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Manoj Nirmalkar vs Smt. Bhagwati Bhawani 33 … on 11 November, 2019

Page No.1

AFR

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.

—- Petitioner

Versus

1. Smt. Bhagwati Bhawani, W/o. Manoj Nirmalkar, Aged About 32
Years,

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.

—–Respondents

For Petitioner : Mr. Aditya Khare, Advocate
For Respondents : Mr. Anil Tripathi, Advocate

Hon’ble Shri Justice Rajendra Chandra Singh Samant

C A V ORDER

11/11/2019.

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
Page No.2

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.

Page No.3

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

sustainable.

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
Page No.4

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.”

Page No.5

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.

Page No.6

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.

1. Sd/-

(Rajendra Chandra Singh Samant)
Judge
Balram

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