Karnataka High Court
Smt. Shaila W/O Mohan Marati vs Shri. Mohan S/O Shankar Marati on 6 February, 2024
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CRL.RP No.100266 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 06TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.RACHAIAH
CRIMINAL REVISION PETITION NO. 100266 OF 2017
BETWEEN:
1. SMT. SHAILA W/O MOHAN MARATI
AGE: 33 YEARS, OCC: HOUSEHOLD,
R/O: NOOTAN NAGAR (JADDI)
DEWANBI BAIRAN KUTTI HOUSE,
TQ: YELLAPUR, DIST: UTTARA KANNADA.
2. KUM. MANJUNATH S/O MOHAN MARATI
AGE: 9 YEARS, OCC: NIL,
R/O: NOOTAN NAGAR (JADDI),
DEWANBI BAIRAN KUTTI HOUSE,
TQ: YELLAPUR, DIST: UTTARA KANNADA.
REPRESENTED BY HIS NATURAL
GUARDIAN MOTHER PETITIONER NO.1.
...PETITIONER
Digitally signed by
CHANDRASHEKAR
(BY SRI. M.C.HUKKERI, ADVOCATE)
CHANDRASHEKAR LAXMAN
LAXMAN KATTIMANI
KATTIMANI
Date: 2024.02.13
12:56:33 +0530
AND:
SHRI. MOHAN S/O SHANKAR MARATI
AGE: 43 YEARS, OCC: COOLIE AND AGRICULTURE,
R/O: HASEKALLU (BHATTI SHANAKAR HOUSE),
POST: SHIRNALA, TQ: YELLAPUR,
DIST: UTTARA KANNADA.
...RESPONDENT
(BY SRI. A.P.HEGDE JANMANE, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C., SEEKING TO SET ASIDE
THE ORDER PASSED BY THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, U.K. KARAWAR SITTING AT SIRSI IN CRIMINAL
REVISION PETITION NO. 201 OF 2014 DATED 29.07.2017.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
THROUGH PHYSICAL HEARING / VIDEO CONFERENCING HEARING
AND RESERVED ON 08.11.2023 BEFORE THE DHARWAD BENCH,
COMING ON FOR PRONOUNCEMENT OF ORDER, BEFORE THE
PRINCIPAL BENCH OF BENGALURU, THROUGH VIDEO
CONFERENCING, THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No.100266 of 2017
ORDER
1. This Criminal Revision Petition is filed by the
petitioners, who are said to be the wife and son of the
respondent.
2. The petitioner had preferred a Criminal
Miscellaneous Petition before the Civil Judge and JMFC.,
Yellapur, under Section 125 of the Code of Criminal Procedure,
seeking to direct the respondent to pay monthly maintenance
of Rs.3,000/-. The Trial Court allowed the said Criminal
Miscellaneous Petition and directed the respondent herein to
pay monthly maintenance of Rs.2,000/- to the petitioner No.1
and Rs.1,000/- to the petitioner No.2. Being aggrieved by the
same, the respondent herein had preferred a Criminal Revision
Petition before the Revisional Court. The Revisional Court
allowed the criminal revision petition and set aside the order
passed by the Trial Court in Criminal Miscellaneous Case
No.3/2012. Being aggrieved by the same, the petitioners are
before this Court.
Brief facts of the case are as under:
3. The petitioner No.1 is said to be the wife and the
petitioner No.2 is the son of the respondent. The marriage
between the petitioner No.1 and the respondent was
solemnized about 5 to 6 years back at Chandaguli Temple of
Yellapur Taluk. Due to the said wedlock, the petitioner No.2
was born to them. After the birth of the petitioner No.2, the
respondent used to harass the petitioner No.1, both mentally
and physically and used to assault by consuming alcohol and
further it is stated that the respondent herein has neglected to
provide food and shelter to petitioner No.1. Being aggrieved by
the same, petitioner No.1 herein had lodged a complaint before
the police. Thereafter, the respondent herein started residing
with his first wife at Hasekallu by leaving the petitioners in a
rented house. It is further stated that the respondent has
threatened the petitioners with dire consequences and ignored
to take care of them and also ignored in providing basic
necessities. Therefore, the petitioners herein have preferred
this Criminal Miscellaneous Petition before the Trial Court
seeking for maintenance.
4. To prove the case of the petitioners, the petitioner
No.1 got examined herself as PW.1 and also got examined
other two witnesses as PWs.2 and 3 and got marked 8
documents as Exhibits P1 to P8. On the other hand, the
respondent examined himself as RW.1 and got marked 10
documents as Exhibits R1 to R10. The Trial Court passed the
order to directing the respondent to pay maintenance. Being
aggrieved, the respondent filed a criminal revision petition
before the Revisional Court. The Revisional Court allowed the
Revision Petition filed by the husband / respondent herein.
Being aggrieved by the same, the petitioners are before this
Court.
5. Heard Shri M.C.Hukkeri, learned counsel for the
petitioners and Shri A.P.Hegde Janmane, learned counsel for
the respondent.
