The Court dissallows maintenance under Section 125 Cr.P.C. where the woman is alive with another husband. The Co-habitation with a married man is a relationship in the nature of marriage does not. The petitions to maintenance were dismissed.
Maintenance order set aside. No maintenance granted. Civil damages remedy left open.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO CRIMINAL REVISION CASE No.1487 of 2013
ORDER :
This criminal revision case is filed under Section 397 and 401 Cr.P.C. by the petitioner/husband aggrieved by the order dated 03.06.2013 in M.C. No.2 of 2007 on the file of Family Court-cum-V Additional District Judge, Tirupati, Chittoor District.
2) The parties herein are referred to as they are arrayed in the trial Court for the sake of convenience.
3) The brief facts are that the petitioners filed a petition under Section 125 and 128 Cr.P.C against the respondent for maintenance at the rate of Rs.2,000/- per month each to the petitioners alleging that petitioner No.1 is wife, Petitioner Nos.2 and 3 are children of the respondent, that the marriage of the first petitioner with the respondent is performed on 09.06.1989 and after their marriage they lived together happily for 10 years, that the respondent, being addicted to vices, was suspecting the first petitioner by locking the house door whenever he was going outside and never allowed her to talk with their neighbours, that abusing her in filthy language, that he used to beat the petitioners in drunken state, that since one year prior to filing of the present petition, the respondent was not visiting their house regularly, but weekly once and subsequently he totally stopped to visit their house, that the first petitioner came to know that the respondent has been living with another woman by leaving the petitioners to their fate. It is stated that the respondent is working as Senior Lab Assistant in S.V.Ayurved Hospital, Tirupati and drawing monthly salary of Rs.17,000/-, that the petitioners require Rs.2,000/- each per month towards their maintenance and hence the petition. The contention of the respondent that the first petitioner is not his wife and the other petitioners are not his children, that the first petitioner is
working in RASS, which is a national organization and earning Rs.3,000/per month as salary that she got immovable properties one at Avilala village and got two house portions in the said address and getting rent of Rs.2,500/- per month apart from that the parents of the first petitioner have got sufficient properties and financially sound. The further contention of the respondent that one D.Koteswara Rao is the husband of the first petitioner, that their marriage was performed on 12.03.1990 at Sri Varasiddi Vinayakaswamy Devasthanam, Kanipakam and the same is still subsisting, that the respondent got a wife, son and mother and he is living with them separately and that after knowing the status of the respondent she hatched up a plan to get wrongful gain from him with all false allegations and hence prayed to dismiss the petition with costs.
4) During the course of examination before the trial Court, P.Ws 1 to 3 were examined on behalf of petitioners and also marked Exs.P-1 to P-8 and R.Ws 1 to 8 were examined on behalf of Respondents and also marked Exs.D-1 to D-9 to prove their respective contentions. Exs.X-1 to X-6 were also marked through R.W-8. After hearing both sides and after perusing the entire material on record, the trial Court allowed the petition as prayed for by awarding Rs.2,000/- per month each to the petitioners towards maintenance from the date of filing of the petition.
5) Aggrieved by the same, the Respondent presented the revision contending that the learned trial Judge grossly erred in brushing aside the evidence adduced by the Respondent, that the learned Judge ought to have held that there is no marital relationship between the first Petitioner and the Respondent and that the Petitioner Nos.2 and 3 are not born to the Respondent, to that extent R.W-2 who is husband of the Petitioner was examined to prove their marriage that is still subsisting and Ex.D-3 is their marriage certificate, that the learned Judge ought to have held that the Respondent is having a wife and son and that he has to look after and maintain all his family members including his mother, that the learned
Judge ought to have seen that the 1st Petitioner has got immovable properties apart from that she is working woman and prayed to allow the revision by setting aside the order dated 03.06.2013 in M.C. No.2 of 2007 on the file of Family Court-cum-V Additional District Judge, Tirupati, Chittoor District. The learned counsel for the revision petitioner reiterated the same by placing reliance on the expressions of the Constitutional Courts. On the contra by supporting the lower Court’s order, the learned counsel for the revision-respondents with rival contention of the Revision Petitioner is the husband and liable to provide the maintenance and in support of it equally placed reliance upon the expressions of the Constitutional Courts.
6) Heard at length and perused the material on record.
7) Now, the points that arise for consideration are
(ii) To what result?
