Rafat Parveen v. The State of Jharkhand

learned counsel for the O.P. No. 2 and learned A.P.P.

4. Learned counsel for the petitioner has submitted that part of the impugned judgments dated 08.06.2018 in Original Maintenance Case No. 59 of 2016 passed by the learned Court below is illegal and arbitrary not sustainable in eye of law. It is submitted that as the learned Court below had wrongly rejected the maintenance to the petitioner, although it had allowed to Rs. 2,000/- per month to his son. It is submitted that 3 learned Court below had failed appreciated the evidence of the petitioner. It is submitted that the father of the petitioner has also been examined as PW-2 and he has also claimed that the opposite party is working as contractor and he is earning Rs. 1,000/- per day. It is submitted that admittedly this petitioner is the wife of opposite party and she is not residing with the opposite party and she has alleged that due to torture she is not residing with her husband. It is submitted that the petitioner is not residing with her husband in very much compelling situation as was she regularly being ill-treated for non-fulfilment of additional dowry. It is submitted that in the instant case marriage between the petitioner and opposite party is admitted, it is also admitted that the petitioner is residing separately and she is neither having any source of income nor she had wilfully deserted her matrimonial home. It is submitted that desertion of her matrimonial home is not at all wilful rather it is totally under compulsive situation. It is submitted that this petitioner is presently depending upon her parents, who themselves are not economically sound. It is submitted that in the facts and circumstances of the present case there is no application of section 125 (4) of the Cr.P.C. as petitioner is having valid reason for not residing with the opposite party and hence part of the impugned judgment and sentence passed by the learned Court below may be set-aside and the petitioner may be allowed to the maintenance.

5. On the other hand, the learned A.P.P. has opposed the prayer and submitted that judgment passed by the learned Court below is fit and proper and no interference is required. It is submitted that learned Court has properly appreciated the evidence both the sides and rightly passed the impugned judgment. It is submitted that learned Court below had denied 4 maintenance to the petitioner and had allowed the maintenance amount of Rs. 2,000/- per month to her son. It is submitted that petitioner is wilfully not residing with the O.P.No. 2 and as such the learned Court below had rightly rejected the claim of the petitioner in view of section 125(4) of the Cr.P.C. It is submitted that the P.W. 1 and P.W. 2 have failed to make out the case that the petitioner was ousted from her matrimonial home due to torture by the O.P. No. 2 and his family member. It is submitted that the petitioner is living in the house of her parents on her own. Even P.W. 1 i.e. the petitioner had admitted during her cross- examination the she will not live with the father and mother of the O.P. No. 2 at Chandwa and has willingness to live with the O.P. No. 2 separately in a rented house. It is submitted that O.P. No. 2 is poor labour and the learned Court below had assessed his income as Rs. 12,000/- per month and the learned Court below had pointed that the O.P. No. 2 is working as Tailor and earning Rs. 400/- per day . It is submitted that the learned Court below had appreciated the evidence of the O.P.W. 1 and the O.P.W. 2 and also held that the petitioner is voluntarily residing in her parental home, after birth of her child. It is submitted that even the child was born in hospital at Chandwa while she was in her matrimonial home with her husband. It is submitted that the O.P.W. 1 and the O.P.W. 2 have fully supported the case of the O.P. No. 2 i.e. the husband and the learned Court below had rightly rejected the case of the petitioner in the light of section 125 (4) of the Cr.P.C. and hence this Criminal Revision may be dismissed.

6. Perused the record of this case and Lower Court Records of this case and considered the submission of both the sides. 5

7. It transpires that the present case was filed on behalf of the petitioner on 24.08.2018 and the Co-ordinate Bench of this Court had issued notice upon the O.P. No. 2 vide order dated 17. 08.2021, however the O.P. No. 2 did not appear before this Court inspite of valid service of Notice however , the Co- ordinate Bench of this Court vide 17.11.2021 and 06.12.2021 even on 24.02.2022 had allowed one more chance to the O.P. No. 2 to appear in this case, but, the O.P. No. 2 did not appear and hence vide order dated 17.07.2023 by this Court the case was fixed for hearing .

