Kaur was earlier married to one Mander Singh and which marriage the
wife claims was dissolved by customary decree through Panchayat and
thereafter Parminder Kaur alias Sukhpreet Kaur entered into a wedlock
with Harpal Singh alias Gurpal Singh respondent out of which applicant
No.2 Navdeep Singh who was minor at the time of filing of the
application was born. Subsequently, differences cropped up between the
two and thereafter the applicant wife claims that she was thrown out of
the house and thus, sought maintenance for herself as well as her minor
child alleging that the husband is an able bodied person and runs a dairy
farm and earns handsomely as well as from his avocation as a bus
conductor and has about `15,000 earnings from these.
The respondent husband’s stand though admits the
relationship but claims that she is not his legally wedded wife and thus,
her marriage with Mander Singh son of Gurcarhan Singh is subsisting as
on date of filing of the application, since they had not been legally
divorced and therefore was not entitled to any maintenance. It was as an
admission of this situation between the couple, the trial Court and so the
first appellate Court has declined the wife the maintenance allowance.
Appreciating the submissions of the two sides, it is by no
means denied that initially the applicant Parminder Kaur alias Sukhpreet
Kaur was married to Mander Singh and subsequently this marriage was
put to an end and almost four years prior to the filing of the application
for maintenance i.e. around the year 2003 they have entered into this
relationship. It could not be refuted by learned counsel for the
respondent by any means that minor son Navdeep Singh is not an
offspring out of this relationship. Thus, the moot point that comes up is
if in such a situation the minor son and so the application No.1
Parminder Kaur alias Sukhpreet Kaur is entitled to maintenance or not.
The statement of Parminder Kaur alias Sukhpreet Kaur as
AW1 as has been highlighted is supported by the depositions of AW2
Nachhatar Singh and AW3 Mander Singh son of Gurcharan Singh and
all these witnesses univocally spell out that after the dissolution of the
marriage of Parminder Kaur alias Sukhpreet Kaur with Mander Singh
the couple had entered into a wedlock and stayed together for a long
period of time giving birth to an offspring Navdeep Singh. However,
evidence of the wife’s side has not been controverted by the respondent
who has failed to examine even a single witness to prove his stand or to
examine even himself to rebut these contentions and rather it is admitted
stand of the counsel of the husband that the husband Harpal Singh alias
Gurpal Singh had earlier on 20.03.2007 filed a petition under Section 9
of the Hindu Marriage Act seeking decree of restitution of conjugal
rights and which was subsequently dismissed as withdrawn which is
reflected from Ex.PX and Ex.PY. The petition itself reflects that the
husband claims that a marriage between them was solemnized on
12.03.2003 by way of sikh rites by way of Anand Karaj ceremony and
further admits that out of this wedlock between them Navdeep Singh a
male child was born to them. This stand of the husband is not at all
disputed and rather as per Ex.PX the wife was granted ad-interim
maintenance under Section 25 of the Hindu Marriage Act and the
concerned Court had framed issues on their pleadings including the
entitlement of husband for a decree of restitution of conjugal rights and
which fact escaped the judicial notice of the Courts below. Since there is
an admission before a Court of law by the husband of this matrimonial
relationship of a husband and wife which he has tried to enforce through
a Court of law is the best piece of evidence and now at this stage when
faced with this music of paying maintenance cannot be allowed to
withdraw from it and thus, in terms of Sections 17, 18, 19 of the
Evidence Act is a reliable unrebuttable legitimate piece of evidence and
a party cannot wriggle out of such admission made before a Court of law
and thus, are relative piece of evidence in terms of Section 21 of the
Evidence Act. To the mind of this Court being an admission in a civil
case is certainly relevant in terms of Section 23 of the Evidence Act.
Thus in the totality of this written admission before a Court of law
washes away the benefit of the admission of the wife in her crossexamination
that her marriage was dissolved and the onus shifts upon
the husband in terms of Sections 101 and 102 of the Evidence Act to
establish the invalidity of this marriage.
Looking from another angle, with the advent of
modernization and introduction of new ethos, patterns and social norms
that have come about in this modern era, the term ‘wife’ needs to be
given a broad and expansive interpretation to include even those cases
where a man and woman have been living together as husband and wife
for a reasonably long period of time and thus, does not necessitates strict
proof of marriage for the purposes of grant of maintenance.
Hon’ble the Supreme Court of India in ‘Indra Sarma v.
V.K.V. Sarma’ 2013(15) SCC 755 had considered various elements in
such relationships consisting of duration of period of relationship,
shared household, pooling of resources and financial arrangements,
domestic arrangements, sexual relationship, children, socialization in
public, intention and conduct of the parties, as strict indicators of such a
relationship, impels this Court to hold this relationship in the nature of a
marriage which is within the meaning assigned to Section 2(f) of the
Domestic Violence Act. The husband knowingly has as is admitted by
him married her and thus accepted unconditionally her as his wife and
after a long cohabitation begotten a child from her womb.
