Allowed

Smt. Rambati Nag v. Senapati Nag

Chhattisgarh HC9 Nov 2022CRR/461/2020

Case brief

AI extract

What is this about?

The High Court allowed a revision petition, holding that strict proof of marriage is not essential for maintenance under Section 125 Cr.P.C. when there is substantial evidence of a long-term live-in relationship. The Court observed that the alleged divorce by social custom was not proven, maintaining that the relationship remained subsisting.

What did the court decide?

Revision petition allowed; Respondent directed to pay maintenance of Rs.9,000/- per month to the Petitioner from 29.02.2020.

Smt. Rambati Nag Vs Senapati Nag — Maintenance and Alimony | Chhattisgarh HC (2022)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRR No.461 of 2020

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Smt. Rambati Nag W/o Senapati Nag Aged About 48 Years R/o Village Palli P.S. Parpa District Bastar, Chhattisgarh (Original Applicant In The Trial Court)

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---- Petitioner

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Versus

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Senapati Nag S/o Shibo Nag Aged About 52 Years R/o Clerk, Block Education Officer, Office Usarbeda P.S. Lohandiguda District Bastar, Chhattisgarh (Original Non-Applicant In The Trial Court)

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---- Respondent

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For Applicant : Shri Pravin Kumar Tulsyan, Advocate For Non-Applicant : Shri Pawan Kumar Kashyap, Advocate

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Hon'ble Shri Justice Deepak Kumar Tiwari Order on board

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09.11.2022

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This revision petition has been filed challenging the order passed by the Judge, Family Court, Bastar, District – Jagdalpur, C.G. in M.J.C. No.32/2017 whereby the application under Section 125 of the Cr.P.C. has been dismissed.

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Brief facts of the case are that, the applicant/wife has preferred an application under Section 125 of the Cr.P.C. for grant of maintenance on 09.03.2017, alleging in it that she is legally wedded wife of the respondent. The respondent deserted the applicant after two children were born out of their wedlock and

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kept another lady namely Usha who is a resident of Village – Binta. After desertion, he maintained the applicant for some time but since 5 years, he neglected her maintenance. The respondent/non-applicant is working as clerk in the office of Block Education Officer, Lohandiguda, Bastar. The applicant is unable to maintain herself and the respondent is having sufficient means, but, he neglects and refuses to maintain her, therefore, she filed an application for grant of maintenance. The non-applicant/respondent has filed reply and denied the marriage with the applicant. However, he admits that the applicant has lived with him for some time, but he denied that from their relation two children were born. The non-applicant further averred that as per the social custom prevailing in the village, the applicant and non-applicant were separated 27 years ago and non-applicant has married to Usha as per social customs. The applicant is getting old age pension, also receiving rice belonging to BPL card and also earning by labour work, therefore, she is not entitled for grant of maintenance and therefore, the application filed by the applicant may be dismissed.

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During the proceedings, the applicant has examined herself, Sukhmati and Manorama and the non-applicant/respondent has examined himself and his mother Parvati Nag. The Court has also examined as a Court witness Ms. Lalita Mandavi, Lecturer, Girl High School, Lohandiguda. The learned trial

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Court vide impugned order has found that the petitioner has failed to established the relation of wife with the non-applicant and further opined that if for sake of the arguments it has been admitted that there is divorce by social custom which would took place 26 years ago, as the applicant/wife has not moved any application for such long period, therefore, the relation of the applicant with the non-applicant was dead. Though, the learned trial Court has find that the petitioner is unable to maintain herself, dismissed the application.

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Shri Pravin Kumar Tulsyan, learned counsel for the applicant/wife submits that the non-applicant has admitted that the applicant is living with her for some time and witnesses of the non-applicant, who is mother of the non-applicant admits that Mangal and Chandrama are son and daughter of Rambati and non-applicant and both are presently living in the house built by the non-applicant. Though, she denied the marriage with the non-applicant with the applicant, but she admits that both where lived together for some time. Therefore, considering the facts as strict proof of marriage is not necessary for deciding an application under Section 125 of the Cr.P.C., he would also place reliance in the matter of Chanmuniya Vs.

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Virendra Kumar Singh Kushwaha and anr.1 and 2 Ganeshram Vs. Dhannulal .

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Per contra learned counsel for the non-applicant Shri Pawan

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1 2010 AIR SCW 6497

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2 AIR 2015 SUPREME COURT 2382

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Kumar Kashyap, Advocate would opposes the application and submits that the learned trial Court properly appreciated the evidence and rightly came to the conclusion that the relation of the husband and wife was not proved, therefore, rightly refused to grant maintenance, the order is well reasoned and not call for an interference by this Court.

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I have heard learned counsel for the applicant at length and perused the record.

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In the matter of Chunmuniya (supra) it was held that the compensation awarded in case of live in relationship and the same also be allowed in proceeding under Section 125 of the Cr.P.C. and the reference was answered that “the term “wife” to include in this case where man and woman living together as a 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 fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125.”

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8. In the matter of Ganesharam (supra) it is held as under :-

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“15. It is well settled that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long time. However, the presumption can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party, who seeks to deprive the relationship of legal origin. In the instant case, instead of adducing unimpeachable evidence by the plaintiff, a plea was taken that the defendant has failed to prove the fact that Phoolbasa Bai was the legally married wife of

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Chhatrapati. The High Court, therefore, came to a correct conclusion by recording a finding that Phoolbasa Bai was the legally married wife of Chhatrapati.”

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Reverted back to the facts of the present case, the nonapplicant in his reply admitted the relationship with the applicant that both were living in relationship for a considerable period of time and mother of the non-applicant also admits in her cross examination that son and daughter of the petitioner were living in the house built by the non-applicant, where the applicant is also residing. As the trial Court has concluded that the applicant/wife is unable to maintain herself, the said finding is affirmed.

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The learned trial Court only on the ground that both were living separately for a considerable period of time presuming that the relationship is dead, so maintenance has been refused which is not proper as non-applicant has not proved the divorce by any sufficient and satisfactory evidence on the record and no custom has been pleaded for divorce and also not proved according to law.

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11. In the matter of Dukhtar Jahan Vs. Mohd. Farooq³ it was held

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that as under :-

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16.“…….Proceedings under Section 125 Cr.P.C., it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner.”

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3 1987 1 SCC 624

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12. In the matter of Vimala (K.) Vs. Veeraswamy (K.)4 it has been

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further opined that in para 3 as under : -

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“ Section 125 of the Code of Criminal Procedure meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.”

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As the non-applicant has admitted in his evident that he is working as the Assitant Grade -II at Girls High School, Lohandiguda, District – Bastar, and also admitted in his examination that he is receiving to the tune of Rs.40,000/- per month in the month of November, 2019, therefore, considering his salary as he is not paying any maintenance to the applicant and neglects her, so the learned trial Court was unjustified in rejecting the applicant filed by the applicant.

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In view of the aforesaid analysis, the revision petition is allowed and the non-applicant is directed to pay maintenance to the tune of Rs.9,000/- per month from the date of order dated 29.02.2020 passed by the Judge, Family Court, Bastar, Jagdalpur, C.G..

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Certified copy as per rules.

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Sd/- (Deepak Kumar Tiwari) Judge

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yasmin

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4 (1991) 2 SCC 375

Smt. Rambati Nag v. Senapati Nag

Case brief

What is this about?

What did the court decide?

Smt. Rambati Nag v. Senapati Nag

Case brief

What is this about?

What did the court decide?

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