Kerala High Court

Hairunnissa vs Kunhammed @ Pattani Kunhammed on 14 August, 2025

Author: P.V. Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                         2025:KER:61399




            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

       THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

THURSDAY, THE 14TH DAY OF AUGUST 2025 / 23RD SRAVANA, 1947

                      RPFC NO. 390 OF 2018

AGAINST THE ORDER DATED 15.05.2018 IN MC NO.236 OF 2017 OF

FAMILY COURT, VADAKARA

REVISION PETITIONER/PETITIONER:

            HAIRUNNISSA
            AGED 39 YEARS
            AYADATHUM THAZHE KUNIYIL, VALLIKKAD P.O.,
            MUTTUNGAL, VATAKARA TALUK, KOZHIKODE DISTRICT.
            KOZHIKODE



RESPONDENT/RESPONDENT:

            KUNHAMMED @ PATTANI KUNHAMMED
            AGED 54 YEARS
            KALLUMPURATH, THUNERI, KOZHIKODE DISTRICT,
            PIN - 673505.
            KOZHIKODE



     THIS    REV.PETITION(FAMILY      COURT)    HAVING    COME   UP   FOR
ADMISSION    ON   14.08.2025,   THE     COURT    ON   THE    SAME     DAY
DELIVERED THE FOLLOWING:
                                                2025:KER:61399
RPFC NO. 390 OF 2018

                               2




                  P.V. KUNHIKRISHNAN, J.
                 -----------------------------------
                     RPFC No.390 of 2018
                 -----------------------------------
           Dated this the 14th day of August, 2025

                            ORDER

This revision is filed against the order dated

15.05.2018 in MC No.236/2017 on the files of Family Court,

Vatakara. As per the impugned order, the Family Court

rejected the application filed by the petitioner under Section

125 Cr.P.C. (herein after the parties are mentioned as

petitioner and respondent).

2. The case of the petitioner in short is as

follows: The respondent herein came to the house of the

petitioner after the death of the petitioner's brother

Abubacker and both of them were in acquaintance. The

respondent promised to marry the petitioner and on the

basis of the said promise 16 cents of land belong to the

petitioner has been assigned in favour of one Ismayil for a

consideration of Rs.2.50,000/- The said sale consideration 2025:KER:61399 RPFC NO. 390 OF 2018

along with 17 sovereigns of god ornaments were with the

petitioner. With the said money and gold ornaments, the

petitioner accompanied the respondent to Erode in Tamil

Nadu in March 2009 and they started to live as husband and

wife. Thereupon, the respondent has started business in

fruits and bakery in Coimbatore by investing the aforesaid

sum Rs.2,50,000/- and thereupon he had acquaintance with

a Tamil lady. Due to the said relationship the respondent

was forced to close his shop room due to the compulsion of

the local people there and thereupon the petitioner and the

respondent shifted their residence to Chavadimakku and

started a bakery cum tea shop. They resided there for a

period of three months. Though the petitioner demanded

the respondent to marry her by complying the ceremony of

Nikkah, the respondent has evaded from conducting the

ceremony. The petitioner informed the same to her relatives

and on intervention of her relatives, the respondent agreed

to perform Nikkah on returning from Tamil Nadu. Though 2025:KER:61399 RPFC NO. 390 OF 2018

the petitioner became pregnant thrice, the same were

aborted at the compulsion of the respondent. The

respondent has appropriated the gold ornaments of the

petitioner. While the petitioner and the respondent were

residing at Vallakkadavu, the respondent abused and ill

treated the petitioner with demand of more money and gold

ornaments. Thereupon petitioner's mother's gold ornaments

were pledged in a bank and obtained a sum of Rs.95,800/-

The said sum has been entrusted to the respondent and he

has purchased a goods autorickshaw bearing Reg

No.KL-18/P-6577. An agreement was also executed by him

in favour of the petitioner's mother on 16.06.2015.

Thereupon the respondent took the petitioner to Mangalore

and stayed in a lodge, from there the respondent compelled

the petitioner to have sex with other men, to which the

petitioner did not accede. Due to the same the petitioner

was brutally assaulted and abused by the respondent. Again

the respondent demanded to assign 12 cents of land in the 2025:KER:61399 RPFC NO. 390 OF 2018

name of the petitioner for raising money, to which the

petitioner and her mother were not willing. Again the

respondent assaulted the petitioner and the petitioner went

for treatment before Dr.Poornima Prabhu. In August 2016,

the respondent has left the house of the petitioner and

thereupon he did not care to attend to the needs of the

petitioner or paid amount for maintenance. Now the

respondent is residing with another lady named Asya of

Theruvamparamba. Now, the petitioner is depending on her

relatives for her livelihood and a sum of Rs.10,000/- is

required for her monthly maintenance. The respondent is

doing real estate business and other businesses in Tamil

Nadu and getting monthly income of Rs.30,000/-. Thus the

petitioner prays for monthly allowance for maintenance to

the tune of Rs.10,000/- from the respondent. Notice was

issued to the respondent before the Family Court. But he

has not appeared before the Family court. Thereafter the

Family court found that there is no legal marriage and 2025:KER:61399 RPFC NO. 390 OF 2018

therefore, the application is dismissed. Aggrieved by the

same, this revision petition is filed.

