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Kamala vs M.R.Mohan Kumar on 24 October, 2018

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2368-2369 OF 2009

KAMALA AND OTHERS …. Appellants

VERSUS

M.R. MOHAN KUMAR …. Respondent

JUDGMENT

R. BANUMATHI, J.

These appeals arise out of the judgment dated 16.06.2009

passed by the High Court of Karnataka at Bangalore in R.P.F.C.

Nos. 103 of 2008 and 21 of 2009 in and by which the High Court

has set aside the judgment of the family court which has directed

the respondent to pay maintenance to the appellants – wife and

children.

2. Case of the appellants is that marriage between appellant

No.1 and respondent was solemnized on 18.07.1998 against the

wishes of their parents at Karrighatta temple near Sri Rangapattana
Signature Not Verified
and appellant No.2-daughter and appellant No.3-son were born out
Digitally signed by
MADHU BALA
Date: 2018.10.24
15:25:49 IST
Reason:

of the wedlock on 09.05.2001 and 18.07.2003 respectively and they

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lived in a house on rent in Saraswasthipuram, Mysore. Further case

of the appellants is that while the marriage between appellant No.1

and respondent was subsisting, the respondent married one

Archana, who was his colleague on 01.04.2005, after which the

appellants were neglected by the respondent and he was harassing

appellant No.1. Being aggrieved of such treatment from

respondent, appellant No.1 filed a police complaint and upon the

direction of police, the respondent was paying Rs.3,000/- per month

to the appellants towards their maintenance. It is further averred

that when they shifted from Saraswathipuram to Chamundipuram,

the respondent continued to neglect them. Since appellant No.1

could not maintain herself and her children, she filed a Criminal

Miscellaneous No.297/2006 under Section 125 Cr.P.C. claiming

maintenance for herself and the children from the respondent.

3. The respondent resisted the maintenance claim contending

that he has never married appellant No.1 and denied her contention

that appellants No.2 and 3 were born out to him and appellant No.1.

The respondent contended that when there is no valid marriage

between the parties, petition for maintenance under Section 125

Cr.P.C. cannot be maintained.

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4. Upon consideration of evidence, the family court held that

appellant No.1 has proved that there is husband-wife relationship

between appellant No.1 and respondent and that appellants No.2

and 3 are the children born out of the said wedlock and that the

respondent was giving her a monthly maintenance of Rs.3,000/- per

month. The family court further held that the case of the appellants

is supported by the evidence of PW-2 and PW-3 which clearly

establish that they lived under the same roof and the society also

accepted them as husband and wife. On those findings, the family

court vide its order dated 12.08.2008 allowed the appellant’s claim

and ordered maintenance of Rs.3,000/- per month to appellant No.1

and Rs.2,500/- per month to each of the appellants No.2 and 3

from the date of petition till the date of judgment i.e. 12.08.2008.

From the date of judgment i.e. 12.08.2008, the respondent was

directed to pay maintenance of Rs.2,500/- per month each to

appellants No.1 to 3.

5. In appeal, the High Court has set aside the order of the

family court and held that appellant No.1 was unable to prove that

she is the legally wedded wife of the respondent. The High Court

further held that she has not produced any evidence to show that

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the marriage was solemnized as per custom and she, not being

the legally wedded wife, is not entitled for any maintenance.

6. Mr. Girish Ananthamurthy, learned counsel for the appellants

submitted that when the parties live as husband and wife under

one roof, a presumption arises in favour of the person who asserts

the existence of valid marriage. It was submitted that in the instant

case, parties have entered into a wedlock in a temple and lived

together and begot two children, hence, presumption arises in

favour of appellant No.1 and the respondent failed to rebut the

said presumption. The learned counsel for the appellants further

submitted that the family court after analysing the evidence

brought on record, has recorded a finding of fact that appellant

No.1 is the legally wedded wife of respondent and that appellants

No.2 and 3 are their children born out of the wedlock and the High

Court in exercising revisional jurisdiction ought not to have

interfered with the said findings of fact.

7. Per contra, Mr. M.N. Rao, learned senior counsel for the

respondent submitted that under Section 125 (1)(a) Cr.P.C., an

application for maintenance can be maintained only by a “wife”

who is a legally wedded wife. It was submitted that no valid

marriage had taken place between appellant No.1 and the

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respondent and hence, appellant No.1 is not entitled to claim any

maintenance under Section 125 Cr.P.C. It was submitted that the

evidence on record does not disclose any marriage having taken

place between the parties and hence, claim of maintenance under

Section 125 Cr.P.C. was not maintainable and the High Court

rightly reversed the judgment of the family court ordering

maintenance. In support of the contention, reliance was placed

upon Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav

and another (1988) 1 SCC 530.

8. We have carefully considered the rival contentions and

perused the impugned judgment and materials placed on record.

9. In her evidence, appellant No.1 (PW-1) has clearly deposed

that before marriage she and the respondent were neighbours and

they loved each other and their wedding took place in Karrighatta

temple near Sri Rangapattana according to Hindu rituals on

18.07.1998 and that both the families were against their marriage.

PW-1 further stated that out of the wedlock, two children a girl and

a boy were born on 09.05.2001 and 18.07.2003 respectively.

PW-1 further stated that the respondent was working as a

Manager in Birla Sun Life Insurance Company and that he had

developed illicit relationship with one Archana who was working

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with him and thereafter, the respondent gradually started

harassing appellant No.1 and also neglected her children. PW-1

further stated that she had given a police complaint who had

warned the respondent and asked him to pay Rs.3,000/- per

month to the appellants and thereafter, they shifted from

Saraswasthipuram to Chamundipuram and took a house on rent.

