IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.46689 OF 2019(GM-FC) BETWEEN:
Sri.G.Krishnan, S/o Govindaswamy, Aged about 69 years, R/at Door No.2/1021, Manthoppu, Nellinagar, Dharmapuri, Tamilnadu – 636 701.
(By Sri.Divakara P.B, Advocate) AND:
Smt.Anithalakshmi, D/o Mallikarjunaih, Aged about 40 years, R/at. Behind Govt. Kannada School, Uppearhalli, Near Shanimahathma Temple, Tumkur City – 572 102.
... Petitioner … Respondent This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the order dated 16.08.2019 on the interim application filed under Section 125(2) of the Cr.P.C passed by the Principal Judge, Family Court at Tumkuru in C.Mis.No.93/2018 vide Annexure-E and etc.
This Writ Petition coming on for Preliminary Hearing this day, the Court made the following:
ORDER The petitioner has filed the present writ petition mainly on the ground that the respondent, who alleges that she is the wife of the petitioner is not entitled to any maintenance on the ground that there is no relationship between the petitioner and respondent and that she is not the legally wedded wife of the petitioner. The writ petition is filed seeking to quash the interim order dated 16.08.2019 passed on an application under Section 125 (2) of Cr.P.C granting interim maintenance of Rs.5,000/- per month in C.Misc.No.93/2018 on the file of the Principle Judge, Family Court, Tumakuru.
2. The respondent, who is the petitioner in C.Misc.No.93/2018 filed a petition under Section 125 of Cr.P.C seeking maintenance of Rs.25,000/- per month towards her food, shelter, medicine and clothes contending that she is the legally wedded wife of the petitioner raising various contentions. The petitioner filed statement of objections to the main petition and denied all the allegations and contended that the alleged marriage between the petitioner and respondent dated 28.03.1998 is a false and baseless and respondent is not even the caste, community or family of the petitioner. The very petition filed by the respondent about the relationship and marriage are all false and baseless. Since the relationship between the parties is in dispute, the petition filed by the respondent for maintenance is not maintainable and sought to dismiss the maintenance petition.
3. During the pendency of the main petition, the respondent herein filed an application under Section 125(2) of Cr.P.C seeking interim maintenance reiterating the averments made in the main petition contending that she is the legally wedded wife of the petitioner and the petitioner has neglected and deserted her and she has no means for her livelihood and petitioner is retired Central Government employee i.e., Post Master and he is getting monthly pension of Rs.50,000/- and has got landed property and he used to grow commercial crops and is getting Rs.2 lakhs every year and he has let out buildings and getting rent of Rs.10,000/- per month. The said application was opposed by the petitioner by filing objections.
4. The family Court, after considering the application and objections, by impugned order has awarded interim maintenance of Rs.5,000/- per month to the respondent from the date of petition till further orders. Hence, the present writ petition is filed by the petitioner.
5. I have heard the learned counsel for the petitioner.
6. Sri. Divakara P.B, learned counsel for the petitioner contended with vehemence that the impugned order passed by the Family Court awarding maintenance of Rs.5,000/- per month is without any basis, erroneous and cannot be sustained. He further contended that the petitioner has disputed the relationship of husband and wife, the question of filing petition for maintenance and question of granting interim maintenance would not arise. He further contended that the petitioner is retired from Central Government - Postal Department and he got his own wife and children. The petition is filed creating theory. Therefore, the respondent is not entitled to any maintenance. Therefore, he sought to quash the impugned order passed by the Principal Judge, Family Court by allowing the present writ petition.
7. In support of his contention, learned counsel for the petitioner relied upon the dictum of the Hon’ble Supreme Court in the case of D.Velusamy vs. D.Patchaiammal reported in (2010) 10 SCC 469 at paragraph Nos.31 and 32.
