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Dinesh Mourya vs Ashu Mourya on 27 February, 2020

THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon’ble Shri Justice Rajendra Kumar Srivastava

Cr.R. No. 3656/2019

Dinesh Mourya

Vs

Ashu Mourya

————————————————————————————
Shri D.N. Pandey, learned counsel with Shri Shailendra
Dwivedy learned counsel for the petitioner.
Shri A.K. Dwivedi, learned counsel for the respondents.
————————————————————————————

ORDER

(27/02/2019)

The petitioner/non-applicant filed this criminal revision

under Section 397 read with Section 401 of the code of criminal

procedure to set aside the order dated 24.05.2019 passed by First

Additional Principal Judge, Family Court, Bhopal in M.Cr.C. No.

509/2014 whereby learned First Additional Principal Judge, Bhopal

allowed the petition presented by the respondent under Section 125 of

Cr.P.C. and petitioner/non-applicant is directed to pay the

maintenance amount of Rs. 2500/- per month to the respondent No.1

and respondent No.2 each.

2. Case of respondent No.1 in short is that the respondent

No. 1 has filed an application under Section 125 of Cr.P.C. against the

petitioner in which she mentioned that the marriage of respondent

No.1 was solemnized with the petitioner/non-applicant on

22.11.2011. Before marriage, respondent No.1 and petitioner were

live in relationship and blessed with one child also i.e. respondent
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No.2. After some time, petitioner/non-applicant used to abuse and

beat her in drunken condition and also compelled the respondents No.

1 to consume liquor. He also assassinated her character. The

Petitioner/non-applicant deserted the respondent No.1 and also taken

appliance installed in the house of respondent No.1. Respondent No.1

has no source of income. Petitioner has sufficient means of income.

Therefore, respondents are entitled to get maintenance to the

petitioner.

3. In reply the petitioner denied all the allegation levelled

against him stating that the they have never performed marriage and

the respondent No. 1 never lived with him as a wife. He also stated

that he had not committed any cruelty towards the respondent No.1.

He further stated that the respondent No.1 belongs to Muslim religion

and her marriage was performed with one Mehmood Khan on

22.11.2011 and since then the respondent No. 1 is residing with him

as a wife. He has also produced documents of her Nikah. He also

submitted before the Family Court, the respondent No. 1 was blessed

with one male child, who has died and he has produced receipt of

cemetery. He also stated that he is already married having two

children and on account of grab money, the respondent No. 1 has

filed false case.

4. Learned counsel for the petitioner submits that the

learned Family Court has failed to see that no marriage was taken

place between the parties, thus, no question arises to give the

maintenance under Section 125 of Cr.P.C. He submits that the learned

Family Court failed to consider that the respondent No. 1 is already
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Cr.R. No. 3656/2019

married with one Mehmood Khan and she had one child to him who

has died, the petitioner has also filed graveyard receipt dated

28.02.2014. He also submits that the petitioner is already married

person having two children. The marriage certificate produced by the

respondent No.1 is fake document. He also submits that the non-

applicant witness No. 2 Sayed Ameer Hassan who was the Kazi and

performed the marriage of respondent No. 1 with one Mehmood

Khan has supported the contention of petitioner. The Kazi has clearly

identified the respondent No.1 as well as Nikahnama and other

documents have also submitted by the petitioner in this regard. So far

as income of the petitioner is concerned, the respondent No. 1 has

failed to prove of the income of the petitioner even then the learned

Family Court has awarded the maintenance amount. The respondent

No. 1 has field the application only to fulfill her greed of money and

she wants to extract the money from the petitioner by misusing

process of law whereas the petitioner has proved that no marriage had

taken place between them. He also stated that the respondent No. 2 is

not his child. Therefore, the awarded maintenance amount is

improper, unjustified and contrary to law and same deserves to be

quashed.

5. On the other hand, learned counsel for respondents

opposes the same and submits that the respondent No.1 is a legally

waded wife of the petitioner and due to cruelty committed by the

petitioner, she compelled to live separately with her daughter. The

marriage of petitioner and respondent No. 1 was solemnized on

22.11.2011 but they were living in live in relationship prior to and
4

Cr.R. No. 3656/2019

from their cohabitation, they have born out respondent No.2 on

29.07.2010. After some time of marriage, the petitioner committed

cruelty with the respondent No.1 due to this the respondent No.1 is

compelled to live separate to him. The petitioner is not maintaining

the respondents due to this the respondents are unable to survive. The

income of the petitioner is more then one lakh rupees, hence, the

maintenance amount awarded by the learned Family Court is itself

meager and does not deserve to interfere. With the aforesaid, he prays

for dismissal of this revision petition.

