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2014 DIGILAW 942 (RAJ)

Gopi Lal v. Naru @ Narayani

2014-04-15

VIJAY BISHNOI

body2014
JUDGMENT 1. - By this Criminal Misc. Petition under Section 482 Cr.P.C. the petitioners have challenged the order dated 29.9.2012 passed by Addition, Sessions Judge, Nimbahera (for short 'the Appellate Court' hereinafter) Criminal Appeal No. 8/2009 filed at the instance of respondent No. 2 against the order dated 14.1.2009 passed by Judicial Magistrate, First Class, Dungla, District Chittorgarh (for short 'the Trial Court' hereinafter), whereby the Trial Court ha: rejected the application of the respondent No. 2 for maintenance under Sections 18,19, 20 and 23 of the Protection of Women from Domestic Violence Act, 2005 (for short 'the Act of 2005' hereinafter). The learned Appellate Court has allowed the appeal filed by the respondent No. 2 and remanded the matter to the Trial Court for fresh adjudication of the application filed by the respondent No. 2 for maintenance under the Act of 2005. 2. The application of the respondent No. 2 was dismissed by the Trial Court mainly on the ground that in her statement before the Trial Court, the respondent No. 2 has admitted that earlier her marriage was consumed with some other person, which is still intact and, therefore, she is not entitled for maintenance. However, the learned Appellate Court, in the impugned order, has observed that from the documentary evidence adduced on behalf of the respondent No. 2, prima facie, it is proved that the respondent No. 2 has solemnized Nata marriage with the petitioner No. 1 and she lived with him for about nine years. The learned Appellate Court has taken into consideration the photographs produced on behalf of the petitioners and also taken into consideration the bank documents pertaining to the fixed deposit, wherein the respondent No. 2 is shown as wife of the petitioner No. 1. The learned Appellate Court has also taken into consideration that during the course of examination, the petitioner No. 1 has stated that he does not know whether the respondent No. 2 is shown as his wife in the voter list pertaining to the election of Legislative Assembly. 3. The learned Counsel for the petitioners has argued that since the respondent No. 2 was married before having live-in relationship with the petitioner No. 1, she is not entitled for maintenance. The learned Counsel for the petitioners has placed reliance on a decision of Hon'ble Supreme Court in Indra Sarma v. V.K.V. Sarma, 2014(1) RJT442 . 4. 3. The learned Counsel for the petitioners has argued that since the respondent No. 2 was married before having live-in relationship with the petitioner No. 1, she is not entitled for maintenance. The learned Counsel for the petitioners has placed reliance on a decision of Hon'ble Supreme Court in Indra Sarma v. V.K.V. Sarma, 2014(1) RJT442 . 4. Heard learned Counsel for the rival parties and perused the impugned orders. 5. The learned Appellate Court has remanded the matter to the Trial Court for fresh adjudication of the application of the petitioners for maintenance, while taking into consideration the documentary evidence adduced on behalf of the respondent No. 2, from which, it is proved that the respondent No. 2 had consumed Nata marriage with the petitioner No. 1 and lived with him fora period of about nine years. 6. After perusing the impugned order as well as the statements of the witnesses recorded by the Trial Court, this Court is of the opinion that the . learned Appellate Court has not committed any illegality in passing the impugned order. 7. So far judgment of the Hon'ble Supreme Court in Indra Sarma's case (supra) is concerned, the same has no applicability in the facts of the present case because in that case, the marriage of the man, from whom the appellant was claiming maintenance, remained intact and the Hon'ble Supreme Court has observed that the relationship between appellant and the respondent is not a relation in the nature of marriage. The Hon'ble Supreme Court has observed as under: "65 If we hold that the relationship between the appellant and the respondent is a relationship in the nature of a marriage, we will be doing an injustice to the legally wedded wife and children who opposed that relationship. Consequently, any act, omission or commission or conduct of the respondent in connection with that type of relationship, would not amount to "domestic violence" under Section 3 of the DV Act. 66. We have, on facts, found that the appellant's status was that of a mistress, who is in distress, a survivor of a live-in relationship which is of serious concern, especially when such persons are poor and illiterate, in the event of which vulnerability is more pronounced, which is a societal reality. 66. We have, on facts, found that the appellant's status was that of a mistress, who is in distress, a survivor of a live-in relationship which is of serious concern, especially when such persons are poor and illiterate, in the event of which vulnerability is more pronounced, which is a societal reality. Children born out of such relationship also suffer most which calls for bringing in remedial measures by the Parliament, through proper legislation. 67. We are conscious of the fact that if any direction is given to the respondent to pay maintenance or monetary consideration to the appellant, that would be at the cost of the legally wedded wife and children of the respondent, especially when they had opposed that relationship and have a cause of action against the appellant for alienating the companionship and affection of the husband/parent which is an intentional tort. 8. In the present case, it is an admitted position that on account of death of first wife of the petitioner No. 1, his first marriage came to an end and thereafter, he contracted the Nata marriage with the respondent No. 2. 9. In view of the above circumstances, there is no force in this Criminal Misc. Petition and the same is hereby dismissed.Stay petition also stands dismissed.Petition dismissed. *******