3. Heard the learned counsel for the petitioner.

Even though notice is issued to the respondent, there is no

appearance.

4. The counsel for the petitioner relied on the

judgment of this Court in Rajnesh v. Neha and Others

[MANU/SC/0833/2020] and submitted that the legal

marriage is not necessary in the light of the above dictum.

5. This Court perused the impugned order. It

will be better to extract the relevant portion of the

impugned order by which the Family Court dismissed the

application under Section 125 Cr.P.C.

"As per section 125 of Cr.P.C. a wife is entitled to claim maintenance from her husband. Here, the petitioner has no case that she is the legally wedded wife of the respondent. Her only case is that she resided along with the respondent as a wife without performing the rituals of a 'Nikkah'. The learned counsel appearing for the petitioner argued that though the petitioner is not the legally wedded wife 2025:KER:61399 RPFC NO. 390 OF 2018

of the respondent, she is entitled to claim maintenance under section 125(1) of Cr.P.C. She has placed reliance on the decisions in Chanmuniva v. Virendra Kumar Singh Kushwaha [2010 (4) KLT SN 30 (C.No.35(SC) and Sumathv v Kamalamma [2013 (3) KLT SN 60 (C.No. 62)] and argued that even a woman who have been living along with a man as his wife for a reasonably long period of time is entitled to claim maintenance and there is a presumption in favour of the validity of a marriage and the legitimacy of children born in that relationship. It is relevant to mention that in the Chanmuniya's case, the matter was requested to be referred to a larger bench of the Hon'ble Apex Court. It is fairly conceded by the learned counsel appearing for the petitioner that the larger bench has not so far answered the reference. In the said decision, the earlier decision of the Hon'ble Apex Court in Savitaben Somabhat Bhatiya v. State of Gujarat [2005 (2) KLT 65 (SC)) and Yamunabai Anantrao Adhav v. Ananthrao Shivaram Adhav [1988(1) KLT 416 (SC)] has been relied on, wherein it has been held that the wife under section 125 of Cr.P.C includes only a legally wedded wife. In the second decision relied on by the learned counsel appearing for the petitioner it is held by the Hon'ble High Court of Kerala that the presumption of marriage can he applied only when the formal requisites of a valid marriage ceremony 2025:KER:61399 RPFC NO. 390 OF 2018

are proved. Here in the case in hand admittedly there is no ceremonial marriage and the only case put forward by the petitioner is that she resided along with the respondent for some time, ie, from 2009 March onwards. Since the Hon'ble Apex Court has not answered the reference as indicated above no reliance can he placed on the observation made by the Hon'ble Apex Court in Chanmuniya's Case. Since the petitioner has no case that any form of marriage has been performed, no reliance can be placed on the second decision relied on by the learned counsel appearing for the petitioner. Here, the petitioner has no case that she is the legally wedded wife of the respondent and also that any ceremonies has been performed to satisfy the formalities of a marriage before starting the company along with the respondent. Reckoning the above aspects, I am of the considered view that the petitioner herein is not entitled to get monthly allowance for maintenance from the respondent. Therefore, this application is only to be dismissed."

6. The Apex Court in Rajnesh's case (supra)

considered this point in detail and observed like this:

"38. The issue whether presumption of marriage arises when parties are in a live-in relationship for a long period of time, which would 2025:KER:61399 RPFC NO. 390 OF 2018

give rise to a claim Under Section 125 Code of Criminal Procedure came up for consideration in Chanmuniya v. Virendra Kumar Singh Kushwaha and Anr.3 before the Supreme Court. It was held that where a man and a woman have cohabited for a long period of time, in the absence of legal necessities of a valid marriage, such a woman would be entitled to maintenance. A man should not be allowed to benefit from legal loopholes, by enjoying the advantages of a de facto marriage, without undertaking the duties and obligations of such marriage. A broad and expansive interpretation must 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. Strict proof of marriage should not be a pre-condition for grant of maintenance Under Section 125 Code of Criminal Procedure. The Court relied on the Malimath Committee Report on Reforms of Criminal Justice System published in 2003, which recommended that evidence regarding a man and woman living together for a reasonably long period, should be sufficient to draw the presumption of marriage.

39. 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 2025:KER:61399 RPFC NO. 390 OF 2018

125 Code of Criminal Procedure such strict standard of proof is not necessary."

7. In the light of the above principle, I am of

the considered opinion that the impugned order is

unsustainable. It is a fact that the petitioner and the

respondent stayed together for a long time. They stayed

together as husband and wife. Simply because there is no

legal marriage, in the light of the dictum laid down by the

Apex Court in Rajnesh's case (supra), the claim petition

cannot be rejected. Therefore the finding in the impugned

order is unsustainable.

8. Admittedly the respondent has not

appeared before the Family Court also. Even though notice

is issued to the respondent, there is no appearance before