Bhuvaneshwari vs L Pratheep
2021 Latest Caselaw 1484 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 29TH DAY OF JANUARY, 2021

                           BEFORE

  THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

                   R.P.F.C. No. 84 OF 2018

BETWEEN:

Bhuvaneshwari,
S/o.L. Pratheep,
37 years,
R/at. No.3, 13th Block,
Mahadevapura,
Mysuru-570 008.                                  ...Petitioner

(By Sri. Gowthamdev C. Ullal, Advocate)

AND:

L. Pratheep,
S/o. Lingannachari,
38 years, R/at. No.84,
Yalanduru, Yalanduru Taluk,
Chamarajnagar District,
Office Address:
Driver/Conductor, Badge No.2162,
HD Kote Depot,
Mysuru District - 571 114.
                                               ...Respondent
(By Sri. G.B. Sharath Gowda, Advocate)

      This RPFC filed under Section 19(4) of the Family Courts
Act, 1984 against the order dated 05.04.2018 passed in C.
Misc. No.595/2015 on the file of the I Additional Principal
Judge, Family Court, Mysuru, dismissing the petition filed under
Section 125 of Cr.P.C., for maintenance.
                                                    RPFC No.84/2018
                                 2


      This R.P.F.C. coming on for Final Hearing through Video
Conferencing/Physical Hearing this day, the Court passed the
following:

                            ORDER

The present petitioner was the petitioner in C. Misc.

No.595/2015 before the learned Family Court at Mysore

(hereinafter for brevity, referred to as "Family Court"), which

she has instituted against the present respondent under Section

125 of Code of Criminal Procedure, 1973 (hereinafter for brevity

referred to as "Cr.P.C.") claiming maintenance @`10,000/- p.m.

payable by the respondent to her.

2. The summary of the case of the present petitioner in

the family Court was that, she married the respondent on

21.06.2007 as per Hindu customs at Harihara Ukkadathi Temple

and she lived with him happily for seven years in Mysuru. The

husband of the petitioner was working as a driver-cum-

conductor in H.D. Kote KSRTC Depot. The parents of the

respondent were opposing their alleged marriage since they

were belonging to a different caste. The respondent started

abusing her physically and mentally demanding dowry at the

instance of his family members. In one such circumstance, on

30.05.2015 the respondent had assaulted the petitioner RPFC No.84/2018

physically in which regard, she filed a complaint before the

Saraguru Police Station against the respondent. She has

further averred that the respondent has now totally neglected

her and he has prepared to marry another woman, as such she

is entitled for maintenance.

The respondent appeared in the Family Court and

contested the matter by filing statement of objections, where

he has specifically denied the alleged marital relationship with

the petitioner. He denied that the petitioner was his wife.

However, he admitted that she had filed a complaint in

Saraguru Police Station, which according to him is a false

complaint only to harass him. He admitted that he was working

as a driver-cum-conductor in H.D. Kote KSRTC Depot from

2007 to 2015. He stated that the petitioner was a regular

passenger from Mysuru to H.D.Kote in his bus and she was also

running a Chit Fund business and he was a member in the said

Chit Fund Scheme. Thus, they were introduced to each other.

He further alleged that, due to maturity of the chit, in which he

was a member, the petitioner was owing him a sum of `50,000/-.

He demanded the said amount. But, she filed a false case against

him. He also contended that the petitioner belongs to a RPFC No.84/2018

different caste. She was already married to one Sri. Shivanna

@ Shivaiah and she has got two children from him. He further

stated that, he too has married to one Ms. Shruthi @ Putti and

he is leading his marital life with her.

The family Court after recording the evidence led before it

and hearing both sides, by its impugned order dated

05.04.2018 dismissed the petition filed by the present

petitioner. Aggrieved by the same, the petitioner has come up

before this Court through this petition.

3. The respondent is being represented by his learned

counsel.

4. The Family Court's records were called for and the

same are placed before this Court.

5. Heard the arguments from both side.

6. Learned counsel for the petitioner appearing

through video conference submitted that, even if it is taken that

the present petitioner could not able to prove the marital

relationship, but there is a long live-in-relationship between the

petitioner and respondent, and the said long live-in-relationship

would entitle the present petitioner for maintenance by RPFC No.84/2018

considering her as the wife of the respondent. In support of his

submission, he relied upon a judgment of the Hon'ble Supreme

Court in the case of Chanmuniya Vs. Virendra Kumar Singh

Kushwaha and Another reported in (2011) 1 SCC 141.

