 12.08.2008, the respondent was
directed to pay maintenance of Rs.2,500/- per month each to
appellants No.1 to 3.
5. In appeal, the High Court has set aside the order of the
family court and held that appellant No.1 was unable to prove that
she is the legally wedded wife of the respondent. The High Court
further held that she has not produced any evidence to show that
3
the marriage was solemnized as per custom and she, not being
the legally wedded wife, is not entitled for any maintenance.
6. Mr. Girish Ananthamurthy, learned counsel for the appellants
submitted that when the parties live as husband and wife under
one roof, a presumption arises in favour of the person who asserts
the existence of valid marriage. It was submitted that in the instant
case, parties have entered into a wedlock in a temple and lived
together and begot two children, hence, presumption arises in
favour of appellant No.1 and the respondent failed to rebut the
said presumption. The learned counsel for the appellants further
submitted that the family court after analysing the evidence
brought on record, has recorded a finding of fact that appellant
No.1 is the legally wedded wife of respondent and that appellants
No.2 and 3 are their children born out of the wedlock and the High
Court in exercising revisional jurisdiction ought not to have
interfered with the said findings of fact.
7. Per contra, Mr. M.N. Rao, learned senior counsel for the
respondent submitted that under Section 125 (1)(a) Cr.P.C., an
application for maintenance can be maintained only by a “wife”
who is a legally wedded wife. It was submitted that no valid
marriage had taken place between appellant No.1 and the
4
respondent and hence, appellant No.1 is not entitled to claim any
maintenance under Section 125 Cr.P.C. It was submitted that the
evidence on record does not disclose any marriage having taken
place between the parties and hence, claim of maintenance under
Section 125 Cr.P.C. was not maintainable and the High Court
rightly reversed the judgment of the family court ordering
maintenance. In support of the contention, reliance was placed
upon Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav
and another (1988) 1 SCC 530.
8. We have carefully considered the rival contentions and
perused the impugned judgment and materials placed on record.
9. In her evidence, appellant No.1 (PW-1) has clearly deposed
that before marriage she and the respondent were neighbours and
they loved each other and their wedding took place in Karrighatta
temple near Sri Rangapattana according to Hindu rituals on
18.07.1998 and that both the families were against their marriage.
PW-1 further stated that out of the wedlock, two children a girl and
a boy were born on 09.05.2001 and 18.07.2003 respectively.
PW-1 further stated that the respondent was working as a
Manager in Birla Sun Life Insurance Company and that he had
developed illicit relationship with one Archana who was working
5
with him and thereafter, the respondent gradually started
harassing appellant No.1 and also neglected her children. PW-1
further stated that she had given a police complaint who had
warned the respondent and asked him to pay Rs.3,000/- per
month to the appellants and thereafter, they shifted from
Saraswasthipuram to Chamundipuram and took a house on rent.
PW-1 further stated that the respondent neglected to take care of
the appellants and the appellant No.1 not being able to maintain
herself and her children, filed a petition under Section 125 Cr.P.C.
claiming maintenance.
10. To prove the marriage and her claim, appellant No.1 marked
exhibits P1 to P20. Exts.P1 to P3 are the photos of the appellants
and the respondent; Exts.P7-P8 are the birth certificates of the
appellants No.2 and 3 namely the daughter and son and Exts.P9
and P11 are the copies of the complaint given to the police; other
exhibits are the receipts acknowledging the maintenance amount
given by the respondent; and other documents.
11. Exts.P7-P8 are the birth certificates of the appellants No.2
and 3 – the daughter and son showing that out of the wedlock, a
girl and a boy were born on 09.05.2001 and 18.07.2003
respectively. In Exts.P7 and P8, father’s name is stated as
6
“Mohan Kumar M.R.” and mother’s name is stated as “Kamala”.
The birth certificates of the children clearly show that appellant
No.1 and the respondent are the husband and wife and appellants
No.2 and 3 are their children. The family court recorded a finding
of fact that the respondent has admitted that Exts.P1 to P3 are
their photos. As rightly observed by the family court, Exts.P1 to P3
does not look like brother-sister relationship or simple neighbours
relationship and the said photos lead to an inference that
respondent and appellant No.1 were living as husband and wife.
