KAMALA AND OTHERS versus M.R. MOHAN KUMAR on 24 October 2018

[2018] 13 S.C.R. 505

KAMALA AND OTHERS

v.

M.R. MOHAN KUMAR

(Criminal Appeal Nos. 2368-2369 of 2009)

OCTOBER 24, 2018

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Code of Criminal Procedure, 1973 – s.125 – Maintenanceunder, claimed by wife – Standard of proof required to provemarriage – Marriage between appellant No.1-wife (PW-1) andrespondent-husband was solemnized against the wishes of theirparents – Appellant No.2-daughter and appellant no.3-son wereborn out of the wedlock – However, after some time respondentallegedly started harassing the appellant no.1 and neglected thechildren – Appellant no.1 claimed maintenance – Respondent deniedthe factum of marriage – Family Court allowed the appellant’s claimand ordered maintenance of Rs.3,000/- p.m to appellant No.1 andRs.2,500/- p.m to each of the appellants nos.2 and 3 – High Courtset aside the order holding that appellant no.1 was unable to provethat she is the legally wedded wife of the respondent – Held: Basedon the evidence of PW-1 and the birth certificates of the childrenand the photos, the Family Court rightly held that appellant no.1has proved valid marriage between her and the respondent – Unlikematrimonial proceedings where strict proof of marriage is essential,in the proceedings u/s.125 CrPC, such strict standard of proof isnot necessary as it is summary in nature meant to prevent vagrancy– Law presumes in favour of marriage and against concubinagewhen a man and woman have cohabited continuously for a numberof years – Based upon oral and documentary evidence, when theFamily Court held that there was a valid marriage, the High Courtbeing the Revisional Court had no power to reassess the evidenceand substitute its views on findings of fact – Appellant No.1 beingthe wife and appellants no.2 and 3 being their children are entitledto claim maintenance u/s.125 CrPC – Respondent to pay arrears ofmaintenance as directed by the Family Court within two monthsand also continue to pay the maintenance to the appellants –Appellants at liberty to move the Family Court for enhancement ofthe maintenance.

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AAllowing the appeals, the Court

HELD: 1.1 Based on the evidence of PW-1 and the numberof documents in particular, the birth certificates of the children(Exts.P7-P8) and the photos (Exts.P1 to P3), the family courtrightly held that appellant No.1 has proved valid marriageBbetween her and the respondent. It is established that appellantNo.1 and the respondent cohabitated as husband and wife andthat the people around them treated them as husband and wifeand the family court rightly held that appellant No.1 being a wifeand appellants No.2 and 3 being their children are entitled toclaim maintenance under Section 125 Cr.P.C. [Para 14]C[511-G-H; 512-A-B]

1.2 Unlike matrimonial proceedings where strict proof ofmarriage is essential, in the proceedings under Section 125Cr.P.C., such strict standard of proof is not necessary as it issummary in nature meant to prevent vagrancy. When the partiesDlive together as husband and wife, there is a presumption thatthey are legally married couple for claim of maintenance of wifeunder Section 125 Cr.P.C. Applying the well-settled principles,in the case in hand, appellant No.1 and the respondent were livingtogether as husband and wife and also begotten two children.EAppellant No.1 being the wife of the respondent, she and thechildren appellants No.2 and 3 would be entitled to maintenanceunder Section 125 Cr.P.C. The law presumes in favour of marriageand against concubinage when a man and woman have cohabitedcontinuously for a number of years. [Paras 15, 16] [512-C, E-G]F1.3 On the basis of the evidence of appellant No.1 (PW-1),

F1.3 On the basis of the evidence of appellant No.1 (PW-1),birth certificates of appellant Nos.2 and 3 (Exts. P7-P8 dated25.05.2001 and 06.08.2003), other documentary evidence, oralevidence of PW-2 who was co-worker of appellant No.1 and PW-3-landlord, the family court held that appellant No.1 and therespondent were living together as husband and wife and thereGis sufficient proof of marriage. The family court rightly drew thepresumption of valid marriage between appellant No.1 and therespondent and that they are legally married couple for claimingmaintenance by the wife under Section 125 Cr.P.C. which issummary in nature. The evidence of PW-1 coupled with the birthHcertificates of appellants No.2 and 3 and other evidences clearly established the factum of marriage. Based upon oral anddocumentary evidence, when the family court held that there wasa valid marriage, the High Court being the revisional court hadno power reassessing the evidence and substitute its views onfindings of fact. The High Court did not keep in view that in theproceedings under Section 125 Cr.P.C., strict proof of marriageis not necessary. The findings recorded by the family court as tothe existence of a valid marriage ought not to have been interferedwith by the High Court. [Paras 20, 21] [515-C-G]

