THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE Nos.435 and 118 of 2009 COMMON ORDER: Both the matters arise out of the Maintenance Case No.135 of 2004 on the file of the Family Court-cum-IV Additional District and Sessions Court, Vijayawada. The parties are hereinafter referred to as in the lower Court. A claim for maintenance was filed by the petitioners against the respondent stating that the respondent married the 1st petitioner and 2nd petitioner was born in the lawful wedlock in the year 2000 and thereafter the respondent has neglected them and they are not able to maintain themselves and consequently, they claimed maintenance at Rs.500/- each. It was also further alleged that a complaint for an offence under Section 498-A of the Indian Penal Code, 1860 (for short “IPC”) was also filed. The respondent, on the other hand, contended that the 1st petitioner is not the legally wedded wife of the respondent and that there is no liability to pay the maintenance and consequently the petition is liable to be dismissed. After considering the evidence on record, the lower Court granted maintenance of Rs.500/- to each of the petitioners and aggrieved by the said order dated 11.03.2008, the Criminal Revision Case No.435 of 2009 is filed. Subsequently, as the respondent is said to have committed default in payment of the maintenance amount, Crl.M.P.No.376 of 2008 was filed and the lower Court has passed an order dated 27.12.2008 for confinement of the respondent for a period of two and half years since there is default of the payment of maintenance amount for 31 months. Aggrieved by the said order, Crl.R.C.No.118 of 2009 is filed. The points that arise for consideration are: 1. Whether the petitioners are entitled for the maintenance? 2. Whether the order of detention passed by the lower Court is legal and sustainable? POINTS: The learned counsel for the revision petitioner contends that there is no proof of valid marriage and it is difficult to believe that the marriage could have been performed in Anjaneya Swamy temple and except the interested evidence of P.W.1, there is no other evidence. In fact, P.W.1 is no other than the mother of the 1st petitioner and according to her, the marriage was a love marriage and it was performed secretly. P.W.3 is said to have taken some videos about the marriage and the evidence of P.W.2 also shows that the petitioner No.1 and the respondent lived together and there was some quarrel in his presence. Taking into consideration the totality of the evidence on record, the lower Court has held that there was a living relationship between the 1st petitioner and the respondent. It is also to be noted that earlier a case was filed for the offence under Section 498-A of IPC against the revision petitioner and the lower Court as well as the lower appellate Court have found him guilty and convicted. Though, it may be the subject matter of revision before this Court. Therefore, from the material evidence on record, it is quite clear that the 1st respondent and the respondent have lived together and the birth of the 2nd petitioner appears to be during the period when they lived together. In this connection, it is useful to refer to the decision reported in Chanmuniya v. Virendra Kumar Singh Kushwaha, wherein it was held that for a claim under Section 125 of the Criminal Procedure Code, 1973 (for short “Cr.P.C.”), even in the absence of proof of valid marriage as wife and husband and the proof of long cohabitation are sufficient to grant maintenance. Therefore, in view of the above circumstances, the order of maintenance granted by the lower Court does not call for any interference and accordingly, the Crl.R.C.No.435 of 2009 is dismissed. So far as the order in Crl.M.P.No.376 of 2008 is concerned, the learned counsel for the revision petitioner contends that as per Section 125 (3) of Cr.P.C., a warrant of arrest for every breach of the order has to be issued and the order is not in accordance with Section 125 (3) of Cr.P.C. In fact, this was not agitated before the lower Court. Therefore, the order of the lower Court, so far as it relates to the execution in Crl.M.P.No.376 of 2008 is set aside and the matter is remanded to the lower Court for giving an opportunity to the revision petitioner herein to prove as to whether he can be sentenced to imprisonment for two and half years for the alleged default in payment of the maintenance amount. The lower Court shall dispose of the application within three months. Accordingly, the Crl.R.C.No.118 of 2009 is allowed. In the result, Crl.R.C.No.435 of 2009 is dismissed and the Crl.R.C.No.118 of 2009 is allowed by remanding to the lower Court. ________________________ N.R.L. NAGESWARA RAO, J Date: 25-11-2011 MR THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE Nos.435 and 118 of 2009 DATE: 25-11-2011 MR