POINT No.(i):
8) It is from evidence placed on record, the order passed by the learned Family Court Judge is with the finding that the 1st petitioner could able to prove that she is the wife of the respondent and the petitioners 2 and 3 are daughters of the Respondent and on the other hand the Respondent could not be able to establish that the first petitioner is wife of R.W-2 by name D.Koteswara Rao and the petitioners 2 and 3 are born to him, but not to the respondent.
9) Here the crux is whether the 1st petitioner is the wife and other
petitioners are children of the Respondent for granting maintenance in Section 125 Cr.P.C.
10) As per Section 2(y) of the Code, ‘words and expressions used herein and not defined but defined in the Indian Penal Code have the meanings respectively assigned to them in that Code’ to say those for which words and expressions used but not defined in Cr.P.C and those defined in Indian Penal Code, same meaning has to be assigned and to be taken into consideration. From this, wife is defined in Section 125 of Cr.P.C, sub-section (1) explanation (b) that wife includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. It is to mean a wife even divorced she is entitled to be considered as wife till re-married. Further, in case of death of the husband of a woman, the question of divorce does not arise with late first husband and she is entitled to re-marry within the meaning of wife of the person whom she married after death of her first husband as it is within the definition of the explanation (b) of Sub-section (1) of Section 125 of Cr.P.C. Here, it is important to note that a person who is having a wife already and not divorced from the wife, if married another woman, who lost her husband or who was divorced by her husband leave about unmarried in case of spinster or even not divorced from her first husband whether she is considered to be a wife or not is not stated or defined in the Code in the above definition equally in I.P.C to say a wife of a void marriage from her alleged husband already having a wife not divorced is entitled to maintenance or not. In this regard, there are expressions in saying a wife of a void marriage whose alleged husband already having a wife living not entitled to maintenance when she got knowledge before marriage said factum of is having a spouse living with no divorce. It is equally if her 1st husband is alive and there was no divorce her second marriage with another person does not entitle her to claim maintenance from the 2nd marriage husband.
11) From this analogy coming to the facts of the revision case on hand, according to the Respondent, the 1st petitioner married one D.Koteswara Rao (R.W-2) and to prove the same he exhibited Ex.D-3 marriage certificate. More so, said marriage is subsisting and to prove the same the respondent cause examined said Koteswara Rao as R.W-2, who deposed that their marriage was performed on 10.03.1990 and the same is subsisting. R.W-2, the husband of the 1st petitioner, further deposed that the 2nd petitioner is born to him in November, 1990 and the 3rd petitioner is born to him in December, 1991 and marked Ex.D-4, the progress report of the 2nd petitioner, which contains the name of her father as D.Koteswara Rao and not the Respondent. Admittedly the Respondent has wife and children and has been living with them.
12) As per the contention of the Respondent that the 1st Petitioner married R.W-2, who is alive and the marriage is subsisting and further case of the Respondent is that he did not marry the 1st petitioner, muchless in 1989. Since the Respondent proved that the 1st petitioner married said Koteswara Rao who is her husband alive and their marriage is subsisting, the burden shifts on the 1st petitioner who has to prove the marriage between the 1st petitioner and the Respondent in 1989 in support of her claim more so, the Respondent presented a petition for DNA test to the Petitioner Nos.2 and 3 to prove that they are not his children, though not necessary. The 1st petitioner could not make out by any effort to disprove her marriage with R.W-2 so also the relationship with the children to the Respondent. She could not even prove that her marriage was respondent was performed in 1989 and that is subsisting and the two children are born in their wedlock, though efforts made in this regard as being referred hereunder.
13) In the present case on hand, it appears, the Petitioner No.1 is
very conscious that the Respondent already married having children and it is not the case of the 1st petitioner that the Respondent mischievously married her concealing that he got previously married another woman and got children. When Respondent contended that knowing his status, she hatched up a plan to get wrongful gain from him with all false allegations, the 1st petitioner has to prove that she has no malafides or malicious intention to present the case. But at any point of time, the 1st petitioner could not be able to prove the same either in the cross-examination of R.W-2 or anybody else. When the 1st petitioner is conscious about the marriage of the respondent with another woman and admittedly she got husband and children through him, she could not have entered into a livein relationship in the nature of marriage. All live-in-relationships are not relationships in the nature of marriage, the 1st Petitioner and the Respondent’s relationship is, therefore, not a ‘relationship in the nature of marriage’ because it has no inherent or essential characteristic of a marriage, but a relationship other than ‘in the nature of marriage’ and the 1st Petitioner’s status is lower than the status of a wife and that relationship would not fall within the definition of ‘wife under the Code. If that relationship between the 1st Petitioner and the Respondent is a relationship in the nature of a marriage, more injustice will be done to the legally wedded wife of the Respondent and their children. It is the 1st petitioner’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.
