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2020 DIGILAW 2259 (KAR)

Chandrappa M. , S/o Late M. Venkataravanappa v. Vijayakumari, D/o Munivenkatappa, W/o M. Chandrappa

2020-11-13

JYOTI MULIMANI

body2020
ORDER : 1. Sri.M.Murali Babu, learned counsel appearing on behalf of Sri.H.V.Shyame Gowda, for petitioner and Sri.Kiran Gowda.M, learned counsel appearing on behalf of Sri.R.S.Prasanna Kumar, for respondent No.1, have appeared in person. Revision petition is posted for Admission after notice to respondents. 2. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Family Court. 3. The order dated 19.08.2014 passed by the Family Court, Kolar in C.Misc.(FC.)255/2013 is called in question in this revision petition whereby, learned Judge of the Family Court has directed respondent to pay maintenance of Rs.2,500/-per month to first petitioner from the date of petition till her life time or till it is altered and Court also directed to pay Rs.1,500/-per month each to petitioner Nos.2 and 3 from the date of petition till they attain the age of majority or till it is altered. It is this order which is called in question on various grounds as set out in this petition. 4. Sri.M.Murali, learned counsel appearing for petitioner submits that the order of the Family Court suffers from serious infirmity and the same is liable to be set aside. He further submitted that the Family Court has failed to appreciate oral and documentary evidence available on record. Learned counsel submitted that the Family Court has committed a serious error in taking into consideration Ex.P1 -alleged marriage certificate. A further submission was made that the alleged marriage certificate does not bear the photographs of first petitioner and respondent. He submitted that as per law, the Registering Authority shall affix the photographs of the couple on the marriage certificate. Therefore, he submitted that Ex.P1 is not admissible in evidence and is invalid in the eye of law. Next, he submitted that Family Court has committed serious error in not considering material evidence on record. Exs.R1 to R7 and photographs (respondent with his wife-Vanamma) clearly establishes that respondent married to Vanamma in the year 1992 and she has begotten a female child. It has been contended that the Family Court committed a serious error in granting monthly maintenance of Rs.5,500/-to petitioners, though, respondent in his evidence has clearly deposed that he is an poor agriculturist and earning Rs.100/-per day. Learned counsel further submitted that respondent being an agriculture labour and earning a very meager income which is not sufficient to maintain his family. Learned counsel further submitted that respondent being an agriculture labour and earning a very meager income which is not sufficient to maintain his family. Therefore, he submitted that learned Judge ought to have taken into consideration all these practical difficulties. Learned counsel vehemently contended that Family Court has erred in not considering the evidence of RWs-2 to 4 as they have clearly spoken about the marriage of respondent with Vanamma and from their wedlock they have a female child. It is also submitted that witnesses RWs-2 to 4 have deposed that first petitioner never lived with respondent at any point of time at Mudimadugu village. Learned counsel submitted that if it is presumed that first petitioner is legally wedded wife of respondent, which he has not admitted the marriage is void ab initio, since, respondent had already married to Smt.Vanamma in the year 1992 itself. He submitted that second wife is not entitled to claim maintenance under Section 125 of the Cr.P.C. To substantiate the said contention that first petitioner is not legally wedded wife of respondent, counsel relied upon the decisions in SMT.YAMUNABAI ANANTRAO ADHAV v. ANANTRAO SHIVARAM ADHAV AND ANOTHER - AIR 1988 SC 644 and SAVITABEN SOMABHAI BHATIYA v. STATE OF GUJARAT AND OTHERS - (2005) 3 SCC 636 . 5. Per contra, Sri.Kiran Gowda.M, learned counsel justified the order passed by the Family Court. Learned counsel submitted that first petitioner is married to respondent and she has begotten two children. Contending that respondent is having sufficient means and capacity, neglected and refused to maintain her and her children, first petitioner brought action under Section 125 of the Cr.P.C. He submitted that learned Judge has taken into consideration the material evidence on record and has rightly come to the conclusion that first petitioner cannot be denied status of wife. Accordingly, learned Judge granted maintenance. To substantiate the said contention, learned counsel relied upon the decision in BADSHAH v. URMILA BADSHAH GODSE AND ANOTHER - (2014) 1 SCC 188 . Lastly, he contended that petitioner has not made out any good grounds to interfere with the order of the Family Court. Accordingly, he prayed that revision petition may be dismissed. 6. Heard and perused the order with care. Lastly, he contended that petitioner has not made out any good grounds to interfere with the order of the Family Court. Accordingly, he prayed that revision petition may be dismissed. 6. Heard and perused the order with care. The short facts are these; The first petitioner stated that she is the legally wedded wife of respondent and that the marriage was solemnized on 17.08.2011 at Sri.Prasanna Venkataramanaswamy Temple, in accordance with customary rites and rituals prevailing in Hindu and on the very same day, the marriage was registered in the Office of Sub-registrar, Madanapalli, Chitoor District. After the marriage, she started living with respondent at his village and led happy marital life. She has also begotten two children from the wedlock. They lived blissfully for sometime. Contending that her husband has sufficient means and capacity, neglected and refused to pay maintenance to her and her children, she initiated proceeding under Section 125 of the Cr.P.C. It is relevant to note that respondent disputed his relationship with first petitioner and also with that of petitioner Nos.2 and 3. It has been contended that 1st petitioner is not the legally wedded wife and hence, petition under Section 125 of Cr.P.C is not maintainable. On the contrary, respondent has specifically urged that he is married to one Smt.Vanamma on 24.04.1992 at Venkateshwar Kalyana Mantapam, Dasarapalli V-Kota Mandalam and from their wedlock, he has a daughter. To substantiate her claim, first petitioner relied upon the marriage