Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 335 (MP)

Ramkesh Kachhi v. Subhdra Bai Kachhi

2013-03-12

N.K.GUPTA

body2013
ORDER : N.K. Gupta, J. The applicant has challenged the order dated 24.8.2006 passed by the learned Principal Judge, Family Court, Jabalpur in M.J.C. No. 360/2002, whereby a maintenance of Rs. 800 per month was granted to the respondent u/s 125 of the Cr.P.C. against the applicant. The respondent has preferred an application u/s 125 of the Cr.P.C. before the Principal Judge, Family Court that the applicant was a widower. His wife Trishiya Bai had expired on 24.6.1993. Thereafter, the applicant entered into a marriage with the respondent, according to the customs prevailing in Kachhi Samaj. The respondent resided with the applicant as a wife for 6 years and thereafter, the applicant started making trouble relating to food, clothes, etc. and, thereafter, she went away from his house and started living separately. The applicant was a Lab Attendant in Chemistry Department, JNKVV, Jabalpur and he was earning a sum of Rs. 10,000 per month. Therefore, the respondent demanded a sum of Rs. 3,000 per month as maintenance. 2. The applicant in his reply had denied the entire application. He did not accept the factum of marriage, according to the custom of the caste. It is also pleaded that there is no custom of 'Choori' marriage recognized in Kachhi Samaj. The respondent was already married with one Kailash and no valid divorce took place with her husband Kailash. Under such circumstances, it was pleaded that the respondent was not a valid wife of the applicant and, therefore, it was prayed that her application may be dismissed. 3. The learned Principal Judge, Family Court, Jabalpur, after considering the evidence adduced by the parties, found that marriage of the respondent took place with the applicant according to Choori custom and, therefore, she was entitled to get maintenance. After assessing the expenditure of the respondent and income of the applicant, a maintenance of Rs. 800 per month was granted by the Trial Court. 4. I have heard the learned Counsel for the parties. 5. According to the evidence given by the respondent Subhdra Bai (P.W.1), it was apparent that she was married to one Kailash in the year 1990. She had moved an application before the Principal, Suryodaya Higher Secondary School, Adhartal, Jabalpur along with an affidavit that her son Govind was son of Kailash Kachhi. 5. According to the evidence given by the respondent Subhdra Bai (P.W.1), it was apparent that she was married to one Kailash in the year 1990. She had moved an application before the Principal, Suryodaya Higher Secondary School, Adhartal, Jabalpur along with an affidavit that her son Govind was son of Kailash Kachhi. On the contrary, in her statement, Subhdra Bai has stated that Govind Kachhi was born due to the applicant. Similarly, one Kunti Bai was also born due to the applicant, whereas no such pleadings were made in the application that the respondent was already married with some Kailash or a valid divorce took place between the respondent and her first husband. When a custom is pleaded then, it should be proved that such custom exists in the concerned community. The respondent has examined Subhdra Bai (D.W.1), Rammilan (D.W.2) and Sarpanch Veerendra Kumar (D.W.3), in support of the application but, nobody could tell about the custom of Choori marriage. Virendra Kumar, who was a Sarpanch in that locality has admitted that he did not know about the custom of Choori marriage. No elderly person of the community was examined to show that what was the custom of Choori marriage and whether it was applicable in Kachhi community or not. 6. There are two different flaws in the case of the respondent. Firstly, she was married with one Kailash Kachhi and Kailash Kachhi is still alive. The respondent Subhdra Bai did not submit any document to show that any divorce took place between her and her first husband Kailash but, thereafter, she got herself re-examined before the Trial Court and a document, Ex. P/7 was brought on the record. Sarpanch Virendra Kumar (P.W.3) has tried to prove that divorce took place between the respondent Subhdra Bai and Kailash Kachhi. He certified the document, Ex. P/7. If the entire text of the document Ex. P/7 is perused then, it is nowhere mentioned that divorce between the respondent Subhdra Bai and her husband Kailash Kachhi took place with any customary method. In the last line of that document, it was written that the husband Kailash Kachhi executed the document of divorce according to the Hindu procedure. P/7. If the entire text of the document Ex. P/7 is perused then, it is nowhere mentioned that divorce between the respondent Subhdra Bai and her husband Kailash Kachhi took place with any customary method. In the last line of that document, it was written that the husband Kailash Kachhi executed the document of divorce according to the Hindu procedure. However, Hindu Marriage Act is prevalent in the entire Hindu community and unless any particular custom is proved, it cannot be said that such type of document creates a valid divorce in the eye of law. Hence, first flaw in the case of the respondent is that no valid divorce is proved between her and her first husband Kailash. 7. It is a sorry state of affair that she did not plead in her application that she was already married with Kailash and a valid divorce took place between her and her first husband. On the contrary, in her deposition, she has accepted that her Advocate did not file that document on the record but, thereafter, she filed that document and gave an additional evidence. Under such circumstances, it is apparent that the learned Counsel for the respondent was aware that the document Ex. P/7 had no effect of divorce and, therefore, if that document is produced then, the case of the respondent shall go away and, therefore, no such document was produced initially. No such pleadings were made by the respondent in her application. 8. Second flaw in the matter of the respondent is that no custom of Choori marriage is pleaded or proved by her. It is no where pleaded that according to the Choori custom, a married woman could remarry with any other person by that custom or the custom was applicable to the divorcee. If the respondent was a divorcee and the applicant was a widower then, their marriage could take place by ordinary Hindu custom but, no Saptpadi or no any valid marriage is proved by the respondent. Since it is no where proved that what was the custom of Choori marriage, therefore, the respondent could not claim that her marriage took place according to that custom. It is not at all established that in Kachhi's, such type of custom is prevailing. 