Sir,
In a matter of 125 Cr.P.C. I was pleading a case on behalf of husband that, her wife is already married with another man, and had not got divorce and have taking recourse of law laid down by Uttarakhand HC decided in january below. But just wife has produced case decided by the same bench decided on september 2012 as I am posting second one. In Both judgment same judge opines different view on the same point.
Sir what must be in such situation, and what about judicial accountability ? and about our Judiciary ? In both of these judgment if we say facts are different then what is ration decendi ?
Please go through deeply and opine here.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
CRIMINAL REVISION No. 60/2007
Smt. Kamla …….Revisionist
Versus
State of Uttarakhand & Another ……Respondents
Mr. Bhuvnesh Joshi, Advocate, for the revisionist.
Mr. Tapan Singh, Advocate, holding brief of Mr. Lok Pal Singh, Advocate, for the private respondent no. 2.
6th January, 2012
Hon’ble Servesh Kumar Gupta, J.
This revision is directed against the judgment and order dated 21.12.2006, passed by the Family Judge, Haridwar, whereby the application moved by Smt. Kamla under Section 125 CrPC, seeking maintenance from private respondent no. 2 Naresh Kumar, claiming him to be her husband, was dismissed.
2. This Court has rendered a careful and anxious consideration to the submissions advanced by learned Counsel for the parties and has also gone through the impugned judgment and order as well as the evidence adduced by the parties before the court below.
3. It comes out that Smt. Kamla herself admits that she was wedded with one Sri Than Singh hailing from Meerut and lived continuously with him as a wife for twenty years. This was deposed by Smt. Kamla on 30.7.2001 while making her statement on oath before the court below. Although she did not get any divorce decree from the court of competent jurisdiction, but she claimed that she segregated her matrimonial relations from Than Singh as per the caste customs and usages about two and half years prior to making her said statement on 30.7.2001. Thus, on the one hand, she claims to have snapped her matrimonial relations with Than
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Singh at the end of 1998, while on the other hand, contrary to that, she alleges that she was living with Naresh Kumar as a wife since 25.1.1994. Even if her statement, claiming Naresh Kumar to be her husband, is taken as true, then law does not contemplate such a situation where a woman can live with a man as wife without taking a valid divorce from the court of competent jurisdiction or even segregating her matrimonial relations from her erstwhile husband as per the caste customs and usages before allegedly marrying again with Naresh Kumar. As per her own statement, she continued to be the wife of Than Singh and was living with him till the end of 1998. As such, she cannot attain the status of a wife of Naresh Kumar since 25.1.1994 till the end of 1998.
4. Learned Counsel for the revisionist has relied upon a precedent of Hon’ble Apex Court rendered in the case of Pyla Mutyalamma @ Satyavathi v. Pyla Suri Demudu & Anr., reported in 2011 (2) N.C.C. 566, wherein it has been held that law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long number of years and when the man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.
5. The above precedent is not applicable in the present controversy because the factum of existence of the marriage of Smt. Kamla with Than Singh up till 1998 is itself evident from her own statement, as stated above. In such a situation, she could not be said to be a legally wedded wife of Naresh Kumar, although she might be living with him since 25.1.1994. Her status, at best, if any, can only be termed as of a concubine or of having a living relationship with Naresh Kumar.
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6. The argument of learned Counsel for the revisionist that once a Miscellaneous Case No. 179/1996, under Section 125 CrPC, was launched by Smt. Kamla against Naresh Kumar, and the same was also decreed on 15.2.1997, albeit ex parte, granting maintenance to her to the tune of rupees three hundred per month, is of no relevance because that order stood merged with the compromise dated 5.9.1997, which was subsequently entered into between Smt. Kamla and Naresh Kumar, and this way, the said ex parte order has lost its legal enforceability.
7. For the reasons recorded above, the revision is devoid of merit and the same is hereby dismissed. However, it is observed that Smt. Kamla, if she so desires, may seek redressal of her grievances under the relevant provisions of Protection of women from Domestic Violence Act, 2005.
8. Lower court record be sent back.
(Servesh Kumar Gupta, J.)
6.1.2012
Prabodh
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Revision No. 43 of 2012
Smt. Charan Kaur. …….Revisionist.
Versus
Paramjeet Singh. ....…. Respondent.
Present:
Mr. S.K. Mandal, Advocate for the revisionist.
