REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 2368-2369 OF 2009

KAMALA AND OTHERS           …. Appellants

VERSUS

M.R. MOHAN KUMAR         …. Respondent

J U D G M E N T

R. BANUMATHI, J.

These appeals arise out  of  the judgment  dated 16.06.2009

passed by the High Court  of  Karnataka at  Bangalore in R.P.F.C.

Nos. 103 of 2008 and 21 of 2009 in and by which the High Court

has set aside the judgment of the family court which has directed

the respondent to pay maintenance to the appellants – wife and

children.

2. Case  of  the  appellants  is  that  marriage  between  appellant

No.1 and respondent was solemnized on 18.07.1998 against  the

wishes of their parents at Karrighatta temple near Sri Rangapattana

and appellant No.2-daughter and appellant No.3-son were born out

of the wedlock on 09.05.2001 and 18.07.2003 respectively and they

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lived in a house on rent in Saraswasthipuram, Mysore. Further case

of the appellants is that while the marriage between appellant No.1

and  respondent  was  subsisting,  the  respondent  married  one

Archana,  who was his  colleague on  01.04.2005,  after  which the

appellants were neglected by the respondent and he was harassing

appellant  No.1.   Being  aggrieved  of  such  treatment  from

respondent, appellant No.1 filed a police complaint and upon the

direction of police, the respondent was paying Rs.3,000/- per month

to the appellants towards their maintenance.  It is further averred

that when they shifted from Saraswathipuram to Chamundipuram,

the respondent continued to neglect them.   Since appellant No.1

could  not  maintain  herself  and her  children,  she filed  a  Criminal

Miscellaneous  No.297/2006  under  Section  125  Cr.P.C.  claiming

maintenance for herself and the children from the respondent.

3. The respondent  resisted the maintenance claim contending

that he has never married appellant No.1 and denied her contention

that appellants No.2 and 3 were born out to him and appellant No.1.

The respondent  contended that  when there is  no valid  marriage

between the parties,  petition  for  maintenance under  Section 125

Cr.P.C. cannot be maintained.

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4. Upon  consideration  of  evidence,  the  family  court  held  that

appellant No.1 has proved that there is husband-wife relationship

between appellant No.1 and respondent and that appellants No.2

and 3 are the children born out of the said wedlock and that the

respondent was giving her a monthly maintenance of Rs.3,000/- per

month. The family court further held that the case of the appellants

is  supported  by  the  evidence  of  PW-2  and  PW-3  which  clearly

establish that they lived under the same roof and the society also

accepted them as husband and wife.  On those findings, the family

court  vide its order dated 12.08.2008 allowed the appellant’s claim

and ordered maintenance of Rs.3,000/- per month to appellant No.1

and Rs.2,500/- per month to each of the appellants No.2  and 3

from the date of petition till  the date of judgment i.e. 12.08.2008.

From the  date  of  judgment  i.e.  12.08.2008,  the  respondent  was

directed  to  pay  maintenance  of  Rs.2,500/-  per  month  each  to

appellants No.1 to 3.  

5. In  appeal,  the High  Court  has  set  aside  the order  of  the

family court and held that appellant No.1 was unable to prove that

she is the legally wedded wife of the respondent.  The High Court

further held that she has not produced any evidence to show that

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the marriage was solemnized as per custom and she, not being

the legally wedded wife, is not entitled for any maintenance.  

6. Mr. Girish Ananthamurthy, learned counsel for the appellants

submitted that when the parties live as husband and wife under

one roof, a presumption arises in favour of the person who asserts

the existence of valid marriage.  It was submitted that in the instant

case, parties have entered into a wedlock in a temple and lived

together  and  begot  two  children,  hence,  presumption  arises  in

favour of  appellant  No.1 and the respondent failed to rebut the

said presumption.  The learned counsel for the appellants further

submitted  that  the  family  court  after  analysing  the  evidence

brought on record, has recorded a finding of fact that appellant

No.1 is the legally wedded wife of respondent and that appellants

No.2 and 3 are their children born out of the wedlock and the High

Court  in  exercising  revisional  jurisdiction  ought  not  to  have

interfered with the said findings of fact.   