14) Here, even coming to consider, for argument’s sake, any fraud played by the respondent on the 1st petitioner by deceiving her for their marriage performed admittedly, he has been living with his parents, wife and children as per the version of the 1st petitioner itself. If any consent
made by the wife of the Respondent for the alleged relationship with the 1st petitioner, consent is not defined even in the Hindu Marriage Act equally in Cr.P.C. but for to understand from what is referred supra from the reading of Section 2(y) of the Code with reference to Section 90 I.P.C.
15) Section 76 I.P.C as part of the general exceptions of the chapter XIV of the I.P.C in its saying. Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of mistake of law in good faith believes himself to be, bound by law to do it. Here, it is not such case strictly to apply Section 76 I.P.C against the Respondent, but for against the 1st Petitioner to say on the principle therefrom that a mistake of fact gives shelter and protection if it is done bonafide and in good faith and not mistake of law as ignorance of law cannot be a shelter.
16) Here, once there is a marriage and unless there is a divorce through Court of law the marital tie won’t dissolve and subsequent marriage by any of the couple having the spouse living with no divorce will not give the status of wife, unless, it is proved by wife to claim maintenance that she has no disqualification at her side and the respondent married her suppressing his earlier marriage with no divorce and spouse living and but for she does not know she could not have married him. His marriage of another woman since void as referred supra he cannot claim it as a mistake of fact, but liable for penal consequences for bigamy vide, Lily Thomas V. Union of India[1] . It is the settled law that one cannot take his or her own fault.
17) No doubt, in the expression of Apex Court in Deelip Singh V. State of Biha r[2] it was held that the remedy is always open to such woman deceived in the hands of a man for his having sexual intercourse with her by civil remedy of damages in lumpsum or the like. Therefrom,
needless to say such a remedy is otherwise available to the 1st petitioner even the present claim is not maintainable, if shown to maintain a civil suit under Section 9 C.P.C as a dispute of civil nature to claim damages against the respondent.
18) The Apex Court in Savitaben Somabhai Bhatiya V. Sate of Gujara t[3] referring to Section 125 Cr.P.C and on the principle of estoppel under Section 115 of the Indian Evidence Act held that plight of woman unwittingly enter into wedlock into married man can only be undone by legislature and the principle of estoppel cannot be pressed into service to defeat Section 125 Cr.P.C as the legislature considered necessary to include legitimate child within its scope but not so with respect to woman not lawfully married. It is observed further that, husband was treating the applicant as his wife is in consequential as the intention of the legislature is relevant and not the attitude of the party in this regard as the entitlement for maintenance cannot be decided with reference to personal law of parties. Several expressions in this regard were referred therein including Yamunabai Anantrao Adhav V. Anantrao Shivram Adhav[4] and with reference to Criminal Law Amendment, 2001 and also with reference to the expression in Dwarika Prasad Satpathy V. Bidyut Prava Dixi t[5] to determine from the evidence brought on record with reference to the validity of the marriage even for the purpose of summary proceedings. No doubt the provision is a measure of social justice to protect the women and children and falls within the constitutional sweep of Articles 15(3) and 39 of the Constitution of India. The other important judgment is of D.Veluswamy V. D.Patchaiamma l[6] . It is with reference to Section 125 of Cr.P.C, Section 7 of Family Courts Act and Section 2(f) of the Protection of Women from Domestic Violence Act of domestic relationship includes a relationship in the nature of marriage, however all live in relationships will not amount to relationship in the nature of marriage and
so even merely spending weekends together. It was held further that to get such benefits of the Act within the domestic relationship, the conditions to be satisfied or a relationship in nature of marriage is a kind to a common law marriage and common law marriage requires that all through not being formal marriage –
(a) the couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
( c ) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
19) The conditions mentioned above must be satisfied to get such benefits of such relationship and the same has to be proved by evidence. If a man as a keep whom he maintains financially and used mainly for sexual purposes and/or as a servant it would not be a relationship in the nature of marriage as the expression used is not live-in-relationship but relationship in the nature of marriage. The earlier expression in Savitaben supra is followed in D.Veluswamy supra in so concluding and in paragraph Nos.21 and 22 of the expression (Veluswamy) it was observed that:
“21. In our opinion Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act.