8. It transpires that the petitioner had filed the O.M. case No. 59 of 2016 under section 125 Cr.P.C. on 03.12.2016 against the O.P.No. 2 for the grant of maintenance of Rs. 15,000/- per month. Thereafter the O.P. No. 2 had appeared before the learned Court below on 02.03.2017 and filed his show-cause and parties were sent to the Mediation but the Mediation between the parties had failed.

9. Thereafter the O.P. No.2 filed his show-cause on

12.04.2017 and the case was fixed for evidence.

10. The petitioner in support of her case and got examined two (02) witness who are as follows:- (i) P.W. 1 is Rafat Praveen i.e. the petitioner herself and (ii) P.W. 2 is Md. Khalil i.e. the father of the petitioner

11. However no document has been marked as Exhibit on behalf of the petitioner.

12. On the other hand the O.P. No. 2 in support of his case also got examined two (02) witness who are as follows:- (i) (ii) O.P.W. 1 is Md. Imtiaz i.e. the O.P. No. 2 himself and O.P.W.2 is Md. Ashfaq Ansari, the friend of O.P. No. 2. 6

13. However no document was marked as the Exhibit on behalf of the O.P. No. 2.

14. Thereafter the learned Court below has allowed the maintenance case in part by allowing the maintenance of Rs. 2,000/- per month to the son of the petitioner from the month of June , 2018 to the minor child, till he attains the age of majority . However, the learned Court below had rejected the claim of maintenance on behalf of the petitioner and hence the present Criminal Revision Application has been filed.

15. So far as the evidence of the petitioner is concerned, P.W. 1 is Rafat Praveen i.e. the petitioner herself and she stated during her evidence that she had solemnized Nikah on 01.06.2013 with the O.P. No. 2 and after Nikah she went to her matrimonial home where she lived properly for 1-2 months and thereafter, there was demand of the vehicle and money and for which Panchayati was convened twice. She further stated that she got one son from their marriage and they are living in the Maike and she is being maintained by her father and mother but they have no source of employment. She further stated that her husband is a Contractor and used to do the work of labour supply and he is earning Rs. 1,000/- per day. Apart from this her husband had got ancestral land and from which he earns approx. Rs. 1, 00,000/- (One lakh). She had claimed maintenance of Rs. 15,000/- . During her cross-examination she stated that she is living her matrimonial home since 11 years and she has filed no paper of the Panchayati. However, she stated that her husband keeps her properly then she will live with him but she will not live properly if she is being kept at Chandwa. She can live with her husband 7 only if she is allowed to live separately from her Sasural and she does not want to live with her Father –in-law and Mother-in-law . She had denied the suggestion that she does not want to live as she had to do work in Sasural i.e. the matrimonial home, rather the fact is that her husband is living with some another lady and hence she does not want to live at Chandwa. She can disclose the name of lady and her entire information. She could not say the Khata or plot No. of agricultural land of her husband. She had denied the suggestion that her husband is working as a labour in a sewing shop. She had asserted that her husband is doing work of Nali, Road or contract as a Contractor. However, she is neither aware of the department where her husband is working nor seen the registration nor the number . She denied the suggestion that no torture was made by the husband and any one while she was living in her Maike voluntarily.

16. Thus from the scrutinizing the evidence of P.W. 1, it is evident that she has fully supported her case and stated that she is not able to live with her husband and even her Father –in-law and Mother-in law because her husband is living with the another lady in Chandwa and she had declined to live her Father – in-law and Mother –in-law. However, she also could not say the Khata Number and Plot Number of the land and house of the O.P. No. 2 and she also could not say the Licence Number and Contract number of her husband.

