IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.2.2011 CORAM THE HONOURABLE MS. JUSTICE K.B.K.VASUKI CRL.R.C.NO.1775 OF 2007 AND M.P.NO.1 OF 2007 Tajuddin .. Petitioner Vs. S.BiBiJohn .. Respondent Prayer:- Criminal Revision filed under Section 397 r/w 401 of Cr.P.C. against the order dated 25.9.2007 made in M.C.No.19 of 2005 on the file of the Judicial Magistrate, Gudiyatham. For Petitioner : Mr.D.Rajagopal For Respondent : Mr.G.Vinod Kumar ORDER The respondent-husband in M.C.No.19 of 2005 is the revision petitioner herein. The criminal revision is filed against the order dated 25.9.2007 made in M.C.No.19 of 2005 on the file of the Judicial Magistrate, Gudiyatham awarding maintenance of Rs.500/- per month to the wife/respondent herein. 2.The parties are referred to as per their rank in M.C. According to the petitioner, the petitioner who was the widow and the respondent got married on 22.1.2003 and they set up their family at Gudiyatham where they lived together as husband and wife for 2 years and thereafter the respondent started harassing the petitioner by saying that had he married elsewhere, he would have got Rs.50,000/- as dowry and the petitioner who is elder to him was subjected to torture and harassment and the respondent also sold 5 sovereign gold belonging to the petitioner. Though she lodged a complaint at Gudiyatham Police station, no action was taken on the same and the same was closed without further action which compelled the petitioner to come forward with M.C.No.19 of 2005 seeking maintenance. The petition was seriously resisted by the respondent by denying either any marriage or living together relationship between the petitioner and himself. The respondent totally denied any acquaintance with the petitioner. 3.The petitioner and the respondent in support of their respective contentions, examined themselves and their witnesses as P.Ws.1 to 3 and R.Ws.1 to 6 and produced Exs.P1 to P4 and Exs.R1 to https://hcservices.ecourts.gov.in/hcservices/ R4 documents respectively. The trial court on the basis of the available records, arrived at a conclusion that the respondent married the petitioner and they had been living together as husband and wife in the house of P.W.2 at Old No.24, New No.75, Rasi Arunachalam Street, Gopalapuram for more than 2 years and the petitioner has been continuously residing at the same address and the respondent also admitted the marriage between the petitioner and the respondent and the marital relationship between the parties in his statement before the police station in the course of enquiry upon the complaint given by the petitioner before Gudiyatham Police Station and the respondent is hence bound to maintain the petitioner and to pay maintenance to her. Hence, this criminal revision by the respondent before this court. 4.The learned counsel for the respondent would seriously contend that the petitioner having failed to prove valid marriage under Muslim law and living together relationship between the parties, is not entitled to claim any status as Wife and has no right to claim maintenance by invoking the provisions of Section 125(1) Cr.P.C. 5.The learned counsel for the petitioner would justify the correctness of the order by relying upon the statement of the respondent before the police and the outcome of the enquiry held by the Police upon her complaint. 6.I heard the submissions made on both sides and perused the materials available on record. 7.Our Apex Court has in the judgment reported 2010 (7) Supreme 321 in D.Velusamy v. D.Patchaiammal and (2005) 3 SCC 636 in Savitaben Somabhai Bhatiya v. State of Gujarat and others held that the expression 'wife' under section 125 Cr.P.C includes a women who has been divorced by her husband and has not remarried" and there is no scope to include a woman not lawfully married within the expression of wife and a divorced wife is treated as a wife but if a person has not even been married obviously that person could not be divorced and hence cannot claim to be the wife. In the judgment reported in (2005) 3 SCC 636 in Savitaben Somabhai Bhatiya v. State of Gujarat and others, it is further observed that Sec.125 Cr.P.C has been enacted in the interest of a wife and one who intends to take benefit under sub section (1)(a) has to establish the necessary condition namely, that she is the wife of the person concerned. The issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes such status or relationship with reference to the personal law that an application for maintenance can be maintained". The Apex Court in (1991) 2 SCC 375 in Vimala v. Veeraswamy, while dealing with the objection raised by the husband against the status of the woman as legally wedded wife of the opponent on the ground of subsistence of earlier marriage at the time of solemnizing the second marriage, is pleased to hold that clear proof of earlier marriage and not mere living as husband and https://hcservices.ecourts.gov.in/hcservices/ wife is essential and on his failure to tender strict proof of the fact in issue, the Supreme Court was pleased to reject his stand and confirm the order of maintenance passed by the trial court. The Supreme Court in (1999) 7 SCC 675 in Dwarika Prasad Satpathy v. Bidyut Prava Dixit and another held that the standard of proof of marriage in proceedings under Section 125 Cr.P.C is not as strict as is required in a trial of offence under Section 494 IPC and if the claimant in proceedings under Section 125 of the Code succeeds in showing that she and the respondent have lived together as husband and wife, the court can presume that they are legally wedded spouses and in such a situation, the party who denies the marital status can rebut the presumption. Thus, the law emerges from the citations above referred to is that only the woman who is having legal status as wife can claim maintenance under Section 125. 8.In the present case, as the petitioner claims maintenance only as the legally wedded wife of the respondent and as the marriage is seriously denied, the burden is upon her to prove the marriage. 9.In this case, the petitioner in M.C claims herself to be the legally married to the respondent on 22.1.2003. But even according to her, there is no marriage between the two as per their personal muslim law. Though a document in Urdu purported to be the receipt for marriage registration was filed along with M.C in support of her contention that both of them got married, the same document was returned to be filed along with english translation from Urdu and the document thereafter was not produced before the court. The petitioner has not produced any other document to prove the marriage in any other form between the two. However, the petitioner has sought to bring herself within the definition of wife on the ground that they had been living together as husband and wife at D.No. new No.75 old no.24, Rasi Arunachalam Street, Gopalapuram, Gudiyatham said to be belonging to P.W.2 and P.W.2 has deposed that the respondent approached him for letting out a portion of his property for rent and the respondent paid Rs.500/- as advance and both the petitioner and the respondent were living together as husband and wife in his house and thereafter, the respondent along with 5 sovereigns of gold chain belonging to the petitioner left for Bangalore and the petitioner has been continuously living in his house for the past 3 years. The petitioner has also in her petition filed on 4.10.2005 given her residential address as Rasi Arunachalam Street, Gopalapuram, Gudiyatham. But, the same petitioner has as seen from Ex.P1 dated 23.1.2005 Receipt of the complaint issued to her by All Women Police Station, Gudiyatham given the residential address of both the petitioner and the respondent in her complaint Ex.P2 as No.165, Ari Kuthi Road, Habib Nagar, Pernampet. The address as given in Ex.P2 complaint is only entered in Ex.P1 receipt given by the police. The complaint also proceeds to say as if the complainant belongs to Pernampet. It is nowhere stated in the complaint that both of them after marriage lived together as husband and wife at Guidyatham. If that is so, in the absence of any other proof such as ration card to https://hcservices.ecourts.gov.in/hcservices/ show that the petitioner and the respondent had been living together in the house of P.W.2, the theory put forth by P.W.1 and P.W.2 in this regard cannot be accepted. 10.On the other hand, the respondent produced Ex.R4 which is the copy of voter list issued on 27.1.2006 and the same would contain the residential address of the respondent as in Ward 3, Muslim Colony, Ari Kuthi, Gudiyatham, Vellore District-635 810. Thus, in the present case, the petitioner has failed to prove either the marriage between herself and the respondent or their living together relationship theory either in the house of P.W.2 or elsewhere. 11.The other document relied upon by the petitioner to prove the marital relationship between the parties is Ex.P3 which is purported to be the statement given by the respondent in the course of enquiry upon Ex.P2 compliant given by the petitioner at All women Police Station, Gudiyatham. It is true that the statement proceeds as if the petitioner and the respondent got married and thereafter they had been living together as husband and wife and she used to quarrel with him and thereafter, he left for Kerala. The respondent though admitted his signature in the document, denied the voluntary nature of the statement. According to him, the statement is not voluntarily given by him and his signature is obtained only in blank paper on different date and the same is utilised for preparing the statement. 12.The perusal of the materials reveal that Ex.P2 complaint given by the petitioner before All Women Police Station, Gudiyatham is not registered as F.I.R, but was treated as petition and was given C.S.R.No.21 of 2005. The petitioner has examined P.W.3 Sub Inspector of Police, Gudiyatham to prove the filing of one such complaint and the nature of the enquiry held on the same and statement given by the respondent etc. However, P.W.3 has in the course of her cross examination categorically admitted that the enquiry was conducted by one Lakshmi, Inspector of Police and the enquiry report is signed by the said Lakshmi. Though the said Lakshmi has been examined as R.W.3 on the side of the respondent, her evidence did not support the respondent case. R.W.3 has deposed in the witness box about the marital relationship between the parties and about their living together and she denied that the statement of the respondent is prepared in the blank paper containing his forcibly obtained signature. 13.However, certain aspects pointed out by the learned counsel for the respondent would raise serious doubt in the mind of the court as to whether statement -Ex.P3 is recorded by the police in the manner spoken by P.W.3 and R.W.3. Admittedly, Ex.P2 complaint and Ex.P3 statement do not contain any date, whereas the receipt of the complaint given by All women Police Station, Gudiyatham is dated 23.1.2005. Either of the witnesses P.W.3 or R.W.3 did not say as to what is the date on which the respondent was summoned to the police station and his statement Ex.P3 is obtained. Whereas Ex.R1 is another https://hcservices.ecourts.gov.in/hcservices/ statement purported to be given by the respondent to the effect that he was summoned on 13.5.2005 for enquiry upon the complaint given by the petitioner and the petitioner did not appear for enquiry, but he duly appeared for enquiry. This statement is admitted by the respondent herein as voluntarily given by him while he appeared for enquiry on 13.5.2005. However, Ex.P4 docket relating to CSR No.21/2005 would contain an entry to the effect that as the respondent agreed to take his wife, further proceedings is dropped and the entry is signed by Lakshmi on 24.1.2005. It is admitted by P.W.3 and R.W.3 that enquiry on the complaint in CSR.No.21 of 2005 is completed as early as on 24.1.2005 and the outcome of the same is duly entered in the docket sheet and is signed by R.W.3 on 24.1.2005. If that is so, there is no occasion or necessity to summon the respondent for any hearing on 13.5.2005. 14.The inconsistency about the date of closure of enquiry is sought to be clarified by P.W.3 and R.W.3 as if the enquiry is once completed on 24.1.2005 and on his failure to comply with his assurance given before the police station to take back his wife, the same is represented to the police by the wife and the police reopened the enquiry and further enquiry was taken and summon was issued to the respondent for the hearing on 13.5.2005 on which date his statement was recorded. But it is not recorded so by the police personnel concerned in the petition in CSR.No.21/2005. In this regard, the averment made by the petitioner in M.C.No.19/05 to the effect that the police did not take any action on the complaint and the same was closed in CSR stage is also to be considered. That being her specific averment raised in the petition in the absence of one such entry for holding further enquiry, the theory that enquiry was reopened and continued further after 24.1.2005 cannot at all be accepted. 15.The combined appreciation of the averments raised in the complaint, the date of complaint and the date on which the complaint was recorded to be closed, the date on which the respondent was called for enquiry and the contents of Ex.R3 and failure to mention any date in Ex.P3 statement would go to probablise the theory put forth by the respondent that he was summoned for the enquiry fixed on 13.5.2005 on which date his signature was obtained in the blank paper and the same was used for creating Ex.P3 statement without any date and the enquiry is closed without any further enquiry and with anti dated entry as if the respondent agreed to take back his wife. In that event, no evidentiary value can be attached to Exs.P2 to P4 documents. Excluding the same, there is absolutely no document to prove their living together relationship theory as put forth by the petitioner. 16.However, the trial court has without properly considering the serious nature of the objection raised on the side of the respondent and the material contradictions in the oral and documentary evidence let in as discussed above, simply https://hcservices.ecourts.gov.in/hcservices/ arrived at a conclusion that the petitioner and the respondent got married and were living together as husband and wife in the house of P.W.2. In my opinion, such finding rendered by the court below is not only based on no evidence but is also based on presumption and assumption and by overlooking the material factors as discussed above. The trial court having referred to the failure on the part of the petitioner to produce any material evidence to prove the marital relationship between the two, ought to have drawn adverse inference against the petitioner. In my considered view, the claimant having failed to prove either her marital or living together relationship with the respondent for reasonable duration in the nature of marriage, is not entitled to claim any maintenance and the award of maintenance passed by the trial court is hence factually and legally unsustainable. 17.In the result, the criminal revision is allowed by setting aside the order dated 25.9.2007 made in M.C.No.19 of 2005 on the file of the Judicial Magistrate, Gudiyatham. Consequently, connected Miscellaneous Petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rk To 1. The Judicial Magistrate, Gudiyatham. 2. The Chief Judicial Magistrate, Vellore. 1 cc To Mr.G.Vinodh Kumar, Advocate, SR.10229. 1 cc To Mr.D.Rajagopal, Advocate, SR.9885. Crl.R.C.No.1775 of 2007 SP(CO) RVL 08.04.2011 https://hcservices.ecourts.gov.in/hcservices/