22. It seems to us that in the aforesaid Act of 2005 Parliament has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship. This new relationship is still rare in our country, and is sometimes found in big urban cities in India, but it is very common in North America and Europe. It has been
” commented upon by this Court in S.Khushboo V. Kanniammal[7]
20) Referring to Veluswamy supra a single Judge bench
expression of Patna High Court in Krishna Murali Singh V. State of Biha r[8] observed that for relationship in nature of marriage to claim maintenance or monetary relief under Section 125 Cr.P.C and Section 5 of the Hindu Marriage Act even there is no need of formal marriage between couple but, they should be qualified to enter into legal marriage. However in the recent expression of the Apex Court dated 26.11.2013 in Indra Sharma V. K.V.Sharma[9] referring to Section 2(f) of the Protection of Women from Domestic Violence Act and Section 5 of the Hindu Marriage Act and Section 4 of the Special Marriage Act, it was observed for the domestic relationship that the three elements of common law marriage or agreement to be married, living together as husband and wife and holding it to the public that there is the marriage, sharing a common household and duty to live together form part of the ‘consortium=omniswity’ – which obliges spouses to live together, afford/reasonable marital privileges and rights and be honest and faithful to each other with reciprocal support and responsible for maintenance of the common household, jointly and severally. The relationship in nature of marriage means relationship having some inherent or essential characteristics of marriage though not regular marriage and though not a marriage legally recognized. Relationship in the nature of marriage and marital relationship have many distinctions as relationship of marriage continuous notwithstanding the fact that there are differences of opinions, marital unrest etc., and therefrom even if they are not sharing a shared household. But, live-in-relationship is purely an arrangement between the parties unlike, a legal marriage. At para No.32 of the Indra Sarma (supra) it was observed relying upon the expression in Pinakin Mahipatray Rawal V. State of Gujara t[10] at para 18 the marital relationship means the legally protected marital interest of one spouse to another which includes marital obligation to another like companionship, living under the same roof, sexual relationship and the exclusive enjoyment of them, to
have children, their up-bringing services in the home, support, affection, love, liking and so on.
21) Further, in a relationship in the nature of marriage, the party ascerting the existence of the relationship, at any stage or at any point of time, must positively prove the existence of the identifying characteristics of the relationship, since the legislature has used the explanation in the nature of marriage. Relationship between the same sex no doubt not recognized by Act since is not relationship is not marriage. The various factors which exist in a particular relationship are to be considered to reach a conclusion as to whether a particular relationship is a relationship in the nature of marriage. Many a times, it is the common intention of the parties to that relationship as to what their relationship is to be and to involve and as to their respective roles and responsibilities, that primarily governs that relationship. Intention may be express or implied and what is relevant is their intention as to matters that are characteristic of a marriage while examining whether a relationship as a whole falls within the expression of relationship in the nature of marriage within the meaning of Section 2(f) of the Act, a close analysis of the entire relationship, in other words all facets of the interpersonal relationship need to be taken into account. Individual factors cannot be isolated because there may be endless scope for differences in human attitudes and activities and a variety of combinations and circumstances which may fall for consideration. Invariably, it may be a question of fact and degree, whether a relationship between two un-related persons of the opposite sex meets the tests judicially evolved. It was observed in paragraph No.56 in specific that where a person not only enters into a live-inrelationship with other knowing that he was a married person, a generic proposition that where a man and woman are proved to live 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 marriage, and the status of the lady would be of a concubine. The 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 such presumption which may be drawn from long cohabitation is a rebuttal one and if there are circumstances which weaken and destroy that presumption, the Court can 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 bigamous marriage that is marrying someone while already married to another and or maintaining an adulterous relationship that is having voluntarily sexual intercourse between a married person who is not husband or wife, cannot be said to be a relationship in the nature of marriage. In paragraph Nos.61 and 66 of Indra Sarma (supra) it was observed that wife and children of marriage party i.e., live-in-relationship with a married person under the tortuous liability can sue for damages by civil suit.