certificate. Ex. P1 is the marriage certificate and it reads that, marriage of parties (first petitioner and respondent) was solemnized on 17.08.2001 and it was registered on the same day. Further, she has examined one Lalithareddy and M.Nagaraju as PWs-2 and 3, who have supported the claim of first petitioner. As could be seen from the order, learned Judge in extenso considered the material evidence on record in particular, placing reliance on Ex P-1 found that respondent is married to first petitioner. Accordingly, she is entitled to claim maintenance under Section 125 of Cr.P.C. In this Court, respondent adhered to the contention that firstt petitioner is not the legally wedded wife, hence, he is not liable to pay any maintenance. I find myself unable to accept the said contention for the simple reason that there is abundant to show that respondent married first petitioner and she is termed as 'wife'. I find myself unable to accept the said contention for the simple reason that there is abundant to show that respondent married first petitioner and she is termed as 'wife'. While arguing the case, learned counsel for respondent vehemently urged that first petitioner is not the legally wedded wife of respondent and therefore, petition under Section 125 of the Cr.P.C is not maintainable. Counsel relied upon a decision referred to supra. I have carefully perused the decisions. It is relevant to note that in SMT.YAMUNABAI ANANTRAO ADHAV v. ANANTRAO SHIVARAM ADHVA AND ANOTHER, (referred to supra), a two Judge Bench of the Hon’ble Apex Court held that an attempt to exclude altogether personal law of the parties in proceedings under Section 125 is improper. Learned Judges also held that the expression ‘wife’ in Section 125 of the Code should be interpreted to mean only a legally wedded wife. Again in a subsequent decision, the Hon’ble Apex Court in SAVITABEN SOMABHAI BHATIYA VS STATE OF GUJARAT reported in (2005) 3 SCC 636 , held that however, desirable it may be to take note of plight of an unfortunate woman, who unwittingly enters into a wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of ‘wife’ . The Hon’ble Apex Court held that the inadequacy in law can be amended only by the legislature. It is perhaps well to observe that unlike matrimonial proceedings where strict proof of marriage is essential, in the proceedings under Section 125 of Cr.P.C., such strict standard of proof is not necessary as it is summary in nature meant to prevent vagrancy. In DWARIKA PRASAD SATPATHY v. BIDYUT PRAVA DIXIT AND ANOTHER -(1997) 7 SCC 675), the Hon’ble Apex Court held that “the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 of IPC. Learned Judges explained the reason for the aforesaid finding by holding that an order passed in an application under Section 125 of Cr.P.C does not really determine the rights and obligations of the parties as the Section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. Learned Judges explained the reason for the aforesaid finding by holding that an order passed in an application under Section 125 of Cr.P.C does not really determine the rights and obligations of the parties as the Section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. Learned Judges also held that maintenance cannot be denied where there was some evidence on which conclusions of living together could be reached.” In a subsequent decision, in CHANMUNIYA V. VIRENDRA KUMAR SINGH KUSHWAHA & ANR. reported in 2011 (1) SCC 141 the Hon’ble Apex Court has held that a broad and extensive interpretation should be given to the term “wife” under Section 125 of Cr.P.C and held as under: - “We are of the opinion that a broad and expansive interpretation should be given to 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 of the Cr.P.C., so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125.We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual.” In BADSHAH v. URMILA BADSHAH GODSE AND ANOTHER - (2014) 1 SCC 188 , the Hon'ble Supreme Court by placing reliance on Chanmuniya's case has held that a broad and extensive interpretation should be given to the term "wife" under Section 125 of Cr.P.C. In the present case, first petitioner has established the factum of marriage and she has also begotten two children. This, I think, makes it clear that first petitioner being the wife of respondent would be entitled to maintenance under Section 125 of Cr.P.C. It is relevant to note that though respondent denied the marriage certificate, but learned Judge held that the document issued by a public official in discharge of his official duties and therefore, it needs to be accepted as a prima facie proof of marriage. There is no rebuttal evidence in so far as Ex.P1 is concerned. The evidence of PW-1 coupled with the certificate of marriage and other evidence clearly establish the factum of marriage. There is no rebuttal evidence in so far as Ex.P1 is concerned. The evidence of PW-1 coupled with the certificate of marriage and other evidence clearly establish the factum of marriage. As already observed, learned Judge while exercising discretionary power in extenso considered the matter and held that it was a valid marriage and directed respondent to pay maintenance of Rs.2,500/-per month to first petitioner from the date of petition till her life time or till it is altered and Court also directed to pay Rs.1,500/-per month each to petitioner Nos.2 and 3 from the date of petition till they attain the age of majority or till it is altered. It is perhaps well to observe that the power to make an order under Section 125 of Cr.P.C is discretionary. I find it necessary to say this much that the High court in exercising its revisional powers should not interfere with the discretion of a Judge acting within his jurisdiction unless the Court clearly satisfied that he was wrong. In the present case, respondent has not satisfied the onus of showing that the discretion of the Judge had been wrongly exercised. A Judge’s order granting maintenance is a typical exercise of purely discretionary powers and would be interfered with by the High Court only in exceptional cases. In my opinion, learned Judge in all the circumstances of the case has considered the contentions on behalf of respondent and has passed the order. I see no reason to interfere with the Judge's order. 7. Accordingly, the revision petition is dismissed. In view of the dismissal of the main petition, I.A.No.1/2015 does not survive for consideration and the same is accordingly, disposed of.