# Smt. Kahkashan & Ors. Revisionists v. Umesh Kumar Gupta @ Abbas Husain Kahkashan

- **Citation:** (2022) 4 ILRA 156
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-18
- **Case number:** Criminal Revision No. 670 of 2016
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kahkashan-ors-revisionists-v-umesh-kumar-gupta-abbas-husain-kahkashan-48421
- **Pages:** 16

## Headnote

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 125 - The Court
after careful analyzing the evidence on record
observed that concubinage can be presumed
from
mobile
phone
and
compact
disc
submitted as an evidence. This establishes
familiarity to the extent of intimacy of the
respondent with the revisionist and her family
members. Therefore, the Court directed that
the children of the revisionist are entitled to
maintenance
from
respondent
till
their
respective marriages and marriage expenses
will also be borne by the respondent. (Para 37
& 38)

Revision Disposed of. (E-10)

List of Cases cited:-

## Text

_Characters 0–39,768 of 55,620. This is a partial read: ask again with offset=39768 for what follows._

156 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)04ILR A156
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.04.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Criminal Revision No. 670 of 2016

Smt. Kahkashan & Ors. ...Revisionists
Versus
Umesh Kumar Gupta @ Abbas Husain
Kahkashan ...Opposite Party

Counsel for the Revisionists:
Mohiduddin Khan, Mohammad Aslam Khan

Counsel for the Opposite Party:
Lokendra Kumar Gupta, Ravendra Pratap
Singh Cha

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 125 - The Court
after careful analyzing the evidence on record
observed that concubinage can be presumed
from
mobile
phone
and
compact
disc
submitted as an evidence. This establishes
familiarity to the extent of intimacy of the
respondent with the revisionist and her family
members. Therefore, the Court directed that
the children of the revisionist are entitled to
maintenance
from
respondent
till
their
respective marriages and marriage expenses
will also be borne by the respondent. (Para 37
& 38)

Revision Disposed of. (E-10)

List of Cases cited:-

1. Sarla Mudgal Vs U.O.I. (1995) 3 SCC 635

2. Lily Thomas Vs U.O.I. (2000) 6 SCC 224

3. Sumitra Devi Vs Bhumikan Chaudhary AIR
1985 Supreme Court 765

4. Chaturbhuj Vs Sita Bai (2008) 2 SCC 316

5. Chanmuniya Vs Virendra kumar Singh
Kushwaha (2011) 1 SCC 141 (followed)

6. Vimala Vs Veera Swamy 1991 (2) SCC 375

7. Dwarika Prasad Satpathy Vs Vidyut Prava
Dixit (1999) 7 SCC 675 (followed)

8. Yamuna Bai Anant Rao Aadhav Vs Anant Rao
Shivram Adav 1988 (1) SCC 530

9. Savita Ben Soma Bhai Bhatiya Vs State of
Gujarat (2005) 3 SCC 636

10. Badshah Vs Urmila Badshah Godse (2014) 1
SCC 188

11. Ramesh Chandra Ram Pratapji Daga Vs
Rameshwari Ramesh Chandra Daga (2005) 2
SCC 33

12. Captain Ramesh Chand Kaushal Vs Veena
Kaushal (1978) 4 SCC 70
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard Sri Mohd. Arif Khan,
learned Senior Counsel assisted by Sri
Mohiuddin Khan, learned counsel for the
Revisionists and Sri Lokendra Kumar
Gupta, learned counsel for the respondent.

2. Kahkashan, the Revisionist No. 1
alongwith her three minor daughters filed
an application under Section 125 of the
Cr.P.C. on 3 August 2009 claiming
maintenance from the respondent of
Rs.20,000 per month for herself and 10,000
per month each for her three daughters i.e.
a total of Rs.50,000 per month. The facts as
mentioned by her were that the Applicant
had married the Respondent Umesh Kumar
Gupta @ Abbas Hussain ''Khun Khun' on
24 October 2002 as per Muslim rites and
rituals at the residence of the Applicant.
The Nikahnamma had been filed as an
annexure to the application. After such
4 All. Smt. Kahkashan & Ors. Vs. Umesh Kumar Gupta @ Abbas Husain Kahkashan
157
wedding the applicant started living in the
Respondent's home and three daughters,
namely, Neha aged about seven years,Kiran
aged about five years, and baby Hina aged
about two months, were born out of the
wedlock. Initially the Respondent took
good care of the applicant and her children
but later on started neglecting them as three
daughters were born to her one after
another and he wanted a son. The youngest
daughter baby Hina was born on 15 May
2009 and the Respondent left the Applicant
20 May 2009. Because of financial
difficulty faced by the Applicant she had to
withdraw
her
daughters
from
City
Montessori School and get them admitted
in a cheaper school. She was facing great
hardship as she did not have any skill and
no income of her own, whereas the
Respondent
was
a
very
well-known
businessman
having
a
factory
for
manufacturing of batteries by the name of
Kaali Power and he earned about Rs.4
lakhs per month. As such the Respondent
was having sufficient means to look after
his wife and children i.e. the applicants.

