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Lalu Ram vs State & Ors on 30 March, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 881 / 2013
Lalu Ram s/o Shri Jairam, aged about 37 years, by caste Gadri,
resident of Sindesar Khurd, Tehsil Railmagra, District Rajsamand.

—-Petitioner
Versus

1. State of Rajasthan

2. Smt. Sagar W/o Laluram, by caste Gadri, resident of
Sindesar Khurd, at present Naya Dariba, Tehsil Railmagra,
District Rajsamand.

3. Miss. Rani D/o Laluram, by caste Gadri, resident of Sindesar
Khurd, at present Naya Dariba, Tehsil Railmagra, District
Rajsamand.

(Respondent No.3 minor, through natural guardian mother
Smt. Sagar)

—-Respondents
_____________________________________________________
For Petitioner(s) : Mr. B.L. Choudhary
For Respondent(s) : Mr. L.R. Upadhyay, Public Prosecutor for the
State
Mr. A.K. Babel for respondent No.2 3.

_____________________________________________________
HON’BLE MR. JUSTICE P.K. LOHRA
Order
Reportable

30/03/2017

By the instant revision petition, under Section 397/401

Cr.P.C., petitioner has assailed impugned judgment and order

dated 21st of September 2013, passed by Family Court,

Rajsamand. By the impugned judgment and order, learned

Family Court has allowed maintenance allowance to respondents

No.2 3 under Section 125 Cr.P.C. and quantified amount of
(2 of 12)
[CRLR-881/2013]

maintenance to the tune of Rs.5,000 per month, i.e. Rs.2,500 for

each of the respondents. Prayer for grant of maintenance

allowance is allowed by the learned Family Court from the date of

application.

The facts, apposite for the purpose of this petition, are that

respondents No.2 3 jointly filed a petition under Section 125

Cr.P.C. stating therein that marriage between petitioner and

second respondent was solemnized as per Hindu rites and rituals

about a decade back and out of their wedlock respondent No.3

born. The petition further unfurls that till birth of third

respondent, matrimonial relations between the spouses remained

streamlined but soon thereafter serious acrimony cropped up. The

cause of acrimony is attributed by respondents to the petitioner

with a specific allegation that he adopted a defiant posture and

perpetuated cruelty vis-a-vis respondent No.2 and further

demanded dowry. Eventually, the cruel behaviour of the petitioner

reached to its optimum level and he started beating second

respondent, and this sort of situation forced her to leave

matrimonial home with her minor daughter third respondent.

Alleging monthly income of the petitioner to the tune of

Rs.25,000, the respondents claimed monthly maintenance

amounting to Rs.5,000, i.e., Rs.2,500 each. In reply to the

application for maintenance, petitioner has seriously disputed the

factum of marriage and pleaded that she is not legally wedded

wife. In the return, petitioner has also disputed his income and

submitted that he is hardly earning Rs.4,000 per month as an
(3 of 12)
[CRLR-881/2013]

Artisan and therefore unable to afford the amount of maintenance

claimed by the respondents. While refuting all the allegations of

cruelty, petitioner has also submitted in the reply that he is

prepared to keep second respondent with him.

To substantiate her claim for maintenance allowance, second

respondent herself appeared in the witness box and also examined

one more witness Hemraj. Besides that, two documents showing

monthly income of the petitioner were also exhibited. In his

defence, petitioner himself appeared in the witness box and

examined two other witnesses. Upon conclusion of the trial, the

learned Family Court heard final arguments and taking into

account a very vital fact that both petitioner and second

respondent lived together as spouses, recorded a definite finding

that matrimonial relations between both of them subsisted. The

learned Family Court has also recorded a definite finding that for

summary proceedings under Section 125 Cr.P.C. strict proof of

marriage akin to Section 494 IPC is not required and factum of

marriage can be determined on the basis of evidence available on

record. It is also observed by learned Family Court that living

together for number of years may furnish a plausible ground for

presuming factum of marriage. In this behalf, learned Family

Court has also considered the candid admission of the petitioner

that second respondent lived with him as wife and out of their

relationship third respondent has born. With all these findings and

taking into account the unrebutted evidence tendered by

respondents about monthly income of the petitioner, the learned
(4 of 12)
[CRLR-881/2013]

Family Court determined monthly maintenance allowance to

respondents to the tune of Rs.5,000.

Learned counsel for the petitioner submits that there is

serious dispute about factum of marriage in the instant case and

therefore learned Family Court has committed a manifest error in

awarding maintenance allowance to the respondents. Mr.

