IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.6530 OF 2014 BETWEEN:
DORAIRAJU S/O KEMPALINGE GOWDA, AGED ABOUT 66 YEARS, R/AT CHIKA CHANGAVI (V), MAVINAHALLI POST, C.S.PURA (H), TUMKUR DISTRICT-572213 PERMANENT RESIDENT OF S.KODIGEHALLI (V), KASABA (H), GUBBI(T), TUMKUR-572213. ... PETITIONER (BY SRI: VENKATA REDDY S K, ADVOCATE) AND 1. SHIVAMMA W/O DORAIRAJU, MAJOR, 2. MEENAKSHI D/O DORAIRAJU, MAJOR 3. SHIVARAMU S/O DORAIRAJU, MAJOR, ALL ARE R/AT GULASINDHA (V), KASABA HOBLI, CHANNARAYANAPATNA (T) HASSAN DIST-573 116. ... RESPONDENTS (BY SRI: K.N. SUNIL, ADVOCATE FOR SRI: K R RAMESH, ADVOCATE FOR R1 TO R3 ) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER, DATED 30-08-2014, PASSED IN CRL.RP.NO.283/2013 PASSED BY THE FAST TRACK COURT CHANNARAYAPATNA, HASSAN DISTRICT AND ORDER DATED 29- 11-2013, PASSED IN CRL.MISC.NO.315/2004, BY PRL.CIVIL JUDGE, CHANNARAYAPATNA, HASSAN DISTRICT AND CONSEQUENTLY DISMISS THE CRL.MISC.NO.315/2014 FILED BY THE RESPONDENTS ON THE FILE OF PRL.CIVIL JUDGE, JMFC CHANNARAYAPATNA, HASSAN DISTRICT.
THIS CRL.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R This petition is directed against the order dated 30.08.2014 passed by Fast Track Court, Channarayapatna, Hassan District in Crl.R.P.No.283/2013, whereby the Sessions Court has dismissed the revision petition and confirmed the order passed by JMFC, Channarayapatna in Crl.Mis.No.315/2004 dated 29.11.2004.
2. Respondent No.1 herein claiming to be the legally wedded wife of the petitioner filed an application under section 125 of Cr.P.C. seeking maintenance from the petitioner for herself and on behalf of her two children. Initially, the learned magistrate passed an exparte order dated 18.12.2009 which was challenged in revision and the said order was set-aside and the matter was remitted to the learned magistrate for fresh enquiry. After remand, learned magistrate recorded the evidence of respondent No.1-wife and two witnesses and produced seven documents at Exs-P1 to P7. In rebuttal, petitioner herein/husband examined himself as RW-1, examined two witnesses on his behalf as RW-2 and RW-3, marked documents as Exs-D1 to D3. On appreciating this evidence, by order dated 29.11.2013, the learned magistrate directed the petitioner herein to pay maintenance at the rate of Rs.500/- per month each to respondent No.1 and her one child viz., respondent No.2 till date of her marriage. The claim filed on behalf of another child was rejected as by then he had attained majority. Said order was challenged in revision under section 397 Cr.P.C. and the Fast Track Court, Channarayapatna, by the impugned order dated 30.08.2014 confirmed the order passed by the learned magistrate.
3. Learned counsel for the petitioner would submit that the petitioner has disputed the relationship between him and respondent No.1 right from inception and has taken up a plea that he never entered into marriage with respondent No.1 at any point of time. Convincing evidence was let in before the trial Court to show that he had married one K.G. Vijayalakshmi in the year 1970 and had four children through her. In the light of this evidence, both the courts have committed a serious error in awarding maintenance to respondent No.1 on the supposition that respondent No.1 is the legally wedded wife of the petitioner.
Dilating his submissions, learned counsel emphasized that in a proceeding under section 125 of Cr.P.C., claimant is required to prove that she is the legally wedded wife. The question as to whether ‘strict proof of marriage’ is necessary in a petition under section 125 Cr.P.C., in the context of provisions of Domestic Violence Act, 2005, was considered by the Hon’ble Supreme Court in LALITA TOPPO vs. STATE OF JHARKHAND AND ANOTHER dated 24.11.2015 and the issue was referred to the larger bench. The larger bench considered said reference in its decision dated 30.10.2018, in Crl. Appeal No. 1656 of 2015 and held that since the claimant would have an efficacious remedy to seek maintenance under the provisions of the Protection of Women from Domestic Violence Act, even assuming that she is not the legally wedded wife and therefore, not, entitled to maintenance under section 125 Cr.P.C.
Placing reliance on another decision of the Hon’ble Supreme Court in the case of SAVITHABEN SOMABHAI BHATIYA vs. STATE OF GUJARAT AND OTHERS, reported in AIR 2005 SC 1809(1), learned counsel has pointed that the claim made by wife under section 125 Cr.P.C. cannot be enlarged to include woman who is not lawfully married. In the absence of any evidence to show that respondent No.1 was the legally wedded wife of the petitioner herein, both the courts have committed an error in awarding maintenance to respondent No.1 and her child. On this ground, learned counsel has sought to quash the impugned orders and to dismiss application filed by respondents under section 125 Cr.P.C.