PW-1 further stated that the respondent neglected to take care of

the appellants and the appellant No.1 not being able to maintain

herself and her children, filed a petition under Section 125 Cr.P.C.

claiming maintenance.

10. To prove the marriage and her claim, appellant No.1 marked

exhibits P1 to P20. Exts.P1 to P3 are the photos of the appellants

and the respondent; Exts.P7-P8 are the birth certificates of the

appellants No.2 and 3 namely the daughter and son and Exts.P9

and P11 are the copies of the complaint given to the police; other

exhibits are the receipts acknowledging the maintenance amount

given by the respondent; and other documents.

11. Exts.P7-P8 are the birth certificates of the appellants No.2

and 3 – the daughter and son showing that out of the wedlock, a

girl and a boy were born on 09.05.2001 and 18.07.2003

respectively. In Exts.P7 and P8, father’s name is stated as

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“Mohan Kumar M.R.” and mother’s name is stated as “Kamala”.

The birth certificates of the children clearly show that appellant

No.1 and the respondent are the husband and wife and appellants

No.2 and 3 are their children. The family court recorded a finding

of fact that the respondent has admitted that Exts.P1 to P3 are

their photos. As rightly observed by the family court, Exts.P1 to P3

does not look like brother-sister relationship or simple neighbours

relationship and the said photos lead to an inference that

respondent and appellant No.1 were living as husband and wife.

As pointed out earlier, appellant No.1 gave Ext.-P9-complaint and

the police settled the matter between the parties and asked the

respondent to pay maintenance of Rs.3,000/- per month to

appellant No.1. Exts. P13 to P17 are the receipts showing that the

respondent has been paying money regularly to appellant No.1.

Unless the respondent was the husband of appellant No.1, why

should he pay the amount to appellant No.1 every month. As

rightly observed by the family court, there is no merit in the

explanation of the respondent that appellant No.1 was his

neighbour and therefore, he used to help her. The evidence of

PW-1 coupled with the documents raise a strong presumption of a

valid marriage.

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12. Appellant No.1 has also examined K.R. Narayan Iyengar

(PW-2) who has stated that he was working as Manager in

Samruddhi Finance where appellant No.1 was also working with

him. In his evidence, PW-2 further stated that the respondent

used to drop and pick up appellant No.1 and that he used to talk to

respondent whenever he had time and have coffee with him.

PW-2 further stated that the respondent and appellant No.1 were

living happily as husband and wife and were leading a happy

married life.

13. House owner (PW-3) has also stated that appellant No.1 and

the respondent were living in his house on rent during 2005 and

they took the house on rent by informing him that they were

husband and wife. PW-3 further stated that appellant No.1 and

the respondent stayed till April, 2006 and that when they came to

his house, they had two children and appellant No.1 and

respondent were leading a happy married life.

14. Based on the evidence of PW-1 and the number of

documents in particular, the birth certificates of the children

(Exts.P7-P8) and the photos (Exts.P1 to P3), the family court

rightly held that appellant No.1 has proved valid marriage between

her and the respondent. From the evidence of PW-2 and PW-3, it

8
is established that appellant No.1 and the respondent were

cohabitated as husband and wife and that the people around them

treated them as husband and wife and the family court rightly held

that appellant No.1 being a wife and appellants No.2 and 3 being

their children are entitled to claim maintenance under Section 125

Cr.P.C.

15. 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
9
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.

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

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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.”

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.” [underlining added]

17. 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
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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.”

18. 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.

19. 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 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.”

20. On the basis of the evidence of appellant No.1 (PW-1), birth

certificates of appellant Nos.2 and 3 (Exts. P7-P8 dated 25.05.2001

and 06.08.2003), other documentary evidence, oral evidence of

PW-2 who was co-worker of appellant No.1 and PW-3-landlord, the

family court held that appellant No.1 and the respondent were living
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together as husband and wife and there is sufficient proof of

marriage. The family court rightly drew the presumption of valid

marriage between appellant No.1 and the respondent and that they

are legally married couple for claiming maintenance by the wife

under Section 125 Cr.P.C. which is summary in nature. The

evidence of PW-1 coupled with the birth certificates of appellants

No.2 and 3 and other evidences clearly establish the factum of

marriage.

21. Based upon oral and documentary evidence, when the family

court held that there was a valid marriage, the High Court being the

revisional court has no power reassessing the evidence and

substitute its views on findings of fact. The High Court did not keep

in view that in the proceedings under Section 125 Cr.P.C., strict

proof of marriage is not necessary. The findings recorded by the

family court as to the existence of a valid marriage ought not to

have been interfered with by the High Court.

22. In the result, the impugned judgment of the High Court in

R.P.F.C. No.103 of 2008 and R.P.F.C. No.21 of 2009 dated

16.06.2009 is set aside and these appeals are allowed. The

respondent shall pay arrears of maintenance as directed by the

family court, Mysore to the appellants within a period of two months.

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Additionally, the respondent shall also continue to pay the

maintenance to the appellants as directed by the family court on or

before 10th of every English calendar month. The appellants are

also at liberty to move the family court for enhancement of the

maintenance.

…………….……………J.

[R. BANUMATHI]

…………….……………J.

[INDIRA BANERJEE]

New Delhi;

October 24, 2018

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