Chattisgarh High Court
Dr. Jitendra Tamrakar vs Smt. Apurwa Tamrakar on 2 July, 2024
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved for Order on : 26.04.2024
Order Passed on : 02/07/2024
CR.R. No. 1319 of 2023
Dr. Jitendra Tamrakar, S/o. Bhagwat Tamrakar, aged about 37
years, R/o. Ward No. 13, Tamer Para, Dhamdha, Tahsil Dhamdha,
District- Durg (C.G.)
---- Applicant
Versus
Smt. Apurwa Tamrakar, W/o. Dr. Jitendra Tamrakar, aged about 21
years, R/o. C/o. Murali Manohar Mishra, Sai Nagar, Village-
Chandkhuri, Tahsil and District- Durg (C.G.)
---- Respondent
For Applicant : Ms. Priyanka Rai, Advocate
For Respondent : Mr. Amiyakant Tiwari, Advocate
Hon'ble Shri Justice Parth Prateem Sahu
C A V ORDER
1. This criminal revision under Section 19 (4) of the Family
Courts Act, 1984 is filed challenging the order dated
21.09.2023, passed in Miscellaneous Criminal Case No. 510
of 2021, whereby the learned 3rd Additional Principal Judge,
Family Court, Durg, District - Durg allowed the application
filed by respondent-wife under Section 125 of Cr.P.C.,
awarded Rs.8,000/- per month to the respondent-wife as
maintenance.
2. The relevant facts for disposal of this revision petition are that
the respondent-wife filed an application under Section 125 of
the Criminal Procedure Code seeking maintenance. It was
pleaded that she was married to applicant-husband on
23.02.2018, according to Hindu rituals at Arya Samaj Mandir,
Baidyanathpara, Raipur. After marriage, they resided in
Tamerpara, Dhamdha, Tahsil and District - Durg. After
sometime of marriage, applicant-husband and his family
members started harassing respondent-wife for dowry. Out of
wedlock of applicant and respondent, one son Dakshesh was
born. Applicant-husband had previously divorced his first wife
and she is his second wife. It was pleaded that on 26.11.2019,
the non-applicant-husband severely assaulted her, causing
injuries in her mouth. A complaint was filed at Mahila Police
Station, Durg, on November 28, 2019. The non-applicant-
husband initially promised to take care of applicant-wife and
their child but later reverted to previous behavior. It was
further pleaded that on 16.10.2020, non-applicant-husband
and his family committed marpit for demand of dowry, took
away their one and half year old child and left her. Parents of
applicant-wife requested for fair treatment, but the family of
applicant-husband remained uncooperative. Respondent-wife
made another complaint about ill-treatment and assault by
applicant-husband and his family on 17.10.2020. In response,
counseling proceedings were initiated. However, applicant-
husband did not participate in the counseling and instead
threatened respondent-wife to withdraw her complaint.
3. It was further pleaded that in December 2020, non-applicant-
husband started pressurizing her to withdraw complaint of
dowry harassment and assault with an assurance to give her
son Dakshesh back and they will live happy married life.
Applicant-wife due to pressure and believing the false
assurance given, submitted an affidavit before the Mahila
Thana. Despite this, the non-applicant-husband failed to fulfill
promises, threatened her and eventually expelled her from
their home and since then she is residing in her maternal
home.
4. It was further pleaded that applicant-wife is having no source
of income and is unable to maintain herself, she is totally
dependent on her parents. However, non-applicant-husband
is a Government Doctor posted at Bheemrao Amedkar
Memorial Hospital, Raipur and is getting Rs.1,00,000/-
monthly salary. He also owns house and agricultural land
generating annual income of Rs 5,00,000 - Rs.7,00,000/-.
She prayed for grant of Rs.25,000/- per month as
maintenance.
5. Application filed under Section 125 of the Criminal Procedure
Code was replied by non-applicant-husband, who denied the
allegations made therein. He denied the marriage with
applicant. It was pleaded that marriage certificate of Arya
Samaj Mandir, Baijnath Para, Raipur, is forged and fabricated.
