Tag Archives: #Maintenance

Case title: Durga Bai Versus Keval singh

Case No: Criminal No.230/2015

Decided on : 13-05-2017

Quorum: Judge Prem Narayan Singh

Facts of the case:

The circumstances are that in 2009, petitioner No. I and respondent were married in accordance with Hindu customs. Following their marriage, Chanchal, their baby, was born into their union. For both respondent/Keval Singh and petitioner No. 1/Durga Bai, this was their second marriage. Durga Bai and Bhagwan Singh, a native of Village Lalpuria, had previously been married, but Bhagwan Singh had left Durgabai to get into a second marriage. In accordance with social customs and ceremonies, Bhagwan Singh granted a divorce. Following their divorce from Bhagwan Singh, Petitioner No. l/Durgabai entered into a second marriage with Respondent Keval Singh. Following that, Durgabai was teased by the respondent/Keval Singh’s parents over her demand for a dowry, and Keval Singh used to beat her. The petitioner was forced to leave the house due to the respondent’s abusive conduct, and as of April 2015, she was living in her brother’s Rajgarh home. This revision has been filed because the petitioner No. I, who is only a housewife and unemployed woman, submitted an application for maintenance under Section 125 of the Cr.P.C. and the Family Court rejected it.

Legal provisions:

Sections 5 & I l of Hindu Marriage Act is relevant to quote here :

Section 5 : Conditions for a Hindu marriage. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

(i) Neither party has a spouse living at the time of the Marriage;

(ii) At the time of the marriage, neither party

(a) Is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c)has been subject to recurrent attacks of insanity

(iii) The bridegroom has completed the age of  [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage;

(iv) The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

 11. Void marriages: Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be a decree of nullity if it contravenes any one of the conditions specified in clauses (i) , (iv) and (v) of section 5

Petitioner Contentions:

The petitioners learned attorney has argued that the trial court did not fully evaluate the evidence on file and did not take into account all relevant circumstances. The first petitioner is an uneducated woman. She and her 4-year-old child, petitioner No. 2, were living at her brother’s home in Rajgarh as of April 2015. Additionally, he argues that because petitioner No. I is the respondent’s wife and is forced to live apart due to physical and psychological abuse, she is entitled to maintenance from him. In addition to owning a transportation vehicle, the respondent makes money from farming. Furthermore, it is argued that since petitioner No. 1 was able to obtain a divorce from her previous husband in accordance with social norms. She cannot be regarded as Respondent/Keval Singh’s illegitimate wife. There is a contention that during Durgabai’s marriage to Bhagwan Singh, her former spouse, was insignificant. She married a voidable person from the beginning.

Therefore, the second Durgabai’s marriage to Keval Singh, the respondent, cannot be regarded as an illegitimate wife. Additionally, it is argued that Durgabai does not need to file for divorce in court because he was a minor at the time of his first marriage. As a result, petitioner No. 1/Durgabai’s second marriage to respondent Keval Singh was lawful. She cannot be prevented from receiving maintenance from respondent in this way. Thus, knowledgeable counsel has requested that the contested order be set aside, that revision be graciously permitted, and that the family court’s order be changed .

 Respondent Contentions:

The Counsel for the Respondent/Husband has claimed that the Family Court disregarded all the legal and factual elements of the case and rejected the request of Petitioner No. 2 regarding maintenance. As she was already married to another person, Bhagwani, and without divorcing him, she was married to Keval Singh, so her marriage was null and void. As the maintenance awarded for the child was concerned, the Learned Trial Court only passed the order based on the petitioner contention. The Learned Trial court did not take into account any evidence available on the record. The respondent/husband’s monthly income is just Rs. 5,000/-, which he is barely supporting himself with, and he has no other sources of income.

Consequently, the Learned Counsel has also claimed that the order of the Learned Trial Court to grant maintenance to Petitioner No.2 should be annulled. In support of his arguments, learned counsel also relies on the law of the Hon’ble Apex Court as mentioned in the judgment delivered by the Court of First Instance of India in the matter of ‘Savitaben Ombhai Bhatia v. Government of Gujarat and Others’ (SC 2005 Lawsuit 466) and the order delivered by that Court in the matter of Sangeeta Raghuram v. Government of Maharashtra (Naresh Raghuram vs. Government of Maharashtra) (Lawsuit MP 2023).

Court Analysis and Judgement:

Considering such evidence of petitioner No. l/Durgabai, the learned Family Court Judge has passed this order on the ground that since the petitioner is not a legally wedded wife of the respondent, therefore, she is not entitled for the claim of maintenance. Now, coming to the verdicts filed by petitioners, the law laid down Harinarayan Khati (supra) is well considered by the learned trial Court. The learned Judge considering the law laid down by Hon’ble Apex Court in Savitaben (supra) rightly distinguished the law laid down in Harinarayan Khati. Likewise, the law laid down in Smt. Sukhraji (supra) is also distinguishable in view of the law laid down in Savitaben (supra). Learned counsel for the petitioners has also relied upon the leave granted by Hon’ble Supreme Court in the case of Badshah (supra), however, in the said judgment, the husband was already married. But he duped the wife by suppressing the factum of alleged first marriage, whereas, in the present case, the wife has not got divorced from her earlier husband.

Since in Badshah (supra) husband was already married with another woman, and by suppressing the factum of first marriage he duped the petitioner/second wife, hence, he cannot be permitted to get benefit of his own wrong. Likewise, the law laid down by Hon’ble Apex Court in Kamala (supra) is also not applicable to this case due to different factual matrix. In this case, petitioner’s wife was not married with any other person, whereas, in this case the petitioner No. I had consummated marriage with Bhagwansingh and without taking divorce from any court, she has been married with respondent. In view of aforesaid settled propositions and provisions of law it is crystal clear that the wife should be a “legally wedded wife” for claiming maintenance from her husband. A woman, having solemnized second marriage to another person, is only entitled to get maintenance from that person, when the first marriage has been declared either null and void or she has obtained a divorce decree from her first husband.

The aforesaid view has recently been endorsed by this Court in the case  of Sangeeta (supra) and Rajkumar Agrawal Vs. Sarika, 2023 Lawsuit MP 533. Since, in the case at hand, as the petitioner No. I could not get divorce from her earlier husband/Bhagwansingh and could not file any proof of setting divorce, she would not be entitled to get maintenance from her second husband/respondent. Nevertheless, the petitioner No. I of this case has the liberty to avail other remedies that may be better suited to the factual matrix of this case, as such seeking of compensation order enshrined under Section 22 of the Protection of Women from Domestic Violence Act, 2005.

So far as the enhancement in maintenance amount of petitioner No. 2/Chanchal from Rs.4,000/- to Rs.5,000/- is concerned, after going through the record, it is revealed that in the main application for maintenance filed by Petitioners before the learned Family Court, only Rs.4,000/- has been demanded for her maintenance. Looking to the income of respondent, Rs.4,000/- per month cannot be enhanced because it has been awarded from the date of filing of application. However, petitioner No. 2 is also at liberty to file an appropriate petition before learned Family Court under Section 127 of Cr.P.C. In result order of learned Family Court Dismissing the maintenance of petitioner No. I and allowing the maintenance of petitioner No. 2 is not suffering from any infirmity and illegality. Accordingly, the Criminal Revision Nos. 726/2017 & 754/2017 being devoid of merit are dismissed and the impugned order is hereby affirmed.

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Judgement Analysis Written by – K.Immey Grace

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