Dhum Singh Pundir vs State Of Uttarakhand & Another

Sharad Kumar Sharma, J

A very peculiar situation, which has arisen for consideration in the present criminal revision, is that as per the admitted factual backdrop, it is not in dispute that the marriage between revisionist and respondent no. 2 stood solemnized as back on 08.12.1997. It is further not in dispute that immediately after about 11 days of marriage only, i.e. on 16.12.1997, the respondent no. 2 is said to have left the matrimonial home and had gone along with her friends. It is admitted that ever since 1997, when she has left the matrimonial home there is not even a single effort has been made by the respondent to either get the marriage dissolved or to revive the matrimonial relationship by initiating an appropriate proceedings or to claim a maintenance under Section 125 of Cr.P.C. within a reasonable time, rather she had kept silent and initiated no proceedings. Consequently, the fact which has come on record is that the revisionist later on got married with one Baisakhi Devi and started living as a husband and wife. The only ground, which has been agitated by the respondent no. 2, is that since she was married in 1997 and there is no decree of divorce, hence, she still acquires and enjoys the status of being that of a wife and she would be entitled for the grant of maintenance and other benefits as contemplated under Section 12, 17, 18, 19, 20, 21 & 22 of the Protection of Women from Domestic Violence Act of 2005.

What is surprising and a fact on record, here is that after leaving the matrimonial home way back may be in 1997, in accordance with the revisionist and as per the respondent no. 2 herself, she contends that it was in the year 2002 that according to her she was forced to leave the matrimonial home, but the fact remains that for last about either 14 years according to the respondent or for last 21 years in accordance with the revisionist, there had not been even an isolated effort ever made by the respondent no. 2 to discharge her matrimonial obligations or to make any effort to revive the matrimonial relationship till for the first time when only on 24.03.2017, she had moved an application under the Domestic Violence Act for grant of maintenance and other benefits as contemplated in the relief clause of the application filed by respondent under Section 12, 17 to 22 of Protection of Women from Domestic Violence Act of 2005, which is quoted hereunder:

"15. यह कि विपक्षीगण द्वारा प्रार्थिनी के साथ की गई गाली-गलौज व मारपीट और घरेलू हिंसा के कारण प्रार्थिनी को भारी शारीरिक व मानसिक परेशानियों से जूझना पड़ रहा है, जिसके लिये विपक्षीगण पूर्णतः जिम्मेदार है, जिस कारण उक्त प्रार्थना-पत्र सुनवाई हेतु स्वीकार किया जा कर विपक्षीगण को तलब कर विपक्षीगण से प्रार्थिनी को निम्नलिखित अनुतोष दिलवाया जाना न्यायहित में आवश्यक हैः-

अ- यह कि विपक्षीगण प्रार्थिनी के साथ किसी भी प्रकार की घरेलू हिंसा कारित न करें और साथ ही किसी भी प्रकार की गाली-गलौज व मारपीट न करे इस सम्बन्ध में कोतवाली नई टिहरी, जनपद टिहरी गढ़वाल व थाना रानीपोखरी जनपद देहरादून को आदेशित करने की कृपा की जाये।

ब- यह कि विपक्षी सं0- 1, 2, 3 व 4 से प्रार्थिनी को ससुराल में साझे गृहस्थी वाले आवास पर एक पक्का कमरा, किचन, लैट्रिन, बाथरूम सहित साथ ही प्रार्थिनी के मायके वालों द्वारा शादी के समय दिये गये सामाना फर्नीचर-आलमारी, ड्रेसिंग टेबल, शोफा, बेड, पंखा, टी0वी0, बक्सा, व अन्य घरेलू उपयोग का बर्तन बिस्तर आदि सहित दिलवाया जाय, और उक्त आवास पर विपक्षीगण किसी भी प्रकार का हस्तक्षेप न करें आदेश पारित करने की कृपा की जाय।

स- यह कि विपक्षी सं0- 1 व 2 से प्रार्थिनी को ससुराल में सिंचित भूमि से एक बीघा भूमि कृषि कार्य हेतु दिलवाये जाने के आदेश पारित करने की कृपा की जाय।