6. It is the submission of learned counsel for the
petitioners that, the petitioners are the wife and son of the
respondent respectively. They have been denied the basic
necessities after the differences arose between them.
7. It is further submitted that the Revisional Court
traversed beyond the scope of the provision under Section 125
of the Code of Criminal Procedure (for short 'Cr.P.C.') and held
that the petitioner No.1 is not the legally wedded wife and the
petitioner No.2 is not the son of the respondent which is
against to the settled principles of law and such order should
not have been passed by the Revisional Court. Therefore, the
same may be liable to be set aside. Making such submissions,
learned counsel for the petitioners prays to allow the revision
petition.
8. Learned counsel for the petitioners relied on the
judgment of the Hon'ble Supreme Court in the case of KAMALA
& Others v. M.R.MOHAN KUMAR1.
9. Per contra, learned counsel for the respondent
vehemently justified the order passed by the Revisional Court
and submitted that, it is an admitted fact that the petitioner
No.1 is the wife of Mahesh Gosavi and the petitioner No.2 is the
son of the said Mahesh Gosavi. The petitioners, at no point of
time, were staying with the respondent. The respondent is a
married person and he is having a wife and children. The
petitioner No.1 has not proved the marriage and the existence
of relationship between her and the respondent. Such being
the fact, granting maintenance to the strangers, certainly would
amount to abuse of process of law. Therefore, the Revisional
Court rightly allowed the revision petition and set aside the
order of the Trial Court. There is no infirmity in the said order.
Therefore, interference with the said order would not arise.
(2019) 11 SCC 491
Making such submissions, learned counsel for the respondent
prays to dismiss the petition.
10. Having heard the rival contentions urged by the
learned counsels for the respective parties and also perused the
findings of the Revisional Court, it makes it clear that the
petitioner No.1 had filed a criminal miscellaneous petition for
maintenance against the respondent before the Trial Court,
claiming that she is the wife and petitioner No.2 is the child of
the respondent respectively. The Trial Court allowed the
petition and directed the respondent to pay Rs.2,000/- to the
petitioner No.1 and Rs.1,000/- to the petitioner No.2. Being
aggrieved by the same, the respondent herein had preferred a
revision before the Sessions Court / Revisional Court. The
Revisional Court set aside the order of the Trial Court holding
that the petitioner No.1 has failed to prove that she is legally
wedded wife and petitioner No.2 was born to respondent.
Hence this revision.
11. Before adverting to the facts of the case, it is
necessary to refer to the provision under Section 125 of
Cr.P.C., which reads thus:-
"125. Order for maintenance of wives,
children and parents.
(1) If any person having sufficient means
neglects or refuses to maintain -
(a)his wife, unable to maintain herself, or
(b)his legitimate or illegitimate minor child,
whether married or not, unable to maintain
itself, or
(c)his legitimate or illegitimate child (not
being a married daughter) who has
attained majority, where such child is, by
reason of any physical or mental
abnormality or injury unable to maintain
itself, or
(d)his father or mother, unable to maintain
himself or herself, a Magistrate of the first
class may, upon proof of such neglect or
refusal, order such person to make a
monthly allowance for the maintenance of
his wife or such child, father or mother, at
such monthly rate [* * *] [The words "not
exceeding five hundred rupees in the
whole" omitted by Act 50 of 2001, w.e.f.
24.9.2001.], as such Magistrate thinks fit,
and to pay the same to such person as the
Magistrate may from time to time direct :
Provided that the Magistrate may order the
father of a minor female child referred to in clause
(b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is
not possessed of sufficient means.
Provided further that the Magistrate may,
during the pendency of the proceeding regarding
monthly allowance for the maintenance under this
sub-section, order such person to make a
monthly allowance for the interim maintenance of
his wife or such child, father or mother, and the
expenses of such proceeding which the Magistrate
considers reasonable, and to pay the same to
such person as the Magistrate may from time to
time direct:
Provided also that an application for the
monthly allowance for the interim maintenance
and expenses of proceeding under the second
proviso shall, as far as possible, be disposed of
within sixty days from the date of the service of
notice of the application to such person.
Explanation. - For the purposes of this
Chapter, -
(a)"minor" means a person who, under
the provisions of the Indian Majority Act,
1875 (9 of 1875) is deemed not to have
attained his majority,
(b)"wife" includes a woman who has
been divorced by, or has obtained a divorce
from, her husband and has not re-married.
(2) Any such allowance for the maintenance
or interim maintenance and expenses for
proceeding shall be payable from the date of the
order, or, if so ordered, from the date of the
application for maintenance or interim
maintenance and expenses of proceeding, as the
case may be.]
(3) If any person so ordered fails without
sufficient cause to comply with the order, any
such Magistrate may, for every breach of the
order, issue a warrant for levying the amount due
in the manner provided for levying fines, and may
sentence such person, for the whole or any part
of each month's [allowance for the maintenance
or the interim maintenance and expenses of
proceeding, as the case may be,] remaining
unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one
month or until payment if sooner made :
Provided that no warrant shall be
issued for the recovery of any amount due
under this section unless application be
made to the Court to levy such amount
within a period of one year from the date
on which it became due:
Provided further that if such person
offers to maintain his wife on condition of
her living with him, and she refuses to live
with him, such Magistrate may consider any
grounds of refusal stated by her, and may
make an order under this section
notwithstanding such offer, if he is satisfied
that there is just ground for so doing.
