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2016 DIGILAW 1150 (MAD)

Udhaya Sankar v. Uma Maheshwari

2016-03-16

P.N.PRAKASH

body2016
ORDER : This petition has been filed to call for the records pertaining to the proceedings in M.C. No. 38 of 2015 pending on the file of the learned Chief Judicial Magistrate, Thiruchirappalli and quash the same. 2. Heard the learned Counsel appearing for the petitioner. 3. It appears that this petitioner had promised to marry the first respondent and had sexual relationship with her, on account of which a child has been born to the first respondent. On the complaint lodged by the first respondent, a case was registered against the petitioner in Cr. No. 4 of 2010 for the offences under Sections 417 and 376 I.P.C. This petitioner was convicted and sentenced by the Mahila Court, Tiruchirappalli in S.C. No. 112 of 2012 on 07.08.2012, challenging which this petitioner has filed a Criminal Appeal before this Court. While so, the first respondent has filed an application under Section 125 Cr.P.C. against the petitioner for maintenance. 4. The learned Counsel appearing for the petitioner submitted that the first respondent cannot maintain an application under Section 125 Cr.P.C., as she is not a wife within the meaning of the said provision. 5. This Court is unable to countenance this argument. The fact that this petitioner had promised to marry the first respondent and had a living relationship with her, on account of which she also delivered a child through the petitioner. Under such circumstances, there is a prima facie material to show that on account of cohabitation, the petitioner is the husband of the first respondent. 6. In the petition for maintenance, the 1st respondent has made the following averments: “3....XXXXXXXXX” 7. In Badshah vs. Urmila Badshah Godse and another, reported in (2014) 1 SCC 188 , the Supreme Court has given an extensive definition to the word 'wife' and it may be relevant to extract the following passage from the said judgment: “18. The court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonise results with justice through a method of free decision – libre recherche scientifique i.e. “free scientific research”. We are of the opinion that there is a non-rebuttable presumption that the legislature while making a provision like Section 125 Cr.P.C., to fulfil its constitutional duty in good faith, had always intended to give relief to the woman becoming “wife” under such circumstances. We are of the opinion that there is a non-rebuttable presumption that the legislature while making a provision like Section 125 Cr.P.C., to fulfil its constitutional duty in good faith, had always intended to give relief to the woman becoming “wife” under such circumstances. This approach is particularly needed while deciding the issues relating to gender justice. We already have examples of exemplary efforts in this regard. Journey from Shah Bano to Shabana Bano guaranteering maintenance rights to Muslim women is a classical example.” 8. Hence, there is no merit in the contention of the petitioner. Accordingly, this Criminal Original Petition is dismissed. Consequently, the connected Miscellaneous Petition is also dismissed.