The applicant got the said marriage certificate prepared in
fraudulent manner in order to extort money from non-
applicant. It was further pleaded that applicant and her family
members made false and concocted complaint against him
and his family members.
6. Learned Family Court after evaluating the pleadings and
evidence brought on record by both the parties, allowed the
application filed under Section 125 of Cr.P.C. for grant of
maintenance and awarded Rs.8,000/- per month from date of
order.
7. Learned counsel for applicant-husband submits that order
passed by the learned Family Court is erroneous and bad in
law. It is contended that respondent is not legally wedded wife
of applicant. The marriage certificate filed by respondent of
Arya Samaj Mandir, Baijnath Para, Raipur, is forged and
fabricated. Respondent fraudulently obtained the marriage
certificate to extort money from applicant-husband. The
respondent wife and her family members have made false and
concocted complaint against applicant-husband and his
family. It is contended that learned Family Court committed
grave illegality in passing the order directing applicant to pay
an amount of Rs.8,000/- per month to respondent as
maintenance accepting the version of respondent as Gospel's
truth, overlooking the submission made by applicant. It is
contended that learned Family Court has passed the
impugned order on the premise that a child is born out of the
relationship of the applicant and respondent and has wrongly
come to the conclusion that they are married couple. She
relied on the judgment of Hon'ble Supreme Court in case of D.
Velusamy Vs. D. Patchaiammal, reported in (2010) 10 SCC
469.
8. Learned counsel for respondent-wife submits that learned
Family Court has not committed any error in passing the
impugned order. It is contended that applicant performed love
marriage with respondent at Arya Samaj Mandir Baijnathpara,
Raipur according to Hindu customs and out of their wedlock
one son is born. In support of his contention, he referred to the
marriage certificate (Ex.P-1) issued by the Arya Samaj
Mandir, Baijnathpara, Raipur placed on record. It is contended
that applicant-husband and his family members subjected
respondent to ill treatment and harassment for bringing
inadequate dowry. It is contended that learned Family Court
has rightly come to the conclusion that respondent is legally
wedded wife of applicant and she is having sufficient reason
to reside separately. The impugned order passed by the
learned Family Court is well merited, which does not call for
any interference.
9. I have heard learned counsel for parties and perused the
documents placed on record.
10. The main question which arises for consideration in this
revision petition is whether respondent is legally wedded wife
of applicant or not and whether she is residing separately for
sufficient cause and entitled for maintenance under Section
125 of Cr.P.C.?
11. Respondent-wife (A.W.-1) in her examination-in-chief stated
as per the facts pleaded in her application. It has come in her
evidence that she was married to applicant on 23.02.2018 at
Arya Samaj Mandir, Baijnathpara, Raipur according to Hindu
customs. She is the second wife of applicant, applicant-
husband has divorced his first wife. Soon after the marriage,
the applicant-husband and his family members started
harassing respondent-wife for dowry. Despite the birth of son,
Dakesh, applicant-husband subjected her to severe assault on
26.11.2019, leading to filing of a police complaint. It has also
come in her evidence that on 16.10.2020 on instigation of his
parents, applicant beat her badly for dowry, snatched her one
and half year old child and drive her out of the house. She
made another complaint about ill-treatment and assault by the
applicant-husband and his family on 17.10.2020. In the
counselling proceeding, applicant-husband did not participate
and threatened her to withdraw her complaint. Due to false
assurance and threat extended by applicant-husband and
believing on the false assurance given, she submitted an
affidavit before the Mahila Thana in order to save her son and
married life. Despite this, the applicant-husband failed to fulfill
promises, threatened her and eventually expelled her from
their home and since then she is residing separately in her
maternal home. It has also come in her evidence that she is
pursuing her studies, having no source of income and is
dependent upon her parents. Applicant is a Government
Doctor getting monthly salary of Rs.1,00,000/- and also owns
house and agriculture land generating annual income of Rs
5,00,000 - Rs.7,00,000/-. Statement of (A.W.-1) is supported
by her mother Smt. Kalyani Mishra (A.W.-2).