22) From this, it is true the expression of the Apex Court in Savitaben supra is under Section 125 Cr.P.C whereas in Veluswamy supra it is relying on it with reference to Section 2(f) of the Prevention of Women from Domestic Violence Act in so answered and in Indra Sarma V. V.K.V.Sarma[11] referring to it, it was held that if it is not a mere live-inrelationship and not a case of living together from long cohabitation as a man and wife if eligible for marriage, there is domestic relationship even there is no formality of marriage taken place, provided the live-inrelationship is in the nature of marriage and not a mere contractual live in relationship of other than spouse. Thus to say, even no marriage performed actually, if they are eligible for marriage to perform and living as man and wife from their cohabitation, it is with relationship in the nature
of marriage. It is also in this context necessary to refer with reference to Section 90 of the Indian Penal Code supra that, the Apex Court in Chanmuniya V. Virendra Kumar Singh Kushwaha[12] referring to Dwarika, Yamunabai and Savitaben (supra) held that for maintenance under Section 125 Cr.P.C in case of a live-in-relationship each other presumed marriage/defacto-marriage/long cohabitation without even valid marriage concerned, there are divergence of judicial opinions on the interpretation of the word ‘wife’ and the matter is thereby referred to a larger bench in saying a broad and expansive relationship 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 reasonable long period of time; as strict proof of marriage should not be a precondition for maintenance, so as to fulfill true spirit and essence of the beneficial provision of maintenance under Section 125 Cr.P.C. On facts held for the marital status of the persons living in same house and by social custom treated as husband and wife after death of appellant’s husband by the Respondent No.1 who is brother of appellant’s husband and the marriage solemnized was Katha and Sindhur, hence held there is a strong presumption and marriage in their favour.
23) Here, this principle also has no application to the present facts for no custom pleaded or proved for any divorce between Respondent and his other wife or 1st Petitioner and R.W-2 Koteswara Rao who are all admittedly alive and subsisting, muchless the divorce between the 1st Petitioner and her husband R.W-2. The other important judgment which is also the recent expression of another two Judge bench of the Apex Court is Badshah V. Urmila Badshah Godse[13] dated 18.10.2013 in dealing with maintenance claim under Section 125 Cr.P.C by a second wife for the second marriage performed as per Hindu Rites but during subsistence of first marriage of husband, on the contention of the husband that such
second marriage being void under Hindu Marriage Act and second wife the petitioner thereby not entitled to maintenance as she was not his legally wedded wife; however from the concealment of the fact of his earlier marriage by said husband to the second wife whom he married; it was held that in view of the fact that the husband had duped the second wife by not revealing to her the fact of his earlier marriage, held the husband cannot deny maintenance to her in such a case. The Apex Court held that thereby husband cannot be permitted to take advantage of his own wrong by raising the aforesaid contention since Section 125 Cr.P.C requires the purposive construction by applying the mischief rule atleast for the purpose of maintenance to treat said woman as if a legally wedded wife. It was in this context held referring to Yamunabai and Savitaben supra that the two expressions though supporting the contentions of the husband, they would apply only in those circumstances where a woman married a man with full knowledge of subsistence of his first marriage. Section 5(1), 11 and 17 of the Hindu Marriage Act also referred for that conclusion in the observations at Paragraph Nos.13 to 20 in saying the Court’s role is to understand the purpose of law in society and to help the law to achieve its purpose by purposive construction and interpretation in its duty to determine proper relationship between the subjective and objective purposes of law. This expression in Badshah (supra) has given a new look to the law though not strictly by holding as not good law of Savitaben supra of estoppel under Section 115 of the Indian Evidence Act has no application to defeat the wording of Section 125 Cr.P.C muchless of Yamunabai supra of wife of void marriage, from husband has spouse living not divorced is not entitled to maintenance under Section 125 Cr.P.C equally of Dwarika Prasad supra. Further, sections 23 and 28 of the Act are is interpreted by the Single Judge expression of Uttarakhand High Court in Nirmaljith Kaur V. State[14] that the proceedings of Section 125 and 126 Cr.P.C shall apply to the D.V.C
proceedings under Section 12 read with Section 23 and 28 of the Act.
