Smt.Gaya Bai vs Rajjan Singh Kushwah on 18 January, 2018

1 Criminal Revision No.299/2012
[Smt. Gaya Bai Vs. Rajjan Singh Kushwah]

HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE G.S. AHLUWALIA

Criminal Revision No.299/2012

………Applicant: Smt. Gaya Bai

Versus

………Respondent: Rajjan Singh Kushwah
—————————————————————————————-
Shri A.K. Jain, Advocate for applicant.
None for respondent.
—————————————————————————————-
Date of hearing : 18/01/2018
Date of Order : 18/01/2018
Whether approved for reporting :
Law laid down:

Significant paragraphs:
ORDER

(18/01/2018)
Per Justice G.S. Ahluwalia,

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
2 Criminal Revision No.299/2012
[Smt. Gaya Bai Vs. Rajjan Singh Kushwah]

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
3 Criminal Revision No.299/2012
[Smt. Gaya Bai Vs. Rajjan Singh Kushwah]

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 1-1½ 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
4 Criminal Revision No.299/2012
[Smt. Gaya Bai Vs. Rajjan Singh Kushwah]

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 live-

in 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
5 Criminal Revision No.299/2012
[Smt. Gaya Bai Vs. Rajjan Singh Kushwah]

Vs. V.K.V. Sarma reported in (2013) 15 SCC 755 has held as

under:-

“67. 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.

68. 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,
6 Criminal Revision No.299/2012
[Smt. Gaya Bai Vs. Rajjan Singh Kushwah]

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.

69. 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.

70. 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.

7 Criminal Revision No.299/2012
[Smt. Gaya Bai Vs. Rajjan Singh Kushwah]

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.

(G.S. Ahluwalia)
Judge
18/01/2018
Arun*

Digitally signed by ARUN KUMAR
MISHRA
Date: 2018.01.23 16:31:45 +05’30’
8 Criminal Revision No.299/2012
[Smt. Gaya Bai Vs. Rajjan Singh Kushwah]

HIGH COURT OF MADHYA PRADESH, JABALPUR,
BENCH AT GWALIOR

Gwalior : Dated 18/1/2018
Shri A.K. Jain, Advocate for applicant.

None for respondent.

Arguments heard.

Order dictated, signed and dated on separate sheets.

(G.S. Ahluwalia)
Judge
Arun*

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