7. Per  contra,  Mr.  M.N.  Rao,  learned senior  counsel  for  the

respondent  submitted that  under  Section 125 (1)(a)  Cr.P.C.,  an

application for  maintenance can be maintained only by a “wife”

who  is  a  legally  wedded  wife.   It  was  submitted  that  no  valid

marriage  had  taken  place  between  appellant  No.1  and  the

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respondent and hence, appellant No.1 is not entitled to claim any

maintenance under Section 125 Cr.P.C.  It was submitted that the

evidence on record does not disclose any marriage having taken

place between the parties and hence, claim of maintenance under

Section  125  Cr.P.C.  was  not  maintainable  and  the  High  Court

rightly  reversed  the  judgment  of  the  family  court  ordering

maintenance.  In support of the contention, reliance was placed

upon Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav

and another (1988) 1 SCC 530.

8. We  have  carefully  considered  the  rival  contentions  and

perused the impugned judgment and materials placed on record.

9. In her evidence, appellant No.1 (PW-1) has clearly deposed

that before marriage she and the respondent were neighbours and

they loved each other and their wedding took place in Karrighatta

temple  near  Sri  Rangapattana  according  to  Hindu  rituals  on

18.07.1998 and that both the families were against their marriage.

PW-1 further stated that out of the wedlock, two children a girl and

a  boy  were  born  on  09.05.2001  and  18.07.2003  respectively.

PW-1  further  stated  that  the  respondent  was  working  as  a

Manager in Birla Sun Life Insurance Company and that he had

developed illicit  relationship with one Archana who was working

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with  him  and  thereafter,  the  respondent  gradually  started

harassing appellant No.1 and also neglected her children.  PW-1

further  stated  that  she  had  given  a  police  complaint  who  had

warned  the  respondent  and  asked  him  to  pay  Rs.3,000/-  per

month  to  the  appellants  and  thereafter,  they  shifted  from

Saraswasthipuram to Chamundipuram and took a house on rent.

PW-1 further stated that the respondent neglected to take care of

the appellants and the appellant No.1 not being able to maintain

herself and her children, filed a petition under Section 125 Cr.P.C.

claiming maintenance.

10. To prove the marriage and her claim, appellant No.1 marked

exhibits P1 to P20.  Exts.P1 to P3 are the photos of the appellants

and the respondent;  Exts.P7-P8 are the birth certificates of  the

appellants No.2 and 3 namely the daughter and son and Exts.P9

and P11 are the copies of the complaint given to the police; other

exhibits are the receipts acknowledging the maintenance amount

given by the respondent; and other documents.

11. Exts.P7-P8 are the birth certificates of the appellants No.2

and 3 – the daughter and son showing that out of the wedlock, a

girl  and  a  boy  were  born  on  09.05.2001  and  18.07.2003

respectively.   In  Exts.P7  and  P8,  father’s  name  is  stated  as

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“Mohan Kumar M.R.” and mother’s name is stated as “Kamala”.

The birth  certificates of  the children clearly  show that  appellant

No.1 and the respondent are the husband and wife and appellants

No.2 and 3 are their children.  The family court recorded a finding

of fact that the respondent has admitted that Exts.P1 to P3 are

their photos.  As rightly observed by the family court, Exts.P1 to P3

does not look like brother-sister relationship or simple neighbours

relationship  and  the  said  photos  lead  to  an  inference  that

respondent and appellant No.1 were living as husband and wife.

As pointed out earlier, appellant No.1 gave Ext.-P9-complaint and

the police settled the matter between the parties and asked the

respondent  to  pay  maintenance  of  Rs.3,000/-  per  month  to

appellant No.1.  Exts. P13 to P17 are the receipts showing that the

respondent has been paying money regularly to appellant No.1.

Unless the respondent was the husband of appellant No.1, why

should he pay the amount  to  appellant  No.1  every month.   As

rightly  observed  by  the  family  court,  there  is  no  merit  in  the

explanation  of  the  respondent  that  appellant  No.1  was  his

neighbour and therefore, he used to help her.  The evidence of

PW-1 coupled with the documents raise a strong presumption of a

valid marriage.