3. The Respondent filed an objection to
such Application Paper No. Kha-9, where he
denied having converted to Islam and
marrying the Applicant. It was stated that a
forged Nikahnama had been produced in
court by the Applicant and her father. Since
there was no wedding performed, there was
no question of the Applicant going and living
in his home or three daughters being born out
of the wedlock. The Applicant had herself
stated that the wedding took place on 24
October 2002. However the eldest daughter
was seven years old at the time of filing of
the application under Section 125 Cr.P.C. in
August, 2009, which was not possible. It was
alleged that the Respondent had no concern at
all with the children of the Applicant. The
Respondent was a staunch Hindu by birth. He
had got married some eighteen years ago and
his wife was still alive and he had two
children from the said wedlock and they were
living a happy family life. The Application
had been filed by the Applicant as a result of
a conspiracy between her and her father,
Mohd. Raees Hussain. Forged documentary
evidence like receipts of school fees had been
produced. The names of all three daughters
were of Hindu origin whereas the applicant
herself stated that she was Muslim and the
Respondent had converted to Islam and
performed Nikaah with her. The Applicant
was a scheming lady of loose character who
had been caught by the police for immoral
flesh trade. The news regarding the same was
also published in the newspapers on 24
March 2001 much before the alleged
marriage on 24.10.2002 and Case Crime
Number 18 of 2001 under section 3 (1) 5/7 of
Immoral Traffic (Prevention) Act, 1986 had
been registered and Charge sheet had been
filed against her and other accused in the
competent court. A certified copy of the FIR
and also the news item published in the
newspapers were filed along with the
objections
by
the
Respondent.
The
Respondent
was
never
named
Abbas
Hussain, Khun Khun and he had never
converted to Islam. The Applicant and her
father were used to extorting money from
people, On the basis of threats to lodge false
cases against them. The Applicant had also
mentioned wrong residential address of the
Respondent only to prevent the Respondent
from coming to know of the filing of the
application for maintenance and responding
to the same appropriately and on time. The
Application
was
filed
with
deliberate
concealment and misrepresentation of facts
and ought to be dismissed on this ground
alone.

4. The Applicant filed her reply, Paper
Number
15,
and
also
documentary
158 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence.
Most
of
the
documentary
evidence that were filed were photocopies.
One Compact Disc and One Mobile Phone,
and several photographs were however also
filed as originals.

5. In the documentary evidence filed
by the Respondent were certified copies of
the Chargesheet and FIR filed in the case
under a Immoral Traffic (Prevention) Act,
1986. A certified copy of a Sale Deed of a
property
bought
by
the
Applicant
subsequently showing herself as daughter
of Raees Hussain was also filed.

6. After taking evidence of the
Applicant and the Respondent the learned
Trial Court proceeded to consider the
matter on merits. The Trial Court noted that
the very first issue that needed to be
determined was whether there was any
actual marriage performed between the
parties. The Applicant had stated that such
marriage had taken place on 24 October
2002 as per Muslim rites and rituals.
Although Nikaahnama had been filed in
original by her as evidence, the same had
not been proved as per Section 75 of the
Evidence Act. As per the Applicant, the
Respondent at the time of marriage, had
converted to Islam and had adopted the
name of Abbas Hussain Khun Khun. The
Applicant got herself examined as PW-01.
In her Examination in Chief the Applicant
stated that they had a love marriage and
that before such marriage the Respondent
had already married one lady by the name
of Ragini Gupta and from her two
daughters had been born to him. Ragini
Gupta had also filed FIR against the
Respondent and sent him to jail for having
married the Applicant.