17. P.W. 2 is Md Khalid i.e. the father of the petitioner who stated that the applicant petitioner is his daughter and her Nikah was solemnized in the year 2013 and thereafter his daughter went to her matrimonial home. However, after 1-2 months she was 8 assaulted by her husband and money was being demand and Panchayati was convening. Presently his daughter is living with him and he is maintaining her and her child, however her husband does not give any thing for her maintenance. He also stated that his Son-in-law is a Contractor and earning Rs. 1,000/- per day but she had no land for Agriculture. But he had brought his own house. His daughter had demanded Rs. 15,000/- per month and his daughter does not do any work and his Son-in-law brought his daughter to his residence and his Son-in-law is not looking after her . During cross-examination he could not state about the licence number of contractory of his Son-in-law . He denied the suggestion that his Son-in-law is a Tailor, however he had not filed any complaint in the Police Station for assaulting his daughter but filed paper of Panchayati. However he had not seen the Bank Account etc. of the Son-in-law. He also stated that he will send his daughter to his Son-in-law if he keeps his daughter properly.

18. Thus, from the scrutinizing the evidence of P.W. 2, it is evident that he had supported the case of the petitioner and stated that his Son-in-law is a Contractor and earning Rs. 1,000/- per day and he is living in his own house whereas he had no agricultural land . However, he could not say the licence No. of Contractor. Thus the P.W. 2 has also supported the case of petitioner.

19. O.P. W. 1 is Md. Imtiaz i.e. O.P. No. 2 himself and had stated that the petitioner used to blame upon them and put various allegation against them. Some time she say her Nani is a Dain and she does not want to live with him and she compels him to live in the house of her father but he does not want to go in the house of 9 the father of the petitioner and hence she is making false accusation . She had alleged that he had married earlier. He further stated that he is doing work of tailoring and her brother has got shop and he is doing some work after taking some work from his shop. He is still ready to keep his wife and child with himself. However , he is earning Rs. 70/- to Rs. 100/- per day and apart from this he had no source of income and he had no agricultural land. During cross-examination he stated that they had been married on 01.07.2013 and his son was born on 24.03.2014 and his son was born at his house at Hospital in Chandwa. He had taken care of his wife and child. However after institution of the case he does not fit it proper to go in the Maike of his wife and he has also not paid any expenses. He is doing work of Tailoring since his childhood and gets the work of 4-5 Salwar and gets Rs. 20 for sewing . He further stated that his house in Chandwa belongs to his mother and he had got no agriculture property and has got no ancestral property. He denied the suggestion that he was earning Rs. 20,000/- per month by doing sewing work. He denied the suggestion for earning Rs. 1,000/- every day by Saria –shuttering and for earning Rs. 1,00,000/- by agriculture . During Court question , he stated that his wife is living separately since July, 2016 and she had put pressure upon him for living at “ Balumath” and hence she is living separately . He also admitted for not giving any expenses. He is four (04) brothers among themselves and he is eldest of all and one of his remaining his three (03) brothers are doing the work of welding while the other two (02) brothers are doing the work of sewing 10 separately. He also stated that all his brothers havegot separate business. His father and mother are alive and his mother is living with him and his younger sister is married.

20. Thus from scrutinizing the evidence of O.P. W. 1, it is evident that he himself admitted that the relationship of husband and wife with the petitioner. He also admitted that his child was born on 24.03.2014 but it was hospital in Chandwa. He also admitted for not given any maintenance to his wife.

21. However, learned below had rejected the claim of the petitioner for the reason that she has merely lived about two months and she is not willing to live with her Father-in-law and Mother-in –law and she doesn’t want to live at Chandawa , Thereafter learned Court below held that it is wish and desire of the wife without sufficient reason not to live with her husband. The learned Court below also observed that the wife is living separately from her husband without any sufficient reason and hence she is not entitled for maintenance as per sub section (4) of section 125 of Cr.P.C. .

22. The learned Court below also observed that as the wife has failed to point out by documentary evidence that her husband is a Contractor and she is not aware that which department her husband is attached in connection with Contract. However on the other hand O.P.No. 2 had asserted that he is working as Tailor.

