Criminal Appeal Nos.461-462 of 2020.

19th June 2020

Petitioner Counsel: Ms. CHRISTI JAIN, Ms. PRATIBHA JAIN
Respondent Counsel: Mr. SUMEER SODHI, Mr. ASHISH TIWARI, Ms. SHREYA NAIR
Act Name: Code of Criminal Procedure, 1973 Hindu Marriage Act, 1955

Section :
Section 125 Code of Criminal Procedure, 1973 Section 11 Hindu Marriage Act, 1955

Cases Cited :
Para 5: Vimala K Vs. Veeraswamy K, 1991 ALLMR ONLINE 811 (S.C.) : (1992) 2 SCC 375
Para 5: Savitaben Somabhat Bhatiya Vs. State of Gujarat, 2005 ALL MR (Cri) 1309 (S.C.) : AIR 2005 SC 1809
Para 5: Chanmuniya Vs. Virendra Kumar Singh Kushwaha, 2011 ALL MR (Cri) 346 (S.C.) : 2011 Cri.L.J. 96 SC
Paras 5, 7: Lalita Toppo Vs. State of Jharkhand, 2019 ALL SCR (Cri) 126 : 2019 (13) SCC 796

JUDGEMENT

JUDGMENT :- Delay condoned.

2. Leave granted.

3. These appeals arise from a judgment and order of a learned Single Judge of the Indore Bench of the High Court of Madhya Pradesh dated 22 July 2016. Allowing a revision under Section 19(4) of the Family Courts Act 1984, the learned Single Judge set aside an order of the Principal Judge of the Family Court at Indore dated 30 October 2014. The Family Court allowed a claim for maintenance by the Appellant under Section 125 of the Code of Criminal Procedure 1973 at Rs 3,000 per month.

4. The case of the appellant is that she was married earlier and has children. According to the appellant, on 1 December 1999, her spouse left the family and has since remained untraced. According to her, on 25 June 2008, a marriage was solemnized between her and the respondent in accordance with Hindu rites and ceremonies at Gayatri Shakti Peeth Pragya Sansthan, Ravindra Nagar, Indore. Disputes arose between the parties which led to the filing of an application of maintenance under Section 125 of the Code of Criminal Procedure on 20 October 2012. The respondent instituted a petition under Section 11 of the Hindu Marriage Act 1955 on 1 July 2013, seeking annulment of his marriage with the appellant.

5. On 30 October 2014, the Principal Judge of the Family Court allowed the application for maintenance. The petition filed by the respondent under Section 11 was dismissed on 21 August 2015. The respondent did not lead evidence in support of his plea for annulment. The High Court set aside the grant of maintenance on the ground that the appellant was not a “legally wedded wife” of the respondent, having regard to the provisions of Explanation (b) to Section 125(1) of the Code of Criminal Procedure. In coming to this conclusion, the High Court has relied upon the judgment of this Court in Vimala K vs Veeraswamy K (1992) 2 SCC 375 : [1991 ALLMR ONLINE 811 (S.C.)] and Savitaben Somabhat Bhatiya vs State of Gujarat AIR 2005 SC 1809 : [2005 ALL MR (Cri) 1309 (S.C.)]. The High Court has noted that in Chanmuniya vs Virendra Kumar Singh Kushwaha 2011 Cri.L.J. 96 SC : [2011 ALL MR (Cri) 346 (S.C.)], a divergence of judicial opinion led to a reference to a larger Bench on whether a presumption of a valid marriage by reason of cohabitation over a period of time would entitle a woman to an order of maintenance under Section 125 and whether strict proof of marriage is essential to sustain a claim for maintenance under Section 125. The reference was not answered, as was noted in a subsequent decision in Lalita Toppo vs State of Jharkhand Criminal Appeal 1656 of 2015 : [2019 ALL SCR (Cri) 126]. The High Court was of the view that since the appellant had a subsisting marriage and it had not been established that her marriage had lawfully come to an end, she was not entitled to maintenance since she could not be treated to be “legally wedded” to the respondent. A proceeding was initiated before the High Court under Section 482 thereafter, which was rejected by an order dated 7 December 2018.