7. Per contra, the learned counsel for the respondent

in his brief argument submitted that the petitioner has totally

failed to prove that she is either the wife of the respondent or

had any live-in-relationship with him. On the other hand, the

respondent could able to demonstrate before the Family Court

that, she had similar photograph taken with various male

persons, as such, mere photographs-Ex.P1 and Ex.P2 would

not make them as husband and wife. He further submitted that

the Family Court after appreciating the petitioner's evidence,

has properly come to a conclusion holding that the petitioner is

not entitled for maintenance since she is unable to prove that,

she was the wife of the respondent.

8. The Family Court based on the pleadings of the

parties therein, has framed the following points for

consideration:-

RPFC No.84/2018

i) Whether the petitioner proves that she is wife of the respondent and he has refused and neglected to maintain her despite having sufficient income and therefore she is entitled to maintenance as prayed?

ii) What order?

9. Before the Family Court, the petitioner got herself

examined as PW.1 and one Sri. G.V. Ravishankar as PW.2 and

Smt. Jasheela as PW.3 and also got marked the documents at

Ex.P1 to Ex.P14. The respondent got himself examined as

RW.1 and also got marked the documents at Ex.R1 to R5 and

also marked one more document at Ex.C1.

10. A perusal of the materials placed before this Court,

more particularly the evidence of PW.1 would go to show that

the present petitioner, as PW.1 in the Family Court, in her first

affidavit dated 11.02.2016 has stated that, her marriage with

the respondent was solemnized in Harihara Ukkadathi Temple

on 21.06.2007 as per Hindu customs. However, in her

additional affidavit dated 02.12.2016, which was also a part of

her evidence, she has stated that from the year 2007 to 2012,

she lived with the respondent at her mother's house at

Jayanagar and thereafter shifted to Mysuru, and lived there for RPFC No.84/2018

two years. In order to prove that, she is a legally wedded wife

of respondent, she has mainly relied upon two photographs

marked at Ex.P1 and Ex.P2 stating that they are said to have

been taken with the respondent at the time of their marriage.

The respondent has denied the same stating that it is a picture,

which shows, he is standing with the petitioner. However, he

contended that those photographs were taken when both of

them joined with other chit members when they had gone on a

trip. He has also contended that, in his evidence as RW.1, he

has stated that the petitioner was in the habit of going on

similar tours and trips with the members of her Chit Fund

Scheme and on those occasions she used to take several

photographs with the chit fund members. According to the

respondent, Ex.P1 and Ex.P2 are such photographs, which

taken in one such occasion. To substantiate his contention, he

too has come up with a photograph marked at Ex.R1 stating

that the very same petitioner has given similar pose with

another male person and Exs. P1, P2 and Ex.R1 were taken in

front of the same temple and it is the respondent's friend who is

seen with her in Ex.R1. The petitioner as PW.1 has not denied

the same.

RPFC No.84/2018

11. A perusal of the said photographs would go to show

that Ex.P1 and Ex.P2 are two photographs shown to have been

taken in front of an Arch at the entrance steps of a

construction. Merely because the images of the petitioner and

respondent are there, either standing side by side or sitting

next to each other leaving some space between them by that

itself it cannot be inferred that the persons shown in the said

photographs are the husband and wife, that too particularly

when the respondent is very seriously disputing the alleged

marital relationship between them. On the other hand, a

perusal of similar photograph at Ex.R1 wherein the present

petitioner is shown to have been standing along with another

male person would go to show that, as like in Ex.R1, she stood

next to another male person in Ex.P1, however leaving much

space between them. Thus, by mere photographs it cannot be

said that the woman standing next to a person would make the

relationship of husband and wife. As such, merely by looking at

Ex.P1, Ex.P2 and Ex.R1, it cannot be held that persons in the

photographs are husband and wife in their relationship.

Ex.P3 is a copy of the FIR in Crime No.128/2015 of

Saraguru Police Station, where the complainant is shown to be RPFC No.84/2018

the present petitioner and the present respondent is shown to

be Accused No.1 among nine accused. The alleged offences are

punishable under Sections 498A, 323, 114 read with 34 of

Indian Penal Code (hereinafter for brevity, referred to as "IPC").

Similarly, the petitioner has also produced a copy of the wound

certificate at Ex.P4 to show that she was assaulted by the

respondent. Needless to say that merely because a police

complaint is said to have been filed or the wound certificate is

said to have been produced to show that she alleged to have

sustained some injuries. By that itself the marital relationship

cannot be inferred, that too particularly in the absence of

corroborative evidence to show that the alleged incident of

criminal assault has taken place treating the complainant

therein as the wife of the alleged assailant. Therefore, the

documents produced by the complainant more particularly by

the petitioner and more particularly Exs.P1 to P6, would not

come to her rescue.