6. Heard both the parties and perused the record.

7. On perusal of the record, it appears that the respondent

No.1 has filed an application under Section 125 of Cr.P.C. for seeking

maintenance from the petitioner on the ground that the petitioner used

to maltreat her and he did not take care of her and her child. Further,

the petitioner has denied his marriage with respondent No.1, he has

also denied his relation with respondent No.2. According to

petitioner, respondent No.1 was already married with one Mahmood

Khan and since then she is residing with him as his wife. In this

regard, the petitioner has filed some documents of her Nikahnama.

The petitioner has also filed a graveyard receipt of the son, alleged to

be born out from the co-habitation of the respondent No.1 and

Mahmood Khan.

8. After hearing of arguments raised by the petitioner’s

counsel the question arises before this Court is whether the
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respondent No.1 has succeeded to prove her marriage with the

petitioner and is she legally wedded wife of petitioner or not?

9. On perusal of order passed by learned Family Court, it

appears that the respondent No. 1 has stated that she knew the

petitioner long back and the petitioner was maintaining her as wife.

She further stated that from their co-habitation, she born one child i.e.

respondent No. 2 and thereafter on 24.11.11 she performed marriage

with the petitioner in ‘Arya Samaj Mandir’. She alleged that the

petitioner never disclosed about his first marriage. Shyama Bai (AW-

2), mother of respondent No. 1 has also supported her version. She

also filed a marriage certificate vide Ex. P-1. Further, the respondent

No. 1 has also examined Sunil Awasthi (AW-3) who stated that the

marriage has been performed by him and he signed the certificate,

although, he could not be cross examined because the petitioner was

declared ex-parte and his application for permitting him to cross

examine the witness, has been rejected. Moreover, the petitioner has

denied to give the consent of DNA test of the respondent No. 2. It is

also well settled principle of law to give the maintenance under

Section 125 of Cr.P.C., strict proof of performance of marriage is not

necessary. In this regard in the case of Dwarika Prasad Satpathy

Vs. Bidyut Prava Dixit and another reported in (1997) 7 SCC 675,

the Hon’ ble Apex Court has held as under:-

“………In our view, validity of the marriage for the
purpose of summary proceeding under Section 125
Cr.P.C. is to be determined on the basis of the evidence
brought on record by the parties. The standard of proof
of marriage in such proceeding is not as strict as is
required in a trial of offence under section 494 of the
I.P.C. If the claimant in proceedings under Section 125
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of the Code succeeds in showing that she and the
respondent have lived together as husband and wife,
the Court can presume that they are legally wedded
spouses, and in such a situation, the party who denies
the marital status can rebut the presumption.
Undisputedly, marriage procedure was followed in the
temple, that too, in the presence of idol of Lord
Jagannath, which is worshipped by both the parties.
Appellant contended before the learned Magistrate
that the said marriage was performed under duress
and at the point of knife, he was required to exchange
garlands. That contention is not proved by leading
necessary evidence. Once it is admitted that the
marriage procedure was followed then it is not
necessary to further probe into whether the said
procedure was complete as per the Hindu rites in the
proceedings under Section 125 Cr.P.C.” (Underlining
added)

10. In another recent pronouncement Kamala Vs. M.R.

Mohan Kumar reported in 2018 SCC Online SC 2121, after

reiterating the case of Dwarika Prasad Satpathy (Supra), the

Hon’ble Apex Court has held as under:-

“Unlike matrimonial proceedings where strict proof of
marriage is essential, in the proceedings under Section
125 Cr.P.C., such strict standard of proof is not
necessary as it is summary in nature meant to prevent
vagrancy. In Dwarika Prasad Satpathy v. Bidyut Prava
Dixit (1999) 7 SCC 675, this Court held that “the
standard of proof of marriage in a Section 125
proceeding is not as strict as is required in a trial for
an offence under Section 494 IPC. The learned Judges
explained the reason for the aforesaid finding by
holding that an order passed in an application under
Section 125 does not really determine the rights and
obligations of the parties as the section is enacted with
a view to provide a summary remedy to neglected
wives to obtain maintenance. The learned Judges held
that maintenance cannot be denied where there was
some evidence on which conclusions of living together
could be reached.” When the parties live together as
husband and wife, there is a presumption that they are
legally married couple for claim of maintenance of
wife under Section 125 Cr.P.C. Applying the well-
settled principles, in the case in hand, appellant No.1
and the respondent were living together as husband
and wife and also begotten two children. Appellant
No.1 being the wife of the respondent, she and the
children appellants No.2 and 3 would be entitled to
maintenance under Section 125 Cr.P.C.