24) Once, the Apex Court in this very recent expression in Badshah supra referred the earlier expressions particularly of Savitaben and Yamunabai (supra) in holding that where the wife is deceived or the marriage performed from her consent with the husband is the outcome from the concealment of the fact of his earlier marriage, she is entitled to maintenance in saying the principle estoppel applies against him if not, even consent taken then it is not a consent under law from suppression of subsistence of earlier marital relationship of him with other lady alive though Section 90 I.P.C not referred for such conclusion. Here, even this principle has no strict application to the present case on hand as it is not the case of the petitioner in her maintenance claim of monetary relief in claiming within the domestic relationship in the nature of marriage that the husband did not disclose her of his earlier marriage and thereby she is entitled to maintenance in saying there is estoppel applies against him from which the consent is not a consent under law though Section 90 I.P.C not referred for such conclusion; but in her not disclosing marriage of her with Koteswara Rao (R.W-2) and she cannot even say that she was duped or deceived in some other manner by showing such factual foundation and also the legal entitlement. No doubt the principle laid down in Savitaben of estoppel has no application in interpreting Section 125 Cr.P.C. against the husband from the non-disclosure of the fact by referring and answering to it is given a gobye in the interpretation in Badshah (supra) and thus, this Court cannot ignore Badshah when it referred Savita ben also to the conclusion in saying the husband is estopped from disputing. Thus, the latest expression in Badshah when clearly speaks that the husband who duped the wife by concealment of the fact in relation to his earlier marriage though in the facts of that case, he suppressed the very subsisting first marriage; coming to the present facts the suppression is on the part of her also for no legal divorce to her
with Koteswara Rao (R.W-2) or with respondent and his other wife living with no divorce.
25) From the above propositions, coming to other facts on hand, even at the cost of the repetition of some of the facts referred supra, as per the Petitioner No.1, her marriage with the Respondent in M.C. No.2 of 2007 was performed on 09.06.1989 at Tiruchanur and lived together at Ashok Nagar, Tirupathy for four years and they shifted their residence later to Sundarayya Nagar, there lived for about 7 years and again to Rayalavari Veedhi, there they lived about 5 years and again shifted to Krishna Nagar of Tirupathy and further that M.C Petitioners 2 and 3 two minor daughters as per their claim, born in their wedlock in saying they lived happily for 10 years and thereafter the differences arose in saying the respondent is addicted to vices among Exs.P-1 to P-8 placed reliance on by her. There is no proof regarding the so called marriage of her with respondent, no even any voters’ list filed in showing they were lived together as man and wife of the several places in Tirupati town for several years according to her referred supra. There is no even school admission of the two daughters filed by her muchless birth certificates figuring the respondent as father of the two children, even it is her case of the two children born in their wedlock while staying at different places in Tirupati town. In fact, Ex.D-4 is the progress report of the 2nd petitioner showing the name of her father is (R.W-2) D.Koteswara Rao.
26) From this background, come to the evidence of the Respondent, deposed as R.W-1 and cause examined, R.W-2, D.Koteswara Rao in support of his contention to prove that the 1st claimant, P.W-1 of the M.C. petitioner married the R.W-2 Koteswara Rao and their marriage was performed in the Kanipakam temple on 10.03.1990 covered by Ex.D-3 wherein she was figured as Bujji, D/o.Ravi Naidu of Muttukuru Village, Aragonda of Thavanampalli Mandal, that the marriage was performed at
Vara Siddi Vinayaka Temple, Kanipakam. R.W-6 is the employee of Vara Siddi Vinayaka temple by name Santhosham who was summoned to depose in support with the record of marriage and he deposed in his evidence by exhibiting Exs.X-4 to X-7 and in support of Ex.D-3, marriage certificate, from the said register covered by Ex.X-4 issued by the Executive Officer of Vara Siddi Vinayaka Temple, Kanipakam, where the marriage of the 1st Petitioner to the M.C-P.W-1 and R.W-2 shown performed. No doubt, there the name is referred as bride is Bujji, D/o.Ravi Naidu. She admitted in her cross-examination that she is also being called as Bujji and she was daughter of Ravi Naidu. Besides Ex.D-3 and X-4, register from which Ex.D-3 marriage certificate issued, deposed by R.W-1 and R.W-2 so called husband the bridegroom of the marriage