7. In her cross-examination the
Applicant had admitted that her Nikaah had
been performed with Abbas Hussain "Khun
Khun", but the Respondent continued to be
a Hindu and the Nikaahnama was not in the
name of Umesh Gupta. She also admitted
in her Cross-Examination that she had not
gone to the house of the Respondent to live
with him as his wife and she continued to
live with her parents. The Applicant had not
filed
any
documentary
evidence
for
example, Identity Card or any proof of
residential address to show that she started
living with Umesh Gupta who after
conversion to Islam came to be known as
Abbas Hussain "Khun Khun". The learned
trial court noted several contradictions
between what was stated on affidavit in the
support of the Application filed under
Section 125 Cr.P.C. by the Applicant and in
her Examination in Chief and CrossExamination
conducted
in
Court.
In
support of the allegation of the Applicant
that Respondent had been sent to jail on a
complaint being made by Ragini Gupta his
first wife, the Applicant had filed a photo
copy of a newspaper item only without
submitting any proof of the same. The
Respondent on the other hand stated that
the Applicant had been accused of flesh
trade and news regarding her arrest by the
police on 24 March 2001 was published in
the Newspapers. Newspaper cutting in this
regard was also filed. Certified copy of the
FIR in the Case Crime Number 18 of 2001
under section 3 (1), 5/7, of the Immoral
Traffic (Prevention) Act and the certified
Chargesheet filed therein were also brought
on record. The competent court had taken
cognizance of such offence and the trial
was still pending before the CJM.The
contentions raised by the Respondent No.1
was denied vaguely by the Applicant.

8. The learned Trial Court thereafter
also recorded his findings from the
documentary evidence produced by both
4 All. Smt. Kahkashan & Ors. Vs. Umesh Kumar Gupta @ Abbas Husain Kahkashan
159
the parties and discussed three things that
are necessary for a claim under Section 125
of the Cr.P.C. to succeed. Firstly, the
claimant has to prove that the respondent
had married her. Secondly, she had to prove
that she had no independent source of
income to maintain herself. Thirdly, she
had to prove that the respondent had
enough income to give maintenance to the
Claimant.

9. The learned Trial Court found from
evidence on record that initially the
claimant had stated in her application that
she got married as per Muslim Rites and
Rituals to Umesh Gupta who had converted
to Islam and changed his name to Abbas
Hussain Khun Khun. She also claimed that
she went to the matrimonial home and
started living with the respondent as his
wife. However in her cross-examination
she had admitted that she had not left her
paternal home and continued to live with
her parents and two brothers although in a
different house. The Nikahnama being a
private document, had also not been proved
as required under Section 75 of the Indian
Evidence Act.

10. The Learned Trial Court observed
on the basis of Sections 101, 102 & 103 of
the Evidence Act, which he quoted in the
order impugned, that whoever desires any
Court to give judgement as to any legal
right or liability dependent on the existence
of facts which he asserts, must prove that
those facts exist and when a person is
bound to prove the existence of any fact, it
is said that the burden of proof lies on that
person. Also, that the burden of proof as to
any particular fact lies on that person who
wishes the Court to believe in its existence,
unless it is provided by any law that the
burden of proof of that fact shall lie on any
particular person. In this case the Burden of
Proof lay upon that person who would fail
if no evidence at all were given on either
side.

11. Learned Trial Court thereafter
referred to the only facts that could be
proved by the claimant during the course of
hearing. Firstly, that the respondent was
familiar and friendly towards the claimant,
her parents and daughters, and secondly,
that he also used to converse with her
parents on phone even during the pendency
of the claim under Section 125 Cr.P.C. It
could not be proved by her that the
respondent had converted to Islam and
changed his name to Abbas Hussain Khun
Khun. She could also not prove that she
had started living with him as his wife in
the matrimonial home and that the three
children were born out of the wedlock. She
also could not prove that she was
recognized by the Society at large as the
wife of Umesh Gupta. She also could not
prove that she had no knowledge of the
respondent being already a married person
with two children before her alleged
marriage with him.

