IMPORTANT POINT
Relationship between parties as husband and wife imposes obligation on both to live together with each other as they were living as husband and wife and if they are living together as husband and wife and have lived years together, as such, then living together and cohabiting may not be an offence punishable under Section 376 IPC.

ORDER

Petitioners feeling aggrieved of an order dated 07/12/2021 passed by the learned Principal Sessions Judge, Kathua, (Revisional Court) have filed the instant petition under Section 482 of Code of Criminal Procedure, in which they seek setting aside of the said order, whereby the Revisional Court has set aside the order dated 22.08.2017 of the learned trial Magistrate, i.e., the Court of learned District Judicial Mobile Magistrate (T), Kathua, in terms whereof an interim maintenance of Rs.2,000 and Rs.1,000 in favour of petitioner nos.1 and 2 respectively has been granted.

2. Heard learned counsel for both the parties at length and also perused the file.

3. The grounds on which the order impugned passed by the Revisional Court is challenged and sought to be set aside are that; (i) the said order is contrary to the facts of the case and law on the point; (ii) the Court of learned Sessions Judge, Kathua has miserably failed to appreciate the evidence placed on record; (iii) the Revisional Court has not considered the law as settled by the Hon’ble Supreme Court in the case titled Chanmuniya vs. Virendera Kumar Singh Kushwaha (2011 SCC 141), wherein it has been held that, the provision of Section 125 Cr.P.C is a measure of social justice enacted with an intention of prevention of vagrancy and destitution, especially enacted to protect and inhibit neglect of women, children, old and infirm and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 and referring to its earlier decisions passed in case of Vimal vs. Verraswamy, it was held that, the provisions of section 125 Cr.P.C is meant to achieve the social purpose and the object by providing speedy remedy for the supply of food, clothing and shelter to the deserted wife. It went on to decide the fact that a women not having a legal status of wife was also brought within the inclusive definition of term wife in Savita Deka vs. Babul Deka (SC Online Gau. 314) and Santaben Sona Bhai vs. State of Gujrat (2005 (3) SCC 636 in right perspective.

4. The said law as settled by the Hon’ble Supreme Court in the aforesaid case, is squarely applicable in the facts and circumstances of the present case. For facility of reference, what law is held by Hon’ble Supreme Court, is reproduced below;

“where a man, who lived with a women 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 deserts her. The man should not be allowed to benefit from the legal loopholes by 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...”

5. The learned Revisional Court in its order impugned has recorded the following finding;

“So far as the interim maintenance granted in favour of the respondent No.1is concerned, when on the complaint of the respondent No.1 for commission of rape upon her by the petitioner, the petitioner has been convicted, it cannot be said that the petitioner and the respondent no.1 were living in relationship as husband and wife. Relationship between parties as husband and wife imposes an obligation on both the parties to cohabit and to live with each other. Then in that case there should not have been any complaint made by the wife that the male spouse committed rape upon her. In this way, prima-facie it cannot be said that the petitioner and respondent no.1 was living in relation as husband and wife under the same roof...”

6. It is stated by the learned counsel for the petitioners that the aforesaid finding on the facts is contrary to the pleadings and material on record, therefore, the order impugned deserves to be rejected and set-aside.

7. The petitioner no.1 admittedly is not the wife of respondent as she has stated in her petition that he (respondent) allured her to co