7

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16. It is fairly well settled that the law presumes in
favour of marriage and against concubinage when a
man and woman have cohabited continuously for a
number of years. After referring to various judgments,
in Chanmuniya v. Virendra Kumar Singh Kushwaha
(2011) 1 SCC 141, this Court held as under:-

“11. Again, in Sastry Velaider Aronegary v.
Sembecutty Vaigalie (1881) 6 AC 364, it was
held that where a man and woman are proved
to have lived together as man and wife, the law
will presume, unless the contrary is clearly
proved, that they were living together in
consequence of a valid marriage, and not in a
state of concubinage.

12. In India, the same principles have been
followed in Andrahennedige Dinohamy v.
Wijetunge Liyanapatabendige Balahamy AIR
1927 PC 185, in which the Privy Council laid
down the general proposition that where a man
and woman are proved to have lived together as
man and wife, the law will presume, unless, the
contrary is clearly proved, that they were living
together in consequence of a valid marriage,
and not in a state of concubinage.

13. In Mohabbat Ali Khan v. Mohd. Ibrahim
Khan AIR 1929 PC 135 the Privy Council has
laid down that the law presumes in favour of
marriage and against concubinage when a man
and woman have cohabited continuously for
number of years.

14. In Gokal Chand v. Parvin Kumari AIR 1952
SC 231, this Court held that continuous
cohabitation of man and woman as husband
and wife may raise the presumption of
marriage, but the 10 presumption which may be
drawn from long cohabitation is rebuttable and
if there are circumstances which weaken and
destroy that presumption, the Court cannot
ignore them.

15. Further, in Badri Prasad v. Director of
Consolidation (1978) 3 SCC 527, the Supreme
Court held that a strong presumption arises in
favour of wedlock 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.

16. Again, in Tulsa v. Durghatiya (2008) 4 SCC
520, this Court held that where the partners
lived together for a long spell as husband and
wife, a presumption would arise in favour of a
valid wedlock.”

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17. This Court in Chanmuniya case further held as
under:-

“24. Thus, in those cases where a man, who
lived with a woman for a long time and even
though they may not have undergone legal
necessities of a valid marriage, should be made
liable to pay the woman maintenance if he
deserts her. The man should not be allowed to
benefit from the legal loopholes by enjoying the
advantages of a de facto marriage without
undertaking the duties and obligations. Any
other interpretation would lead the woman to
vagrancy and destitution, which the provision of
maintenance in Section 125 is meant to
prevent.”

18. Chanmuniya case referred to divergence of judicial
opinion on the interpretation of the word “wife” in
Section 125 Cr.P.C. In paras (28) and (29) of
Chanmuniya case, this Court referred to other
judgments which struck a difficult note as under:-

“28. However, striking a different note, in
Yamunabai Anantrao Adhav v. Anantrao
Shivram Adhav (1988) 1 SCC 530, a two-Judge
Bench of this Court held that an attempt to
exclude altogether personal law of the parties
in proceedings under Section 125 is improper
(see para 6). The learned Judges also held
(paras 4 and 8) that the expression “wife” in
Section 125 of the Code should be interpreted to
mean only a legally wedded wife.

29. Again, in a subsequent decision of this
Court in Savitaben Somabhai Bhatiya v. State of
Gujarat (2005) 3 SCC 636, this Court held that
however desirable it may be to take note of
plight of an unfortunate woman, who
unwittingly enters into wedlock with a married
man, there is no scope to include a woman not
lawfully married within the expression of
“wife”. The Bench held that this inadequacy in
law can be amended only by the legislature.
While coming to the aforesaid finding, the
learned Judges relied on the decision in
Yamunabai case (1988) 1 SCC 530.”

19. After referring to the divergence of judicial opinion
on the interpretation of the word “wife” in Section 125
Cr.P.C., speaking for the Bench A.K. Ganguly J. held
that the Bench is inclined to take a broad view of the
definition of “wife”, having regard to the social object
of Section 125 Cr.P.C.

20.. In Chanmuniya case, this Court formulated three
questions and referred the matter to the larger Bench.
However, after discussing various provisions of the
Criminal Procedure Code, this Court held that a broad
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and extensive interpretation should be given to the
term “wife” under Section 125 Cr.P.C. and held as
under:-

“42. We are of the opinion that a broad and
expansive interpretation should be given to the
term “wife” to include even those cases where a
man and woman have been living together as
husband and wife for a reasonably long period
of time, and strict proof of marriage should not
be a precondition for maintenance under
Section 125 CrPC, so as to fulfil the true spirit
and essence of the beneficial provision of
maintenance under Section 125. We also believe
that such an interpretation would be a just
application of the principles enshrined in the
Preamble to our Constitution, namely, social
justice and upholding the dignity of the
individual.” (Underlining added)

11. On perusal of the above quoted citations it is manifest

that if the wife proves that she has been living together with the other

party (husband) as a wife, the Court presumes that she is legally

wedded wife and she is entitled to claim the maintenance from her

husband. Therefore, in such circumstances, the learned Family Court

has rightly believed that the there was marital relationship between

the petitioner and respondent No.1.