12. The Respondent had stated that
the Nikahnama produced before the Court
did not bear his name as Umesh Gupta but
had noted the name of one Abbas Hussain
''Khun Khun' whereas he continued to use
the name of Umesh Gupta and had
remained a Hindu. The Applicant had filed
photocopies of few fee receipts issued by
City Montessori School and also Birth
Certificate issued by the Nagar Nigam but
such photocopies were of no consequence.
The Applicant had also filed photocopies of
documents relating to New St John's Inter
College where Kumari Neha Gupta and
Kiran Gupta were allegedly studying. In
such
papers
the
trial
court
noticed
interpolations in the surnames and the
160 INDIAN LAW REPORTS ALLAHABAD SERIES
name Abbas Hussain was easily visible
which had been scored out and "Khun
Khun Gupta" was written in a different
handwriting. In the column meant for
noting the name of the father of the child
initially "Khun Khun" was mentioned but
later on struckoff. Such documentary
evidence being only photocopies was also
not admissible as evidence. The Applicant
in her cross-examination had stated that
photographs of the Respondent and the
Applicant had been filed to show that they
were married. However, the learned trial
court observed that only because a man and
a woman were shown in a close proximity
in the photographs, would not prove that
they
were
married.
The
photograph
showing the Respondent with Appellants'
daughter in his arms would also not
determine that the Respondent was the
actual father of such a child. Only because
the Respondent was standing with a girl
child in his arms, the Nikaah with
Applicant could not be proved. The
Applicant had referred to a CD (Compact
Disc) being filed as evidence which
allegedly recorded a conversation between
the respondent and the Applicant to prove
that they were living together. The trial
court observed that only because a man and
woman were living together would not
prove beyond doubt that they were living as
husband and wife. It only established a
live-in relationship. For the presumption of
marriage to arise it was necessary that the
man and woman should be recognised as a
couple by the society at large. The
applicant had not produced any evidence to
show that in the eyes of the general public
the Applicant and the Respondent were
treated to be husband and wife. As such,
neither the Applicant's case of having
married the Respondent, nor the case set up
later on of a live-in relationship between
the parties could be proved by the
Applicant. Also, admittedly the first wife of
the Respondent was alive and if the
Respondent was living in adultery then he
would be guilty under Section 494 IPC, but
he would not be liable to give maintenance
to the Applicant.

13. The learned trial court has
observed that even if the Respondent had
been arrested for Bigamy, it would not
prove the Respondent's Nikaah with the
Applicant as per Islamic law. Even if any
Nikahnama was actually signed by both the
parties, such marriage would be void, as the
Respondent never converted to Islam, and
continued to remain a Hindu. He had
married one lady by the name of Ragini
Gupta in 1992 and the said marriage was
still subsisting. If any physical relations had
been established by the Respondent with
the Applicant, it would not raise the
presumption of a valid marriage but would
rather be a live-in relationship. Having a
live-in relationship with another woman or
living in adultery, would not make the
Respondent liable to pay maintenance to
such other woman or her children.

14. The learned Trial Court thereafter
discussed Muslim law specifically Surah
No. 2.221 of the Quran which said that if a
Muslim of Shia belief marries a person who
is an idol worshipper or a fire worshipper
such marriage would be void. Although the
claimant had not stated in her application
initially that she was a believer in Shia Sect
during her cross-examination it had come
out that she was a Shia. The Learned Trial
Court thereafter referred to judgement of
the Supreme Court given in Sarla Mudgal
Versus Union of India reported in (1995)
3 SCC 635; wherein it was held that Hindu
Marriage Act only recognized one marriage
and during the subsistence of first marriage
and during the lifetime of the first wife, if a
4 All. Smt. Kahkashan & Ors. Vs. Umesh Kumar Gupta @ Abbas Husain Kahkashan
161
Hindu married a second time, such
marriage would be void and that person
would be liable to be prosecuted under
Section 494 IPC. Such law would be
applicable also in cases where a Hindu
converts to Islam and marries a second
time. It also meant that if a person
continues to be a Hindu and marries a
Muslim then also he would be liable to be
prosecuted under Section 494 IPC. If such
a person converts to Islam and marries a
second time then also he shall be liable for
conviction under Section 494 IPC and the
second marriage would be void. The
Learned Trial Court also referred to the
judgement rendered by the Supreme Court
in the case of Lily Thomas Versus Union
of India reported in (2000) 6 SCC 224,
holding that the Hindu Marriage Act does
not recognize more than one marriage and
if a person marries a second time during the
lifetime of his first wife then such marriage
would be void under Section 11 of the
Hindu Marriage Act. The learned trial Trial
Court having found that the claimant was
unable to prove a valid marriage with the
opposite party, has rejected the claim of the
Revisionist.