द- यह कि विपक्षी सं0 2 से प्रार्थिनी का सम्पूर्ण स्त्रीधन-नथ, अंगूठी, हार, मांगटीका, कुण्डल, (सभी सोने के) लगभग सात तोला इस्तेमाल हेतु प्रार्थिनी को दिलवाये जाने के आदेश पारित करने की कृपा की जाय।

य- यह कि प्रार्थिनी को भरण-पोषण हेतु विपक्षी सं0-1 के मु0 10,000/- रू0 प्रतिमाह व आवास उपलब्ध न कराने की दशा में आवास किराया प्रतिमाह मु0 5,000/- रू0 दिलवाये जाने के आदेश पारित करने की कृपा की जाय।

र- यह कि प्रार्थिनी को विपक्षी सं0-1 से वाद खर्चा के रूप में एकमुस्त मु0 5 लाख रू0 दिलवाये जाने के आदेश पारित करने की कृपा की जाय।"

ल- यह कि विपक्षीगण के द्वारा प्रार्थिनी का जो शारीरिक व मानसिक उत्पीड़न किया गया है, उसके प्रतिकर के रूप में प्रार्थिनी को विपक्षीगण से मु0 5 लाख रू0 दिलवाये जाने के आदेश पारित करने की कृपा की जाय।

व- यह कि उक्त विपक्षी सं0-1 व 5 के द्वारा जो गैर-कानूनी रूप से अवैध शादी की गई है, उसके लिये विपक्षी सं0-1 व 5 को दण्डित किये जाने के आदेश पारित करने की कृपा की जाय।

श- यह कि अन्य कोई न्यायोचित प्रतिकर जो न्यायालय श्रीमान उचित समझे, प्रार्थिनी को विपक्षीगण से दिलवाये जाने के आदेश पारित करने की कृपा की जाय।"

The said application as preferred by the respondent no. 2 was opposed by the revisionist contending thereof that ever since 1997, i.e. since the time of the marriage and till the time of filing of the application for the first in 2017, under the Domestic Violence Act of 2005, there had been no relationship as such of husband and wife and, hence, it cannot be perceived that a lady, who has voluntarily left the matrimonial home on her own volition, could be permitted to invoke the provisions of the Domestic Violence Act, by filing the same for the first time in 2017, i.e. almost after 21 years, since leaving the matrimonial home, more particularly, when the documents on record or even as per the pleading of respondent no. 2 there happen to be not even an isolated effort made by the respondent to revive the matrimonial relationship and to discharge the matrimonial obligations.

The learned Judicial Magistrate after considering the rival contentions and the application preferred by the respondent no. 2 under Section 23 of the Domestic Violence Act had rejected the application vide his order dated 14.11.2017 after considering the fact as already observed in the above paragraph.

In the meantime, when there was a voluntarily desertion at the behest of the respondent no. 2, it is an admitted fact that the revisionist's married opposite party no. 5 of the application preferred by respondent no. 2 and out of the said wed lock of revisionist with respondent no. 5 three children were born, who at the time of the filing of the application by respondent no. 2, they were about 10, 12 and 14 years of age. On being aggrieved against the order passed by the Trial Court rejecting the application under Section 23 of the Domestic Violence Act an Appeal was preferred by the respondent no. 2 under Section 29 of the Domestic Violence Act, and the same has been allowed by the order dated 21.05.2018 and, as a consequence thereto, a direction has been issued that the revisionist would pay a sum of Rs. 3,000/- per month as maintenance, Rs. 1,000/- per month toward the expenses for rent and medical expenses and Rs. 10,000/-lumpsum as litigation expenses to respondent no. 2.

It is this order, which is under challenge before this Court. The only reason, which has been considered by the Appellate Court while passing the impugned order dated 21.05.2018, was the fact that the marriage which was solemnized between the revisionist and respondent no. 2 on 08.12.1997 continued to persist as there was no judicial separation under Section 12 of Hindu Marriage Act or divorce under Section 13 of the Act and since in the absence of the same the respondent no. 2 would still continue to enjoy the status of being a married wife and hence, she will be falling within the purview of the definition of, 'wife' and would be entitled for the protection granted by the aforesaid provisions of the Domestic Violence Act.