8. Having heard the learned counsel for the petitioner and perusing the entire materials on record, it is undisputed fact that the respondent filed a petition under Section 125 of Cr.P.C contending that she is the legally wedded wife of the petitioner and their marriage took place on 28.03.1998 at Eshwara Temple, Upparahalli, Tumakuru City before elders and well wishers of both the families as per the customs and rituals prevailing in their community. It is further contended that after marriage, the respondent had been to petitioner’s house and she was living with the petitioner at Dharmapuri in his house happily for a period of six months. In the house of the petitioner, the mother of the petitioner, who is aged about 85 years and she was unable to speak, hear or move about in the house. After 2-3 years of marriage, suddenly one women arrived in a car to the house of the petitioner. She was dum women and also started staying in the upstairs of the petitioner’s own house and that lady was unable to speak and she was also deaf and dum. After few days, another four women came to the house of the petitioner and on one Sunday when the petitioner and respondent were there in the house, they picked up quarrel with petitioner and petitioner and other persons came to the conclusion as even though the petitioner is married with the respondent, the respondent should go outside the house immediately. The respondent became mum and unable to resist the galata of petitioner etc. and she was thrown out from the house and therefore, she filed the application.
9. In the statement of objections, in the categorical terms, the petitioner has denied the very relationship of husband and wife. The Family Court considering the application and objections has come to the conclusion that the photo produced before the court prima facie shows that the petitioner has married the respondent and GPA was executed on 12.08.2014 by the petitioner in favour of the respondent to manage the schedule property, wherein, it is specially stated that the respondent is the wife of the petitioner. The family Court has also referred to the legal notice issued by the respondent stating the facts narrated in the petition. But the petitioner has not given reply to the same. The Family Court is of the considered opinion that a prima facie case show that the respondent is the legally wedded wife of the petitioner and she is entitled to interim maintenance of Rs.5,000/- per month. Accordingly, awarded maintenance of Rs.5,000/- per month. Since the learned counsel for the petitioner contended that there is no marriage subsisting between the petitioner and respondent as the respondent is not the legally wedded wife, question of granting maintenance to the respondent would not arise cannot be accepted and the same has to be decided only after full fledged trial.
10. Admittedly, after objections filed, petitioner has not filed any application before the trial Court about the maintainability of the petition. When this Court asked the counsel for the petitioner to produce either photograph or GPA referred to by the learned Judge of the Family Court, he has stated that the photographs are not marked and it is not available and the GPA is also not available. The said submission is also placed on record.
11. In the absence of any contra documents produced by the petitioner prima facie to show that respondent is not legally wedded wife, the petitioner has to face trial and it is for the family Court to decide whether the petitioner and respondent are husband and wife based on full fledged trial. One more reason is that the respondent is aged about 40 years and no women comes forward claiming 63 years old man as her husband and files a petition for maintenance. It is well settled that long cohabitation between a men and women presumes valid marriage. These are all matters to be adjudicated after full fledged trial.
12. Though the learned counsel for the petitioner relied upon the judgment of the Hon’ble Supreme Court in the case of D.Velusamy stated supra, which was decided after full fledged trial, the said judgment has no application at this stage, while considering the interim maintenance and in the very said judgment, the Hon’ble Supreme Court has held that under Explanation (b) to Section 125(1) of Cr.P.C, ‘wife’ means legally wedded wife and does not protect a woman who unwittingly marries a man who is already married. Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 embraces a wider concept by affording protection not only legally wedded wife but also to a woman who is having domestic relationship which may not strictly be marriage but is “in the nature of marriage”. This is a recognition of live-in relationship. Conventional family law in India provide for alimony only when a legally wedded wife is deserted, but 2005 Act expands the scope by providing protection in the case of live-in relationship also.
13. In view of the above, the impugned order passed by the Family Court is just and proper. The petitioner has not made out any ground to interfere with the impugned order passed by awarding maintenance of Rs.5,000/- per month in exercise of power under Articles 226 and 227 of the Constitution of India. Accordingly, the writ petition is dismissed.
Sd/- JUDGE dn/-