Choudhary, learned counsel for the petitioner, would contend that

Legislature in its wisdom has used the word “wife” and that

presupposes legally wedded wife for which no proof as such is

furnished by the second respondent, therefore, impugned

judgment and order is per se vulnerable. Lastly, learned counsel

has argued that legal position is still fluid as to how and in what

manner the term “wife” has to be construed so as to give it broad

and expansive interpretation or a narrow interpretation within the

meaning of Section 125 Cr.P.C. Elaborating his submissions,

learned counsel has argued that Supreme Court in Chanmuniya

Vs. Virendra Kumar Singh Kushwaha and Anr. [(2011)1 SCC 141]

has referred the matter to Larger Bench.

Per contra, learned counsel for the respondents has argued

that the learned Family Court has rightly construed the term

“wife” in the backdrop of facts and circumstances of the case so as

to give it broad and expansive interpretation which warrants no

interference in exercise of revisional jurisdiction. Learned counsel

for the respondents would contend that mere reference to the

Larger Bench by Supreme Court cannot have any effect on the
(5 of 12)
[CRLR-881/2013]

binding precedent of the Court. In support of his contention,

learned counsel for the respondents has placed reliance on a

decision of Supreme Court in National Insurance Company Ltd. Vs.

Saju P. Paul and Anr. [(2013 )2 SCC 41]. On merits of the case,

learned counsel for the respondents has relied on a decision of

Supreme Court in Payla Mutyalamma @ Satyavathi Vs. Pyla Suri

Demudu Anr. [2012 (1) RLW 885 (SC)] and this Court in Kalu

Lal Vs. State of Rajasthan Anr. [2012 (2) RLW 1876 (Raj.).

I have heard learned counsel for the parties, perused the

impugned judgment and order and thoroughly scanned the entire

record of the case.

While it is true that Legislature in its wisdom has used the

term “wife” under Section 125 Cr.P.C., who can claim maintenance

if she is unable to maintain herself but then the term “wife”cannot

be construed in narrow sense. Unlike strict proof about marriage

under Section 494 IPC, status of a lady as a wife in summary

proceeding under Section 125 Cr.P.C. can be determined on the

basis of evidence brought on record by the parties. Indisputably,

the petitioner and second respondent were living together for a

considerable period and this fact is admitted by the petitioner.

That apart, the petitioner also admitted that the third respondent

has born out of this relationship. In addition to that, a candid

admission of the petitioner that he is ready and willing to keep

second respondent with him, is sufficient to establish that status
(6 of 12)
[CRLR-881/2013]

of first respondent while living with the petitioner was akin to a

wife. In this behalf, the learned Family Court has placed reliance

on a decision of Supreme Court in case of Dwarika Prasad

Satpathy Vs. Bidyut Praya Dixit and Another [(1999) 7 SCC 675].

In this judgment, Supreme Court has observed as follows:

“Learned counsel for the appellant at the time of
hearing had not disputed the paternity of the child.
Hence, the question is whether the marriage between
the appellant and respondent no.1 was valid or invalid?
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
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.

xxx
It is to be remembered that the order passed in
an application under Section 125 Cr.P.C. does not finally
determine the rights and obligations of the parties and
the said section is enacted with a view to provide
summary remedy for providing maintenance to a wife,
children and parents. For the purpose of getting his
rights determined, the appellant has also filed a Civil
Suit, which is pending before the trial court. In such a
situation, this Court in S. Sethurathinam Pillai v.
Barbara
alias Dolly Sethurthinam, {1971 (3) SCC 923}
observed that maintenance under Section 488 Cr.P.C.,
1898 (Similar to Section 125 Cr.P.C.) cannot be denied
where there was some evidence on which conclusion
(7 of 12)
[CRLR-881/2013]

for grant of maintenance could be reached. It was held
that order passed under Section 488 is a summary
order which does not finally determine the rights and
obligations of the parties; the decision of the criminal
court that there was a valid marriage between the
parties will not operate as decisive in any civil
proceeding between the parties.

After not disputing the paternity of the child and
after accepting the fact that marriage ceremony was
performed, though not legally perfect as contended, it
would hardly lie in the mouth of the appellant to
contend in proceeding under Section 125 Cr.P.C. that
there was no valid marriage as essential rites were not
performed at the time of said marriage. The provision
under Section 125 is not to be utilized for defeating the
rights conferred by the Legislature to the destitute
women, children or parents who are victims of social
environment. In Ramesh Chander Kaushal v. Mrs.
Veena Kaushal and others
, (AIR 1978 SC 1807) Krishna
Iyer, J dealing with interpretation of Section 125 Cr.P.C.
observed (at Para 9) thus:-

“9. This provision is a measure of social justice
and specially enacted to protect women and
children and falls within the constitutional sweep
of Article 15 (3) reinforced by Article 39. We have
no doubt that sections of statutes calling for
construction by courts are not petrified print but
vibrant words with social functions to fulfil. The
brooding presence of the constitutional empathy
for the weaker sections like women and children
must inform interpretation if it has to have social
relevance. So viewed, it is possible to be selective
in picking out that interpretation out of two
alternatives which advances the cause – the
cause of the derelicts.”

