Nirmal Dass vs Kaushalya Devi

Paramjeet Singh, J.—Challenge in this petition u/s 482 of the Code of Criminal Procedure, 1973 (in short ''Cr.P.C.'') is to the order dated 26.11.2011 (Annexure P-1) passed by learned Judicial Magistrate Ist Class, Dhuri, as affirmed by learned Additional Sessions Judge, Sangrur, vide order dated 8.5.2012 (Annexure P-2) and the interim order dated 3.12.2010 (Annexure P-3) passed by the learned Judicial Magistrate Ist Class, Dhuri. The respondent along with two minor children Kirandeep Kaur and Parminder Dass had filed an application u/s 125 of Cr.P.C. claiming maintenance from the petitioner. Undisputedly, the petitioner and the respondent had entered into a kareva form of marriage and executed karevanama/agreement dated 7.12.2002. The petitioner and respondent cohabited together as husband and wife and the petitioner agreed to treat the children as his own from the date of karevanama/agreement. The parties, as per the alleged karevanama/agreement, had been residing together and cohabiting for about a decade. In the application it was claimed that she was unable to maintain herself. She has no source of income to maintain herself and the children living with her. Petitioner has agricultural land at village Kumberwal and the earning of the petitiner is more than Rs. 2.00 lac per annum from the land and other sources. Considering the evidence on record, the trial Court found that the applicant-respondent did not have sufficient means to maintain herself and directed the petitioner to pay her a sum of Rs. 3,000/- per month as maintenance from the date of application along with a sum of Rs. 2,000/- as litigation expenses.

Revision petition was filed by the present petitioner before the Additional Sessions Judge, Sangrur, in which challenge was to the direction to pay Rs. 3,000/-per month by the trial Court. The stand was that the applicant was able to maintain herself from doing the work of labour, stitching etc. and is earning Rs. 20,000/-per month. The revisional Court and the trial Court analysed the evidence and held that there was a karevanama/agreement between the parties, the parties resided as husband and wife for about a decade and had been residing and cohabiting as husband and wife and considering petitioner''s monthly income from 9 bighas of land and Rs. 7,500/-from the other sources, awarded Rs. 3,000/- per month.

The revision was accordingly dismissed. The revisional Court after discussing the evidence on record has come to a conclusion that there was a karevanama/agreement between the parties for living together and that even if there is no valid marriage but they have lived together as husband and wife, the law presumes the relationship between the parties as husband and wife unless contrary is proved. Here is a case where the parties had started living by karevanama/agreement.

I have heard the learned counsel for the petitioner and perused the judgments of the learned Courts below.

The main contention of the learned counsel for the petitioner is that kareva form of marriage is not a valid marriage, it can be only between the real brother of the deceased husband of a lady within the family and it cannot be outside the family. As such there was no marriage between the parties so respondent is not entitled to maintenance.

I have considered the contention of the learned counsel for the petitioner. In the case of 125 Cr.P.C. no strict proof of marriage is required, the Court has to only prima facie satisfy whether the applicant and the respondent resided as husband and wife and that is sufficient to prove the relationship of husband and wife. In the present case, there is a written agreement for residing together, which is termed as karevanama. Mere use of word karevanama does not mean that parties were not residing together and there is no relationship of husband and wife. In Dwarika Prasad Satpathy Vs. Bidyut Praya Dixit and Another, it has been held that no strict proof of performance of marriage is required if the claimant prima facie satisfied the Court that claimant and her husband lived as husband and wife. The standard of proof of marriage in proceedings u/s 125 Cr.P.C. is not as strict as required in trial of offences u/s 494 IPC. In the case in hand, there is voter list Ex.A2, from which it is clear that respondent has been mentioned as the wife of the petitioner. The Election Commission Identity Card also shows the respondent as the wife of the petitioner. The oral evidence of Jora Singh, Ex-member Panchayat, on record and other witnesses clearly indicates that the petitioner and the respondent were residing as husband and wife. The revisional Court has come to a categorical finding that the petitioner and respondent were residing as husband and wife and has affirmed the finding of the trial Court in this regard.

Section 125 Cr.P.C. reads as follows:

(1) If any person leaving sufficient means neglects or refuses to maintain

(

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

A Magistrate of'' the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in whole, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of'' sufficient means.

Explanation. For the purposes of this Chapter.

(a) minor means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;

(b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Any Such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.

(3) If any Person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month''s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the dare on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife''s refusal to live with him.

(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceedings, as the case may be from her husband under this section she is living in adultery, or if, without any sufficient reason, if she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

The object of the 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 support.

The phrase "unable to maintain herself" in the instant case would mean the means available to the applicant wife while she was living with her husband and would not take within its ambit the efforts made by the wife to survive somehow. Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children.

The provision of law gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The respondent has brought sufficient evidence on record that she is unable to maintain herself and petitioner has sufficient means of income from agriculture as well as from other sources being an able-bodied person. Respondent has been neglected by the petitioner from maintaining her after staying with her for continuous long period and entering into an agreement dated 7.12.2002.

In the instant case, the trial Court and the Revisional Court have analysed the evidence and held the petitioner and respondent as husband and wife and that the respondent wife was unable to maintain herself. The conclusions arrived at by the Courts below are essentially factual and they are not perverse. The conclusions have been arrived at on appreciation of evidence and, therefore, there is no scope for any interference u/s 482 Cr.P.C. Hence, this petition is dismissed.