15. Sri Mohd. Arif Khan, Learned
Senior Advocate for the Revisionists has
argued that the trial court had granted an
order
of
interim
maintenance
dated
03.08.2009 giving Rs. 200/- per month to
the Revisionist no.1 and, Rs.100/- per
month each to the two minor daughters, yet
not even a single penny was paid by the
Respondent. A distress warrant was also
issued on 12.10.2011. The Respondent had
denied the marriage and fatherhood, despite
ample documents being submitted before
the learned trial court showing that the
respondent had married the revisionist no. 1
after conversion to Islam and during the
subsistence of his first marriage with one
Ragini Gupta. Learned counsel for the
revisionists has referred to the documents
on record summoned from the lower court
i.e. papers no. C37/7, C37/8, C37/2, C38/2
and A16/3. He has also referred to a CD
and mobile phone submitted before the
learned
trial
court,
which
was
not
appreciated at all by the learned trial court.
It has also been argued that an application
for a DNA test of the daughters was also
moved, but it was kept pending and the
case disposed of by the learned trial court.
Referring to certain judgments of the
Supreme Court and it was argued that a
hyper technical view was taken by the
learned Trial Court whereas it is settled law
by the Supreme Court that even if the
children are illegitimate, they are still
entitled to maintenance and that even if a
marriage is not proved, live-in relationship
itself, if recognized by the society at large,
would entitle the revisionist no.1 for an
order granting maintenance.

16. Sri Lokendra Kumar Gupta,
learned
counsel
appearing
for
the
respondent has pointed out from the
pleadings on record, in the Application
under Section 125 of the Cr.P.C. that the
revisionist No.1 had claimed marriage with
the respondent according to muslim rites
and rituals, but the Nikaahnama was never
proved.
The
Nikaahnama
was
itself
doubtful as the name of Abbas Hussain has
been written in Hindi and thereafter, in a
different handwriting altogether the word
"Khun Khun" in English has been added.
Four witnesses were alleged to have
attended the Nikaah, but none of these
witnesses were produced.

17. It has been submitted by Sri
Lokendra Kumar Gupta that all other
documents that were filed, for example,
Birth Certificates and copies of Scholar
162 INDIAN LAW REPORTS ALLAHABAD SERIES
Register, etc., were filed as photocopies and
not in their original, because in the original
Birth Certificate, the Revisionist no.1 has
been shown as W/o Khun Khun Gupta and
not W/o Umesh Kumar Gupta. In the High
School certificate that has been produced in
its original during the course of the
arguments by the learned counsel for the
revisionists, there is a mention of the child
being the daughter of Khun Khun Gupta
and not Umesh Kumar Gupta. The
revisionist could not prove before the
learned trial court that she was living with
the respondent as husband and wife in a
live-in relationship which was recognized
by the society. She could also not prove
that Umesh Kumar Gupta was the person
she had married i.e. Abbas Hussain was the
same as Khun Khun Gupta who was the
same as Umesh Kumar Gupta, the
respondent to this Revision.

18. Sri Lokendra Kumar Gupta,
learned counsel for the respondent says that
there is no application on record allegedly
moved by the Revisionist for getting DNA
test conducted of her three daughters. He
has vehemently argued that there was a
conscious attempt at concealment of
evidence, as the original certificates were in
the possession of the Revisionist no.1,
which were not produced intentionally
before the learned trial court as the original
certificates showed that Kahakashan was
the wife of Khun Khun Gupta and Hina
Gupta, Kiran Gupta and Neha Gupta were
the daughters of Khun Khun Gupta and not
the Umesh Kumar Gupta. The Revisionist
also could not prove that Khun Khun Gupta
was the same person as Umesh Gupta and
she ever shared the same matrimonial home
with the respondent.

19. On a specific query being made
by this Court as to whether, the learned trial
court could not see that the Revisionist no.1
may have been kept as a concubine, the
Learned counsel for the respondent has
pointed out that the trial court had only to
see whether the applicant had proved her
pleadings as mentioned in the application
under Section 125 of the Cr.P.C. It was the
applicant's duty to prove the CD and the
Mobile Phone that were produced as
evidence, and to connect and prove that
evidence during her statement recorded by
the learned trial court. The Revisionist No.1
had stated about marriage with the
respondent which she could not prove. She
had not pleaded concubinage. She had also
not proved that Umesh Kumar Gupta was
living with her for a long period and they
had been living openly in such a
relationship and had been recognized as a
married couply by the Society at large. He
has pointed out that the case laws that has
been cited by the learned counsel for the
Revisionist all relate to persons who were
living together for a long time and were
recognised by the society/public at large as
husband and wife. He has pointed out that
the sale deed was executed by the
revisionist no.1 and she had bought
property as daughter of Rahees Hussain
and not as wife of Umesh Kumar Gupta.

