C.K. Karunakaran v. K. Mary Varghese @ Leelamani

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 1ST DAY OF AUGUST 2013/10TH SRAVANA, 1935 RPFC.No. 181 of 2011 ( )** **-------------------------** **MC 51/2007 of THE FAMILY COURT, ERNAKULAM** ## **REVISION PETITIONER/RESPONDENT:** **-------------------------------------** **C.K.KARUNAKARAN, AGED 58, S/O. LATE KUTTAN, CHELOOKARAN HOUSE, EDAKULAM THRISSUR, (NOW AT FLAT NO.2, IAS FLATS VI LINE, JAWAHAR NAGAR KOWDIAR P.O. THIRUVANANTHAPURAM.** **BY ADV. SRI.G.SREEKUMAR (CHELUR)** ## **RESPONDENT(S)/PETITIONR:** **-----------------------------** **K.MARY VARGHESE @ LEELAMANI, KUNJUVEETIL, PAMBOOR, THRISSUR DISTRICT, (NOW AT HOUSE NO.V/495, EDAYAKUNNAM, SOUTH CHITTOOR P.O. CHERANALLOOR VILLAGE, ERNAKULAM DISTRICT-683544.** **BY ADVS. SRI.K.S.MOHAMED HASHIM** **SMT.CAROLIN SINDHU VAZ SRI.P.JINISH PAUL SMT.S.SEEJA** **THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 01-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OKB** ## **K.HARILAL, J. --------------------------------------------R.P (FC) No.181 of 2011 ---------------------------------------------** Dated this the 1[st] day of August, 2013 ## **O R D E R** The revision petitioner is the respondent in MC.No.51/2007 on the files of the Family Court, Ernakulam filed by the respondent herein. According to her, the revision petitioner is her husband. The above petition was filed by the respondent under Section 125 of the Code of Criminal Procedure seeking maintenance allowance from the revision petitioner. The respondent is a Christian and the revision petitioner is a Hindu. During March 1993, the respondent approached the revision petitioner with a request to marry him. He informed that he is a divorcee and intended to marry the respondent. The respondent agreed the same. Accordingly, they got married on 10.3.1993 and began to reside together as husband and wife at the house of latter situated at Thrikkakara. At the time of marriage, both the revision petitioner and the respondent were having children of their earlier marriage and the children of the revision petitioner were residing along with him. The revision petitioner is a Government servant employed _R.P.(FC).181/11_ **:2:** as a Superintending Engineer. The respondent took care of the children of the revision petitioner and they lived happily. But, after the children were grown up, the revision petitioner realised that he does not require the help of the respondent. He began to harass the respondent without any reason. The children of the revision petitioner also began to abuse and torture her without any reason, physically and mentally. At the instigation of his children, the revision petitioner continued harassment and ill-treatment towards the respondent. On 17.3.2006, the revision petitioner along with his children brutally manhandled the respondent. As a result, she sustained grievous injury and hospitalised for a considerable period. Subsequently, she was driven out of the house and now living separately. The respondent is not having any job or source of income to meet her maintenance expense. Now she is living with the help of her well wishers. The revision petitioner has been neglecting and refusing to pay maintenance allowance to her. But, as a Government servant employed as Superintending Engineer, he amassed wealth and besides the salary, he has sufficient means to give maintenance allowance to the respondent. She claimed Rs.7,500/- per month. But, the Family _R.P.(FC).181/11_ **:3:** Court directed the revision petitioner to pay Rs.1,000/- per month as maintenance allowance. This order is under challenge in this Revision Petition. 2. The revision petitioner has filed a counter-statement and contended that there is no customary marriage between the revision petitioner and the respondent on 10.3.1993 or on any other date, as stated in the petition. So also, there was no marital relationship between the revision petitioner and the respondent as alleged in the petition. They never resided together as husband and wife. The respondent was employed as home nurse under the Indira Gandhi Co-operative Hospital, Ernakulam during the year 1993 and during that period she was employed as a home nurse to assist the revision petitioner and his children especially for the reason that the revision petitioner was an acute diabetic patient. The respondent is having previous knowledge in the treatment of diabetic patients. He denied the allegation that the respondent was frequently subjected to physical as well as mental harassment and she was attacked by the revision petitioner and his children on 17.3.2003 as alleged in the petition. It is also contended that while the respondent was studying, she fell in love with one _R.P.