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2012 DIGILAW 220 (ORI)

Sarangadhar Behera v. Golap Behera

2012-05-01

S.PANDA

body2012
ORDER 1. The petitioner-husband has filed this RPFAM assailing the order dated 23.7.2008 passed by the learned Judge, Family Court, Cuttack in Criminal Proceeding No.17 of 2003 directing him to pay monthly maintenance of Rs. 700/- to the opposite party-wife from the date of application, i.e. 8.1.2003. 2. The facts leading to the present case are as follows: – The opposite party filed an application under Section 125 Cr. P.C. on the plea that she had married to the petitioner in the year 1995 in the village temple by exchanging garlands. After marriage, she led a happy conjugal life in the matrimonial house near 8 years and out of their wedlock a son and a daughter were born but the daughter died due to negligence of the petitioner. After the death of the daughter, he tortured her physically and mentally and neglected to maintain her. Therefore, the opposite party initiated a criminal proceeding in G.R. Case No. 654 of 2000 for which the petitioner agreed to take back her. When she arrived in the matrimonial home, the petitioner and his family members assaulted her for which she filed another FIR at Kendrapara Police Station against him. She also filed an application for maintenance as she was unable to maintain herself and her minor son. On being noticed, the petitioner appeared and filed his show cause traversing the plea of the opposite party regarding torture, negligence and denied that she is not his wife. He further alleged that opposite party married to one Umesh Jena. The petitioner was also working in a Textile Mill at Delhi. The said Umesh Jena was his co-worker. The opposite party is a bad character lady mixing with other persons for which her relationship with Umesh Jena was disturbed. She tried to trap the petitioner to which he avoided. Due to closure of Textile Mill, the petitioner returned to his native house in the year 2000. The opposite party falsely implicated the petitioner in a criminal case and filed an application under Section 125 Cr. P.C. for maintenance. As she was not the wife of the petitioner, she is not entitled to claim any maintenance from him. 3. On the above pleadings, the parties in support of their respective claims adduced oral evidence. The opposite party falsely implicated the petitioner in a criminal case and filed an application under Section 125 Cr. P.C. for maintenance. As she was not the wife of the petitioner, she is not entitled to claim any maintenance from him. 3. On the above pleadings, the parties in support of their respective claims adduced oral evidence. The opposite party also adduced documentary evidence, viz., Death Certificate of the daughter, Rafanama, FIR, Certificate granted by Medical Officer, Derabis Primary Health Primary Centre, order sheet in G.R. Case No. 654 of 2000, etc. The learned Judge, Family Court, Cuttack taking into consideration the oral as well as documentary evidence, recorded the finding that the petitioner fell in love with opposite party at Delhi and blessed with a son. Thereafter, he returned to their native place at Derabis where a daughter was born, who died. Thereafter dissension cropped up between the parties and several meetings were held by the village gentries to solve the dispute. Finally the petitioner drove her out from his house for which criminal cases were initiated by the opposite party. The petitioner being a Tractor driver earned Rs. 3000/- to Rs. 4000/- per month and in the meantime he has married to another lady and is blessed with a son. Accordingly, the Family Court directed the petitioner to pay the monthly maintenance as stated in the foregoing paragraph. 4. Learned counsel for the petitioner-husband submitted that the opposite party-wife in her deposition has admitted that she had married to one Umesh Jena and during subsistence of the said marriage, she lived with the petitioner and marriage between her and the petitioner was not valid. As the opposite party is not the wife of the petitioner, she is not entitled to get any maintenance. In support of his contention, he cited a decision of this Court in the case of Tankadhar Nath v. Prabhabati Nath, 1990 (II) OLR 548. 5. Learned counsel for the opposite party submitted that the petitioner and the opposite party were living as husband and wife and recognized as such by the society because of their relationship. The documentary evidence clearly proves that a daughter was born out of their wedlock, who died subsequently. Since they were living as men and woman, the Court below has rightly awarded the monthly maintenance. Therefore, the impugned order does not warrant any interference. The documentary evidence clearly proves that a daughter was born out of their wedlock, who died subsequently. Since they were living as men and woman, the Court below has rightly awarded the monthly maintenance. Therefore, the impugned order does not warrant any interference. In support of his contentions, he cited a decision of the apex Court in the case of Chanmuniya v. Virendra Kumar Singh Kushwaha & another, (2010) 47 OCR (SC) 827. 6. From the above rival submissions of the parties and the decisions cited by the learned counsel for the parties, it appears that the petitioner and the opposite party were living as husband and wife nearly eight years and the society has accepted them as husband and wife. In a proceeding under Section 125 Cr. P.C., the law does not require application of strict standard of proof to establish the marriage and each case has to be considered on its own facts and circumstances. 7. It is well settled that a little difference in the facts or additional facts may make a lot of difference in precedential value of a decision. Judicial utterances are made in setting up of the facts of a particular case. 8. Therefore. taking into consideration the fact that though the opposite party in her deposition has stated that earlier she married to one Umesh Jena but there is no material available on record that she was accepted by the society as wife of said Umesh Jena; rather there is no evidence available on record that the parties were married under Hindu caste, custom and rites and is governed under Hindu Marriage Act. There is also no finding that the marriage with Umesh was subsisted by the date of her living with the present petitioner as husband and wife. 9. The apex Court in the case of Chanmuniya (supra) formulating three questions, i.e., Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of valid marriage between them which would entitle the woman to claim maintenance under Section 125 Cr. P.C., Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr. P.C. and Whether a marriage performed according to customary rites and ceremonies. P.C., Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr. P.C. and Whether a marriage performed according to customary rites and ceremonies. without strictly following the requisites under Section 7(1) of the Hindu Marriage Act or any other personal law would entitle the woman to claim maintenance under Section 125 Cr. P.C. referred the matter to the Larger Bench to consider the provisions of the Protection of Women from Domestic Violence Act, holding that this Act assigns a very broad and expansive definition to the term 'domestic abuse' to include within its purview even economic abuse. The apex Court is of the view that if the above mentioned monetary relief and compensation can be awarded in cases of live-in relationships under the Protection of Women from Domestic Violence Act. 2005, they should also be allowed in a proceedings under Section 125 Cr. PC. and also held that in our country, law has not developed on the lines of the Marvin v. Marvin, (1976) 18 Cal. 3d 660, but our social context also is fast changing, of which cognizance has to be taken by Courts in interpreting a statutory provision which has a pronounced social content lie Section 125 of the Code of 1973. Therefore, women in live-in relationships are also entitled to all the relief given in the said Act. The term 'wife' to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 Cr. P.C. 10. In view of the above decision of the apex Court which is applicable to the facts of the present case and as per the evidence available on record, this Court is of the view that the learned Judge, Family Court, Cuttack has rightly analyzed the evidence adduced by the parties and taken a correct view. Therefore, this Court is not inclined to interfere with the impugned order. Accordingly, the RPFAM is dismissed. RPFAM dismissed.