Smt. Gaya Bai vs Rajjan Singh Kushwah

This Criminal Revision under Section 397 read with Section 401 of Cr.P.C. has been filed against the order dated 22/12/2011 passed by the

Principal Judge, Family Court, Gwalior in M.Cr.C. No.20/2009 by which the application filed by the applicant under Section 125 of Cr.P.C. has

been rejected on the ground that she is not a legally wedded wife of the respondent.

The necessary facts for the disposal of present revision in short are that the applicant filed an application under Section 125 of Cr.P.C. on the

ground that she is a married wife of the respondent. Prior to her marriage with the respondent, she was married to one Harcharan from whom she

had two sons and a daughter. Her marital ties with Harcharan were broken as per custom in front of the Panchas as there is a custom of divorce.

A document was also executed in this respect on 17/4/1984 by the Panchas and a copy of the same was given to Harcharan. After the marital ties

were broken, the document dated 17/4/1984 was shown to the respondent and, therefore, he accepted her as his wife. The respondent had

already lost his first wife Vimla and had one child, namely, Guddi. The applicant and the respondent had resided together for 26 years as a

husband and wife. Thereafter, the respondent has kept an another lady by name Vimla with whom he has children. It was further mentioned that

the respondent without any reasonable reason started harassing her physically and mentally and without any reason has deserted her and has also

avoided to pay maintenance to her and accordingly, the application was filed for grant of maintenance.

The respondent filed his reply and denied that any marriage ever took place between him and the applicant. It was alleged that the applicant was

married to one Harcharan and she was blessed with two sons and a daughter. Harcharan is still alive and the marital ties have not been broken.

The respondent is not liable to make payment of any maintenance amount to the applicant. The respondent was initially married to one lady,

namely, Vimla as per Hindu rites and rituals, but just after 1-11/2 years she died, from whom he has one child. After her death, the respondent has

performed second marriage with one Vimla Kushwaha from whom he has four children. Since the applicant is not the wife of the respondent,

therefore, she is not entitled for maintenance.

The trial court after recording the statement of the witnesses, dismissed the application on the ground that since the applicant has failed to prove

that she is the legally wedded wife of the respondent, therefore, she is not entitled for maintenance.

Challenging the findings given by the trial court, it is submitted by the counsel for the applicant that the applicant had obtained divorce from her

first husband Harcharan as per the custom and she has resided with the respondent for near about 26 long years and long cohabitation is a

presumption of marriage.

The centripetal question for determination is that whether the applicant is the legally wedded wife of the respondent or not, because in order to

get maintenance under Section 125 of Cr.P.C. a woman has to be a legally wedded wife.

In the present case, it is an admitted position that the applicant was married to one Harcharan and she had two sons and a daughter from him. It

is the claim of the applicant that her marital ties with Harcharan were broken as per custom prevailing in the society and a document dated

17/4/1984 was also executed by the Panchas acknowledging separation of the applicant from her first husband Harcharan. The applicant has not

led any evidence to establish that there was any custom prevailing in the society for separation or breaking of marital ties/divorce. Even otherwise,

she has not filed document dated 17/4/1984, which according to her was executed by the Panchas for separation of the marital ties. As per

Section 11 of the Hindu Marriage Act, none of the parties should have a living spouse at the time of marriage, otherwise the marriage would be a

void marriage. In the present case, when the applicant herself has claimed that initially she was married to one Harcharan, then the burden was on

her to prove that she had obtained divorce from Harcharan. Since the applicant has failed to prove that her marital ties with Harcharan were

broken either as per law or as per custom, then in view of Section 11 of the Hindu Marriage Act, her second marriage with the respondent would

be a void marriage and she cannot be said to be a legally wedded wife.

So far as the contention of the applicant that she has resided with the respondent for 26 long years is concerned, even if it is accepted that the

applicant and the respondent were in livein relationship, then for the purpose of Section 125 of Cr.P.C. it cannot be said that the applicant was the

legally wedded wife of the respondent. The Supreme Court in the case of Indra Sarma Vs. V.K.V. Sarma reported in (2013) 15 SCC 755 has

held as under:-

Marriage and family are social institutions of vital importance. Alienation of affection, in that context, is an intentional tort, as held by this Court

in Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48, which gives a cause of action to the wife and children of the respondent to

sue the appellant for alienating the husband/father from the company of his wife/children, knowing fully well they are legally wedded wife/children of

the respondent.

We are, therefore, of the view that the appellant, having been fully aware of the fact that the respondent was a married person, could not have

entered into a live-in relationship in the nature of marriage. All live-in relationships are not relationships in the nature of marriage. The appellant''s

and the respondent''s relationship is, therefore, not a ""relationship in the nature of marriage"" because it has no inherent or essential characteristic of

a marriage, but a relationship other than ""in the nature of marriage"" and the appellant''s status is lower than the status of a wife and that relationship

would not fall within the definition of ""domestic relationship"" under Section 2(f) of the DV Act. If we hold that the relationship between the

appellant and the respondent is a relationship in the nature of a marriage, we will be doing an injustice to the legally wedded wife and children who

opposed that relationship. Consequently, any act, omission or commission or conduct of the respondent in connection with that type of

relationship, would not amount to ""domestic violence"" under Section 3 of the DV Act.

We have, on facts, found that the appellant''s status was that of a mistress, who is in distress, a survivor of a live-in relationship which is of

serious concern, especially when such persons are poor and illiterate, in the event of which vulnerability is more pronounced, which is a societal

reality. Children born out of such relationship also suffer most which calls for bringing in remedial measures by Parliament, through proper

legislation.

We are conscious of the fact that if any direction is given to the respondent to pay maintenance or monetary consideration to the appellant, that

would be at the cost of the legally wedded wife and children of the respondent, especially when they had opposed that relationship and have a

cause of action against the appellant for alienating the companionship and affection of the husband/parent which is an intentional tort.

Thus, where the applicant has failed to prove that she had obtained divorce from her first husband either in accordance with law or in

accordance with the custom prevailing in the society, it is held that even assuming that there was a live-in relationship between the applicant and

respondent, but it would not give the status to the applicant as that of a legally wedded wife.

Accordingly, this Court is the considered opinion that the trial court did not commit any mistake in dismissing the application under Section 125

of Cr.P.C. on the ground that since the applicant is not a legally wedded wife of the respondent, therefore, she is not entitled for maintenance under

Section 125 of Cr.P.C. Accordingly, the order dated 22/12/2011 passed by the Principal Judge, Family Court, Gwalior in M.Cr.C. No.20/2009

is hereby affirmed. The revision fails and is hereby dismissed.