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12. Appellant  No.1  has  also  examined  K.R.  Narayan  Iyengar

(PW-2)  who  has  stated  that  he  was  working  as  Manager  in

Samruddhi Finance where appellant No.1 was also working with

him.   In  his  evidence,  PW-2 further  stated that  the respondent

used to drop and pick up appellant No.1 and that he used to talk to

respondent  whenever  he  had  time  and  have  coffee  with  him.

PW-2 further stated that the respondent and appellant No.1 were

living  happily  as  husband  and  wife  and  were  leading  a  happy

married life.   

13. House owner (PW-3) has also stated that appellant No.1 and

the respondent were living in his house on rent during 2005 and

they  took  the  house  on  rent  by  informing  him  that  they  were

husband and wife.  PW-3 further stated that appellant No.1 and

the respondent stayed till April, 2006 and that when they came to

his  house,  they  had  two  children  and  appellant  No.1  and

respondent were leading a happy married life.

14. Based  on  the  evidence  of  PW-1  and  the  number  of

documents  in  particular,  the  birth  certificates  of  the  children

(Exts.P7-P8)  and  the  photos  (Exts.P1  to  P3),  the  family  court

rightly held that appellant No.1 has proved valid marriage between

her and the respondent.  From the evidence of PW-2 and PW-3, it

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is  established  that  appellant  No.1  and  the  respondent  were

cohabitated as husband and wife and that the people around them

treated them as husband and wife and the family court rightly held

that appellant No.1 being a wife and appellants No.2 and 3 being

their children are entitled to claim maintenance under Section 125

Cr.P.C.

15. Unlike  matrimonial  proceedings  where  strict  proof  of

marriage  is  essential,  in  the  proceedings  under  Section  125

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 (1999) 7 SCC 675, this

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 IPC. The learned Judges explained the reason

for the aforesaid finding by holding that  an order passed in an

application under Section 125 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. The learned Judges held that maintenance cannot

be denied where there was some evidence on which conclusions

of  living  together  could  be  reached.”   When  the  parties  live

together as husband and wife, there is a presumption that they are

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legally  married  couple  for  claim  of  maintenance  of  wife  under

Section 125 Cr.P.C.   Applying the well-settled principles,  in  the

case  in  hand,  appellant  No.1  and  the  respondent  were  living

together  as  husband and  wife  and  also  begotten  two  children.

Appellant  No.1  being  the  wife  of  the  respondent,  she  and  the

children appellants No.2 and 3 would be entitled to maintenance

under Section 125 Cr.P.C.

16. It  is  fairly  well  settled  that  the  law  presumes  in  favour  of

marriage and against concubinage when a man and woman have

cohabited  continuously  for  a  number  of  years.  After  referring  to

various  judgments,  in Chanmuniya  v.  Virendra  Kumar  Singh

Kushwaha (2011) 1 SCC 141, this Court held as under:-

“11. Again,  in  Sastry Velaider  Aronegary v.  Sembecutty  Vaigalie (1881) 6 AC 364, it was held that where a 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. 12. In  India,  the  same  principles  have  been  followed  in Andrahennedige  Dinohamy v.  Wijetunge  Liyanapatabendige Balahamy AIR 1927 PC 185, in which the Privy Council laid down the general proposition that where a 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. 13. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan AIR 1929 PC 135 the Privy Council has laid down that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years. 14. In Gokal Chand v. Parvin Kumari AIR 1952 SC 231, this Court held that continuous cohabitation of man and woman as husband and  wife  may  raise  the  presumption  of  marriage,  but  the

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presumption  which  may  be  drawn  from  long  cohabitation  is rebuttable  and  if  there  are  circumstances  which  weaken  and destroy that presumption, the Court cannot ignore them. 15. Further, in  Badri Prasad v.  Director of Consolidation  (1978) 3 SCC 527, the Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long  spell  as  husband  and  wife.  Although  the  presumption  is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. 16. Again, in Tulsa v. Durghatiya (2008) 4 SCC 520, this Court held that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock.”