(FC).181/11_ **:4:** Ismail and got married and in that relationship she is having two male children. Subsequently, she fell in love with one Varghese and eloped with the said Varghese. The first husband Ismail filed a complaint before the police and registered a crime as Crime No.120/89 on the basis of which the police produced the respondent before the Judicial First Class Magistrate's Court, Irinjalakkuda on 28.9.2008. Though he denied his relationship as a wife, he contended that when she was residing along with the revision petitioner she used to disappear from his house occasionally and returned only after one or two months. The children of the respondent are employed abroad and she is getting income from them. Apart from that, she filed M.C.No.59/89 before the Judicial First Class Magistrate, Irinjalakkuda for getting maintenance allowance from the earlier husband Ismail. 3. I heard both the counsel for the revision petitioner and the respondent. The learned counsel for the revision petitioner advanced arguments in support of the contentions raised in the Revision Petition and the learned counsel for the respondent advanced arguments in support of the averments in the petition and also to justify the impugned order under _R.P.(FC).181/11_ **:5:** challenge. In view of the rival contentions, the question to be considered is whether there is any illegality or impropriety in the impugned order under challenge. Put it differently, whether the respondent is the wife of the revision petitioner having right to get maintenance allowance from the revision petitioner? If so, is the quantum of amount directed to be paid justifiable? 4. Going by the averments, it could be seen that the revision petitioner claims that they got married on 10.3.1993 and began to reside together as husband and wife at the house of the revision petitioner situated at Thrikkakara. Admittedly, both were married earlier and having children in the earlier marriages. The contention raised by the revision petitioner is that the respondent is not the legally wedded wife of the revision petitioner and she was employed and lived in the house of the revision petitioner as a home nurse since he is a diabetic patient. Admittedly, there is no document to show the legal validity of the marriage. But, at the same time, the respondent had produced Exts.A1 to A4 and examined PWs.1 and 2 to prove that the revision petitioner and the respondent lived together as husband and wife for a period from 1993 to 2006. Going by the contention of the revision petitioner, it could be seen that he _R.P.(FC).181/11_ **:6:** himself admitted that the respondent had lived along with him in his house but not as a wife, but as a home nurse for nursing him. Therefore, the question is whether the respondent had lived along with the revision petitioner in his house as a wife. Before coming to this question, another question is to be answered. Whether a legally valid marriage is required for claiming maintenance as wife? This question was answered by the Apex Court in **Pyla Mutyalamma vs. Pyla Suri Demudu [2011(3) KLT 815 (SC)]** , as quoted below: “The nature of the proof of marriage required for a proceeding under S.125, Cr.P.C. need not be so strong or conclusive as in a criminal, proceeding for an offence under S.494 I.P.C. since, the jurisdiction of the Magistrate under S.125 Cr.P.C. being preventive in nature, the Magistrate cannot usurp the jurisdiction in matrimonial dispute possessed by the civil court. The object of the section being to afford a swift remedy, and the determination by the Magistrate as to the status of the parties being subject to a final determination of the civil court, when the husband denies that the applicant is not his wife, all that the Magistrate has to find, in a proceeding under S.125 Cr.P.C., is whether there was some marriage ceremony between the _R.P.(FC).181/11_ **:7:** parties, whether they have lived as husband and wife in the eyes of their neighbours, whether children were borne out of the union. If the evidence led in a proceeding under S.125 Cr.P.C. raises a presumption that the applicant was the wife of the respondent, it would be sufficient for the Magistrate to pass an order granting maintenance under the proceeding. But if the husband wishes to impeach the validity of the marriage, he will have to bring a declaratory suit in the civil court where the whole questions may be gone into wherein he can contend that the marriage was not a valid marriage or was a fraud or coercion practiced upon him.” 5. Going by the above decision, the principle that can be culled out is that the nature of proof of marriage required for a proceeding under 125 of the Cr.P.C. need not be so strong or conclusive as in a criminal proceedings. The question is, whether they have lived together as husband and wife in the eyes of their neighbours. If the evidence laid in a proceeding under 125 of the Cr.P.C. raises a presumption that the applicant was the wife of the respondent, it would be sufficient for the Magistrate to pass an order granting maintenance under the proceedings. Therefore, the question to be looked into in the _R.P.(FC).181/11_ **:8:** instant case is, whether the revision petitioner and the respondent have lived together as husband and wife in the eyes of their neighbours. 