20. Sri Lokendra Kumar Gupta,
learned counsel for the respondent no.2 has
read out from the plaint and from the
Examination-in-chief
and
crossexamination of the applicant that she failed
to prove that her marriage with Umesh
Gupta took place on 24.10.2012 and for
getting married to the applicant the
respondent had converted to Islam and
changed his name to Abbas Husain. She
had also failed to prove that she was ever
living with the applicant in his home or was
recognized as his wife by the public.
According to the counsel for the respondent
4 All. Smt. Kahkashan & Ors. Vs. Umesh Kumar Gupta @ Abbas Husain Kahkashan
163
no.2, the applicant was involved in flesh
trade and was arrested alongwith her father
and seven other persons in 2001, and a
Charge Sheet has been filed before the
Competent court against the applicant and
her father as also seven other accused for
immoral trafficking.

21. It has also been argued by the
learned counsel for the respondent that
neither the Nikaahnama was proved nor
was any other documentary evidence which
was filed alongwith Application by the
applicant. It is evident from the order
passed by the learned trial court that except
for the Nikahnama, all other documents
that were filed were only photocopies
which
are
inadmissible
in
evidence.
Nikahnama being a private document, was
not proved as per Chapter V of the Indian
Evidence Act

22. It has also been argued that the
applicant is quite well off and had bought
property and a certified copy of the sale
deed was also filed before the learned trial
court showing herself to be the daughter of
Rahees Hussain and not as wife of Umesh
Kumar Gupta or Abbas Husain the alias
which was allegedly adopted by the
respondent to get married to the applicant.

23. Sri Mohd. Arif Khan, learned
Senior Counsel after going through the
record relating to the lower court has very
fairly submitted that there is no application
on record for the DNA test of the children
and he has been wrongly instructed in the
matter. He however, says that the CD and
the Mobile Phone are also on record which
remained in a sealed cover and those
should have been seen by the learned trial
court before coming to a conclusion that
there was no relationship between the
revisionist no.1 and the respondents. He
has also pointed out that the charge of
bigamy and of Umesh Kumar Gupta being
sent to jail on the complaint of his first
wife, Ragini Gupta, has not been denied
anywhere by Sri Umesh Kumar Gupta in
his written statement or in his statement
before the learned trial court. Therefore, it
could not be said that the respondent had
not been sent to jail on the complaint of his
first wife with regard to bigamy being
lodged at Police Station Thakurganj. He has
referred to photocopies of newspaper
cuttings filed as evidence.

24. Sri Lokendra Gupta has denied
the evidentiary value of photocopies of
newspaper cuttings submitted before the
learned trial court. He says that there was
no complaint ever lodged against his client
by any person, let alone his first wife,
regarding bigamy and that he was never
arrested. There is no evidence on record
that Umesh Kumar Gupta had ever been
sent to jail or was granted or released on
bail by the competent court.

25. After having heard the learned
Counsel for the parties and having perused
the order impugned, this Court considers it
appropriate to consider the case law
referred to by Learned counsel for the
revisionists. In Sumitra Devi versus
Bhumikan Chaudhry AIR 1985 Supreme
Court 765, the Supreme Court was
considering an appeal against an order
passed by the High Court rejecting the
revision of the appellant against an order
passed
by
the
District
Judge.
The
Revisional Court had reversed the grant of
maintenance under section 125 Cr.P.C.
given to the appellant by the Judicial
Magistrate. It was the case of the appellant
that
she
had
been
married
to
the
Respondent in 1971 and out of the
wedlock, a child had been born. The
164 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent was already a married man,
which fact was not known. Relations
between the parties soured and the
appellant had no option left, but to ask for
maintenance for herself and also for her
child. The respondent did not dispute their
marriage as a fact, though he pleaded that
such marriage was void, being a result of
concealment and fraud, and also for nonperformance of religious rites necessary for
a valid Hindu marriage. He also pleaded
that the child was not his, as the appellant
was already pregnant for about three
months before the marriage with the
respondent.

The Supreme Court observed that
it was impressed by the fact that the
respondent had not seriously disputed the
fact of marriage but had taken the stand
that such marriage was void. It also
observed that the Sessions Judge and the
High Court adopted a hypertechnical
approach while considering the question of
marriage which was not denied by the
respondent himself. The Sessions Judge as
well as the High Court did not consider the
fact that for about a decade the parties had
lived together. Public records including
Voters List, described them as husband and
wife, and competent witnesses of the
village of the wife as also of the husband
had supported the factum of marriage.
Witnesses had also spoken about the
reputation of the appellant being known in
the locality as wife of the respondent. No
doubt performance of certain religious
ceremonies/rites
were
essential
for
traditional Hindu wedding but in the case
of the appellant whether or not such rites
were
performed
had
also
not
been
determined by the Sessions Judge and the
High Court. The matter was remanded to
the Learned magistrate for a fresh enquiry
regarding evidence of both sides already on
record and also both sides being given an
opportunity to lead further evidence in
support of the respective stands.