12. On the other hand, the very same petitioner has

also produced a document at Ex.P7, which is shown to be an

experience letter issued by Rajiv Gandhi Education and Welfare

Trust and dated 24.01.2013, which mentions that Smt. RPFC No.84/2018

Bhuvaneshwari, wife of Shivanna @ Shivaiah had five years'

experience as a Warden in Spandana Pre-Metric Girls Hostel,

H.D. Kote, Mysuru District, on some honorarium. Thus, some

more documents produced by the petitioner would go to show

that even in the year 2013 also, she has claimed and shown

herself as the wife of one Shivanna @ Shivaiah, but not the

present respondent.

If according to the petitioner her marriage with the

present respondent-L.Pratheep had taken place on 21.06.2007,

then how come the name of one Sri. Shivanna @ Shivaiah is

shown as her husband even after six years thereafter ie., in the

year 2013, has remained un-answered by her.

On the other hand, the petitioner herself as PW.1 in her

additional affidavit dated 02.12.2016 has stated that she had

married to one Shivanna @ Shivaiah in the year 2013 and she

got two children born from him. However, she contended that

she has obtained divorce from him on 30.07.2013. Even after

taking the said statement as true, still her contention that she

had married the present respondent on 21.06.2007 would only

become she marrying another person during the life time her

first husband-Sri. Shivanna @ Shivaiah. As such her alleged RPFC No.84/2018

marriage with the respondent may become void marriage in the

eye of law. As such, the very same statements made by the

petitioner in her affidavits and the documents produced by her

itself clearly demonstrate that the petitioner has got no material

to show that, she was a legally wedded wife of the present

respondent and that their marriage was performed on

21.06.2007.

Even to show that she was in cohabitation with the

respondent for a long time from the alleged date of 21.06.2007

till the date of filing of the petition and that they had live-in-

relationship, except her self-serving statement, there is

nothing on record. On the other hand, the respondent has

categorically denied those statements made by PW.1 about her

alleged live-in-relationship. Even the evidence of PW.2 and

PW.3 also would not strengthen the case of the petitioner in any

manner. Admittedly, PW.2, who is a Medical Record Technician,

in JSS Hospital, had only stated that he has produced certain

medical documents pertaining to the respondent which was

marked at Ex.P14 and the said medical record includes an

affidavit of the present petitioner. Similarly the evidence of

PW.3-Jasheela, who is a Counselor for women in a RPFC No.84/2018

Rehabilitation Center at H.D. Kote Taluk also go to show that,

she had approached the complainant after coming to know that

she was assaulted physically and recorded her statement

wherein the present petitioner is said to have given a statement

before her. Even the said evidence is taken as true, still the

alleged statement of the present petitioner before PW.3 in

connection with the alleged assault would not by itself make

out the relationship of husband and wife between the present

respondent and the petitioner. As such, the evidence of PW.2

and PW.3 also would not take the case of the petitioner any

further.

14. Learned counsel for the petitioner has relied upon

Chanmuniya's case (supra) in support of his submission,

where the Hon'ble Apex Court has expressed an opinion that,

the term "wife" which includes even those cases where a man

and woman have been living together as husband and wife for

a reasonably long period of life and strict proof of marriage

should not be a precondition for maintenance under Section 125

of Cr.P.C., so as to fulfill true spirit and essence of the beneficial

provision of maintenance under Section 125 of Cr.P.C. It is

submitted that, in the said Chanmuniya's case (supra), the RPFC No.84/2018

question of the alleged long living cohabitation between

Respondent No.1 and brother of appellant's husband, living in

same house and by social custom they were treated as husband

and wife, after death of appellant's husband. That means the

brother-in-law of the widow was co-habited with her, which

their community also accepted, as such they were living like

husband and wife. Whereas in the case on hand, the facts are

entirely different and admittedly the present petitioner during

the subsistence of her marital relationship with one Sri.

Shivanna @ Shivaiah, claims to have entered into a marriage

with the present respondent and claims to have been living with

him for nearly seven years. Thus the observation made in

Chanmuniya's case (supra) is not applicable to the case on

hand. It is also for the reason that, as observed above, the

petitioner has failed to prove through any means that she was

living with the present respondent for the period alleged by her

as a 'Wife'. It is only after analising all these aspects in detail,

since the Family Court has answered the point framed by it in

negative and proceeded to dismiss the petition of the

petitioner. I do not find any perversity, illegality or

incorrectness in the said order warranting any interference at RPFC No.84/2018

the hands of this Court. Accordingly, I proceed to pass the

following order:-

The petition is dismissed as devoid of merit.

Registry to transmit a copy of this order along with the

trial Court's record to the concerned Family Court, immediately.

Sd/-

JUDGE

KGR*