Explanation. - If a husband has
contracted marriage with another
woman or keeps a mistress, it shall
be considered to be just ground for
his wife's refusal to live with him.
(4) xxx xxx
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(5) xxx xxx
The provision stipulates that the wife is entitled for
maintenance if she has been destituted by the husband who is
having sufficient means to take care of her, and the wife is not
having means to maintain herself. The explanation appended
to the said provision gives the definition of the term 'wife'
which includes a woman who has been divorced by, or has
obtained a divorce from her husband and has not remarried.
12. Coming to the present case, petitioner No.1 claimed
to be the wife of the respondent and seeking for maintenance
to herself and her son. No doubt, the respondent strongly
objected the performance of marriage and vehemently
contended that the petitioner No.1 is not his wife and petitioner
No.2 is not his son. PW.1 has produced birth certificate of
PW.2 which is marked as Ex.P3, it denotes that PW.2 born on
17.03.2008. The column stipulated to write the father's name
which indicates that the respondent is the father of petitioner
No.2.
13. PW.1 on 07.01.2009 has lodged a complaint against
the respondent. The jurisdictional police have registered a case
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for the offence under Sections 323, 498-A, 504 and 506 of
Indian Penal Code. The said case ended in acquittal.
14. Now, it is relevant to refer to the judgment of the
Hon'ble Supreme Court in the case of KAMALA & Others, stated
supra, wherein the Hon'ble Supreme Court in para Nos.21, 22,
23 held as under:
"21. On the basis of the evidence of appellant
No.1 (PW-1), birth certificates of appellants 2 and
3 (Exts. P7 and P8 dated 25.05.2001 and
06.08.2003), other documentary evidence, oral
evidence of PW 2 who was co-worker of Appellant
1 and PW-3-landlord, the family court held that
appellant 1 and the respondent were
living together as husband and wife and there is
sufficient proof of marriage. The family court
rightly drew the presumption of valid marriage
between appellant 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 2
and 3 and other evidences clearly establish the
factum of marriage.
22. 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
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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.
23. In the result, the impugned judgment of
the High Court in Mohankumar v. Kamala 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. 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."
15. On careful reading of the dictum of Hon'ble
Supreme Court that 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 Cr.P.C., so as to fulfill the true spirit and
essence of the beneficial provision of maintenance under
Section 125 of Cr.P.C. However in the present case, the first
husband of the petitioner No.1 herein died on 30.04.2009 and
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the petitioner No.1 suppressed the fact that she is the wife of
Mahesh Gosavi and petitioner No.2 is the son of said Mahesh
Gosavi and claiming the maintenance against the respondent
which appears to be erroneous and even the evidence of PW.2
who is the neighbour which discloses the ambiguity in respect
of the existence of relationship between the respondent and the
petitioner No.1. Therefore, the said principle enunciated by the
Hon'ble Supreme Court, with due respect, not applicable to the
case on hand.
16. The respondent herein examined himself as DW.1
contending that PW.1 / petitioner No.1 is not his legally wedded
wife and petitioner No.2 is not his son. To substantiate his
contention, he made available the certified copy of the suit for
partition filed by the petitioner No.1 against the members of
her erstwhile husband, who died on 30.04.2009. The said copy
of the complaint is produced and marked as Ex.R1 and the
death certificate of the husband of petitioner No.1 is marked as
Ex.R2. These two documents would clearly disclose that the
petitioner No.1 is the wife of Mahesh Gosavi and petitioner No.2
is the son of said Mahesh Gosavi. However, the petitioner No.1
obtained the birth certificate, which is marked as Ex.P3 wherein
petitioner No.2 born to the respondent on 17.03.2008, which
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appears to be erroneous and the authority who issued such
certificate is required to be subjected to enquiry.
17. Admittedly, the respondent is having a living spouse
and two children. In the evidence of either PW.1 or DW.1, it
has come that the respondent has divorced his first wife and
married the petitioner No.1 herein. Even assuming that the
respondent married the petitioner No.1 during the subsistence
of his first marriage, the petitioner No.1 being the second wife,
not entitled for maintenance.
18. It is needless to say that the petitioner No.1 filed an
affidavit stating that she is the wife of Mahesh Gosavi and
petitioner No.2 is the son of said Mahesh Gosavi. Therefore,
the findings of the Revisional Court regarding maintenance are
appropriate and there is no occasion for this Court to interfere
with the said findings. Hence, it is appropriate to dismiss this
revision petition.
19. In the light of the observations made above, I
proceed to pass the following:-
ORDER
(i) Criminal Revision Petition stands dismissed.
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(ii) The liberty is reserved to the respondent to take
appropriate steps against the person, who issued
Ex.P3, in accordance with law.
Sd/-
JUDGE
BSS