23. The learned Court below has held that the O.P. No. 2- the petitioner is earning about Rs. 400/- per day from stitching which can said to be bare minimum and it can be more . Thus, considering Rs. 400/- as daily income of the O.P. No. 2 i.e. the petitioner, the monthly income will be Rs. 12,000/- per month. However, the learned Court below had also noticed that the O.P. No. 2 is maintaining his mother who is living with him, but he 11 had maintained the appellant No. 2 i.e. the son of the petitioner and the learned Court below has directed petitioner to pay Rs. 2,000/- per month to his minor son namely Md Alatamas but has rejected the claim of the petitioner on the ground that she is living separately from her husband without any sufficient reason by invoking the provisions of section 125 (4) Cr.P.C.

24. This Court finds that the petitioner while examined as P.W. 1 has fully supported the case and has stated that her husband is living with some another lady and hence she does not want to live with him in Chandwa.

25. Although section 125 (4) of Cr.P.C. prescribes that the wife shall not be entitled to receive and allowance for the maintenance from the husband with any sufficient reason , however the petitioner had already explained during her evidence that her husband is living with some another women and this is sufficient reason for not living with the husband by the wife and has not been properly appreciated by the learned Court below.

26. Even the petitioner has also sufficiently explained in the petition filed under section 125 Cr.P.C that she had been pressurised to pay Rs. 1,00,000/- to the O.P. - her husband .

27. The petitioner was examined as P.W. 1 and she had stated during her cross-examination before the Court at para 8 that her husband is living separately since July, 2016 . Thus, the O.P. No. 2 appears to have lived with the petitioner till 24.07.2016 as per his own admission.

28. Even the O.P. No. 2 or O.P.W.1 stated during his examination- in -chief that his wife used to taunt that he had already performed marriage from earlier. Therefore, even from the evidence of O.P.W. 1 that it would appear that the wife is apprehensive of the fact that he had performed marriage earlier 12 with some other lady before marrying with her .

29. However in view of the discussion made about , it is clear that the petitioner has not been maintaining his wife and there is some other lady in his life also earlier before the marriage and as it reveals from the cross-examintion as P.W. 1 at para 5 and examination in chief of the O.P.W.1 .

30. Even the learned Court below had committed error by rejecting the claim of the petitioner on the ground of section 125 (4) Cr.P.C.

31. At this stage it is further relevant to quote explanation of section 125 Cr.P.C (3). Explanation of section 125 (3) of Cr.P.C. reads as follows:- “Explanation – If a husband has contracted marriage with another women or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him. “

32. It is well settled that the wife i.e. the petitioner and her children will be entitled to maintenance as per the status of income and life style of her husband.

33. It has been held in the case of Rohtash Singh Versus Ramendri (Smt) and Ors. reported in 2000 (3) SCC 180 at paragraphs Nos. 8 and 9 as follows:- “Para-8:- Admittedly, in the instant case, the respondent is a divorced wife. The marriage ties between the parties do not subsist. The decree for divorce was passed on 15th of July, 1995 and since then, she is under no obligation to live with the petitioner. But though the marital relations came to an end by the divorce granted by the Family Court under Section 13 of the Hindu Marriage Act, the respondent continues to be "wife" within the meaning of Section 125 Cr.P.C. on account of Explanation (b) to Sub-section (1) which provides as under : "Explanation. - For the purposes of this Chapter – 13 (a) * * * (b) "wife" includes woman who has been divorced by, or has obtained a divorce from her husband and has not remarried." Para-9:- On account of the Explanation quoted above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming Maintenance Allowance from her ex-husband. This Court in Capt. Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Others observed as under : (SCC p. 74, para 9) "9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Art. 39. We have no doubt that, sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause-the cause of the derelicts."