However, it has been a specific case of the revisionist before the Courts below and particularly before the Appellate court too that the respondent no. 2, had almost by her conduct had severed the relationship of husband and wife and had not performed any of duties as wife in his life and it had never been her case that for last 21 years ever she had ever made any efforts to revive the matrimonial relationship and made any efforts or attempt to discharge matrimonial obligations. In the absence of the same if a lady, who is residing separately for last 21 years, would be responsible for a tacit desertion on account of her deliberate and intentional failure to discharge her matrimonial obligations. The respondent no. 2 cannot be permitted to be an opportunist by filing an application in 2017 almost after 20 years of the severement of relationship of husband and wife for the grant of benefit under the Protection of Women from Domestic Violence Act of 2005.

The Appellate Court had not considered at all the past conduct of respondent no. 2, and the impact of the pleadings, which has been raised by the revisionist, with regards to the conduct of respondent no. 2 and with regards to the adulterous relationship, which respondent no. 2 had, which in itself was sufficient to disentitle her for the claim of any maintenance under the Protection of Women from Domestic Violence Act, irrespective of the fact that whether the legal dissolution of marriage has taken place or not. This aspect has to be considered from another view point that as per the ratio propounded by the Hon'ble Apex Court in a judgment of 'Badri Prasad vs. Deputy Director of Consolidation and Others' reported in AIR 1978 Supreme Court 1557 it is held as under:

"For around 50 years, a man and a woman, as the facts in this case unfold, lived as husband and wife. An adventurist challenge to the factum of marriage between the two, by the petitioner in this special leave petition, has been negatived by the High Court. A strong presumption arises in favour of wed-lock 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. Law leans in favour of legitimacy and frowns upon bastardy. In this view, the contention of Shri Garg, for the petitioner, that long after the alleged marriage, evidence has not been produced to sustain its ceremonial process by examining the priest or other witnesses, deserves no consideration. If man and woman who live as husband and wife in society are compelled to prove, half a century later, by eye-witness evidence that they were validly married, few will succeed. The contention deserves to be negatived and we do so without hesitation. "

Also in a judgment of Gokal Chand vs. Parvin Kumari' reported in AIR 1952 SC 231 in paragraph 10 it is held that:

"As to the evidence of the 4 persons who claim to have been present at the plaintiff's marriage, we find ourselves in agreement with the view taken by the High Court. The evidence of the other witnesses undoubtedly establishes the fact that for some years the plaintiff and Ram Piari lived together as husband and wife and were treated as such, that Paras Ram, brother of Ram Piari, addressed the plaintiff as jija (a common name for sister's husband), and that the plaintiff acted as Paras Ram's guardian when the latter was admitted to D.A.V. School and was described as his brother-in-law in some of the entries in the school register. The learned Judges of the High Court considered that the evi-dence of certain witnesses who deposed to some of the facts on which the lower court relied, did not strictly comply with the requirements of section 50 of the Indian Evidence Act,firstly because the witnesses had no special means of knowledge on the subject of relationship between the plain-tiff and Ram Piari, and secondly because what section 50 made relevant was not mere opinion but opinion "expressed by conduct" of persons who as members of the family or other- wise, had special means of knowledge. It seems to us that the question as to how far the evidence of those particular witnesses is relevant under section 50 is academic, because it is well-settled that continuous cohabitation for a number of years may raise the presumption of marriage. In the present case, it seems clear that the plaintiff and Ram Piari lived and were treated as husband and wife for a number of years, and, in the absence of any material pointing to the contrary conclusion a presumption might have been drawn that they were lawfully married. But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the court cannot ignore them. We agree with the learned Judges of the High Court that in the present case, such circumstances are not wanting, and their cumulative effect warrants the conclusion that the plaintiff has failed to prove the factum of his marriage with Ram Piari. In the first place, the plaintiff has not examined any of his near relations such as his brother, or collaterals living in Ajnoha, or any co-villagers, whose presence at the marriage would have been far more probable than the presence of the witnesses examined by him. He has also not examined any of the witnesses residing in or round about Holta estate in spite of the fact that his own case is that the marriage was celebrated with great pomp and show. It. was suggested in the courts below that since defendant No. 2 is an influen- tial person, no local witnesses would be available to sup- port the plaintiff's case, but the High Court has very fully dealt with this aspect and pointed out firstly that Raj Kumari had litigation with a number of persons belonging to Palampur and such persons would not be under her influence, and secondly that no gold reason has been shown why Raj Kumari, who is alleged to have brought about the marriage between the plaintiff and Ram Hari, should take a completely hostile attitude towards him. Then again, neither the parents nor any of the relations of Ram Piari have been examined to support the plaintiff. On the other hand, Ram Hari's own mother, Ganga, has deposed that the former was never married to the plaintiff, and the statement made by Ram Piari in her will, which is a very valuable piece of evidence, is to the same effect. It is also in- credible that in spite of the love which Ram Piari is said to have had for the plaintiff, she left him and went away to live with Raj Kumari, and that during the long period when Ram Piari was away, the plaintiff should never have visited her or made enquiries about her and his alleged daughter, Parvin Kumari. This is all the more strange, since it is stated by the plaintiff that Ram Piari continued to love him and that she and Raj Kumari inwardly hated each other. Parvin Kumari says in her deposition that she had never seen her father and that when she reached the age of discretion she found herself living at Palampur. The conduct of the plaintiff in showing such complete indiffer-ence to his wife and daughter as is disclosed in his evi- dence is most unnatural, and no less unnatural is his con- duct in instituting a suit to deprive her of properties which had come into her hands not by reason of anything done by him but as a result of the generosity shown towards her by a stranger. The plaintiff's case that the properties in dispute were acquired by Ram Piari with the aid of his money is wholly untrue, and it has been rightly found by both the courts that they were acquired for her by Raj Kumari. The plaintiff's witnesses have tried to exaggerate his means to support his case, but the truth appears to be that he had hardly any means of his own beyond the somewhat meagre salary which he used to draw as a court typist."

As per the aforesaid judgments, it has laid down that if a female is residing with the male for a sufficient long period even without a marriage then a presumption has been drawn that there exists a relationship of husband and wife, if that be the ratio the converse could also be perceived legally, which is the situation prevailing in the instant case, where the wife who was married in 1997, who had an adulterous relationship, who had made no efforts for last 21 years to revive the relationship, all of a sudden initiates a proceeding for 21 years for the benefits under Section 23 of the Protection of Women from Domestic Violence Act of 2005, a presumption can be drawn that the relationship of husband and wife, as a matter of fact, never subsists between them and, in such an eventuality, though she may be enjoying the status of being socially recognized and a legally wedded wife, but this Court is of the view that she would never be entitled to get any protection under the Domestic Violence Act, once she has not simultaneously discharging her responsibilities as a wife, which she owes to her husband on account of her marriage on 08.12.1997.

In such a situation where the wife has not made any efforts to discharge her matrimonial obligations, this Court is of the view that the application under the Domestic Violence Act after 20 years of separation would not be sustainable because this Court is of the view that the marriage by the conduct of respondent no. 2 has dissolved, and has socially lost its significance. Claim of a statutory benefit is always correlated to the duties attached to it. Consequently, the findings and the observations, which has been made by the Appellate Court's order while allowing the Appeal and granting the maintenance is not sustainable and this Court while exercising this revisional power to be read with Section 401 of Cr.P.C. allows the revision and quash the order dated 21.05.2018 and consequently, revives the order of rejection of the application of respondent no. 2 as rendered by the Judicial Magistrate.

Accordingly, the criminal revision is allowed. The impugned appellate order dated 21.05.2018 stands quashed. Consequently, the application of respondent no. 2 would be treated to be rejected.

However, there would be no order as to cost.