As pointed out earlier, appellant No.1 gave Ext.-P9-complaint and
the police settled the matter between the parties and asked the
respondent to pay maintenance of Rs.3,000/- per month to
appellant No.1. Exts. P13 to P17 are the receipts showing that the
respondent has been paying money regularly to appellant No.1.
Unless the respondent was the husband of appellant No.1, why
should he pay the amount to appellant No.1 every month. As
rightly observed by the family court, there is no merit in the
explanation of the respondent that appellant No.1 was his
neighbour and therefore, he used to help her. The evidence of
PW-1 coupled with the documents raise a strong presumption of a
valid marriage.
7
12. Appellant No.1 has also examined K.R. Narayan Iyengar
(PW-2) who has stated that he was working as Manager in
Samruddhi Finance where appellant No.1 was also working with
him. In his evidence, PW-2 further stated that the respondent
used to drop and pick up appellant No.1 and that he used to talk to
respondent whenever he had time and have coffee with him.
PW-2 further stated that the respondent and appellant No.1 were
living happily as husband and wife and were leading a happy
married life.
13. House owner (PW-3) has also stated that appellant No.1 and
the respondent were living in his house on rent during 2005 and
they took the house on rent by informing him that they were
husband and wife. PW-3 further stated that appellant No.1 and
the respondent stayed till April, 2006 and that when they came to
his house, they had two children and appellant No.1 and
respondent were leading a happy married life.
14. Based on the evidence of PW-1 and the number of
documents in particular, the birth certificates of the children
(Exts.P7-P8) and the photos (Exts.P1 to P3), the family court
rightly held that appellant No.1 has proved valid marriage between
her and the respondent. From the evidence of PW-2 and PW-3, it
8
is established that appellant No.1 and the respondent were
cohabitated as husband and wife and that the people around them
treated them as husband and wife and the family court rightly held
that appellant No.1 being a wife and appellants No.2 and 3 being
their children are entitled to claim maintenance under Section 125
Cr.P.C.
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) 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
9
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 (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
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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.”
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
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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.”
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.”
20. On the basis of the evidence of appellant No.1 (PW-1), birth
certificates of appellant Nos.2 and 3 (Exts. P7-P8 dated 25.05.2001
and 06.08.2003), other documentary evidence, oral evidence of
PW-2 who was co-worker of appellant No.1 and PW-3-landlord, the
family court held that appellant No.1 and the respondent were living
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together as husband and wife and there is sufficient proof of
marriage. The family court rightly drew the presumption of valid
marriage between appellant No.1 and the respondent and that they
are legally married couple for claiming maintenance by the wife
under Section 125 Cr.P.C. which is summary in nature. The
evidence of PW-1 coupled with the birth certificates of appellants
No.2 and 3 and other evidences clearly establish the factum of
marriage.
21. Based upon oral and documentary evidence, when the family
court held that there was a valid marriage, the High Court being the
revisional court has no power reassessing the evidence and
substitute its views on findings of fact. The High Court did not keep
in view that in the proceedings under Section 125 Cr.P.C., strict
proof of marriage is not necessary. The findings recorded by the
family court as to the existence of a valid marriage ought not to
have been interfered with by the High Court.
22. In the result, the impugned judgment of the High Court in
R.P.F.C. No.103 of 2008 and R.P.F.C. No.21 of 2009 dated
16.06.2009 is set aside and these appeals are allowed. The
respondent shall pay arrears of maintenance as directed by the
family court, Mysore to the appellants within a period of two months.
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Additionally, the respondent shall also continue to pay the
maintenance to the appellants as directed by the family court on or
before 10th of every English calendar month. The appellants are
also at liberty to move the family court for enhancement of the
maintenance.
…………….……………J.
[R. BANUMATHI]
…………….……………J.
[INDIRA BANERJEE]
New Delhi;
October 24, 2018
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