Mr. Mohd. Azim, Advocate for the respondent.
Hon’ble Servesh Kumar Gupta, J.
1. The challenge in this revision is to the judgment and order dated 28.02.2012 passed by Judge, Family Court, Udham Singh Nagar whereby learned Judge has denied to grant maintenance to Charan Kaur (revisionist) from Paramjeet Singh (respondent) on the ground that in her statement she admitted her previous marriage with one Sukhdev Singh. She also admitted that no valid decree of divorce or annulment of marriage, from her previous husband, was passed by the competent court.
2. From perusal of record, it is evident that revisionist was living with Paramjeet Singh because his wife had died.
3. Learned counsel for the revisionist argued that Charan Kaur hails from such a family and caste, which has prevailing custom to segregate relations from her husband by mutual settlement and terms of settlement reduced into papers and a sheet is offered upon the body of a lady to cover her by a man with whom she accepts her new company/ espousal and this was exactly
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done in the case of Charan Kaur, so taking divorce, by means of a valid decree from the court, was not necessary.
4. Learned counsel for the revisionist further argued that Charan Kaur and her family were living in so penury that they did not have sufficient means to knock the door of court and seek decree of divorce. Otherwise also, in the Mitakshra School of Hindu Law, which is applicable in northern India, the Custom prevails over the statutory law.
5. Learned counsel for the revisionist relied upon the precedent of Bombay High Court in the case of Rajeshbai Vs. Shantabai reported in AIR 1982 Bombay 231 wherein it was held that in appropriate cases the Court can grant relief of maintenance to a woman notwithstanding the fact that marriage was void.
6. The Hon’ble Apex Court in the case of Pyla Mutyalamma Vs. Pyla Suri Demudu reported in 2011 (2) NCC 566 has categorically stated that when an attempt is made by the husband to negate the claim of a neglected wife depicting her as a kept mistress on the spacious plea that he was already married, then the Court would insist on strict proof of earlier marriage and this is intended to protect women and children from living as destitute. The Hon’ble Apex Court has further elaborated its view in paragraph 14 of the said judgment, which reads as under:
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“It was still further laid down in the case of Sethu Rathinam vs. Barbara (1970) 1 SCWR 589 that if there was affirmative evidence on the aforesaid points, the Magistrate would not enter into complicated questions of law as to the validity of the marriage according to the sacrament element or personal law and the like, which are questions for determination by the civil court. If the evidence led in a proceeding under Section 125 Cr.P.C. raises a presumption that the applicant was the wife of the respondent, it would be sufficient for the Magistrate to pass an order granting maintenance under the proceeding. But if the husband wishes to impeach the validity of the marriage, he will have to bring a declaratory suit in the civil court where the whole questions may be gone into wherein he can contend that the marriage was not a valid marriage or was a fraud or coercion practiced upon him. Fortifying this view, it was further laid down by the Supreme Court in the matter of Rajathi vs. C. Ganesan AIR 1999 SC 2374 also, that in a case under Section 125 Cr.P.C., the Magistrate has to take prima facie view of the matter and it is not necessary for the Magistrate to go into matrimonial disparity between the parties in detail in order to deny maintenance to the claimant wife. Section 125, Cr.P.C. proceeds on de facto marriage and not marriage de jure. Thus, validity of the marriage will not be a
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ground for refusal of maintenance if other requirements of Section 125 Cr.P.C. are fulfilled.”
7. In another case of Chalamma Vs. Tilaga in Civil Appeal No. 4961 of 2009, the Hon’ble Apex Court has held that long espousal of ‘man and woman’ depicts them as ‘husband and wife’ in the eyes of society. In such circumstances, it shall be presumed that the lady was not in sheer status of kept mistress but she was wife of a person with whom she was living under the same roof. Besides, the learned Trial Court must not have ignored the claim of a baby Lakhvinder, who was born out of the espoused relations of Charan Kaur and Paramjeet Singh.
8. In view of what has been stated above, impugned judgment dated 28.02.2012 passed by Judge, Family Court, Udham Singh Nagar is hereby set aside with hook, line and sinker. The matter is remanded back to him with a direction to hear the matter again and deliver a fresh judgment in the light of observations made hereinabove, as expeditiously as possible but not later than four months.
9. With the above observations, this revision is finally disposed of. Lower court record be sent back. Inform the court below.
(Servesh Kumar Gupta, J.)
25.09.2012
SKS