34. It has been held in Kalyan Dey Chowdhury Vs Rita Dey Chowdhury Nee Nandy reported in 2017 Vol (14) SCC 200 at paragraph 15, as follows :- “Para 15:- The review petition under Order 47 Rule 1 CPC came to be filed by the respondent wife pursuant to the liberty granted by this Court when earlier 2-2-20152 awarding a maintenance of Rs 16,000 to the respondent wife as well as to her minor son was under challenge before this Court. As pointed out by the High Court, in February 2015, the appellant husband was getting a net salary of Rs 63,842 after deduction of Rs 24,000 on account of GPF and Rs 12,000 towards income tax. In February 2016, the net salary of the appellant is stated to be Rs

95.527. Following Kulbhushan Kumar v. Raj Kumari, in this case, it was held that 25% of the husband's net salary would be just and 14 proper to be awarded as maintenance to the respondent wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependent on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. Since in February 2016, the net salary of the husband was Rs 95,000 per month, the High Court was justified in enhancing the maintenance amount. However, since the appellant has also got married second time and has a child from the second marriage, in the interest of justice, we think it proper to reduce the amount of maintenance of Rs 23.000 to Rs 20.000 per month as maintenance to the respondent wife and son.

35. It has been held in Chaturbhuj Vs Sita Bai reported in (2008 ) SCC 316 at paragraph 8, as follows: Para 8:- “In and illustrative case where the wife was surviving by begging, it would not amount to her ability to maintain herself. It can also be not said that he wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan Dutt V. Kamla Devi it was observed that wife should be in a position to maintain a standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression “ unable to maintain herself” does not mean that the wife must be absolutely destitute before she can apply for maintenance under section 125 Cr.P.C.

36. It has been held in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 at Para-77, 78, 79, 80, 112 and 113, which are as follows:- “Para-77:- The objective of granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for 15 quantum of maintenance awarded. fixing Para-78:- The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subpsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. [ Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290] Para-79:- In Manish Jain v. Akanksha Jain [Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] this Court held that the financial position of the parents of the applicant wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the court should mould the claim for maintenance based on various factors brought before it. Para-80:- On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able- bodied and has educational qualifications. [Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339] Para-112:- In Badshah v. Urmila Badshah Godse [Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188 : (2014) 1 SCC (Civ) 51] , the- Supreme Court was considering the interpretation of Section 125 CrPC. The Court held : (SCC p. 196, para 13) “13.3. … purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve “social justice” which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for 16 all its citizens, justice, liberty,equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society.” Para-113:- It has therefore become necessary to issue directions to bring about uniformity and consistency in the orders passed by all courts, by directing that maintenance be awarded from the date on which the application was made before the court concerned. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.”

37. It has been held in the case of Sunita Kachwaha and Others vs Anil Kachwaha reported in 2014 (16) SCC 715 at para 7, 8 and 10 as follows:- “Para-7:- Inability to maintain herself is the pre-condition for grant of maintenance to the wife. The wife must positively aver and prove that she is unable to maintain herself, in addition to the fact that her husband has sufficient means to maintain her and that he has neglected to maintain her. In her evidence, the appellant-wife has stated that only due to help of her retired parents and brothers, she is able to maintain herself and her daughters. Where the wife states that she has great hardships in maintaining herself and the daughters, while her husband’s economic condition is quite good, the wife would be entitled to maintenance. Para-8:- The learned counsel for the respondent submitted that the appellant-wife is well qualified, having post graduate degree in Geography and working as a teacher in Jabalpur and also working in Health Department. Therefore, she has income of her own and needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Insofar as her employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High Court to prove her employment and her earnings. In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance. 17 Para-10:-The impugned order of the High Court dated 26.06.2008 passed in Criminal Revision No. 2303/2007 is set aside and this appeal is allowed. The respondent is directed to pay the maintenance of Rs.3,000/- per month to the appellant-wife as ordered by the Family Court and also pay the arrears of maintenance payable to the appellant-wife within the period of eight weeks.”

38. It has been held in the case of Dr. Swapan Kumar Banerjee Vs. State of West Bengal and Another reported in 2020 (19) SCC 342, that even a wife who has been divorced on ground of desertion is entitled to claimed maintenance.