1.4 The respondent shall pay arrears of maintenance asdirected by the family court to the appellants within a period oftwo months. Additionally, the respondent shall also continue topay the maintenance to the appellants as directed by the familycourt on or before 10[th] of every English calendar month. Theappellants are also at liberty to move the family court forenhancement of the maintenance. [Para 22] [515-G; 516-A]

Dwarika Prasad Satpathy v. Bidyut Prava Dixit(1999) 7 SCC 675 : [1999] 3 Suppl. SCR 684 –relied on.

Yamunabai Anantrao Adhav v. Anantrao Shivram Adhavand Another (1988) 1 SCC 530 : [1988] 2 SCR 809 ;Chanmuniya v. Virendra Kumar Singh Kushwaha(2011) 1 SCC 141 : [2010] 12 SCR 223– referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 2368-2369 of 2009.

From the Judgment and Order dated 16.06.2009 of the High Courtof Karnataka at Bangalore in R.P.F.C. No. 103 of 2008 and 21of 2009.

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AGirish Ananthamurthy, Harisha S. R., Mrs. Vaijayanthi Girish,Advs. for the Appellants.

M. N. Rao, Sr. Adv., P. R. Ramasesh, Adv. for the Respondent.

The Judgment of the Court was delivered by BR. BANUMATHI, J. 1. These appeals arise out of the judgmentdated 16.06.2009 passed by the High Court of Karnataka at Bangalorein R.P.F.C. Nos. 103 of 2008 and 21 of 2009 in and by which the HighCourt has set aside the judgment of the family court which has directedthe respondent to pay maintenance to the appellants – wife and children.

C2. Case of the appellants is that marriage between appellant No.1and respondent was solemnized on 18.07.1998 against the wishes oftheir parents at Karrighatta temple near Sri Rangapattana and appellantNo.2-daughter and appellant No.3-son were born out of the wedlock on09.05.2001 and 18.07.2003 respectively and they lived in a house onrent in Saraswasthipuram, Mysore. Further case of the appellants is thatDwhile the marriage between appellant No.1 and respondent was subsisting,the respondent married one Archana, who was his colleague on01.04.2005, after which the appellants were neglected by the respondentand he was harassing appellant No.1. Being aggrieved of such treatmentfrom respondent, appellant No.1 filed a police complaint and upon theEdirection of police, the respondent was paying Rs.3,000/- per month tothe appellants towards their maintenance. It is further averred that whenthey shifted from Saraswathipuram to Chamundipuram, the respondentcontinued to neglect them. Since appellant No.1 could not maintainherself and her children, she filed a Criminal Miscellaneous No.297/2006 under Section 125 Cr.P.C. claiming maintenance for herself andFthe children from the respondent.

3. The respondent resisted the maintenance claim contending thathe has never married appellant No.1 and denied her contention thatappellants No.2 and 3 were born out to him and appellant No.1. Therespondent contended that when there is no valid marriage between theGparties, petition for maintenance under Section 125 Cr.P.C. cannot bemaintained.

4. Upon consideration of evidence, the family court held thatappellant No.1 has proved that there is husband-wife relationship betweenappellant No.1 and respondent and that appellants No.2 and 3 are the H

children born out of the said wedlock and that the respondent was givingher a monthly maintenance of Rs.3,000/- per month. The family courtfurther held that the case of the appellants is supported by the evidenceof PW-2 and PW-3 which clearly establish that they lived under thesame roof and the society also accepted them as husband and wife. Onthose findings, the family court vide its order dated 12.08.2008 allowedthe appellant’s claim and ordered maintenance of Rs.3,000/- per monthto appellant No.1 and Rs.2,500/- per month to each of the appellantsNo.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 respondentwas directed to pay maintenance of Rs.2,500/- per month each toappellants No.1 to 3.

