Karnataka High Court
Smt Renuka W/O Yallappa Raghappagol vs Sri Yallappa S/O Pundappa Raghappagol on 19 February, 2024
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CRL.RP No.100447 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.RACHAIAH
CRIMINAL REVISION PETITION NO. 100447 OF 2022
BETWEEN:
SMT. RENUKA
W/O YALLAPPA RAGHAPPAGOL
AGE: 42 YEARS, OCC: COOLIE,
R/O: SHIRUR, TQ: DIST: BAGALKOT-587101.
...PETITIONER
(BY SRI. NEELENDRA D.GUNDE, ADVOCATE)
AND:
SRI. YALLAPPA
S/O PUNDAPPA RAGHAPPAGOL
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: ANGADGERI,
TQ: BASAVAN BAGEWADI,
DIST: BIJAPUR-586203.
...RESPONDENT
(BY SRI.VENKATESH M.KHARVI, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397(1)
AND 401 OF CR.P.C., SEEKING TO CALL FOR THE RELEVANT
RECORDS AND ALLOW THIS REVISION AND SET ASIDE THE
ORDER DATED 08.09.2022 PASSED IN CRIMINAL REVISION
PETITION NO. 09/2022 BY THE LEARNED PRL. JUDGE FAMILY
COURT. BAGALKOTE., THEREBY ALLOWING THE REVISION AND
SETTING ASIDE THE ORDER PASSED BY THE LEARNED ADDL.
JMFC-BAGALKOTE IN CRIMINAL MISC NO. 272/2013 DATED
11.09.2019.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD THROUGH PHYSICAL HEARING / VIDEO
CONFERENCING HEARING AND RESERVED ON 21.11.2023
BEFORE THE DHARWAD BENCH, COMING ON FOR
PRONOUNCEMENT OF ORDER, BEFORE THE PRINCIPAL BENCH
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CRL.RP No.100447 of 2022
OF BENGALURU, THROUGH VIDEO CONFERENCING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. This Revision Petition is filed by the petitioner being
aggrieved by the order dated 08.09.2022 in
CRP No.9/2022 (Old CRP No.188/2019) on the file of
Principal Judge, Family Court at Bagalkote.
Brief facts of the case:
2. The petitioner said to be the wife of the respondent. Their
marriage said to have been solemnized with the
respondent, 18 years ago as per Hindu religious-rituals.
Due to the said wedlock, the couple had female child and
she has now completed 18 years. As per the averments of
the complaint, the respondent herein was not being
treated properly in her matrimonial home. The
respondent used to stay with her brother and sister and
not even bothered to provide basic necessities to the
petitioner. It is further alleged that the respondent used
to consume alcohol and quarrel with her. She was forced
to give consent for second marriage and asked her to sign
blank papers etc. The respondent thrown her out of the
house as he wanted to live with another lady. Considering
the said domestic violence, the petitioner filed petition in
Crl.Misc.No.272/2013 under Section 125 of the Code of
Criminal Procedure on the file of Additional JMFC, Bagalkot
and vide order dated 11.09.2019 the petition was allowed
in part and the respondent was ordered to pay monthly
maintenance of Rs.2,000/-. The respondent herein had
preferred the Revision Petition in CRP No.9/2022 (Old CRP
No.188/2019). The Revisional Court by its order dated
08.09.2022, set aside the order passed by the Trial Court
on the ground that the petitioner herein had failed to
establish that she is a legally wedded wife of the
respondent. Being aggrieved by the same, the petitioner
is before this Court.
3. Heard Sri.Neelendra D.Gunde, learned counsel for the
petitioner and Sri.Venkatesh M.Kharvi, learned counsel for
the respondent.
4. It is the submission of the learned counsel for the
petitioner that the petitioner has established that the
respondent is her husband and both the petitioner and
respondent had female child and the said child attained
majority and married, now she is aged about 23 years.
Once the marriage is established, the wife is entitled for
maintenance even though if she is divorced from husband.
5. It is further submitted that the evidence of PWs.2 and 3
corroborated the contention of PW.1 and they have
consistently stated that the marriage between the
petitioner and the respondent was solemnized 20 years
ago and they were residing in the same area where PWs.1
and 2 were residing. Even though they have been
subjected to lengthy cross-examination, nothing has been
elicited to disbelieve their evidence regarding non
performance of the marriage. Therefore, the order passed
by Revisional Court in rejecting the maintenance is not
proper and hence, the same is liable to be set aside.
Making such submission, the learned counsel for the
petitioner prays to allow the petition.
6. Per contra, the learned counsel for the respondent
vehemently justified the order of the Revisional Court and
submitted that the petitioner is not a legally wedded wife
of the respondent. In fact, the respondent married
Shanthabai on 11.04.1999. The couple had two children.
The evidence of RW.2 who is the elderly person of the
village where the respondent is living, has stated in his
evidence that the respondent married Shantavva and the
respondent had two children namely Aruna and Pundalika
and he did not know as to whether respondent married the
petitioner. Similarly, the evidence of PW.3 who is said to
have written Ex.R1 which is known as 'Lagnayadi Patra'.
According to him, the respondent married Shantavva or
Shantabai. Since the marriage between the respondent
and one Shantavva has been established by leading
cogent evidence both oral and documentary, the Court has
rightly appreciated the same and rejected the claim of the
petitioner. Therefore, it is necessary to reject the petition.
