Decided on January 06,2012

KAMLA Appellant


SERVESH KUMAR GUPTA,J. - (1.) THIS revision is directed against the judgment and order dated 21.12.2006, passed by the Family Judge, Haridwar, whereby the application moved by Smt. Kamla under Section 125 CrPC, seeking maintenance from private respondent no. 2 Naresh Kumar, claiming him to be her husband, was dismissed.
(2.) THIS Court has rendered a careful and anxious consideration to the submissions advanced by learned Counsel for the parties and has also gone through the impugned judgment and order as well as the evidence adduced by the parties before the court below. It comes out that Smt. Kamla herself admits that she was wedded with one Sri Than Singh hailing from Meerut and lived continuously with him as a wife for twenty years. This was deposed by Smt. Kamla on 30.7.2001 while making her statement on oath before the court below. Although she did not get any divorce decree from the court of competent jurisdiction, but she claimed that she segregated her matrimonial relations from Than Singh as per the caste customs and usages about two and half years prior to making her said statement on 30.7.2001. Thus, on the one hand, she claims to have snapped her matrimonial relations with Than 2 Singh at the end of 1998, while on the other hand, contrary to that, she alleges that she was living with Naresh Kumar as a wife since 25.1.1994. Even if her statement, claiming Naresh Kumar to be her husband, is taken as true, then law does not contemplate such a situation where a woman can live with a man as wife without taking a valid divorce from the court of competent jurisdiction or even segregating her matrimonial relations from her erstwhile husband as per the caste customs and usages before allegedly marrying again with Naresh Kumar. As per her own statement, she continued to be the wife of Than Singh and was living with him till the end of 1998. As such, she cannot attain the status of a wife of Naresh Kumar since 25.1.1994 till the end of 1998. Learned Counsel for the revisionist has relied upon a precedent of Hon 'ble Apex Court rendered in the case of Pyla Mutyalamma @ Satyavathi v. Pyla Suri Demudu & Anr., reported in 2011 (2) N.C.C. 566, wherein it has been held that law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long number of years and when the man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.
(3.) THE above precedent is not applicable in the present controversy because the factum of existence of the marriage of Smt. Kamla with Than Singh up till 1998 is itself evident from her own statement, as stated above. In such a situation, she could not be said to be a legally wedded wife of Naresh Kumar, although she might be living with him since 25.1.1994. Her status, at best, if any, can only be termed as of a concubine or of having a living relationship with Naresh Kumar. The argument of learned Counsel for the revisionist that once a Miscellaneous Case No. 179/1996, under Section 125 CrPC, was launched by Smt. Kamla against Naresh Kumar, and the same was also decreed on 15.2.1997, albeit ex parte, granting maintenance to her to the tune of rupees three hundred per month, is of no relevance because that order stood merged with the compromise dated 5.9.1997, which was subsequently entered into between Smt. Kamla and Naresh Kumar, and this way, the said ex parte order has lost its legal enforceability.;

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