6. Ms Christi Jain, learned counsel appearing on behalf of the appellants submits that (i) the Family Court noted the contention of the respondent that the appellant was engaged as a ‘caretaker’. This was belied by the case of the respondent that he had contacted a marriage bureau through which he had got to know her. If a caretaker was being appointed under a contract of personal service, it was unnecessary to contact a marriage bureau; (ii) the petition for annulment instituted under Section 11 was dismissed by the trial court. The petition presented an opportunity to the respondent to lead evidence in support of his submission that there was no valid marriage with the appellant. This opportunity was not availed of and an adverse inference must be drawn; (iii) The parties cohabited together for a period of four years which would raise a presumption, sufficient in the facts of the case, to sustain the order of maintenance passed by the Family Court; (iv) the respondent has produced no material whatsoever to establish the contention that the appellant was merely a caretaker. The respondent who claims to be paralyzed, would have no reason to engage a woman as a caretaker which would be against the normal course of human conduct.

7. On the other hand, while seeking to refute the submissions of the appellant, Mr. Sumeer Sodhi, learned counsel appearing on behalf of the respondent submitted that (i) the appellant has not been able to prove a valid marriage with the respondent; (ii) an inference that there was a valid marriage between the parties cannot be drawn merely because a petition for annulment lodged by the respondent has been rejected; (iii) in the application for maintenance, that was filed by the appellant under Section 125 in December 2012, the case which was sought to be made out was that the spouse of the appellant had left for Gujarat about ten years earlier and that the marriage between the parties took place on 25 January 2008. This pleading would indicate that on the date on which the marriage between the parties is alleged to have taken place, the period which is envisaged in Section 108 of the Evidence Act would not have elapsed, since the marriage has taken place within a period of seven years since the departure of the spouse of the appellant; (iv) in the Special Leave Petition, an attempt has been made to improve upon the case of the appellant by submitting that the spouse of the appellant was untraceable since 1999; (v) the respondent earns about Rs 37000 per month and has been paralyzed over a period of one decade and the flat in the occupation of the appellant belongs to the respondent’s mother. Hence it was urged that no case for interference with the judgment of the High Court has been made out. Mr. Sodhi has also placed reliance on a three-Judge Bench decision of this Court in Lalita Toppo vs State of Jharkhand 2019 (13) SCC 796 : [2019 ALL SCR (Cri) 126].

8. Before we deal with the judgment of the Family Court, it is necessary to note that the case of the respondent is that there was no spousal relationship between the parties and that the appellant had been appointed only as a caretaker. The Family Court did not accept this contention, going by the case of the respondent that he had contacted a marriage bureau through whom he had come to know of the appellant. If the respondent was intending to engage a caretaker or service provider, it was in the very nature of things, contrary to the ordinary course of events that he would approach a marriage bureau. A nursing agency would have been the normal course of recourse. Apart from this, an important circumstance which must weigh with the court is that the respondent instituted a petition under Section 11 of the Hindu Marriage Act 1955 for a declaration that the marriage between him and the appellant was void because the appellant had a prior subsisting marriage. Ms Christi Jain is right in submitting that the material which is sought to be adduced in the course of the submissions of the respondent to cast doubt on the validity of the marriage which the appellant claims between the parties ought to have been, but was not placed before the trial court in the proceedings under Section 11. The respondent did not avail of the opportunity to lead evidence and rested content with the dismissal of the petition. The dismissal of the proceeding under Section 11 has attained finality. An adverse inference must hence be drawn against the respondent. The pleadings of the appellant in the application under Section 125 have to be read holistically. The contention of the appellant is that her husband is untraceable since 1999 and that she has entered upon a valid marriage with the respondent. Parties cohabited together for four years. The respondent sought to avail of a legal remedy by seeking a declaration that his marriage with the appellant was void. He failed to substantiate his case in the remedy which he had adopted. The High Court was in error in coming to the conclusion that the appellant was not entitled to an order of maintenance under Section 125. The parties have cohabited together and the case of the respondent that the appellant was only a caretaker is belied by his own case and by the failure of the remedy which he pursued under Section 11.

9. In the above view of the matter, the submissions which have been urged on the basis of the earlier decisions of the court which had led to a divergence of opinion and a reference to a larger bench need not detain these proceedings. The appellant was entitled to maintenance. The High Court was in error in setting aside the decision of the Family Court.

10. For the above reasons, we are of the view that the judgment of the High Court is unsustainable and that the Single Judge erred in interfering with the decision of the Family Court. The judgment and order of the High Court dated 22 July 2016 is set aside. The order of the Family Court awarding maintenance to the appellant is restored. The appeals are allowed in the above terms.

Decision : Appeals allowed.