Chattisgarh High Court

Ashok Shrivastava vs Anju Samudri Shrivastava on 12 October, 2022

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                                                              Cr.Rev. No. 755 of 2021


                                                                             NAFR
                HIGH COURT OF CHHATTISGARH, BILASPUR
                        Criminal Revision No. 755 of 2021
                            Order reserved on : 26/08/2022
                            Order delivered on : 12/10/2022

   Ashok Shrivastava, S/o Kanhiya Lal Shrivastava, aged about 56 years,
    Occupation Service in N.T.P.C. Vigilance Officer, R/o Rihant Bijapur, P.S.
    Baidhan, Tehsil Baidhan, District, Sonbhadra, Uttarpradesh
                                                                ---- Applicant

                                    Versus

   Anju Samudri Shrivastava, W/o Ashok Shrivastava, aged about 40 years,
    R/o Mission Chowk, P.S. and Tahsil- Ambikapur, Chhattisgarh
                                                            ---- Non-Applicant

For Applicant           :      Mr. B.P. Singh and Mr. Vidya Bhushan Soni,
                               Advocates
For Non-applicant       :      Mr. Vivek Bhakta, Advocate

                Hon'ble Shri Justice Rakesh Mohan Pandey
                               C.A.V. Order


1.

The applicant/husband has filed this instant criminal revision under Section

19 (4) of the Family Courts Act against the order dated 08.10.2021 passed

by the learned Judge, Family Court, Ambikapur, District Surguja (C.G.) in

Misc. Criminal Case No. 102/2018, whereby application moved by the non-

applicant/wife under Section 125 of Cr.P.C. has been partly allowed and the

applicant herein has been directed to pay Rs.10,000/- per month as

maintenance to the non-applicant/wife.

2. As per averments in the application filed under Section 125 of Cr.P.C. by the

non-applicant/wife, the marriage between her and the applicant was

solemnized on 18.07.2015 as per their prevailing rites and rituals. After

marriage, they lived for sometime, however, soon after she was physically

and mentally tortured by the applicant/husband. She would be confined in

close room without food for days. The applicant/husband had illicit relations

with another lady, therefore, he did not reside with her and consequently on

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19.04.2018, she was deserted by applicant/husband and forced to take

shelter in her parental house. She further pleaded that the applicant is

posted as Vigilance Officer in NTPC and getting salary of Rs.60,000/- per

month, whereas she has no means of income. Thus, she claimed

Rs.25,000/- per month as maintenance from the applicant/husband.

3. The applicant/husband filed reply to the application filed under Section 125

of Cr.P.C. and denied its contents. He specifically stated that non-

applicant/wife is not his legally wedded wife and no marriage between them

has been solemnized and they have never resided together as husband and

wife, therefore, the question of ill-treatment does not arise. He further stated

that the non-applicant was married to one Basant Samundre and a suit for

dissolution of their marriage was pending before the same Court as Civil Suit

No. 109A/2014 parties being Anju Samudri vs. Bansat Samundre. The

learned Family Court framed three issues and after considering evidence

available on record, partly allowed the application filed by non-applicant/wife

and directed the applicant/husband to pay Rs.10,000/- per month as

maintenance from the date of order.

4. Learned counsel for the applicant would submit that the order impugned is

erroneous, bad-in-law and contrary to settle provisions of law. He would

further submit that the non-applicant is legally wedded wife of Basant

Samundre and marriage between them has not been dissolved yet, and

therefore, she is not entitled for any maintenance. In order to buttress his

arguments, he would rely on the judgments of Hon'ble Supreme Court

rendered in the case of Lalita Toppo vs. State of Jharkhand and Another,

(2019) 13 SCC 796; Mahendra Nath Yadav vs. Sheela Devi, (2010) 9 SCC

484; Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav and

Another, (1988) 1 SCC 530, judgment of Madhya Pradesh High Court in

case of Trilok Singh vs. Smt. Jyoti, 2016 SCC OnLine MP 11697 and

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judgment of Allahabad High Court in case of Smt. Kiran Dhar vs. Alok

Berman, 2014 SCC OnLine All 15005.

5. On the other hand, learned counsel for the non-applicant would vehemently

oppose the arguments advanced by learned counsel for the applicant. He

supports the order passed by the learned Family Court and has placed

reliance upon the orders of this Court in case of Smt. Motim Bai Borkar vs.

Arjun Singh Borkar, 2017 (2) C.G.L.J. 330 and Smt. Teras Dongare vs.

Avinash Dongare passed in CRR No. 346 of 2019, decided on

10.02.2021 and order passed by the Hon'ble Supreme Court in case of Smt.