12. In order to substantiate her claim, respondent-wife has
produced the marriage certificate (Ex.P-1) issued by Arya
Samaj Mandir, Baijnathpara, Raipur. She has also placed on
record copies of various complaint (Ex.P-2 to Ex.P-7) made to
the Superintendent of Police and S.H.O., Mahila Thana, Bhilai
time to time against applicant and his family members
regarding their ill treatment and harassment given to her. She
has also placed on record certified copy of application (Ex.P-
9) filed by applicant-husband before the Family Court for
restitution of conjugal rights in which, applicant-husband
admitted that he has performed love marriage with
respondent-wife at Arya Samaj Mandir Raipur on 23.02.2018
and out of their wedlock, one son Dakshesh is born on
12.01.2019. This witness has denied the adverse suggestion
given in defence and nothing adverse has come in her cross-
examination to disbelieve her testimony.
13. Applicant-husband Jitendra Tamrakar examined himself as
(NAW-1). It has come in his evidence that while he was
posted as Doctor at Mekahara Hospital, Raipur in the year
2018, love relationship was established between him and
respondent and they were in live-in-relationship for sometime.
He never married to respondent at Arya Samaj Mandir and the
marriage certificate (Ex.P-1) produced by respondent is forged
and fabricated document. Respondent is not his legally
wedded wife and she is a doctor by profession serving as
such at Mittal Hospital, Bhilai and is getting monthly salary.
During cross-examination, he admitted that Dakshesh
Tamrakar is his son and respondent - Apurva Tamrakar is
mother of Dakshesh Tamrakar, however, he denied the
factum of marriage with respondent. He also denied to have
performed love marriage with respondent at Arya Samaj
Mandir on 23.02.2018. He also showed ignorance about the
complaints made against him by respondent. He does not
remember whether he has filed any application under Section
9 of Hindu Marriage Act, 1955 before the Family Court. He
admitted that he has not filed any document regarding salary
received by respondent from Mittal Hospital, Bhilai.
14. Applicant-husband has also examined Dr. Ku. Sunanda
Dhenge as (N.A.W.-2) to prove the photographs and video of
respondent regarding her employment as doctor in Mittal
Hospital, Bhilai and income whereas respondent-wife has
stated that she is pursing her studies and is an intern there.
However, there is no conclusive evidence to support the stand
of applicant - husband. The applicant himself acknowledges
the lack of documentation from the hospital. Without further
proof, it remains uncertain whether the respondent-wife can
sustain herself financially.
15. Hon'ble Supreme Court in case of Chanmuniya v. Virendra
Kumar Singh Kushwaha & Another, reported in (2011) 1
SCC 141 has observed 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
pre-condition for maintenance under Section 125 of
the Cr.P.C, 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.
16. This principle has also been reiterated in subsequent decision
of the Supreme Court such as Kamala and others v. M.R.
Mohan Kumar, reported in (2019) 11 SCC 491 that when a
man and a woman cohabit continuously for years, a
presumption arises in favour of marriage for a claim of
maintenance of wife under Section 125 of the Cr.P.C.
17. Thus, as per dictum given by Hon'ble Supreme Court, Section
125 is a tool for social justice enacted to ensure that women
and children are protected from a life of potential vagrancy
and destitution, therefore, while adjudicating matters
pertaining to this statutory provision, it must be borne in mind
that the same was enumerated to further the cause of social
justice and that the interpretation of this Section should be
done in a manner to prevent a situation wherein the wife and
children are inadvertently nudged into vagrancy and
destitution. Therefore, to achieve the social object of the
provision, a broad interpretation is to be given to the term
"wife" and that a strict proof of marriage for the purpose of
granting maintenance under Section 125 Cr.P.C. is not
required.
18. The contradiction in the interpretation of the term "wife" was
consequently addressed in Chanmuniya v. Virender Kumar
Singh Kushwaha (supra). In this case, the Supreme Court,
while giving an expansive interpretation to the term "wife", also
considered the interpretation given to "domestic relationship"
under Section 2(f) of the Protection of Women from Domestic
Violence Act, 2005 (hereinafter, "DV Act"). It noted that this
interpretation had taken such a relationship outside the
confines of a marital relationship so as to include live-in
relationships, and therefore, reliefs available under the DV Act
had also become applicable to women in such relationships.