dated 12.03.1990 in the R.W-6 evidence, it is further deposed with reference to Exs.X-5 to X-7 which are relevant and coupled with this Ex.D-4 refers name of said R.W-2-D.Koteswara Rao as father of the M.C.2nd Petitioner to substantiate said relationship. This establishes that the marriage of R.W-2 with 1st Petitioner to the M.C with the name Bujji and not Padma was performed on 12.03.1990 and the marriage register at Sl.No.620 and the receipt for the marriage was receipt No.2370, dated 10.03.1990 fixing the venue of the marriage there under and if that is the case from her claim if she is able to prove the 1st respondent is her husband and the marriage performed was on 09.06.1989 and respondent is her 1st husband and without divorce the 2nd marriage under Ex.D3=Exs.X-4 and X-5 is a void marriage. In fact her claim is she married the Respondent on 09.06.1989 at Tiruchanur Padmavathi Temple at Tirupati. It is proved from the evidence of Respondent that in Tiruchanur Padmavathi Temple there is no marriage venue, no marriages were performed and permitted there. P.W-1 in her cross-examination deposed categorically that her elder sister is one Hymavathi @ Peda Bujji and she is thereby called as China Bujji and to say that her marriage was
performed at Tiruchanur in a Mandapam. She did not file any receipt issued by the temple authorities. For her so saying she married the Respondent-R.W-1 at Tiruchanur Padmavathi Temple, she did not file any record. In fact to disprove said contention of she married the Respondent at Tiruchanur Mandapam, the Respondent cause examined R.W-7 Supreintendent of Tiruchanur Padmavathi Temple who deposed that to his knowledge no marriages are performed within the premises of Padmavathi temple of T.T.D Tiruchanur. Though he is working there as Superintendent for the last two months and giving evidence with reference to the facts deposed that he has no any personal knowledge of their marriage where performed and deposed that he has no knowledge as to what were the conditions prevailing 20 years back of any mandapams in the temple premises and any marriages performed 25 years back. In fact, if at all there were Mandapam marriages performed in any of the Mandapams of Tiruchanur Padmavathi till 20 years back as contended by her from what is referred supra; there must be a receipt in proof of it or there must be a photo in proof of it and nothing is filed and it belies her contention of the marriage was performed of her with Respondent on 09.06.1989 at Tiruchanur Padmavathi Temple to the claim that she is wife of the respondent, in claiming maintenance not only for her but also for the two children i.e., petitioner Nos.2 and 3 of her as the daughters born to the Respondent in the wedlock, which is with no proof. P.W-2 oral evidence in support of P.W-1 as if the marriage of Respondent with P.W-1 performed at Tiruchanur Padmavathi Temple premises for which he attended in the year 1989 thereby cannot be given credence. Among the three witnesses, she cause examined, P.W-3 is the Assistant Manager of Andhra Bank, T.T.D Administrative Branch, Tirupathy who was summoned and he produced the Photostat copy of the Bank account opening form by P.W-1, 1st Petitioner where there was nomination provision and the Respondent herein signed as introducer to
the opening of the account on 07.04.1999 by referring him as husband of her. It was in fact in the year 1999 that cannot be the sole basis muchless with reference to the counterfoil signature in Ex.A-6 to say the Respondent is the husband of the 1st petitioner as on that date he introduced her to the account on 07.04.1999. If at all that is to be established by her she must show that R.W-2 D.Koteswara Rao whom the 1st petitioner married as per Ex.D-3, X-4 and X-5 on 12.03.1990, there must be a divorce between them more particularly through Court of law for nothing of there was any customary divorce even from her claim or contention, as she totally denies her marriage with R.W-2 Koteswara Rao muchless covered by Exs.D-3, X-5 and X-5. Among the Exs.P-1 to P-8, she placed reliance besides P.W-1 is the pan card of Respondent, Ex.P-1 photos and negatives, Ex.P-7 photo album show the Respondent and the Petitioner No.1 to say at best they lived in live in relationship together including to the knowledge of her two daughters (Petitioner Nos.2 and 3). It is in this back ground Ex.D-1 and D-2 are the new and old ration cards of the Respondent, R.W-1, showing they revealed the name of his wife has one Vasanthi son, Venkatesh and mother Muthammal, apart from it Ex.X-1 is his service register as Lab Technician of S.V.Ayurvedic College and the Service Register entry is also his said wife Vasanthi name and in the name of the M.C-1st petitioner Padmavathi or in name of Bujji or names of the M.C-petitioners 2 and 3, Swaroopa and Deli Shalini, the relevant pages in Ex.X-1 service register showing his family members, relationship where the M.C Petitioners not depicted nowhere or pages 9 and 15 exhibited as Exs.X-2 and X-3. In fact, Ex.X-6 and X-7 are the statement given by the M.C-3rd Petitioner on 20.01.2012 that also substantiates the contention of the Respondent. Apart from it, besides the Ex.D-4 progress report of 2nd petitioner showing D.Koteswara Rao as her father, Ex.D-5 is the Photostat copy of school admission certificate, Ex.D7 is the study certificate of Petitioner Nos.2 and 3 which all show the