The Supreme Court observed in
paragraph 4 that "under section 125 of the
CRPC even an illegitimate minor child is
entitled to maintenance. Even if the fact of
marriage is discarded, the minor child
having been found to be illegitimate
daughter of the respondent would still be
entitled to maintenance." The Supreme
Court observed in paragraph 5 that in such
matters "the role of the court is not that of
a silent spectator or of a passive agency - -
- particularly - - - when maintenance of a
neglected wife or a minor child is in issue,
the court must take genuine interest to find
out the truth of the matter - - ."

26. In Chaturbhuj versus Sita Bai
(2008) 2 SCC 316, the Supreme Court was
considering the Appellant's case that the
deserted wife had personal income which
was sufficient to maintain herself under
section 125Cr.P.C. The trial court had
directed payment of Rs.1,500/- per month
to the respondent as maintenance. Revision
filed against such order was rejected. The
Appellant filed
an application under
Section 482 Cr.P.C. which was also
dismissed by the High Court, noticing that
conclusions had been arrived at by the trial
court on the basis of appreciation of
evidence. It was argued by the learned
counsel for the Appellant that he was a
retired Assistant Director of Agriculture
and he had bought a house and land in the
name of the respondent. The land had been
sold off by the respondent and she had also
let out the house on rent and was residing
with one of their sons. The Hon'ble
Supreme Court considered the language of
section 125 Cr.P.C. and observed that the
object of maintenance proceedings is not to
punish a person for his past neglect but to
4 All. Smt. Kahkashan & Ors. Vs. Umesh Kumar Gupta @ Abbas Husain Kahkashan
165
prevent vagrancy by compelling those who
can provide support to those who are
unable to support themselves, and who
have a moral claim to such support. The
phrase "unable to maintain herself" would
not take within itself the efforts made by
the
wife
after
desertion
to
survive
somehow. Section 125 Cr.P.C. is a measure
of social justice and is specially enacted to
protect women and children. The objective
is to prevent vagrancy and destitution. It
provides a speedy remedy for supply of
food, clothing and shelter to the deserted
wife and children if any. Under the law the
burden is in the first place upon the wife to
show that the means of her husband are
sufficient. Secondly the Applicant has to
show that she was unable to maintain
herself. These two conditions are in
addition to the requirement that the
husband must have neglected or refused to
maintain his wife. Only because the wife
was earning some income was not
sufficient to rule out the application of
Section 125 Cr.P.C. It has to be established
that with the amount she earned, the
respondent wife was able to maintain
herself in the way she was used to in the
house of her husband. In Bhagwan Dutt
versus Kamla Devi 1975 (2) SCC 386 the
Supreme Court had observed that the wife
should be in a position to maintain a
standard of living which is neither
luxurious nor penurious, but what is
consistent with the status of the 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.

27. In Chanmuniya versus Virendra
Kumar Singh Kushwaha (2011) 1 SCC141,
Supreme Court was considering a matter
where the appellant had been married as per
Kushwaha community customs by Katha and
Sindoor to her brother-in-law after her
husband''s death in 1996. They started living
together as husband and wife but after
sometime the first respondent stopped
looking after her and refused to discharge his
marital obligations. As a result she initiated
proceedings under Section 125 Cr.P.C. for
maintenance. This proceeding remained
pending. She also filed a Suit for restitution
of conjugal rights under Section 9 of the
Hindu Marriage Act. The trial court decreed
the suit for restitution in 2004. The first
respondent preferred an appeal under Section
28 of the Hindu Marriage Act saying that
there was no evidence that the appellant after
being widowed had remarried the first
respondent. The High Court in its judgement
reversed the order of the trial court on the
ground that the essentials of a valid Hindu
marriage as required under Section 7 of the
Hindu Marriage Act had not been performed.
The appellant''s Review was also dismissed in
2009. The Appellant thereafter filed appeal
before the Supreme Court. The Supreme
Court observed in Para 7, thus :-

"One of the major issues which
cropped up was whether or not presumption
of marriage arises when parties lived
together for a long time, thus giving rise to a
claim for maintenance under Section 125
Cr.P.C. In other words the question was, what
is meant by ''wife' under section 125 CRPC,
specially having regard to explanation under
clause (b) of Section. Thus the question that
arises is whether a man and woman living
together for a long time, even without a valid
marriage, would raise, as in the present case,
a presumption of a valid marriage entitling
such woman to maintenance."