4. Disputing the above submissions, learned counsel appearing for respondents, placing reliance on the findings recorded by the courts below would submit that having regard to the evidence produced by the parties, both the courts have recorded a finding of fact based on legal evidence and the same does not suffer from any error or infirmity warranting interference and thus sought to dismiss the petition.
Considered the submissions and perused the records.
5. It is seen from the records that, in order to prove her claim, respondent No.1 entered the witness box and deposed on oath that she is the legally wedded wife of the petitioner and asserted in her evidence that in the said wedlock, she has begotten two children. The evidence of PW-1 has not been discredited in the course of her cross-examination. To corroborate this evidence, she examined PW-2, who was then aged 65 years at the time of his examination on 04.06.2012, who deposed that, he participated in the marriage ceremony of respondent No.1 and the petitioner, but unfortunately, this witness was not tendered for cross-examination, as a result, no reliance could be placed on his evidence. His evidence has to be eschewed from records.
6. PW-3 another witness who was then aged 50 years has stated on oath that he attended the marriage of petitioner and respondent No.1 in the year 1977 and further deposed that after marriage, both of them resided together for about five to six years and thereafter, petitioner drove her out of the house. In the cross-examination, it is elicited that there was negotiation one month earlier to performance of marriage and the parents and relatives of petitioner were present during negotiation and after marriage, for about 10 years, they lived together. He has asserted that, during the marriage, no photographs were taken. He denied all other contra suggestions.
7. The oral evidence adduced by respondent No.1 go to show that the marriage between petitioner and respondent No.1 was performed in the year 1977. The documents produced by respondent No.1 in support of her oral evidence, in my view, are not cogently proved. Though respondent No.1 has produced the genealogy tree, it is seen to have been signed by the Village Accountant who is not examined to prove this document. The other documents namely, Exs-P2 to P5 are the RTCs relating to the properties standing in the name of the petitioner. Ex-P6 is the photograph. The assertion of respondent No.1 is that petitioner and respondent No.1 are seen in this photograph. But this document does not establish the factum of marriage. Likewise, Ex-P7-marriage invitation card also is not proved in accordance with law. As such, this document also cannot be relied on.
8. As against this evidence, we have the evidence of RW-1 and RW-2. These witnesses have deposed that about 42 years earlier to their deposition, petitioner herein married one Vijayalakshmi. But, no convincing evidence is produced to show that this marriage is prior in point of time. Petitioner has relied on a Will dated 18.04.1991 purported to have been executed by the father of Vijayalakshmi; but this Will is not proved in accordance with law. This document is inadmissible in evidence and could not be relied on for any purpose even to ascertain the veracity of the contents thereof.
The other documents relied on by the petitioner namely Ex-D2, is the notice issued to the petitioner by the bank. This document does not establish the factum of his previous marriage with Vijayalakshmi. Ex-D3 is the ration card, wherein the name of Vijayalakshmi is shown. It is seen to have been issued in 2006. This document also does not establish that her marriage was performed earlier to the marriage of respondent No.1 with the petitioner. As a result, we have only oath against oath and no documentary evidence in proof of the factum of marriage between the petitioner and respondent No.1. As already discussed above, there is no reason to disbelieve the evidence of respondent No.1. It is trite law that strict proof of marriage is not necessary in a summary enquiry under section 125 Cr.P.C. The above said evidence therefore is sufficient to prove the relationship between the petitioner and respondents for the purpose of deciding the claim under section 125 Cr.P.C. In that view of the matter, the findings recorded by both the revisional court that respondent No.1 was in live-in-relationship with the petitioner being contrary to the material on record is liable to be set aside and in accordingly set aside as it is held that respondent No.1 is the legally wedded wife of the petitioner.
9. Insofar as the proposition of law relied on by the learned counsel for the petitioner is concerned, as held in LALITA TOPPO’s case supra, a woman has efficacious remedy to seek maintenance under the provision of Protection of Women from Domestic Violence Act, even assuming that she is not the legally wedded wife. Nonetheless in view of specific provision contained in section 26 of Domestic Violence Act, wife is also entitled to maintain a petition under section 125 Cr.P.C. simultaneously with the relief under Domestic Violence Act. Moreover, the monetary reliefs available under Section 20 of D.V. Act being different from maintenance under Section 125 Cr.P.C., the same could be claimed in addition to the reliefs under provisions of the DV Act, especially when the claim is based on her status as wife.
10. In the light of the above discussion, while setting aside the finding recorded by the revisional court that the first respondent was in live-in relationship with the petitioner, the final order passed by the Revisional Court is confirmed. Consequently, the criminal petition is dismissed.
Sd/- JUDGE *mn/-