This Court in Chanmuniya case further held as under:-

“24. Thus, in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman  maintenance  if  he  deserts  her.  The  man  should  not  be allowed  to  benefit  from  the  legal  loopholes  by  enjoying  the advantages of a    de facto   marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution,  which  the  provision  of  maintenance in Section 125 is meant to prevent.” [underlining added]

17. Chanmuniya case  referred to divergence of judicial opinion

on the interpretation of the word “wife” in Section 125 Cr.P.C.  In

paras (28) and (29) of  Chanmuniya case,  this Court  referred to

other judgments which struck a difficult note as under:-

“28. However,  striking  a  different  note,  in  Yamunabai  Anantrao Adhav v. Anantrao Shivram Adhav (1988) 1 SCC 530, a two-Judge Bench  of  this  Court  held  that  an  attempt  to  exclude  altogether personal  law of  the parties in proceedings under  Section 125 is improper (see para 6). The learned Judges also held (paras 4 and 8) that the expression “wife” in Section 125 of the Code should be interpreted to mean only a legally wedded wife.

29. Again,  in  a  subsequent  decision  of  this  Court  in  Savitaben Somabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636, this Court held that however desirable it may be to take note of plight of an unfortunate  woman,  who  unwittingly  enters  into  wedlock  with  a married man, there is no scope to include a woman not lawfully married within the expression of “wife”.  The Bench held that this

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inadequacy in law can be amended only by the legislature. While coming to the aforesaid finding, the learned Judges relied on the decision in Yamunabai case (1988) 1 SCC 530.”

18. After  referring  to  the  divergence  of  judicial  opinion  on  the

interpretation of the word “wife” in Section 125 Cr.P.C., speaking for

the Bench A.K. Ganguly J. held that the Bench is inclined to take a

broad view of the definition of “wife”,  having regard to the social

object of Section 125 Cr.P.C.

19. In  Chanmuniya case,  this Court formulated three questions

and  referred  the  matter  to  the  larger  Bench.  However,  after

discussing various provisions of the Criminal Procedure Code, this

Court held that a broad and extensive interpretation should be given

to the term “wife” under Section 125 Cr.P.C. and held as under:-

“42. 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 precondition  for  maintenance under Section 125 CrPC, 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.”

20. On the basis of the evidence of appellant No.1 (PW-1), birth

certificates of appellant Nos.2 and 3 (Exts. P7-P8 dated 25.05.2001

and  06.08.2003),  other  documentary  evidence,  oral  evidence  of

PW-2 who was co-worker of appellant No.1 and PW-3-landlord, the

family court held that appellant No.1 and the respondent were living

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together  as  husband  and  wife  and  there  is  sufficient  proof  of

marriage.  The family court  rightly  drew the presumption of  valid

marriage between appellant No.1 and the respondent and that they

are  legally  married  couple  for  claiming  maintenance by  the  wife

under  Section  125  Cr.P.C.  which  is  summary  in  nature.  The

evidence of PW-1 coupled with the birth certificates of appellants

No.2  and  3  and  other  evidences  clearly  establish  the  factum of

marriage.   

21. Based upon oral and documentary evidence, when the family

court held that there was a valid marriage, the High Court being the

revisional  court  has  no  power  reassessing  the  evidence  and

substitute its views on findings of fact.  The High Court did not keep

in  view that  in  the proceedings under  Section 125 Cr.P.C.,  strict

proof  of marriage is not necessary.  The findings recorded by the

family court  as to the existence of a valid marriage ought not  to

have been interfered with by the High Court.  

22. In  the  result,  the  impugned judgment  of  the  High  Court  in

R.P.F.C.  No.103  of  2008  and  R.P.F.C.  No.21  of  2009  dated

16.06.2009  is  set  aside  and  these  appeals  are  allowed.   The

respondent  shall  pay  arrears  of  maintenance as  directed  by  the

family court, Mysore to the appellants within a period of two months.

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Additionally,  the  respondent  shall  also  continue  to  pay  the

maintenance to the appellants as directed by the family court on or

before 10th of every English calendar month.  The appellants are

also  at  liberty  to  move  the  family  court  for  enhancement  of  the

maintenance.   

…………….……………J.  [R. BANUMATHI]

…………….……………J.      [INDIRA BANERJEE]

New Delhi; October 24, 2018

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