5. In appeal, the High Court has set aside the order of the familycourt and held that appellant No.1 was unable to prove that she is thelegally wedded wife of the respondent. The High Court further heldthat she has not produced any evidence to show that the marriage wassolemnized as per custom and she, not being the legally wedded wife, isnot entitled for any maintenance.

6. Mr. Girish Ananthamurthy, learned counsel for the appellantssubmitted that when the parties live as husband and wife under one roof,a presumption arises in favour of the person who asserts the existenceof valid marriage. It was submitted that in the instant case, parties haveentered into a wedlock in a temple and lived together and begot twochildren, hence, presumption arises in favour of appellant No.1 and therespondent failed to rebut the said presumption. The learned counselfor the appellants further submitted that the family court after analysingthe evidence brought on record, has recorded a finding of fact thatappellant No.1 is the legally wedded wife of respondent and thatappellants No.2 and 3 are their children born out of the wedlock and theHigh Court in exercising revisional jurisdiction ought not to have interferedwith the said findings of fact.

7. Per contra, Mr. M.N. Rao, learned senior counsel for therespondent submitted that under Section 125 (1)(a) Cr.P.C., an applicationfor maintenance can be maintained only by a “wife” who is a legallywedded wife. It was submitted that no valid marriage had taken placebetween appellant No.1 and the respondent and hence, appellant No.1is not entitled to claim any maintenance under Section 125 Cr.P.C. It AB

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Awas submitted that the evidence on record does not disclose any marriagehaving taken place between the parties and hence, claim of maintenanceunder Section 125 Cr.P.C. was not maintainable and the High Courtrightly reversed the judgment of the family court ordering maintenance.In support of the contention, reliance was placed upon YamunabaiAnantrao Adhav v. Anantrao Shivram Adhav and another (1988) 1BSCC 530.8. We have carefully considered the rival contentions and perusedthe impugned judgment and materials placed on record.

9. In her evidence, appellant No.1 (PW-1) has clearly deposedCthat before marriage she and the respondent were neighbours and theyloved each other and their wedding took place in Karrighatta templenear Sri Rangapattana according to Hindu rituals on 18.07.1998 and thatboth the families were against their marriage. PW-1 further stated thatout of the wedlock, two children a girl and a boy were born on 09.05.2001and 18.07.2003 respectively. PW-1 further stated that the respondentDwas working as a Manager in Birla Sun Life Insurance Company andthat he had developed illicit relationship with one Archana who wasworking with him and thereafter, the respondent gradually startedharassing appellant No.1 and also neglected her children. PW-1 furtherstated that she had given a police complaint who had warned theErespondent and asked him to pay Rs.3,000/- per month to the appellantsand thereafter, they shifted from Saraswasthipuram to Chamundipuramand took a house on rent. PW-1 further stated that the respondentneglected to take care of the appellants and the appellant No.1 not beingable to maintain herself and her children, filed a petition under Section125 Cr.P.C. claiming maintenance.F

10. To prove the marriage and her claim, appellant No.1 markedexhibits P1 to P20. Exts.P1 to P3 are the photos of the appellants andthe respondent; Exts.P7-P8 are the birth certificates of the appellantsNo.2 and 3 namely the daughter and son and Exts.P9 and P11 are thecopies of the complaint given to the police; other exhibits are the receiptsGacknowledging the maintenance amount given by the respondent; andother documents.

11. Exts.P7-P8 are the birth certificates of the appellants No.2and 3 – the daughter and son showing that out of the wedlock, a girl anda boy were born on 09.05.2001 and 18.07.2003 respectively. In Exts.P7

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and P8, father’s name is stated as “Mohan Kumar M.R.” and mother’sname is stated as “Kamala”. The birth certificates of the children clearlyshow that appellant No.1 and the respondent are the husband and wifeand appellants No.2 and 3 are their children. The family court recordeda finding of fact that the respondent has admitted that Exts.P1 to P3 aretheir photos. As rightly observed by the family court, Exts.P1 to P3does not look like brother-sister relationship or simple neighboursrelationship and the said photos lead to an inference that respondent andappellant No.1 were living as husband and wife. As pointed out earlier,appellant No.1 gave Ext.-P9-complaint and the police settled the matterbetween the parties and asked the respondent to pay maintenance ofRs.3,000/- per month to appellant No.1. Exts. P13 to P17 are the receiptsshowing that the respondent has been paying money regularly to appellantNo.1. Unless the respondent was the husband of appellant No.1, whyshould he pay the amount to appellant No.1 every month. As rightlyobserved by the family court, there is no merit in the explanation of therespondent that appellant No.1 was his neighbour and therefore, he usedto help her. The evidence of PW-1 coupled with the documents raise astrong presumption of a valid marriage.