6. Admittedly, the revision petitioner himself had admitted that she lived along with him in his own house but as a home nurse. Therefore, the matter to be examined is what was the nature of relationship while she was residing along with the revision petitioner in his house from 1993 to 2006. There, the evidence given by the respondent as PW1, which is supported by evidence of PW2 and A1 to A4, gets significance. The court below observed that though PWs.1 and 2 were subjected to cross-examination, nothing tangible had been brought out to discredit the version of PWs.1 and 2. Coming to the documents, Ext.A1 is the insurance certificate wherein the revision petitioner is the insured person and the name of nominee is shown as “Leelamani”, the respondent, and the relationship is specifically stated as wife. Ext.A2 is the identity card issued by the Election Commission to the respondent, wherein the name of the husband is shown as “Karunakaran”, the revision petitioner and the relationship is shown as husband and wife. Ext.A3 is the Basic Tax Receipt dated 8.5.2006 in the name of _R.P.(FC).181/11_ **:9:** the revision petitioner and the respondent. In the tax receipt also the respondent is shown as the wife of the revision petitioner. In evidence, the respondent has testified that while they were living together, the revision petitioner had purchased property in the name of the respondent and the said evidence of PW1 gets assurance from Ext.P3 Basic Tax Receipt. But, the revision petitioner contended that the respondent secured the sale deed by way of fabricating the documents. This Court is unable to believe that she managed to get the documents and got fabricated, when the revision petitioner is a highly qualified Class-I Officer employed as Superintending Engineer. By no stretch of imagination this Court can believe that it was a document created fraudulently, particularly, when the revision petitioner himself admitted that it was he who instructed the document writer to prepare Ext.A3 in his name and in the name of Leelamani. Ext.A4 is a series of photographs with negatives six in numbers. These photographs show the close intimacy between the revision petitioner and the respondent and it disclosed the fact that they lived as husband and wife. 7. The learned counsel for the respondent produced a photocopy of the passport of the revision petitioner, which _R.P.(FC).181/11_ **:10:** shows the name of the respondent as revision petitioner's wife; but that was not marked due to the objection raised by the revision petitioner during the course of trial. Considering his objection, the respondent filed M.P.No.138/09 for directing the revision petitioner to produce his original passport. But he has not produced the passport. Therefore, I am of the opinion that an adverse inference under Section 114(g) of the Indian Evidence Act, that the passport, if produced, would be unfavourable to the revision petitioner, can be drawn against the revision petitioner. In the photocopy of the passport, the respondent is shown as the wife of the revision petitioner. 8. Thus, the cumulative effects of the overall evidence discussed above is that the revision petitioner and the respondent lived together as husband and wife for a long period and not as patient and home nurse as claimed by the revision petitioner. I concur with the findings of the court below, that, though there is no evidence to show a legally valid marriage, the evidence shows that they lived together as husband and wife is overwhelming. I am unable to believe that she was residing along with him as a home nurse and I reject the said contention. Therefore, I find that the respondent is entitled to get _R.P.(FC).181/11_ **:11:** maintenance allowance under Section 125 of the Cr.P.C. 9. The next point survives for consideration is, whether the quantum of amount directed to be paid as compensation is justifiable ? There is no evidence to show that the respondent is employed or having any source of income. Though the revision petitioner contended that the respondent is getting maintenance allowance from the husband of her earlier marriage, no evidence has been adduced to substantiate that point. 10. The learned counsel for the revision petitioner pointed out that PW1 herself admitted in evidence that he used to send money on demand. But the learned counsel for the respondent submits that he died in the year 2001. Even if he is alive, after the marriage with the revision petitioner, he is not liable to pay maintenance allowance. Coming to the financial capacity of the revision petitioner, admittedly, he was a Class-I Officer employed as Superintending Engineer under the State Government. Indisputably, he would have sufficient means to maintain his wife. 11. Having regard to the standard of life and the living expenses of the respondent and the income of the revision _R.P.(FC).181/11_ **:12:** petitioner, the direction to pay Rs.1,000/- per month is just and proper and does not call for any interference under the revisional jurisdiction. This Revision Petition is devoid of merits. Consequently, it is dismissed. Sd/- **(K.HARILAL, JUDGE)** Kvs/okb.