In Pyla Mutyalamma @ Satyavathi (supra), Supreme Court

has considered requirement of status of marriage in a proceeding

under Section 125 Cr.P.C. and concluded that Section proceeds on

de facto marriage and not marriage de jure. The Court observed:

“It was still further laid down in the case of Sethu
Rathinam vs. Barbara (1970) 1 SCWR 589 that if there
was affirmative evidence on the aforesaid points, the
Magistrate would not enter into complicated questions
of law as to the validity of the marriage according to
(8 of 12)
[CRLR-881/2013]

the sacrament element or personal law and the like,
which are questions for determination by the civil court.
If the evidence led in a proceeding under Section 125
Cr.P.C. raises a presumption that the applicant was the
wife of the respondent, it would be sufficient for the
Magistrate to pass an order granting maintenance
under the proceeding. But if the husband wishes to
impeach the validity of the marriage, he will have to
bring a declaratory suit in the civil court where the
whole questions may be gone into wherein he can
contend that the marriage was not a valid marriage or
was a fraud or coercion practiced upon him. Fortifying
this view, it was further laid down by the Supreme
Court in the matter of Rajathi vs. C. Ganesan AIR 1999
SC 2374 also, that in a case under Section 125 Cr.P.C.,
the Magistrate has to take prima facie view of the
matter and it is not necessary for the Magistrate to go
into matrimonial disparity between the parties in detail
in order to deny maintenance to the claimant wife.
Section 125, Cr.P.C. proceeds on de facto marriage and
not marriage de jure. Thus, validity of the marriage will
not be a ground for refusal of maintenance if other
requirements of Section 125 Cr.P.C. are fulfilled.

When the appellant’s case is tested on the anvil of
the aforesaid legal position, it is sufficiently clear that
the appellant has succeeded in proving that she was
the legally married wife of the respondent with three
children out of which one had expired while the other
two who are major and well-settled. It has further been
proved that the respondent-husband started deserting
the appellant-wife after almost 25 years of marriage
and in order to avert the claim of maintenance, a story
of previous marriage was set up for which he failed to
furnish any proof much less clear proof. Thus, it was
not open for the High Court under its revisional
jurisdiction to set aside the finding of the trial court and
absolve the respondent from paying the maintenance
of Rs.500/- per month to the appellant-wife.

A learned Single Judge of this Court in Kalu Lal (supra), has

also considered the effect of Nata wife and birth of child out of

relationship for construing factum of marriage. The Court held:

“In his cross-examination, the petitioner has
admitted the fact that he and Smt. Pattu had lived as
husband and wife for many years. According to him,
during the interim period, three children were born.
Once this admission is made by the petitioner, he
cannot be permitted to raise the issue whether the
(9 of 12)
[CRLR-881/2013]

non-petitioner No. 2 was his legally wedded wife or not.
Moreover, in catena of cases the Hon’ble Supreme
Court has already opined that where a man and woman
live as husband and wife, where they are perceived in
the society as husband and wife, it is not for the Court
to go into the legal issue whether they were lawfully
married for the purpose of deciding an application
under Section 125 Cr.P.C. Therefore, as the petitioner
and Smt. Pattu have lived as husband and wife,
according to his own admission, this issue cannot be
raised at the appellate stage. Hence, the learned Judge
was justified in concluding and in treating Smt. Pattu as
the lawfully wedded wife of the petitioner.

A bare perusal of the impugned judgment clearly
reveals that the learned Judge has noticed the fact that
Smt. Pattu was being looked after by one of her sons.
Considering the fact that at the relevant time, the
petitioner was earning an income of Rs. 27,225/- per
month, the amount of maintenance of Rs. 3,000/- is
certainly not unreasonable.”

Supreme Court, in Chanmuniya (supra), referred following,

amongst other, questions to the Larger Bench in respect of Section

125 Cr.P.C. in the light of consistent change in social attitudes and

values which have been incorporated in the forward looking

legislation, Protection of Women from Domestic Violence Act,

2005:

1. Whether the living together of a man and woman as
husband and wife for a considerable period of time
would raise the presumption of a valid marriage
between them and whether such a presumption would
entitle the woman to maintenance under Section
125
Cr.P.C?

