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2014 DIGILAW 67 (CHH)

SUKANYA v. BALAK RAM

2014-02-14

P.SAM KOSHY

body2014
ORDER 1. By way of the instant criminal revision, the applicant has challenged the order dated 10.03.2011 passed by the Family Court, Bilaspur in Misc. Criminal Case No. 235/2007. 2. Facts leading to the instant criminal revision, in brief, are that the applicant had filed an application under Section 125 of the Code of Criminal Procedure along with an application under Section 26 r/w Section 22 of the Protection of Women from Domestic Violence Act seeking maintenance of Rs.5,000 per month or a lump sum of Rs.7,00,000 as full and final settlement from the non-applicant. 3. The case of the applicant before the Court below was that initially the applicant had married to one Ramkripal and after mutual separation (Chor-Chhutti) from her husband Ramkripal as per the customary practice prevailed in the society, she got married to the non-applicant by adopting the system of Churi marriage. Further case of the applicant was that since 2007 the non-applicant started harassing and ill treating her on various occasions and even tried to kill her which forced her to leave the house of non-applicant. On account of continuous torture and harassment given by the non-applicant, the applicant was left with no other option but to leave the house of non-applicant and therefore she started residing separately at Chingrajpara Bilaspur. The applicant being an illiterate and unemployed lady and unable to sustain herself filed the said applications seeking maintenance from the non-applicant who is earning at least Rs.15,000 per month. 4. Upon notice, the non-applicant appeared before the Court below and filed detailed reply denying the allegation put forth by the applicant for maintenance. In his reply the non-applicant has denied any sort of marriage with the applicant and has stated that there was no relationship between him and the applicant. He has further stated that the said application has been filed only to harass him, therefore, the application claiming for maintenance should be rejected. 5. After considering all the facts and circumstances of the case and also the evidences that have come on record, the Court below vide its order dated 10.03.2011 refused to allow the prayer made by the applicant for grant of maintenance. 6. It is this order dated 10.03.2011 which is under challenge in the instant Criminal Revision. 7. 5. After considering all the facts and circumstances of the case and also the evidences that have come on record, the Court below vide its order dated 10.03.2011 refused to allow the prayer made by the applicant for grant of maintenance. 6. It is this order dated 10.03.2011 which is under challenge in the instant Criminal Revision. 7. Counsel for the applicant submits that from the evidence on record particularly the statement of Rajni Shukla (PW-2) it has been established that there was a customary marriage between applicant and non-applicant and that both had been staying as husband and wife for the last about 15 years in the same locality where PW-2 was residing. Counsel for the applicant further submits that even if for the argument sake we reach to a conclusion that the marriage between applicant and non-applicant could not be established, since the applicant and the non-applicant had been living together for last 15 years, it should be presumed that they are husband and wife and therefore the applicant is entitled for getting maintenance from the non-applicant. 8. Per contra, counsel for the non-applicant submits that the applicant has failed before the Court below to establish the marriage which was performed between applicant and non-applicant. He submits that the admitted position in the instant case is that the applicant had already 'married to one Ramkdpal and she has failed to give any sort of proof in respect of the divorce that took place between the applicant and her husband Ramkripal. In absence of any such proof about her separation from her husband Ramkripal, there could not have been any marriage between applicant and non-applicant. He further submits that on perusal of the order passed by the Court below, it is evidently clear that the Court below has taken into consideration the invitation card in respect of the marriage of the applicant's daughter namely Rameshwari @ Manju which was to be solemnized on 25.02.2007. In the said marriage invitation card the applicant has been shown as the mother of Manju born from her husband Ramkripal. He submits that when in the year 2007 the applicant was staying with her husband Ramkripal and performed the marriage of her daughter, the entire allegation of the applicant in respect of the marriage she performed with the non-applicant by itself gets disproved. He submits that when in the year 2007 the applicant was staying with her husband Ramkripal and performed the marriage of her daughter, the entire allegation of the applicant in respect of the marriage she performed with the non-applicant by itself gets disproved. Counsel for the non-applicant further submits that the Court below has also taken note of the electricity bill in respect of the electricity connection which the applicant has at her residence and in the said electricity bill also, the name of her husband is also referred as Ramkripal which also establishes the fact that the applicant was not the legally wedded wife of the non-applicant but was the legally wedded wife of Ramkripal. For all these reasons, counsel for the non-applicant prays for dismissal of the present revision. 9. On perusal of the findings arrived at by the Court below, it is clearly established that the Court below has in very categorically term on the basis of the evidences that have come on record reached to the conclusion that there are sufficient evidences that too documentary evidences like marriage invitation card and electricity bill showing the applicant to be the wife of Ramkripal. Similarly, there is no documentary proof to show that the divorce has been taken place between the applicant and her husband Ramkripal goes to prove that the marriage between applicant and non-applicant has not been established. Similarly, the applicant has not been able to establish the fact that the marriage of the applicant with Ramkripal has been dissolved under customary rite by leading any sort of evidence and in absence of any such evidence it cannot be presumed that there has been divorce between the applicant and her husband Ramkripal. Except for an oral statement of PW-2 there is no documentary proof or any evidence from which it can be established that the applicant had in fact married the non-applicant so as to get the benefit of claim of maintenance under section 125 of Cr. P.C. 10. The Court below while deciding the said case also held that if at all for some reason it is presumed that the applicant lived with the non-applicant for some time, the same would only amount a live-in-relationship which the applicant was having with the non-applicant. By virtue of the decision rendered in the matter of Indra Sarma Vs. P.C. 10. The Court below while deciding the said case also held that if at all for some reason it is presumed that the applicant lived with the non-applicant for some time, the same would only amount a live-in-relationship which the applicant was having with the non-applicant. By virtue of the decision rendered in the matter of Indra Sarma Vs. V.K. Sarma AIR 2014 SC 309 wherein the Hon'ble Supreme Court in very categorical term has held that "Where a person knowingly enters into a live-in-relationship with other knowing that he was married person the generic proposition that where a man and a woman are proved to have lived together as husband and wife, the law presumes that they are living together in consequence of a valid marriage will not apply and, hence, the relationship between them would not be a relationship in the nature of a marriage, and the status of the lady would be of a concubine. A concubine cannot maintain a relationship in the nature of marriage because such a relationship will not have exclusivity and will not be monogamous in character. The 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. Polygamy, that is a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not husband or wife, cannot be said to be a relationship in the nature of marriage." 11. On the basis of the said observation made by the Hon'ble Supreme Court where in a very categorical term it has been held that a woman entering into live-in-relationship would not be entitled for any relief available under the Act. In view of the law laid down by the Hon'ble Supreme Court and considering the evidences on record, I do not find any irregularities in the order impugned and the order passed by the Court below being purely based on the evidences that have come on record deserves to be affirmed. 12. In view of the law laid down by the Hon'ble Supreme Court and considering the evidences on record, I do not find any irregularities in the order impugned and the order passed by the Court below being purely based on the evidences that have come on record deserves to be affirmed. 12. Accordingly, the criminal revision being without any substance is liable to be dismissed and it is dismissed as such. Revision Dismissed.