39. It has been held in 2020 (19) SCC 342 at para 5 and 7 which are as follows:- “Para 5:- Thereafter, in Rohtash Singh v. Ramendri this Court took a similar view: (SCCP 184, para 11)

11. The learned counsel for the petitioner then submitted that once a decree for divorce was passed against the respondent and marital relations between the petitioner and the respondent came to an end, the mutual rights. Duties and obligations should also come to an end. He pleaded that in this situation, the obligation of the petitioner to maintain a woman with whom all relations came to an end should also be treated to have come to an end. This plea, as we have already indicated above, cannot be accepted as a woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her." “Para 7:- No doubt, as urged by Mr Debal Banerjee. Explanation II to Section 125 9 CrPC by deeming fiction includes a divorced woman to be a wife and, therefore, a woman who has been divorced by her husband can still claim maintenance under Section 125 CrPC. The question is how we should read the provisions of sub-section (4) in this regard, especially when we deal with those women, against whom a decree for divorce has been obtained on the ground that they have deserted their husband. Once the relationship of marriage comes to an end, the woman obviously is not under any obligation to live with her former husband. The deeming fiction of the divorced wife being treated as a wife can only be read for the limited purpose for grant of maintenance and 18 the deeming fiction cannot be stretched to the illogical extent that the divorced wife is under a compulsion to live with the ex- husband. The husband cannot urge that he can divorce his wife on the ground that she has deserted him and then deny maintenance which should otherwise be payable to her on the ground that event after divorce she is not willing to live with him. Therefore, we find no merit in the contention of Mr Debal Banerjee.”

40. It has been held in the case of Kamala and Ors. Versus M. R. Mohan Kumar reported in 2019 (11) SCC 491 at paragraphs Nos.15 and 22 as follows:- “Para-15:- Unlike matrimonial proceedings where strict proof of marriage is essential, in the proceedings under Section 125 Cr.P.C., such strict standard of proof is not necessary as it is summary in nature meant to prevent vagrancy. In Dwarika Prasad Satpathy v. Bidyut Prava Dixit,this Court held that “27. ...the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. The learned Judges explained the reason for the aforesaid finding by holding that an order passed in an application under Section 125 does not really determine the rights and obligations of the parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. The learned Judges held that maintenance cannot be denied where there was some evidence on which conclusions of living together could be reached.” When the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance of wife under Section 125 Cr.P.C. Applying the well- settled principles, in the case in hand, appellant No.1 and the respondent were living together as husband and wife and also begotten two children. Appellant No.1 being the wife of the respondent, she and the children appellants No.2 and 3 would be entitled to maintenance under Section 125 Cr.P.C. Para-22:- Based upon oral and documentary evidence, when the family court held that there was a valid marriage, the High Court being the revisional court has no power reassessing the evidence and substitute its views on findings of fact. The High Court did not keep in 19 view that in the proceedings under Section 125 Cr.P.C., strict proof of marriage is not necessary. The findings recorded by the family court as to the existence of a valid marriage ought not to have been interfered with by the High Court.”

41. Thus, in view of the discussion made above, the part of the judgment passed by the learned Court below is modified to the extent i.e. the petitioner namely Rafat Praveen i.e. the wife will be entitled to Rs. 2,000/- per month also from the date of filing of the application under section 125 Cr.P.C before the learned Principal Judge, Family Court, Latehar.

42. In view of the discussion made above, the part of the Judgement dated 08.06.2018 passed by Sri Vishnu Kant Sahay, then learned Principal Judge, Family Court, A/C, Latehar, in Original (Maintenance) Case No. 59 of 2016, is set-aside in the interest of the justice. The O.P. No. 2 is further directed to pay arrears of maintenance amount within twelve (12) weeks from the receipt of this order.

43. Thus, this Criminal Revision No. 1214 of 2018 is allowed to the extent as indicated above. Bibha/ (Sanjay Prasad, J.)