2. Whether strict proof of marriage is essential for a
claim of maintenance under Section 125 Cr.P.C. having
regard to the provisions of Domestic Violence Act, 2005?

3. Whether a marriage performed according to
customary rites and ceremonies, without strictly
fulfilling the requisites of Section 7(1) of the Hindu
Marriage Act, 1955, or any other personal law would
(10 of 12)
[CRLR-881/2013]

entitle the woman to maintenance under Section
125
Cr.P.C.?

While it is true that aforementioned questions are referred to

Larger Bench by the Supreme Court but the Court has also opined

that construing the term “wife” broad and expansive interpretation

should be given to those cases where man and woman had been

living together as husband and wife for a reasonably long period

of time and strict proof of marriage should not be pre-condition for

maintenance under Section 125 of the Code. Referring to some

earlier decisions of the Supreme Court and the report of Dr.

Justice V.S. Malimath of 2003, following observations are made by

the Court:

In Captain Ramesh Chander Kaushal v. Veena
Kaushal and Ors
. [(1978) 4 SCC 70], this Court held
that Section 125 is a reincarnation of Section 488 of
the Cr.P.C. of 1898 except for the fact that parents
have also been brought into the category of persons
entitled for maintenance. It observed that this provision
is a measure of social justice specially enacted to
protect, and inhibit neglect of women, children, old and
infirm and falls within the constitutional sweep
of Article 15(3) reinforced by Article 39.

Speaking for the Bench Justice Krishna Iyer, J
observed that: (Veena Kaushal case, SCC p.74, para 9)
“We have no doubt that sections of statutes
calling for construction by courts are not petrified
print but vibrant words with social functions to
fulfill. The brooding presence of the constitutional
empathy for the weaker sections like women and
children must inform interpretation if it is to have
social relevance. So viewed, it is possible to be
selective in picking out that interpretation out of
two alternatives which advance the cause of the
derelicts.” (Para 9 on pages 1809-10).

Again in Vimala (K) v. Veeraswamy (K) [(1991) 2 SCC
375], a three-Judge Bench of this Court held
that Section 125 of the Code of 1973 is meant to
(11 of 12)
[CRLR-881/2013]

achieve a social purpose and the object is to prevent
vagrancy and destitution. Explaining the meaning of
the word `wife’ the Court held:

“…The object is to prevent vagrancy and
destitution. It provides a speedy remedy for the
supply of food, clothing and shelter to the
deserted wife. When an attempt is made by the
husband to negative the claim of the neglected
wife depicting her as a kept-mistress on the
specious plea that he was already married, the
court would insist on strict proof of the earlier
marriage. The term `wife’ in Section 125 of the
Code of Criminal Procedure, includes a woman
who has been divorced by a husband or who has
obtained a divorce from her husband and has not
remarried. The woman not having the legal status
of a wife is thus brought within the inclusive
definition of the term `wife’ consistent with the
objective… ”

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.

The Committee on Reforms of Criminal Justice
System, headed by Dr. Justice V.S. Malimath, in its
report of 2003 opined that evidence regarding a man
and woman living together for a reasonably long period
should be sufficient to draw the presumption that the
marriage was performed according to the customary
rites of the parties. Thus, it recommended that the
word `wife’ in Section 125 Cr.P.C. should be amended
to include a woman who was living with the man like
his wife for a reasonably long period.”

Therefore, in view of binding precedent, a broad and expansive

interpretation is required to be given to the term “wife” as

envisaged under Section 125 Cr.P.C. Mere pendency of reference

before the Larger Bench cannot obliterate the law holding the field

governing the subject on the strength of doctrine of stare decisis.

In this regard, observations made by Apex Court in Saju P. Paul
(12 of 12)
[CRLR-881/2013]

and Anr. (supra) are also significant, which are quoted as infra:

“The pendency of consideration of above
questions by a larger Bench does not mean that
the course that was followed in Baljit Kaur and
Challa Bharathmma should not be followed,
more so in a peculiar fact situation of this case.”

In view of foregoing discussion, upon examining correctness,

legality and propriety of the impugned order, I am convinced that

no interference with the impugned judgment and order is

warranted. The learned Family Court has examined the matter

appropriately for awarding maintenance to the respondents in the

backdrop of facts and circumstances of the case.

Resultantly, the petition fails and same is hereby dismissed.

(P.K. LOHRA) J.

arora/

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