From the overall interpretation of the evidence, it clearly and
strongly bears out that this woman and man knowing well that the lady
had already divorced her previous husband have chosen to undergo a
marriage as per his admission by way of Anand Karaj ceremony, lived
together under a roof, had relationship, catering to each others needs and
desires and begetting the child are in itself exhaustively defining the
domains of their relationship to be of a pure and simplicitor that of
husband and wife. Now the husband faced with this matrimonial
ignominy is trying to shed away his obligation of paying maintenance
and trying to hide under the garb of ‘not legally wedded wife’ which
coinage has been rampantly used by him in his pleadings and invariably
suggests that he admits their relationship to be of a husband and wife.
Though, in the light of reference made by the Hon’ble Supreme Court in
‘Chanmuniya v. Virendra Kumar Singh Kushwaha & another’
2011(1) SCC 141 to a Full Bench of that Court to answer the question
whether living together of a man and woman as husband and wife for a
considerable period of time would arise presumption of valid marriage
between them and whether such a presumption would entitle the woman
to maintenance under Section 125 Cr.P.C. But for the time being the
rights of the wife and the child cannot be stalled.
Since husband in the present case has on his own forgiven
the past of the wife and has accepted her as such for a long period of
time till their relationship remained cordial, now cannot be allowed to
get out of the same by any means.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR No.3625 of 2012 (O&M)
Date of decision: 26th July, 2016
Parminder Kaur @ Sukhpreet Kaur and another
V
Harpal Singh @ Gurpal Singh
CORAM:MR. JUSTICE FATEH DEEP SINGH
FATEH DEEP SINGH, J.
Citation:2016 CRLJ(NOC)344 P&H
After a long ding dong battle, with reverses the revisionist
Parminder Kaur alias Sukhpreet Kaur and her minor offspring Navdeep
Singh, out of whom initially the son was only successful in getting
maintenance of `500 per month from the Court of Judicial Magistrate
1st Class, Muktsar through orders dated 02.03.2010 have both come up
in this invocation after this order was challenged by them before the
Court of learned Additional Sessions Judge, Sri Muktsar Sahib which
through judgment dated 15.05.2012 upheld the orders of the learned
Magistrate and thus dismissed their appeal.
Heard Mr. I.S. Mann, Advocate for the petitioners;
Mr.Jasmail Singh Brar, Advocate for the respondent and perused the
records.
It is an admitted case that Parminder Kaur alias Sukhpreet
Kaur was earlier married to one Mander Singh and which marriage the
wife claims was dissolved by customary decree through Panchayat and
thereafter Parminder Kaur alias Sukhpreet Kaur entered into a wedlock
with Harpal Singh alias Gurpal Singh respondent out of which applicant
No.2 Navdeep Singh who was minor at the time of filing of the
application was born. Subsequently, differences cropped up between the
two and thereafter the applicant wife claims that she was thrown out of
the house and thus, sought maintenance for herself as well as her minor
child alleging that the husband is an able bodied person and runs a dairy
farm and earns handsomely as well as from his avocation as a bus
conductor and has about `15,000 earnings from these.
The respondent husband’s stand though admits the
relationship but claims that she is not his legally wedded wife and thus,
her marriage with Mander Singh son of Gurcarhan Singh is subsisting as
on date of filing of the application, since they had not been legally
divorced and therefore was not entitled to any maintenance. It was as an
admission of this situation between the couple, the trial Court and so the
first appellate Court has declined the wife the maintenance allowance.
Appreciating the submissions of the two sides, it is by no
means denied that initially the applicant Parminder Kaur alias Sukhpreet
Kaur was married to Mander Singh and subsequently this marriage was
put to an end and almost four years prior to the filing of the application
for maintenance i.e. around the year 2003 they have entered into this
relationship. It could not be refuted by learned counsel for the
respondent by any means that minor son Navdeep Singh is not an
offspring out of this relationship. Thus, the moot point that comes up is
if in such a situation the minor son and so the application No.1
Parminder Kaur alias Sukhpreet Kaur is entitled to maintenance or not.