12. Now I take another ground which is raised in the case by

the petitioner that the respondent No. 1 is already married with one

Mehmood Khan and is living with him. He also raised that

respondent No.1 had one child to Mehmood Khan who died but due

to absence of cogent evidence by the petitioner, the Family Court

does not found the marriage of respondent No. 1 with the Mehmood

Khan duly proved. This finding when tested on the evidence available

on record, it appears that the statement of Sayed Ameer Hassan (DW-

2) is important who stated that he performed the marriage of the
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Cr.R. No. 3656/2019

respondent No.1 with Mehmood Khan but to secure their identity, he

did not take their identity proof, moreover, in Nikahnama (exhibit D-

8), photographs of the parties is also not found attached, he stated that

somebody had taken the photograph but he did not file any complaint

in this regard. Further, in the document of Ex. D-5 (grave receipt), the

name of respondent No.1 is not mentioned as the mother of died

Mohammad Khan, the petitioner has not filed any other evidence to

prove that the respondent No.1 gave birth to a child namely

Mohammad Khan. On perusal of document of Ex. D-4 (Hindi

translation of Nikahnam) and Ex.P-4 (ration card) the name of father

of the respondent No. 1 is found different as in ration card, the name

is reflected as Matru Khatik whereas in Nikahnam appears as Matru

Khan, therefore, the findings of the learned Family Court holding that

the marriage of the respondent No.1 with Mahmood Khan is not

found prove, found satisfactory.

13. An another fact is also reflected in the record is that the

petitioner husband is already married person and having two children,

thus, in such circumstances, the issue arises before this Court,

whether the respondent No.1 can be treated as a legally wedded wife

of petitioner ?

14. In the case of Badshah Vs. Sou-Urmila Badshah

Godse and another reported in AIR 2014 SC 869, the Hon’ble Apex

Court has held that if the wife has produced cogent and strong

evidence regarding their marriage and both lived together, but

husband did not reveal the fact of his first marriage and wife was
11

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having no knowledge about the same, then she shall be treated as

legally wedded wife for purpose of claiming maintenance.

15. In the present case, it is categorically stated by the

respondent No. 1, when her marriage was solemnized with the

petitioner, she did not know about the first marriage of petitioner.

16. In another case Chanmuniya (Supra), the Hon’ble Apex

Court held that in case of live-in-relationship/presumed

marriage/defacto marriage/Cohabitation, long cohabitation of the

party, without performing valid marriage makes such woman entitle

to claim maintenance.

17. On perusal of evidence available on record so also

considering the circumstances of the case, this Court is of the opinion

that petitioner has failed to prove that the respondent No. 1 is not his

wife for the purpose of claiming maintenance. He has also failed to

prove that she is living with another person as his wife. It also

appears that the respondent No. 1 was living with the petitioner as a

wife since number of years. They have cohabited with each other

since long back and due to which they have been blessed with one

child i.e. respondent No. 2. Though, the petitioner has denied to

accept his relation with respondent No. 2, but he has denied to

conduct DNA test. Further, on perusal of document of Ex. P-2 (fees

card), Ex. P.-3 (Fee receipt) and Ex. P-9 (birth certificate) of

respondent No.2, the name of petitioner is mentioned as father of her.

Therefore, it is sufficient to believe that the petitioner is the father of

respondent No.2. Hence, in view of the principle laid down in the
12

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above cited case, this Court is of the opinion that the petitioner is

responsible person to take care of respondent No.1 and 2 and findings

of the learned family court is found correct.

18. So far as quantum of maintenance amount is concerned,

it is found that according to the respondent No. 1, the petitioner is

having three tanker which engaged in transportation of diesel and

petrol and he also has 2 four wheeler. Although, the respondent No. 1

has failed to file any documentary evidence in this regard but

considering the fact that the petitioner has not denied this above said

fact in his examination and also not challenged the same while

making cross examination of the respondent, income of the petitioner

assessed as Rs. 20000/- per month, is found adequate. Therefore, in

such circumstances, total awarded maintenance amount of Rs. 5000/-

per month to the respondents (2500/- per month to each), is found

proper and not interferrable.

19. Accordingly, this revision petition is devoid of merits,

and it is hereby dismissed.

(Rajendra Kumar Srivastava)
Judge

L.R.

Digitally signed by LALIT SINGH
RANA
Date: 2020.02.28 17:09:02 +05’30’

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