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Himachal High Court grants interim maintenance to wife while husband refuses the claim of said marriage


The bench of Justice Anoop Chitkara, granted interim maintenance to the wife who claimed that “she could not sustain financially”, also said that “it would undoubtedly have consequence” upon the existence of marriage was challenged by the husband.

Granting interim maintenance is similar to giving first aid

The Bench said in order

The Matter

According to the wife, the marriage was solemnized in September 2000 and she was a widow with three children at the time of marriage. She further claimed that she agreed to marry the appellant-husband on his persuasion. She also said that, initially the husband’s behavior was good but later his behavior changed and he started spending money in liquor and he became abusive to her, so the situation forced her to shift to her deceased husband’s house where the husband never visited her or supported her financially.

The husband claimed that the woman has played fraud upon him and submitted false marriage documents. He also said that, according to the woman, the marriage took place in the year 2000 but she allegedly obtained the marriage certificate from the conscience of a notary public in July 2010.

The husband further claimed that, the woman is still drawing the ‘benefit of being given to widows’, and her drawing such benefits, itself proves that she never solemnized marriage with him.

The Trial Court

The learned JFMC court granted a monthly maintenance to the wife of Rupees 2000 on the ground that the woman is unable to maintain herself.

“The question that whether the marriage between the parties has been legally solemnized only will be decided when both parties to lis lead cogent and convincing evidence. At this stage applicant able to established prima-facie case in her favour. Since the applicant has prima facie established that fact of marriage, as such, the respondent who is able bodied person and having good earning capacity under the legal as well as moral obligation to maintain his legally wedded wife to protect her from becoming destitute”, JFMC order

The Bench

The bench also observed that it has received grants under the benefits given to widows, another document was also annexed of the Ministry of Social Justice where she has claimed to be a widow.

The learned counsel for the appellant-husband claimed that the woman defrauded the appellant by showing her his legally wedded wife to claim maintenan.

On the other hand, the learned counsel for the respondent-wife argued that the element of fraud are subject of cross-examination. SHe also argued that, “interim maintenance an immediate remedy for sustenance”.

The bench referring the Sec 125 of CrPC and the Hindu Adoptions and Maintenance Act, 1956 stated that “a wife to live separately from her husband without forfeiting her claim to maintenance“.

The bench also referred the landmark case of Mohd Ahmed Khan vs Shah Bano Begum, which also talks about ‘preventing its consequences

“Constitutional Bench of Hon’ble Supreme Court held that Sir James- Fitz James Stephen who piloted the Code of Criminal Procedure, 1872 as a Legal Member of the Viceroy’s Council, described the precursor of Chapter IX of the Code in which Section 125 occurs, as ‘a mode of preventing vagrancy or at least of preventing its consequences”.

The bench also cited the Savitaben Somabhai Bhatiya vs State of Gujarat case where the Hon’ble Supreme Court held that;

“[18] It may be noted at this juncture that the legislature considered it necessary to include within the scope of the provision an illegitimate child, but it has not done so with respect to woman not lawfully married. However, desirable it may be, as contended by learned Counsel for the appellant to take note of the plight of the unfortunate woman, the legislative intent being clearly reflected in Sec. 125 of the Code, there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression ‘wife’. [19] As noted by this Court in Vimala (K.) v. Veeraswamy (K.), 1991 (2) SCC 375, when a plea of subsisting marriage is raised by the respondent husband it has to be satisfactorily proved by tendering evidence to substantiate that he was already married.”

The bench stated that ‘law provides quick remedy to protect the applicant against starvation‘.

“Granting interim maintenance is similar to giving first aid. Chapter IX of Code of Criminal Procedure, 1973, provides a quick remedy by a summary procedure to protect the applicant against starvation and tide over immediate difficulties by a deserted wife or children to secure some reasonable sum by way of maintenance. S. 125 (1) (a) of CrPC provides a grant of maintenance to the wife, unable to maintain herself.”

The bench dismissed the husband petition observing “no merits” in the petition also added that the woman have to face consequences if she has falsely claimed of being married with the appellant-husband.

“Furthermore, if the Court concludes that xxxx played fraud upon xxxx, it would undoubtedly have consequences. Given above, the impugned orders are well reasoned and call for no interference.”

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