The statement of Parminder Kaur alias Sukhpreet Kaur as
AW1 as has been highlighted is supported by the depositions of AW2
Nachhatar Singh and AW3 Mander Singh son of Gurcharan Singh and
all these witnesses univocally spell out that after the dissolution of the
marriage of Parminder Kaur alias Sukhpreet Kaur with Mander Singh
the couple had entered into a wedlock and stayed together for a long
period of time giving birth to an offspring Navdeep Singh. However,
evidence of the wife’s side has not been controverted by the respondent
who has failed to examine even a single witness to prove his stand or to
examine even himself to rebut these contentions and rather it is admitted
stand of the counsel of the husband that the husband Harpal Singh alias
Gurpal Singh had earlier on 20.03.2007 filed a petition under Section 9
of the Hindu Marriage Act seeking decree of restitution of conjugal
rights and which was subsequently dismissed as withdrawn which is
reflected from Ex.PX and Ex.PY. The petition itself reflects that the
husband claims that a marriage between them was solemnized on
12.03.2003 by way of sikh rites by way of Anand Karaj ceremony and
further admits that out of this wedlock between them Navdeep Singh a
male child was born to them. This stand of the husband is not at all
disputed and rather as per Ex.PX the wife was granted ad-interim
maintenance under Section 25 of the Hindu Marriage Act and the
concerned Court had framed issues on their pleadings including the
entitlement of husband for a decree of restitution of conjugal rights and
which fact escaped the judicial notice of the Courts below. Since there is
an admission before a Court of law by the husband of this matrimonial
relationship of a husband and wife which he has tried to enforce through
a Court of law is the best piece of evidence and now at this stage when
faced with this music of paying maintenance cannot be allowed to
withdraw from it and thus, in terms of Sections 17, 18, 19 of the
Evidence Act is a reliable unrebuttable legitimate piece of evidence and
a party cannot wriggle out of such admission made before a Court of law
and thus, are relative piece of evidence in terms of Section 21 of the
Evidence Act. To the mind of this Court being an admission in a civil
case is certainly relevant in terms of Section 23 of the Evidence Act.
Thus in the totality of this written admission before a Court of law
washes away the benefit of the admission of the wife in her crossexamination
that her marriage was dissolved and the onus shifts upon
the husband in terms of Sections 101 and 102 of the Evidence Act to
establish the invalidity of this marriage.
Looking from another angle, with the advent of
modernization and introduction of new ethos, patterns and social norms
that have come about in this modern era, the term ‘wife’ needs to be
given a broad and expansive interpretation to include even those cases
where a man and woman have been living together as husband and wife
for a reasonably long period of time and thus, does not necessitates strict
proof of marriage for the purposes of grant of maintenance.
Hon’ble the Supreme Court of India in ‘Indra Sarma v.
V.K.V. Sarma’ 2013(15) SCC 755 had considered various elements in
such relationships consisting of duration of period of relationship,
shared household, pooling of resources and financial arrangements,
domestic arrangements, sexual relationship, children, socialization in
public, intention and conduct of the parties, as strict indicators of such a
relationship, impels this Court to hold this relationship in the nature of a
marriage which is within the meaning assigned to Section 2(f) of the
Domestic Violence Act. The husband knowingly has as is admitted by
him married her and thus accepted unconditionally her as his wife and
after a long cohabitation begotten a child from her womb.
From the overall interpretation of the evidence, it clearly and
strongly bears out that this woman and man knowing well that the lady
had already divorced her previous husband have chosen to undergo a
marriage as per his admission by way of Anand Karaj ceremony, lived
together under a roof, had relationship, catering to each others needs and
desires and begetting the child are in itself exhaustively defining the
domains of their relationship to be of a pure and simplicitor that of
husband and wife. Now the husband faced with this matrimonial
ignominy is trying to shed away his obligation of paying maintenance
and trying to hide under the garb of ‘not legally wedded wife’ which
coinage has been rampantly used by him in his pleadings and invariably
suggests that he admits their relationship to be of a husband and wife.
Though, in the light of reference made by the Hon’ble Supreme Court in
‘Chanmuniya v. Virendra Kumar Singh Kushwaha & another’
2011(1) SCC 141 to a Full Bench of that Court to answer the question
whether living together of a man and woman as husband and wife for a
considerable period of time would arise presumption of valid marriage
between them and whether such a presumption would entitle the woman
to maintenance under Section 125 Cr.P.C. But for the time being the
rights of the wife and the child cannot be stalled.
Since husband in the present case has on his own forgiven
the past of the wife and has accepted her as such for a long period of
time till their relationship remained cordial, now cannot be allowed to
get out of the same by any means. Since the wife in her testimony as
AW1 and so her two witnesses have categorically asserted the quantum
of earnings of the husband which remained unrebutted and in view of
the escalating trend of rising prices wife needs money for her own
upkeep and maintenance, for a roof over her head, a nutritious diet for a
child, his education and upbringing, are matters which impinge the
judicial conscience and that such a provision which is for the uplifting of
the weaker sex and minor children and is more of a social upliftment
cannot be given a burial under such hyper-technicalities of the Court and
needs to be liberally construed with wider interpretation. This court
holds that in view of the economic status of both the sides and holding
that the husband out of his dairy-farming and job as conductor of a bus
must be earning around `20,000 and it would subserve the ends of
justice if the wife is allowed maintenance at the rate of `6,000 per
month and the minor child at the rate of `5,000 per month from the date
of filing of the application and the one granted by the Court below is
modified to that extent.
In the light of the same, the instant revision is allowed
thereby setting aside and modifying the impugned judgment/order.
Records be sent back.
(FATEH DEEP SINGH)
JUDGE
July 26, 2016
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