In this vein, the Supreme Court stated that such broad
interpretations, as done in the DV Act, had to be considered
with respect to Section 125 Cr.P.C. Accordingly, it referred to
a larger Bench for deciding three questions, which are yet to
be decided by the Supreme Court. But extensive interpretation
given to the term "wife" has also been followed in subsequent
decision of the Supreme Court in the matter of Kamala and
others v. M.R. Mohan Kumar (supra).
19. The principles as laid down in case of Chanmuniya (supra)
has also been reiterated by the Hon'ble Supreme Court in its
recent decision in case of Rajnesh Vs. Neha & Ors., reported
in (2021) 2 SCC 324 and observed in para 40 as under :-
"40. The law presumes in favour of marriage, and
against concubinage, when a man and woman
cohabit continuously for a number of years. Unlike
matrimonial proceedings where strict proof of
marriage is essential, in proceedings under
Section 125 CrPC such strict standard of proof is
not necessary."
20. Reverting back to the case at hand, respondent-wife has
specifically stated that applicant-husband has performed love
marriage with her at Arya Samaj Mandir and out of their
wedlock, one son Dakshesh is born. The performance of
marriage is also proved by respondent-wife by filing marriage
certificate Ex.P-1. Version of the respondent wife regarding
marriage gets corroboration from the documents Ex.P-9,
which is an application filed on behalf of applicant-husband
under Section 9 of the Hindu Marriage Act for restitution of
conjugal rights. In this application for restitution of conjugal
rights, the applicant herein has pleaded in categorical terms
that marriage between the applicant and respondent was
performed on 23.2.2018 at Arya Samaj Temple, Raipur and
from their wedlock, a male child was born on 12.01.2019. If
the respondent is not the legally wedded wife of the applicant-
husband, then why he had filed the application for restitution
of conjugal rights. In such a situation, there is no reason to
disbelieve the statement of respondent-wife that she is
married wife of applicant herein.
21. As far as second question 'whether the respondent has
sufficient cause to live separately is concerned, respondent
wife has stated in her evidence that the applicant and his
family members ill treated her for bringing inadequate dowry in
marriage, they beat her and also expelled her from
matrimonial house. This evidence of respondent remained
intact even after cross-examination, therefore, there is no
reason to disbelieve the statement of respondent-wife that the
applicant and his family members have harassed her mentally
and tortured physically for bringing inadequate dowry in
marriage and finally ousted her from matrimonial house,
hence, she started living in her parental house. Thus, in the
considered opinion of this Court, the respondent has sufficient
cause to live separately.
22. As far as the quantum of maintenance amount is concerned,
respondent has deposed in her statement that she is not able
to maintain herself. She also denied suggestion put by the
applicant in her cross-examination that she is working in Mittal
Hospital, Bhilai and earning monthly income. She has stated
that she is not a doctor because her course is yet not
completed. In rebuttal of respondent's statement, applicant
has not produced any documentary evidence showing that
respondent is able to maintain herself. Applicant has admitted
that he is a doctor by profession and getting monthly salary. In
these circumstances learned family Court has not committed
any mistake in arriving at the conclusion that respondent wife
is entitled to get maintenance from the applicant-husband to
the tune of Rs.8,000/- per month.
23. In view of the above law laid down by the Hon'ble Supreme
Court, discussion made here-in-above, the evidence and the
documents brought on record, I am of the view that the
learned Family Court has rightly came to the conclusion that
applicant and respondent developed love relation, lived in live-
in-relationship and performed love marriage at Arya Samaj
Mandir and respondent-wife is having sufficient cause to live
separately and is unable to maintain herself. The said finding
of the learned Family Court does not call for interference.
24. For the forgoing discussion, I do not find any good ground to
interfere with the finding recorded by the Family Court.
Accordingly, revision petition is liable to be and it is
accordingly dismissed.
Sd/-
(Parth Prateem Sahu)
Judge
Balram