12. Appellant No.1 has also examined K.R. Narayan Iyengar(PW-2) who has stated that he was working as Manager in SamruddhiFinance 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 appellantNo.1 and that he used to talk to respondent whenever he had time andhave coffee with him. PW-2 further stated that the respondent andappellant No.1 were living happily as husband and wife and were leadinga happy married life.

13. House owner (PW-3) has also stated that appellant No.1 andthe respondent were living in his house on rent during 2005 and theytook the house on rent by informing him that they were husband andwife. PW-3 further stated that appellant No.1 and the respondent stayedtill April, 2006 and that when they came to his house, they had twochildren and appellant No.1 and respondent were leading a happy marriedlife.

14. Based on the evidence of PW-1 and the number of documentsin particular, the birth certificates of the children (Exts.P7-P8) and thephotos (Exts.P1 to P3), the family court rightly held that appellant No.1

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Ahas proved valid marriage between her and the respondent. From theevidence of PW-2 and PW-3, it is established that appellant No.1 andthe respondent were cohabitated as husband and wife and that the peoplearound them treated them as husband and wife and the family courtrightly held that appellant No.1 being a wife and appellants No.2 and 3being their children are entitled to claim maintenance under Section 125BCr.P.C.

15. Unlike matrimonial proceedings where strict proof of marriageis essential, in the proceedings under Section 125 Cr.P.C., such strictstandard of proof is not necessary as it is summary in nature meant toprevent vagrancy. In Dwarika Prasad Satpathy v. Bidyut PravaCDixit(1999) 7 SCC 675, this Court held that “the standard of proof ofmarriage in a Section 125 proceeding is not as strict as is requiredin a trial for an offence under Section 494 IPC. The learned Judgesexplained the reason for the aforesaid finding by holding that anorder passed in an application under Section 125 does not reallyDdetermine the rights and obligations of the parties as the section isenacted with a view to provide a summary remedy to neglected wivesto obtain maintenance. The learned Judges held that maintenancecannot be denied where there was some evidence on whichconclusions of living together could be reached.” When the partieslive together as husband and wife, there is a presumption that they areElegally married couple for claim of maintenance of wife under Section125 Cr.P.C. Applying the well-settled principles, in the case in hand,appellant No.1 and the respondent were living together as husband andwife and also begotten two children. Appellant No.1 being the wife ofthe respondent, she and the children appellants No.2 and 3 would beFentitled to maintenance under Section 125 Cr.P.C.

16. It is fairly well settled that the law presumes in favour ofmarriage and against concubinage when a man and woman havecohabited continuously for a number of years. After referring to variousjudgments, in Chanmuniya v. Virendra Kumar Singh Kushwaha (2011)G1 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 areproved to have lived together as man and wife, the law willpresume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in astate of concubinage.

12. In India, the same principles have been followed inAndrahennedige Dinohamy v. Wijetunge LiyanapatabendigeBalahamy AIR 1927 PC 185, in which the Privy Council laiddown the general proposition that where a man and woman areproved to have lived together as man and wife, the law willpresume, unless, the contrary is clearly proved, that they wereliving together in consequence of a valid marriage, and not in astate of concubinage.

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

14. In Gokal Chand v. Parvin Kumari AIR 1952 SC 231, thisCourt held that continuous cohabitation of man and woman ashusband and wife may raise the presumption of marriage, but thepresumption which may be drawn from long cohabitation isrebuttable and if there are circumstances which weaken anddestroy 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 strongpresumption arises in favour of wedlock where the partners havelived together for a long spell as husband and wife. Although thepresumption is rebuttable, a heavy burden lies on him who seeksto deprive the relationship of legal origin.

16. Again, in Tulsa v. Durghatiya (2008) 4 SCC 520, this Courtheld that where the partners lived together for a long spell ashusband and wife, a presumption would arise in favour of a validwedlock.”