Jyoti and Another vs. Trilok Singh Chouhan, Criminal Appeal Nos. 461-

462 of 2020 [Arising out of SLP(Crl) Nos 2861-2862/2020 @ SLP (Crl) D.

8502/2019].

6. I have heard learned counsel for the parties at length and perused the

record.

7. First and foremost question which is to be answered is whether the non-

applicant is the legally wedded wife of the applicant.

8. Non-applicant Anju Samundri examined herself as AW-1 and in her

testimony she has stated that marriage between her and the applicant was

solemnized 18.07.2015 at Mahamaya Temple, Ambikapur in presence of her

family members and few persons from the applicant side. Document Ex.-P/1

is marriage-certificate issued by Purohit who performed the marriage and

Ex.-P/2 is joint photograph of the parties. Non-applicant/wife examined AW-2

Markandey Dubey, priest, who performed marriage between the parties.

Mother of non-applicant AW-3 Gangi Devi has supported the case of non-

applicant and the factum of marriage between the parties.

9. Applicant/husband examined himself as NAW-1 where he has stated that he

was married to Smt. Rita Shrivastava in the year 1982 and she died on

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10.03.2015. He has three children, elder one is Preeti Shrivastava, aged 37

years; second one is Dr. Nishant Shrivastava, aged 36 years and third one

is Priyanka Shrivastava, aged 33 years. He further deposed that non-

applicant- Anju Samudri is not his wife and she was married to one Basant

Samundre and application for dissolution of their marriage is Ex.-D/1,

affidavit filed by the non-applicant/wife is Ex.-D/2 and the complete order-

sheet of proceedings of marriage of dissolution is Ex.-D/3. In cross-

examination, applicant/husband has denied the suggestions given by the

non-applicant/wife. NAW-2 Santoshi Singh Kanwar has stated that she does

not know Anju Samudri, but she knows Rita Shrivastava who died in the

month of March, 2015 and there are three children from their wedlock. In

cross-examination, suggestions given by the non-applicant/wife have been

denied.

10. Learned Family Court while dealing with the issue No.1 whether non-

applicant/wife is wife of Ashok Shrivastava has come to conclusion that

marriage-certificate issued by priest; the receipts of Hotel Grand Basant Ex.-

P/20 & Ex.P/21, receipts of Hotel Samdariya and Hotel Roopali Ex.-P/18 &

Ex.-P/19 issued in favour of applicant/husband and jewellery purchased from

Samdariya Jewellery Shop vide Ex.-P/14 & Ex.-P/15, proved that parties

resided as husband and wife for sometime. The non-applicant further

produced bank statements Ex.-P/22, which proved that the certain amount

was transferred by the applicant/husband in the bank account of non-

applicant Anju Samudri and same has been admitted by the

applicant/husband. Non-applicant/wife has also stated that according to

custom prevalent in their caste, she has taken divorce from her husband

Basant Samundre and after death of first wife of Ashok Shrivastava, they

performed the marriage. It is further stated by the non-applicant/wife that

they stayed in Singrouli, Rihand, Jabalpur and Ambikapur. Learned Family

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Court on the basis of these facts held that Anju Samudri is wife of the

present applicant.

11. In case of Yamunabai Anantrao Adhav (supra), it was held that Hindu

women married after coming into force of Hindu Marriage Act, 1955 in

accordance with Hindu rites with a Hindu male having a wife living, held, not

entitled to maintenance under Section 125 as such marriage is void ipso jure

under Section 11 of the Act. It has been observed in paras - 4, 5 & 6 is

reproduced herein:-

4. The question, then arises as to whether the expression 'wife' used in Section 125 of the Code should be interpreted to mean only a legally wedded wife not covered by Section 11 of the Act. The word is not defined in the Code except indicating in the Explanation its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must, therefore, be given the meaning in which it is understood in law applicable to the parties, subject to the Explanation (b), which is not relevant in the present context.

5. It has been contended on behalf of the appellant that the term 'wife' in Section 125 of the Code should be given a wider and extended meaning so as to include therein not only a lawfully wedded wife but also a woman married in fact by performance of necessary rites or following the procedure laid down under the law. Relying upon the decision of this Court in Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556, it was argued that the personal law of the parties to a proceeding under Section 125 of the Code should be completely excluded from consideration. The relationship of husband and wife comes to an end on divorce, but a divorcee has been held to be entitled to the benefits of the section, it was urged, and therefore applying this approach a woman in the same position as the present appellant should be brought within the sweep of the section. We are afraid,

