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2010 DIGILAW 314 (KER)

Mohandas v. Saraswathy Antharjanam

2010-04-06

M.N.KRISHNAN

body2010
Judgment :- M.N. KRISHNAN, J. 1. This revision is preferred against the order of the Family Court, Ernakulam in M.C.No.187/2006. The case of the petitioner therein is that she had married the respondent therein on 20.2.1982 and they were living as husband and wife. It is also submitted that she had earlier married one Krishnan Namboodiri and that marriage has been dissolved. Since the petitioner is being neglected and treated with cruelty, she cannot continue to reside with the husband and therefore, she moved an application for maintenance. The respondent in the petition totally denies the factum of marriage and it is submitted that even today, she continues to be the wife of Krishnan Namboodiri and therefore, she will not come under the wife for the purpose of Section 125 of Cr.P.C. Therefore he prays for dismissal of the case. 2. The learned trial judge after elaborating the materials held that the petitioner and the respondent lived together as man and wife and therefore, she is entitled to claim maintenance and ordered maintenance at the rate of Rs.1,500/= to be paid per month. It is against that decision, the respondent has come up in revision. 3. Heard the counsel for both sides. I think the dispute is now in a very narrow compass and unless she comes within the category of wife mentioned under Section 125 of Cr.P.C, she will not be entitled to claim maintenance in the case. Now the fact that the maintenance petitioner was married by one Krishnan Namboodiri andthree children were born in the wedlock are not disputed. It is the case that there was a registered document entered into between the parties, i.e., Ext.A1 whereby it is stated that the marriage is put an end to and therefore she became a divorcee and thereafter she had married the present revision petitioner and so she has got the status of the wife. Under the provisions of the Hindu Marriage Act, neither the party should have a living spouse at the time of the marriage in order to constitute a valid marriage under law. Even if Ext.A1 is accepted for argument sake by virtue of the provisions of the Hindu Marriage Act, a divorce can be effected only as contemplated under Section 13 of the Hindu Marriage Act. The local laws like marumakkathayam law etc are repeated. Even if Ext.A1 is accepted for argument sake by virtue of the provisions of the Hindu Marriage Act, a divorce can be effected only as contemplated under Section 13 of the Hindu Marriage Act. The local laws like marumakkathayam law etc are repeated. The only provision for divorce is Section 13 of Hindu Marriage Act or proved custom. Here there is no case of any customary divorce, but the divorce is based on the virtue of an agreement. That agreement cannot be accepted to prove the dissolution of the marriage. 4. I am not going into the details regarding the marriage for the reason that this question alone will be sufficient in the light of the Apex Court decision to decide the matter. In the decision reported in Savitaben Somabhai Bhatiya v. State of Gujarat ( AIR 2005 SC 1809) the Hon'ble Apex Court held that for the purpose of maintenance the scope of the word wife cannot be enlarged to include woman not lawfully married. The Apex Court held that: "The legislature considered it necessary to include within he scope of S.125 an illegitimate child but it has not done so with respect to woman not lawfully married. As such, however, desirable it may be, to take note of the plight of the unfortunate woman, who unwittingly enters into wedlock with a married man the legislative intent being clearly reflected in s.125 of the Code, there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression 'wife'. This may be an inadequacy in law, which only the legislature can undo." 5. A perusal of the judgment also would reveal that the Hon'ble Apex Court had considered the matter in detail and had arrived at that decision. Going by the dictum laid down in that case it has to be held that even at the time of the alleged marriage of the petitioner in the MC with the respondent therein, the marriage between her and Krishnan Namboodiri was legally subsisting and therefore even if any marriage is contracted, the provisions of the Hindu Marriage Act makes it void on account of the gross noncompliance of Section 5 of the Hindu Marriage Act. Therefore the approach of the family court to consider the question whether these persons had been living as man and woman for a long time is not acceptable. They are all acceptable in a situation where there is no marriage proved and if it is seen that both are competent to get married in law and that they have been living under the same roof as man and woman for a long number of years and that when a marriage is pleaded a presumption is also added to the same by the long cohabitation. So far as the case on hand is concerned, even if the marriage is admitted for argument sake, it is a marriage which is totally invalid in the eye of law and therefore the petitioner in the maintenance case would never get the status of a legally wedded wife which is a sine quo-non for the purpose of getting maintenance from the person. 6. Therefore the finding of the family court that she is entitled to maintenance is liable to be interfered with and therefore it is set aside and I do so. But it has to be stated that there had been relationship between the man and the woman and some amount is seen deposited. Let that amount be at least withdrawn by the woman so that she will have at least satisfaction of getting something froma person with whom she had relationship. 7. In the result, the revision petition is allowed and the order of maintenance passed is set aside, but considering the peculiar circumstances of the case, I permit the maintenance petitioner to withdraw the amount which is already in deposit. Disposed of accordingly.