This Court in Chanmuniya case further held as under:- “24.Thus, in those cases where a man, who lived with a womanfor a long time and even though they may not have undergonelegal necessities of a valid marriage, should be made liable to paythe woman maintenance if he deserts her. The man should not be A

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Aallowed to benefit from the legal loopholes by enjoying theadvantages of a de facto marriage without undertaking the dutiesand obligations. Any other interpretation would lead the womanto vagrancy and destitution, which the provision of maintenancein Section 125 is meant to prevent.” [underlining added]

B17. Chanmuniya case referred to divergence of judicial opinionon the interpretation of the word “wife” in Section 125 Cr.P.C. In paras(28) and (29) of Chanmuniya case, this Court referred to otherjudgments which struck a difficult note as under:- “28. However, striking a different note, in Yamunabai AnantraoCAdhav v. Anantrao Shivram Adhav (1988) 1 SCC 530, a two-Judge Bench of this Court held that an attempt to exclude altogetherpersonal law of the parties in proceedings under Section 125 isimproper (see para 6). The learned Judges also held (paras 4 and8) that the expression “wife” in Section 125 of the Code shouldbe interpreted to mean only a legally wedded wife.D

29. Again, in a subsequent decision of this Court in SavitabenSomabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636, thisCourt held that however desirable it may be to take note of plightof an unfortunate woman, who unwittingly enters into wedlockwith a married man, there is no scope to include a woman notElawfully married within the expression of “wife”. The Bench heldthat this inadequacy in law can be amended only by the legislature.While coming to the aforesaid finding, the learned Judges reliedon the decision in Yamunabai case (1988) 1 SCC 530.”

18. After referring to the divergence of judicial opinion on theFinterpretation of the word “wife” in Section 125 Cr.P.C., speaking forthe Bench A.K. Ganguly J. held that the Bench is inclined to take abroad view of the definition of “wife”, having regard to the social objectof Section 125 Cr.P.C.

19. In Chanmuniya case, this Court formulated three questionsGand referred the matter to the larger Bench. However, after discussingvarious provisions of the Criminal Procedure Code, this Court held thata broad and extensive interpretation should be given to the term “wife”under Section 125 Cr.P.C. and held as under:- H

“42. We are of the opinion that a broad and expansiveinterpretation should be given to the term “wife” to include eventhose cases where a man and woman have been living togetheras husband and wife for a reasonably long period of time, andstrict proof of marriage should not be a precondition formaintenance under Section 125 CrPC, so as to fulfil the true spiritand essence of the beneficial provision of maintenance underSection 125. We also believe that such an interpretation would bea just application of the principles enshrined in the Preamble toour Constitution, namely, social justice and upholding the dignityof the individual.”

20. On the basis of the evidence of appellant No.1 (PW-1), birthcertificates of appellant Nos.2 and 3 (Exts. P7-P8 dated 25.05.2001 and06.08.2003), other documentary evidence, oral evidence of PW-2 whowas co-worker of appellant No.1 and PW-3-landlord, the family courtheld that appellant No.1 and the respondent were living together ashusband and wife and there is sufficient proof of marriage. The familycourt rightly drew the presumption of valid marriage between appellantNo.1 and the respondent and that they are legally married couple forclaiming maintenance by the wife under Section 125 Cr.P.C. which issummary in nature. The evidence of PW-1 coupled with the birthcertificates of appellants No.2 and 3 and other evidences clearly establishthe factum of marriage.

21. Based upon oral and documentary evidence, when the familycourt held that there was a valid marriage, the High Court being therevisional court has no power reassessing the evidence and substitute itsviews on findings of fact. The High Court did not keep in view that inthe proceedings under Section 125 Cr.P.C., strict proof of marriage isnot necessary. The findings recorded by the family court as to theexistence of a valid marriage ought not to have been interfered with bythe High Court.

22. In the result, the impugned judgment of the High Court inR.P.F.C. No.103 of 2008 and R.P.F.C. No.21 of 2009 dated 16.06.2009is set aside and these appeals are allowed. The respondent shall payarrears of maintenance as directed by the family court, Mysore to theappellants within a period of two months. Additionally, the respondent AB

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BDivya Pandey

Appeals allowed.

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