9. Since it is no where proved that what was the custom of Choori marriage, therefore, the respondent could not claim that her marriage took place according to that custom. It is not at all established that in Kachhi's, such type of custom is prevailing. 9. On the basis of the aforesaid discussion, it would be apparent that the respondent has failed to prove that a divorce took place on the basis of some customary procedure. No such customary procedure is mentioned in the document, Ex. P/7 and, therefore, by writing on a plain paper that it was decided between the husband and wife that a divorce took place then, such type of document has no any effect to the marriage of husband and wife. It was for the respondent to take divorce from her first husband Kailash in a valid manner. Hence, the respondent was a married woman, who could not remarry with anyone. Secondly, it is not proved at all that according to the Choori custom, a married woman could remarry with another spouse. If it was so then, there was no need to create the document Ex. P/7, in favour of the respondent. In this context, evidence of Sarpanch Virendra Singh is of no value. Even it is possible that document, Ex. P/7 was created much after than the date 30.10.1993, which was mentioned on the document. It was neither a document on stamp paper, nor it was notarized before any Notary. Sarpanch has no authority to endorse such a document and therefore, if he has endorsed such a document then, it is not at all proved that the document was written on that particular date or it has any legal effect. 10. Hence, neither it is proved that any divorce of the respondent took place from her first husband, nor it is proved that a married woman could enter into a second marriage, according to any custom prevalent in their community and, therefore, the respondent was not at all a wedded wife of the applicant in the eye of law. 11. In this context, the learned Counsel for the applicant has placed his reliance upon the judgment passed by Hon'ble the Apex Court in case of Yamunabai Anantrao Adhav Vs. 11. In this context, the learned Counsel for the applicant has placed his reliance upon the judgment passed by Hon'ble the Apex Court in case of Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Another, (1988) 1 SCC 530 , in which it is laid that for the provision of Section 125 of the Cr.P.C. expression 'Wife' means legally wedded wife. Marriage of a woman with a man, where she had a living spouse is a complete nullity and, therefore, such type of woman cannot get any maintenance from the husband of alleged second marriage. 12. The respondent has tried to prove that according to the admission of the applicant, marriage took place between them. The applicant has written a Vachanpatra, Ex. P/1 on 13.7.1995. He applied before his higher officers to change the name of the nominee in his GPF account and service book. The respondent resided with him for 6 years as a wife and therefore, by the admission of the applicant, she became his wife. The documents are on record and the applicant tried to prove that he did not append his signatures on those documents but, if he was not interested then, his superior officers could not sent a letter to the AG office for the nomination and, therefore, it is proved that all such documents were executed by the applicant himself but, again the question arises as to whether by such an admission, the respondent got a right of 'Wife' u/s 125 of the Cr.P.C.? 13. In this connection, there are various judgments passed by Hon'ble the Apex Court. If a woman is living with a man for a longer period as a husband and wife then, it is not necessary to prove their marriage beyond doubt and their marriage may be presumed because of longer 'live-in' relationship between them. When it is found that the woman was already married with someone else and no valid divorce took place then, by longer 'live-in' relationship, nothing can be presumed because the wife of someone cannot remarry to another unless his husband dies or she takes valid divorce from the husband. In the present case, six years 'live-in' relationship creates no presumption in favour of the respondent. Since she was not a valid wife of the applicant, she could not get any maintenance from the applicant. In this context, the judgment passed by Hon'ble the Apex. In the present case, six years 'live-in' relationship creates no presumption in favour of the respondent. Since she was not a valid wife of the applicant, she could not get any maintenance from the applicant. In this context, the judgment passed by Hon'ble the Apex. Court in case of D. Velusamy Vs. D. Patchaiammal, (2010) 10 SCC 469 may be referred, in which a distinction is clearly made that what would be the right of a woman having 'live-in' relationship with a man and whether she can be considered as wife? It was laid that unless a woman is a valid 'wife' of a man, she cannot get any maintenance u/s 125 of the Cr.P.C. 14. The learned Principal Judge, Family Court has committed an error of law mat no any custom of 'Choori marriage was proved and he accepted it. He did not care to notice that no valid divorce was proved by the respondent with her first husband. However, the income of the applicant and dependency of the respondent was properly assessed by the Trial Court and therefore, no detail discussion is required to these facts. 15. On the basis of the aforesaid discussion, it is proved that the respondent was married with one Kailash and no valid divorce took place between them and, therefore, she was not at all a wedded wife of the applicant and hence, she was not entitled to get any maintenance u/s 125 of the Cr.P.C. In such a situation, where the Trial Court has committed an error of law, it is a fit case, where an interference is required to be made in the impugned order passed by the Trial Court, by way of a revision. Consequently, the revision filed by the applicant is hereby allowed and the impugned order passed by the learned Principal Judge, Family Court, Jabalpur is hereby set aside. The application filed by the respondent u/s 125 of the Cr.P.C. is also dismissed. No order as to costs. A copy of the order be sent to the Trial Court along with its record for information and compliance. If the applicant has paid any amount as a maintenance, in compliance to the order given by the Trial Court then, such paid maintenance shall not be returned back.