HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved for Order on : 23.10.2019
Order Passed on : 11/11/2019
CR.R. No. 368 of 2019
Manoj Nirmalkar, S/o. Panchram Nirmalkar, Aged About 28 Years, R/o.
Village – Jarhagaon, Police Station – Jarhagaon, District Mungeli
Chhattisgarh. At Present R/o. House No. A/14, Housing Board Colony,
Near Tahsil Office, Korba, Tahsil and District Korba Chhattisgarh.
1. Smt. Bhagwati Bhawani, W/o. Manoj Nirmalkar, Aged About 32
2. Ku. Lalita Kumar Bhawani, Aged About 14 years,
3. Deeplata Bhawani, Aged About 10 years,
No.2 and 3 Minors, Represented Through Smt. Bhagwati
Bhawani, R/o. Rampur Basti, Near Hostel I.T.I. Korba, Tahsil and
District Korba Chhattisgarh.
For Petitioner : Mr. Aditya Khare, Advocate
For Respondents : Mr. Anil Tripathi, Advocate
Hon’ble Shri Justice Rajendra Chandra Singh Samant
C A V ORDER
1. This revision has been brought challenging the order dated
18.02.2019, passed by the Family Court, Korba in M.J.C.
No.62/2018, whereby allowing the application of the respondent
and granting maintenance of Rs.2,000/- to the respondent No.1
along with other reliefs.
2. Respondent No.1 filed an application under Section 125 of
Cr.P.C. claiming that she is wife of the petitioner and the
respondents No.2 and 3 are their children. The petitioner and the
respondent No.1 both were working in Top Town Hotel in the
year 2013, when they get acquainted and the petitioner proposed
to marry the respondent No.1. Thereafter, the marriage was
performed in presence of Notary on 25.11.2018 regarding which
one agreement was also executed. Subsequent to which
respondent No.1 started residing with the petitioner. But in the
later on development, it was alleged that the petitioner has
deserted and he is avoiding to pay any maintenance to the
respondent No.1 and her children.
3. Petitioner/non-applicant opposed the application on the ground
that there was no legal marriage performed between the
petitioner and the respondent No.1. The petitioner had only
resided in the house of the respondent No.1 for one month as
tenant for which a tenancy agreement was executed. The
petitioner has never signed any agreement of marriage. In
subsequent development, the petitioner has vacated the house of
the respondent No.1 and is living separately.
4. The learned Family Court after completing the enquiry in the
application has passed the impugned order.
5. It was submitted by the counsel for the petitioner that respondent
No.1 has no entitlement to claim any maintenance from the
petitioner for the only reason that she is not the legally wedded
wife of the petitioner. The performance of marriage before the
Public Notary is not the marriage performed in accordance with
the law. The fact that the petitioner had lived in the house of the
respondent No.1 as tenant is established in the investigation
made by the police on the complaint made by the respondent
No.1. The respondent No.1 has in her statement has very clearly
stated that the petitioner used to reside in her house as tenant.
Therefore, without there being any legal marriage between the
petitioner and the respondent No.1, the order impugned is
without any basis of law and facts, therefore, this order is not
6. Reliance has been placed on the judgment of this Court in Smt.
Sukanya Vs. Balakram, reported in 2014 (2) C.G.L.J. 611, in
which this Court has very clearly held that woman entering into
live-in-relationship would not be entitled for any relief available
under Section 125 of Cr.P.C. The judgment of Supreme Court in
case of SectionIndra Sarma Vs. V.K. Sarma, reported in AIR 2014 SC
309 has also relied upon.
7. Counsel on behalf of the respondents submits that no error has
been committed by the Family Court in holding that the petitioner
and the respondent No.1 though are not legally wedded wife but
the petitioner and the respondent No.1 had live-in-relationship
from 2014 to 2018. Hence, on this basis, it has been held that
respondent No.1 is entitled for grant of maintenance under
Section 125 of Cr.P.C, therefore, the order of Family Court is
sustainable, which can not be interfered with.
8. I have heard the learned counsel for the parties and perused the
documents placed on record.
9. In case of Indra Sarma (supra), it has been observed in
Paragraph -53, which reads as under :-
“53. Section 125 Cr.P.C., of course, provides for
maintenance of a destitute wife and Section 498A
IPC is related to mental cruelty inflicted on women
by her husband and in-laws. Section 304-B IPC
deals with the cases relating to dowry death. SectionThe
Dowry Prohibition Act, 1961 was enacted to deal
with the cases of dowry demands by the husband
and family members. The Hindu Adoptions and
SectionMaintenance Act, 1956 provides for grant of
maintenance to a legally wedded Hindu wife, and
also deals with rules for adoption. SectionThe Hindu
Marriage Act, 1955 refers to the provisions dealing
with solemnization of marriage also deals with the
provisions for divorce. For the first time, through,
the SectionDV Act, the Parliament has recognized a
“relationship in the nature of marriage” and not a
live-in relationship simplicitor.”
10. Therefore, on the basis of this observation it can be said that the
relationship other than marriage which is in the nature of
marriage is recognized by the Protection of Women from
SectionDomestic Violence Act, but the live-in-relationship simplicitor is
exception to the Protection of Women from SectionDomestic Violence
Act. It has been further discussed in the judgment that a
continuous cohabitation of man and woman as husband and wife
may raise the presumption of marriage, but the presumption
which may be drawn from long cohabitation is a rebuttable one
and if there are circumstances which weaken and destroy that
presumption, the Court cannot ignore them and any adulterous
relationship that is having voluntary sexual intercourse between a
married person who is not one’s husband or wife, cannot be said
to be a relationship in the nature of marriage. Therefore, all the
live-in-relationship are not relationship in the nature of marriage.
Therefore, in this case the status of the respondent No.1 has to
be considered accordingly.
11. There is clear finding of the Family Court itself that there is no
existence of marriage relationship between the petitioner and the
respondent No.1. It is well settled that for the purpose of Section
125 of Cr.P.C. wife means only legitimate wife or legally married
wife, which has been reiterated by the Supreme Court in
Savitaben Somabhai Bhatiya Vs. State of Gujarat And Ors,
reported in 2005 (3) SCC 636 that a woman not lawfully married
is not entitled for maintenance under Section 125 of Cr.P.C.
12. Live-in-relationship of the petitioner with respondent No.1 was in
nature of marriage or not is again need not be considered in the
petition under Section 125 of Cr.P.C. This ground can be raised
under the provision of Protection of Women from SectionDomestic
Violence Act and in case it is proved that the relationship was in
the nature of marriage, then that may be a ground for entitlement
of respondent No.1 that too under the provisions of Protection of
Women from SectionDomestic Violence Act.
13. Therefore, after discussion as made herein above, I am of this
opinion that the order granting maintenance passed by the
Family Court below is erroneous and not legally sustainable.
Hence, this petition is allowed and the impugned order dated
18.02.2019, passed in M.J.C. No.62/2018, by the Family Court,
Korba, is set-aside.
(Rajendra Chandra Singh Samant)