Delhi High Court : Maid living as Wife is eligible for Maintenance u/s 125 Crpc, Justice Hima Kohli, 01.04.2011, Mahender Vs Asha Laxmi & Oths

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* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.REV.P. 153/2011 and CRL.M.A. 3979-3980/2011 Decided on: 01.04.2011 IN THE MATTER OF : MAHENDER ..... Petitioner Through: Mr. P.K. Dash, Advocate with petitioner in person. versus ASHA @ LAXMI & ORS. ..... Respondents Through: None CORAM * HON'BLE MS.JUSTICE HIMA KOHLI 1. Whether Reporters of Local papers may No be allowed to see the Judgment? 2. To be referred to the Reporter or not? No 3. Whether the judgment should be No reported in the Digest? HIMA KOHLI, J. (Oral) 1. The present petition is filed by the petitioner under Sections 397/401 read with Section 482 of the Cr.PC praying inter alia for setting aside order dated 4.2.2011 passed by the learned Additional Principal Judge, Family Courts, Rohini and for quashing of the petition under Section 125 Cr.P.C. for maintenance as also the application for interim maintenance preferred by the respondents herein, who are the wife of the petitioner and their three minor children.
2. By the order dated 4.2.2011, the learned Addl. Principal Judge, Family Courts had granted interim maintenance of Rs. 3000/- per month to the respondents from the date of the application and had directed the
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petitioner to clear the arrears of maintenance within a period of 6 months and to pay the monthly maintenance amount regularly by 10th of each month. 3. Counsel for the petitioner states in the first place that the petition under Section 125 Cr.P.C. preferred by the respondents is not maintainable and should be dismissed, as there exists no valid marriage between the petitioner and respondent no. 1. He submits that the petitioner is a man of 65 years whereas respondent no. 1 is 30 years of age, and it seems improbable that a marriage would have taken place between them. He further states that respondent no. 1 was a maid servant in the house of the petitioner and that she was a widow who had three children from her previous marriage, who are respondents no. 2 to 4 herein. He further argues that payment of interim maintenance of Rs. 3000/- per month is highly onerous as the petitioner is a poor man, with insufficient resources. In the light of these submissions, counsel for the petitioner prays that the aforesaid order dated 4.2.2011 should be set aside, as it is wholly erroneous and contrary to law.
4. The issue as to whether there exists a valid marriage between the petitioner and respondent no. 1 was raised before the learned Addl. Principal Judge, Family Courts and has been discussed in detail in the impugned order. The trial court has on a prima facie view of the matter reached the conclusion that as per settled legal principles, in proceedings under Section 125 Cr.P.C., the standard of proof required to prove the
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validity of a marriage is not very stringent, and if it can be shown that the parties living as husband and wife, were being treated as married, then the same would be considered a valid marriage, sufficient to award interim maintenance to the dependants. This Court finds no illegality, arbitrariness or infirmity in the aforesaid finding reached by the trial court. Further, this Court is inclined to agree with the trial court that the determination of the validity of a marriage can only be made in the course of the trial, after evidence has been led by both the parties. In this view of the matter, the submission of the petitioner that as he is not married to respondent No.2, he is not liable to pay any maintenance, is turned down. 5. As for the contention of the counsel for the petitioner that the petitioner does not have sufficient monthly income to pay the maintenance, the same cannot be accepted, as the sum of Rs. 3000/- per month is a paltry amount, especially in light of the fact that the petitioner has allegedly removed the respondents from his house and they are now forced to live with their other relations. Having regard to the fact that the petitioner has not been able to place on record any document to show that the respondent No.1 is gainfully employed, the finding of the court below that respondent no. 1 has no source of income to support herself and her children, deserves no interference by this Court at this stage.
6. It may be noted that the power of revision vested in the High Court under Sections 397 and 401 is a limited power to be exercised only under exceptional circumstances, when some patent illegality, arbitrariness
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or infirmity, can be shown on the face of the record, which deserves interference by this Court. No such illegality, arbitrariness or infirmity has been found in the impugned order herein. Further, having regard to the fact that the impugned order is only interim in nature and that the petitioner would be at liberty to adduce evidence and advance all his pleas during trial, the relief sought by the petitioner is declined. 7. The petition is accordingly dismissed as being devoid of merits alongwith the pending applications. (HIMA KOHLI) APRIL 1, 2011 JUDGE pm