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the argument is not well lounded. A divorcee is included within the section on account of clause (b) of the Explanation. The position under the corresponding Section 488 of the Code of 1898 was different. A divorcee could not avail of the summary remedy. The wife's right to maintenance depended upon the continuance of her married status. It was pointed out in Shah Bano case (supra) that since that right could be defeated by the husband by divorcing her unilaterally under the Muslim Personal Law or by obtaining a decree of divorce under any other system of law, it was considered desirable to remove the hardship by extending the benefit of the provisions of the section to a divorced woman so long as she did not remarry, and that was achieved by including clause (b) of the Explanation. Unfortunately for the appellant no corresponding provision was brought in so as to apply to her. The legislature decided to bestow the benefit of the section even on an illegitimate child by express words but none are found to apply to a de facto wife where the marriage is void ab initio.

6. The attempt to exclude altogether the personal law applicable to the parties from consideration also has to be repelled. The section has been enacted in the interest of a wife, and one who intends to take benefit under sub-section (1) (a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes her status on relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. The issue whether the section is attracted or not cannot be answered except by the reference to the appropriate law governing the parties. In our view the judgment in Shah Bano case does not help the appellant. It may be observed that for the purpose of extending the benefit of the section to a divorced woman and

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an illegitimate child the Parliament considered it necessary to include in the section specific provisions to that effect, but has not done so with respect to women not lawfully married.

After going through the judgment passed in case of Yamunabai

Anantrao Adhav (supra), it appears that under Section 125 of Cr.P.C., the

term 'wife' should be given a wider and extended meaning so as to include

therein not only a lawfully wedded wife but also a woman married in fact by

performance of necessary rites or following the procedure laid down under

the law and the husband is under obligation to prove that the wife was

married to some other person.

12. In case of Mahendra Nath Yadav (supra), the Hon'ble Supreme in para-7

has held as under:-

7. The High Court has rightly held that dissolution of marriage through Panchayat as per custom prevailing in that area and in that community permitted cannot be a ground for granting divorce under Section 13 of the 1955 Act. We fully agree with the said decision for the reason that in case the appellant wanted a decree on the basis of customary dissolution of marriage through Panchayat held on 7-6-1997, he would not have filed a petition under Section 13 of the 1955 Act. Filing this petition itself means that none of the parties was of the view that the divorce granted by the Panchayat was legal. In view of the above, we do not see any reason to interfere with the well-reasoned judgment of the High Court.

If a spouse craves for grant of a decree of dissolution of marriage,

he/she would not have filed a petition under Section 13 of the Hindu

Marriage Act and filing petition itself means that none of the parties was of

the view that divorce granted by the Panchayat was legal.

13. In the case in hand, the applicant herein has stated that a suit was filed by

the non-applicant/wife for dissolution of marriage and on the other hand,

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non-applicant/wife has taken stand that the marriage between her and

Basant Samundre was dissolved in a Panchayat.

14. In case of Sukanya vs. Balak Ram, decided on 14.02.2014 by High Court of

Chhattisgarh in Criminal Revision No. 60/2012, wherein it was held that a

woman entering into live-in-relationship would not be entitled for any relief

available under the law. Likewise in case of Smt. Bhagwati Sahu vs. Shiv

Kumar Sahu FAM No. 29 of 2013 decided on 11.04.2018, it was held by the

Division Bench of this Court that a Hindu person who wants to rely upon a

custom which protects divorce, must plead and prove that such custom is in

existence in his community, it is ancient, certain, reasonable and is not

opposed to public policy.

After going through the judgment passed in Smt. Bhagwati Sahu

(supra), it appears that the non-applicant/wife neither pleaded the custom

nor proved it.

15. In case of Trilok Singh (supra), in para-16, it was held as under:-

16. As the respondent is already married to one Mukesh Panjare and it is not established that her marriage with him has lawfully to come an end, therefore, her stay with the petitioner, though for a period of four years, cannot give rise to a relationship in the nature of 'live-in-relationship' because requisite conditions in that behalf are not fulfilled.

16. In case of Lalita Toppo (supra), in para-3, it was held that under the

provisions of the DV Act, 2005 the victim i.e. estranged wife or live-in partner

would be entitled to more relief than what is contemplated under Section 125

of the Code of Criminal Procedure, 1973, namely, to a shared household

also.

17. In case of Smit. Jyoti (supra), wherein it was held that where the parties

have cohabited together for certain period, the wife would be entitled to get

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maintenance under Section 125 of Cr.P.C. In case of Smt. Teras Dongare

(supra), by relying upon Smt. Motim Bai Borkar (supra), it was held that the

divorce was not strictly in accordance with law. Even so when the second

husband married the petitioner knowing fully well that her earlier marriage