28. The Supreme Court relied upon
English case law on the subject and the
observations made by the House of Lords
that the question of validity of a marriage
166 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot be tried like any other issue of fact,
independent of presumption. The Court had
held that law will presume in favour of
marriage and such presumption could only be
reverted by strong and satisfactory evidence.
The House of Lords had observed that
"cohabitation, with required repute, as
husband-and-wife
proved
that
parties
between themselves had mutually contracted
the matrimonial relation. A relationship
which may be adulterous at the beginning
may become matrimonial by consent. This
may be evidenced by habit and repute."
Quoting the decisions of the House of Lords
the Supreme Court observed that since the
appellant and first respondent were related
and lived in the same house and by social
custom were treated as husband and wife by
their community, there was a very strong
presumption in favour of marriage. "The
presumption of marriage is much stronger
than a presumption in regard to other facts.
Where a man and woman are proved to have
lived together as man and wife, the law will
presume, unless contrary is clearly proved,
that they were living together in consequence
of a valid marriage, and not in a state of
concubinage." Referring to Indian case law
also the Supreme Court observed that
"continuous cohabitation of man and woman
as husband and wife may lead validly to a
presumption of marriage which is rebuttable
on evidence to the contrary being led. A
heavy burden lies on him who seeks to
deprive the relationship of legal origin."

29. The Supreme Court referring to its
earlier judgement in Vimala versus Veera
Swamy,1991 (2) SCC 375, that Section 125
of the CRPC is meant to achieve a social
purpose and the object is to prevent
vagrancy and destitution.

It observed in paragraph 3 that
".... the term ''wife' in Section 125 of the
Code includes a woman who has been
divorced by her husband or who has
obtained a divorce from her husband and
has not remarried. A woman not having the
legal status of a wife is thus brought within
the inclusive definition of the term ''wife'
Consistent with the objective."

The Supreme Court observed in
paragraph 24 :-

"...24. Thus in those cases where a
man who lived with a woman for a long time
and even though they may not have
undergone legal necessities of a valid
marriage, should be made liable to pay the
woman maintenance if he deserted her. The
man should not be allowed to benefit from the
legal
loopholes
where
enjoying
the
advantages of a de facto marriage, without
undertaking the duties and obligations. . Any
other interpretation would lead the woman to
vagrancy and destitution, which the provision
of maintenance in section 125 is meant to
prevent.."

30. The Supreme Court also observed
that in a subsequent decision in Dwarka
Prasad Satpathy versus Vidyut Prava Dixit
(1999) 7 SCC 675; the Supreme Court had
held that "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 Court 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 the neglected wives to
obtain maintenance. The Supreme Court held
that "maintenance cannot be denied where
there was some evidence on which conclusion
of living together could be reached."

31. The two Judge Bench in
Chanmuniya (Supra), however observed a
4 All. Smt. Kahkashan & Ors. Vs. Umesh Kumar Gupta @ Abbas Husain Kahkashan
167
contrary note struck by a two Judge Bench
of the Supreme Court in Yamuna Bai
Anant Rao Aadhav versus Anant Rao
Shivram Adhav 1988 (1) SCC 530, where
it was held that an attempt to exclude
altogether the personal law of the parties in
proceedings under section 125 is improper.
The Division Bench had held that the
expression ''wife' in Section 125 of the
Code should be interpreted to mean only a
legally wedded wife. Similarly in Savita
Ben Soma Bhai Bhatiya versus State of
Gujarat (2005) 3 SCC 636, the Supreme
Court had observed that however desirable
it may be to take note of plight of an
unfortunate woman, who unwittingly enters
into wedlock with a married man, there is
no scope to include a woman not lawfully
married within the expression of ''wife'. The
Bench had held that this inadequacy in law
can be amended only by the legislature.
While coming to the aforesaid finding the
judges had placed reliance upon the
decision in Yamuna Bai's case.

 The Supreme Court after noting
the two judgements of Yamuna Bai and
Savita Ben (supra), in Chan Munia's case
observed that there was a divergence of
judicial opinion on the interpretation of the
word ''wife' in Section 125 of the Code and
referred the matter to the Chief Justice of
India to refer the following questions to be
decided by a Larger Bench: