A.F.R. Judge IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR SINGLE BENCH : HON’BLE MR. JUSTICE N.K.GUPTA, J.Criminal Revision No.534/2011 Tarachand Vishwakarma VERSUS Smt.Pushpa Devi Vishwakarma --------------------------------------------------------------------------- Shri Ashok Pandey, counsel for the applicant. Shri Arun Kakoniya, counsel for the respondent. --------------------------------------------------------------------------- ORDER
(Passed on the 8th day of February, 2013) The applicant has preferred the present revision against the order dated 21.2.2011 passed by the Principal Judge, Family Court, Jabalpur in MJ.No.605/2009. whereby a maintenance of Rs.2,000/- p.m. was granted to the respondent alongwith a cost of Rs.1,000/-.
2. The facts of the case, in short, are that, the respondent moved an application under section 125 of the Cr.P.C. that she came into the contact of the applicant in the year 1988. In July, 1989, marriage of the respondent took place with the applicant in a temple. She resided as wife of the applicant upto December, 2005. Thereafter, the - 2 - Criminal Revision No.534 of 2011 applicant started misbehaviour with the respondent and therefore, a compromise deed was executed on 6.1.2006 for alimony till the life-time of the respondent but, after giving the alimony for few months, the applicant stopped the payment and therefore, an application under section 125 of the Cr.P.C. was initiated.
3. The applicant in his reply denied the application. He pleaded that Mooratlal Vishwakarma, the first husband of the respondent is alive and no divorce took place between the respondent and her husband. No marriage ceremony took place between the parties. The applicant was an old aged person and the respondent was a house maid, who was a domestic assistant with the applicant. However, the applicant was kind enough to pay a sum of Rs.600/- p.m. to the respondent. It was paid through her brother Mukesh Vishwakarma but, after sometime the respondent refused to receive the sum, though the amount was sent by the money order. Compromise as submitted by the respondent is forged one. The respondent had a female child from her husband and she performed the marriage of her daughter at Bhopal on her own. She did not inform the applicant about that marriage, which shows that there was no relation of husband and wife between the parties. The applicant is burdened with expenditure of his younger son and his - 3 - Criminal Revision No.534 of 2011 children. In meager amount of his pension, he is unable to pay any maintenance to the respondent and therefore, he prayed that the application may be dismissed.
4. The learned Principal Judge, Family Court, Jabalpur, after considering the entire evidence of the parties, granted a maintenance of Rs.2,000/- p.m. to the respondent on the basis of their live-in relations for a very long period.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the applicant has submitted that the respondent was already a married woman and no divorce took place between the respondent and her husband. Therefore, the respondent could not be said to be the valid wife of the applicant and maintenance under section 125 of the Cr.P.C. can be granted to the wife only. In this connection, the judgment passed by Hon'ble the Apex Court in case of “D.Velusamy vs D.Patchaiammal”. [(2010) (10) SCC 469]., is referred by the learned counsel for the applicant. It is also submitted that looking to the pension amount of the applicant, a huge amount of maintenance could not be granted to the respondent. If it is found that a compromise deed was executed between the parties then, the respondent was to prosecute a civil suit for execution of that compromise. She could not get anything under section 125 of the Cr.P.C. - 4 - Criminal Revision No.534 o”
7. On the other hand, the learned counsel for the respondent has submitted that the respondent was a married wife of the applicant. It is mentioned in the compromise deed and therefore, the applicant is estopped to say contrary to that fact. The younger son of the applicant is an earning member and he or his children are not the liability of the applicant. Looking to the pension amount of the applicant, he can easily give the amount of maintenance directed by the trial Court and therefore, it is prayed that the revision application filed by the applicant may be dismissed.
8. After considering the submissions made by the learned counsel for the parties, it is apparent from the evidence adduced by the parties that the marriage if at all took place between the applicant and the respondent is not material in the present case because the respondent Pushpa (P.W.1) has accepted in para 14 that her husband is alive. She did not say that any divorce took place with her husband from any Court or by any customary arrangement and therefore, if any marriage was performed between the parties then, it cannot be said to be a valid marriage in the eye of law because in Hindu Marriage Act, bigamy is not permitted and therefore, no married woman can marry with another man, without taking any divorce etc. from her previous husband. Therefore, it is not under dispute that - 5 - Criminal Revision No.534 of 2011 whether any marriage took place between the parties or not because if any marriage took place then, that was not a valid marriage in the eye of law and therefore, the respondent was not a wedded wife of the applicant.
9. The learned Principal Judge has twisted the law laid in various judgments and gave an order in favour of the respondent. The judgment passed by Hon'ble the Apex Court in case of D.Velusamy (supra) was referred before the trial Court. This was the judgment passed by Hon'ble the Apex Court in the year 2010. The latest precedents given by Hon'ble the Supreme Court shall be given preference over the previous precedents given by Hon'ble the Supreme Court itself and therefore, if any previous order or judgment is found of the similar Bench of Hon'ble the Apex Court on that point then, the latest view shall apply. Also, if any judgment passed by Hon'ble the Apex Court at any span of time then, the contrary judgments given by various High Courts shall turn per incuriam and such adverse judgments cannot be considered as a precedent at that time. Under such circumstances, the law laid by Hon'ble the Apex Court in case of D.Velusamy (supra) has superseded all the previous judgments, which were contrary to the view taken by Hon'ble the Apex Court. In case of D.Velusamy (supra), Hon'ble the Apex Court has distinguished between the provisions under - 6 - Criminal Revision No.534 of 2011 section 125 of the Cr.P.C. and the provisions of Protection of Woman from Domestic Violence Act, 2005 (hereinafter it will be referred to as 'The Act'). It is mentioned that for the relief under section 125 of the Cr.P.C., a woman should be a wife or a divorced wife and therefore, a valid marriage is necessary for the woman, so that she can be considered as a wife, whereas 'Live-in' relations are accepted in the Act and therefore, marriage is not at all required for getting relief in that Act.
10. Case of such a woman is different when she was residing with a man for a longer period to the case when she claims that she was a married wife of that man. If wife is unable to prove her marriage by direct evidence then, such relationship should be proved by conduct of the man and time period should be such that they were living as husband and wife. In the present case, duration of live-in relation is not relevant because the respondent was already married with someone else and no divorce took place with her husband and therefore, if marriage took place between the parties then, it was not a valid marriage. Under such circumstances, the period of live-in relations has no concern in the present case. The learned Principal Judge could not distinguish between the provisions of section 125 of the Cr.P.C. and the provisions of the Act. The present - 7 - Criminal Revision No.534 of 2011 application was not filed under the provisions of the Act but, it was filed under section 125 of the Cr.P.C. No inherent powers under section 482 of the Cr.P.C. were granted to the Family Court, who was enjoying the Magisterial powers for consideration of application under section 125 of the Cr.P.C., so that the Principal Judge of Family Court could grant the relief under the Act, where the application was filed under section 125 of the Cr.P.C. Hence, the learned Principal Judge of the Family Court has committed an error of law in granting the maintenance to a woman under section 125 of the Cr.P.C., who was not the wife of the applicant in the eye of law.
11. So far as the amount of maintenance is concerned, the amount of pension received by the applicant is proved. He could not prove any liability upon him. His younger son is grown up. He had 2-3 children and therefore, they were not dependent upon the applicant and looking to the contention of the applicant, the maintenance amount computed by the trial Court, may not be said to be excessive.
12. On the basis of the aforesaid discussion, it is apparent that the respondent applied for maintenance under section 125 of the Cr.P.C., whereas, she was not the wife of the applicant at all and therefore, she could not get any maintenance amount from the respondent under the - 8 - Criminal Revision No.534 of 2011 provisions of section 125 of the Cr.P.C. If the respondent wants to get the compromise deed to be complied with then, it may be a separate procedure and she can proceed by any legal procedure to get the compliance of the compromise deed. However, she is not entitled to get any maintenance under section 125 of the Cr.P.C. A legal mistake has been committed by the learned Principal Judge, Family Court, Jabalpur that he applied the provisions of Domestic Violence Act, 2005 in the application filed under section 125 of the Cr.P.C. and therefore, looking to that legal error, an interference is required from the side of this Court by way of a revision. Hence, the revision appears to be acceptable.
13. On the basis of the aforesaid discussion, the revision filed by the applicant is hereby allowed. The impugned order passed by the learned Principal Judge, Family Court, Jabalpur is hereby set aside. The application under section 125 of the Cr.P.C. filed by the applicant is hereby dismissed. However, the order relating to the cost passed by the trial Court shall be maintained.
14. A copy of the order be sent to the trial Court alongwith its record for information. (N.K.GUPTA) JUDGE 8 2/2013 Pushpendra