Respondent is not figured as the father of the M.C Petitioners 2 and 3. So, also from Ex.D-6 election I.D card of P.W-1 i.e., 1st petitioner to the M.C showing her address and husband’s name are different to the address of the Respondent. Ex.P-6 Andhra Bank counterfoils with signatures of Respondent issued in the name of petitioners 2 and 3 dated 23.11.2005 and the photo album Ex.P-7 containing several photos of the M.C Petitioners as well as the Respondent in different places and occasions and the Respondent-R.W-1 also admitted that he nominated the 1st petitioner in his L.I.C policy dated 15.11.1998 and also shown her as his wife in another L.I.C policy dated 20.03.2011. However, even that all show only live in relationship at best to say that in this back ground of facts and from the recorded evidence in particular; the 1st Petitioner married R.W-2, D. Koteswara Rao, with her name as China Bujji being daughter of Ravi Naidu of Muttukuru Village and reasons better known there was disassociation though not divorce through Court of law and thereafter there is live in relationship between the Respondent and the 1st Petitioner along with the two minor daughters of her Petitioner Nos.2 and 3 and the Respondent thereby shown her as wife and nominee in obtaining the L.I.C policy and also in his policy by his showing and also in the Ex.D-5 school joining certificates of the Petitioner Nos.2 and 3 as their father. However, he got wife, son and mother under with whom he was staying and residing. Thus, the same live in relationship not in the form of marriage and marital relationship between the 1st petitioner and the Respondent for both got spouse living with no divorce that does not entitle her to claim maintenance, muchless to the two daughters but for if at all any damages by maintaining a civil claim for the period they stayed and had the conjugal life without marital relationship for any compensation or damages to claim.
27) Therefore, the lower Court is not right in granting maintenance to
the M.C Petitioners against the M.C. Respondents and the order of the lower Court is liable to be set aside. Accordingly, point No.1 is answered.
POINT No.II:
28) In the result, the Criminal Revision Case is allowed by setting aside the order dated 03.06.2013 in M.C. No.2 of 2007 on the file of the Family Court-cum-V Additional District Judge, Tirupati, Chittoor District, Andhra Pradesh. It is needless to say the remedy of 1st petitioner is to seek damages by civil suit in lumpsum. It is further needless to say the Petitioner Nos.2 and 3 want to maintain a civil suit for maintenance and marriage expenses, it is left open subject to proof of paternity by DNA examination and therein to decide the observations herein will not come in the way for the petitioner Nos.2 and 3. Miscellaneous petitions pending, if any, in the present revision shall stand closed.
Dr. B. SIVA SANKARA RĀO, J
Date:01-12-2014 ksh
[1] (2000)6 SCC 224
3 issues framed by the court
Whether a woman in a live-in relationship with a man who has a subsisting valid marriage can claim maintenance under Section 125 Cr.P.C.
Whether the relationship in the nature of marriage includes a cohabitation between a married person and another woman.
Whether the order granting maintenance to the petitioner and her children was sustainable in view of the evidence.
Colour shows how this judgement treated each authority
Lily Thomas V. Union of IndiaDistinguished¶26
Lily Thomas V. Union of India [(2000)6 SCC 224] · Who else cites this
Deelip Singh V. State of BiharDistinguished¶27
Deelip Singh V. State of Bihar [(2005)1 SCC 88] · Who else cites this
Savitaben Somabhai Bhatiya V. State of GujaratDistinguished¶29
Savitaben Somabhai Bhatiya V. State of Gujarat [(2005)3 SCC 636] · Who else cites this
D.Veluswamy V. D.PatchaiammaExplained¶29
D.Veluswamy V. D.Patchaiamma [(2010)10 SCC 469] · Who else cites this
Indra Sharma V. V.K.V.SarmaDistinguished¶40
Indra Sharma V. V.K.V.Sarma [AIR 2014 SC 209] · Who else cites this
Badshah V. Urmila Badshah GodseDistinguished¶46
Badshah V. Urmila Badshah Godse [(2014)1 SCC 188] · Who else cites this
3 provisions across 1 enactments
Respondent (Petitioner/husband in revision)
1st Petitioner (Wife in maintenance claim)
Petitioner Nos. 2 and 3 (Children)
Dr. B. Siva Sankara Rao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