Making such submission, the learned counsel for the
respondent prays to dismiss the petition.
7. Having regard to the rival contention urged by the learned
counsel for the respective parties and perused the findings
of the Revisional Court in passing the impugned judgment,
it is relevant to refer to the facts and also the evidence of
all the witnesses to ascertain as to whether any error
committed by the Court in passing such order. The
petitioner claimed to be wife of the respondent and she is
said to have married him 20 years ago and one female
child born to him out of the said wedlock, however, except
Ration card and Aadhar card, no documentary evidence is
produced by him to substantiate the marriage. The
petitioner not even bothered to produce birth certificate of
the child to establish the identity. PWs.2 and 3 stated to
be the independent witnesses and they have consistent in
their evidence that both petitioner and respondent were
living as husband and wife in their locality for about 20
years, however, they have admitted that they are the
relatives of the petitioner. The petitioner herein filed an
application for maintenance under Section 125 of the Code
of Criminal Procedure.
8. For better understanding, reference is being made to the
said provision, the said provision 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[* *
*], 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 remarried.
[(2) Any such allowance for the maintenance or
interim maintenance and expenses of 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 months 4[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 wifes
refusal to live with him.
(4) No wife shall be entitled to receive
an 5[allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the case
may be,] from her husband under this section if she is
living in adultery, or if, without any sufficient reason,
she refuses to live with her husband, or if they are
living separately by mutual consent.
(5) On proof that any wife in whose favour an
order has been made under this section in living in
adultery, or that without sufficient reason she refuses
to live with her husband, or that they are living
separately by mutual consent, the Magistrate shall
cancel the order."
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9. On careful reading of the above said provision, it makes it
clear that the maintenance can be granted to the legally
wedded wife. In order to establish as to whether the
petitioner is a legally wedded wife or not, the petitioner
has to prove her case by producing the evidence both oral
and documentary. Even though PWs.2 and 3 have stated
that the respondent and the petitioner were living together
as husband and wife for several years that may not be
sufficient to order for maintenance. Maintenance granted
under Hindu Marriage Act only to the legally wedded wife.
Similarly, under Section 125 of Cr.P.C the legislature while
enacting that provision clearly mentioned that the
maintenance can be granted to the wife when she was
unable to maintain herself and if the husband is having
sufficient means and neglected her in providing basic
necessities.
10. The learned counsel for the petitioner relied on the
judgment of the Hon'ble Supreme Court in the case of
KAMALA AND OTHERS v. M.R.MOHAN KUMAR1, the
Hon'ble Supreme Court laid down law that unlike
(2019 )11 SCC 419
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matrimonial proceedings where strict proof of marriage is
essential, in a proceedings under Section 125 of Cr.P.C,
such strict standard of proof is not necessary as it is
summary in nature and meant to prevent vagrancy.
Where the parties living together as husband and wife,
there is a presumption that they are legally married couple
for claim of maintenance under Section 125 of Cr.P.C. No
doubt, the said presumption is rebuttable in nature. The
burden lies on the husband to prove that he never resided
with the woman for considerable length of years.
11. In the present case, PWs.1 to 3 are consistent in their
evidence that both PW.1 and the respondent were living
together for almost 21 to 22 years. Both were living at
Angadigere Village as husband and wife. According to
them, a girl child now she is aged about 23 years was born
to the respondent. However, no birth certificate is
produced to substantiate the same. In the meantime,
PW.1 has produced Ration Card and Aadhar card wherein
the column stipulated for husband indicates the name of
the respondent. It is needless to say that the said
documents have been secured for the purpose of filing this
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petition. There are no documents produced to establish
that the petitioner was living as wife to the respondent for
21 to 22 years.
12. On the contrary, the respondent has deposed that he
married Shantabai on 11.04.1999 and further he has
produced two birth certificates of their children. Further,
he has produced Ex.R6 - Death certificate of the said
Shantabai.
13. On reading of the evidence of PWs.1 to 3 and RWs.1 to 3
and also perused the documents, it appears that the wife
of the respondent Smt.Shanta died on 01.05.2011.
Thereafter, the respondent might have gone with the
petitioner and stayed with her as husband. Considering
the same, the petitioner herein had preferred an
application for maintenance since he has refused to
provide basic necessities. Prima facie, I am of the
considered opinion that the order passed by the Trial Court
in granting the maintenance appears to be appropriate in
view of the dictum of the Hon'ble Supreme Court in the
case of Kamala and others stated supra.
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14. The Revisional Court passed the order without considering
the law laid down by the Hon'ble Supreme Court in the
case of KAMALA stated supra. Therefore, the Judgment of
the Principle Judge, Family Court at Bagalkote is not
proper and appropriate, hence, the same is liable to be set
aside.
15. In the light of the observation made above, I proceed to
pass the following:
ORDER
i) The Criminal Revision Petition is allowed.
ii) The order dated 08.09.2022 in CRP No.9/2022 (Old
CRP No.188/2019) on the file of Principal Judge,
Family Court at Bagalkote is set aside.
iii) The order dated 11.09.2019 passed in Crl.Mis
No.272/2013 on the file of the Additional JMFC,
Bagalkot is modified and the respondent herein is
directed to pay maintenance of Rs.2,000/- to the
petitioner from the date of filing of the petition.
iv) No order as to costs.
Sd/-
JUDGE
UN
