A spouse in a levirate marriage can seek maintenance under Section 125 Cr.P.C. despite claims of invalidity, emphasizing welfare and social justice.

JUDGMENT :

Bibek Chaudhuri, J.

1. The present criminal revision has been filed by the petitioner/revisionist, challenging the order, dated 20.06.2024, passed by learned Principal Judge, Family Court, Kaimur at Bhabhua in Maintenance Case No. 76(M) of 2022, whereby and whereunder, the learned court below dismissed the application under Section 125 Cr.P.C., filed by the petitioner, holding the same to be not maintainable on the ground that the petitioner is not the legally wedded wife of the Opposite Party No.1.

2. The brief fact giving rise to the present revision is that the petitioner claims to have been married with O.P. No. 1 in June, 2010 at Village-Damodarpur, P.S.-Bhabhua, and out of the said wedlock, two sons, namely, Veer Kumar Singh and Virat Kumar Singh, were born. The petitioner contends that the O. P. No. 1 is posted as a Constable in Bihar Police at District-Aurangabad, drawing salary of Rs. 45,000/- per month.

3. It has been alleged by the petitioner that for the last six years, O. P. No.1 has abandoned the petitioner and the children has not provided any maintenance, and has severed all contacts. The petitioner, a pardanashin lady, has been surviving with the aid of her aged and ailing father, who is now unable to continue supporting her. This compelled her to file the maintenance petition under Section 125 Cr.P.C.

4. Upon receiving notice of the said maintenance case on 22.08.2022, O. P. No.1 filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955, bearing Matrimonial Case No. 244 of 2022 before the Principal Judge, Family Court, Kaimur at Bhabhua. However, interestingly, on the very date of filing the objection to the maintainability of the maintenance petition i.e., on 05.12.2023, O.P. No. 1 withdrew the divorce petition with liberty to file a fresh petition under a different provision.

5. In his reply filed in the maintenance case, the O. P. No. 1 denied the marriage with the petitioner, asserting that the petitioner is in fact his brother’s widow and hence, the marriage, if any, falls within the prohibited degrees of relationship under Hindu Law and is void ab initio. On this basis, he sought dismissal of the petition.

6. The petitioner averred that their marriage was solemnized as per long-standing Hindu customs prevailing in their community, where it is acceptable for a widow to marry the younger brother of the deceased husband. Such customs, it was contended, have been socially recognized and followed since time immemorial.

7. The learned Family Court, however, failed to appreciate two crucial aspects:

(i) First, that the question before it was not a declaration of validity of marriage but rather whether the petitioner had a prima facie right to claim maintenance under Section 125 Cr.P.C.

(ii) Second, that the plea of custom, specifically concerning the practice of levirate marriages, had been raised by the petitioner and is required to be examined before outright dismissal.

8. It is a settled position of law that in proceedings under Section 125 Cr.P.C., strict proof of marriage is not necessary, and a person who has lived with the opposite party as wife, and where the relationship is accepted socially and within the family, may be granted maintenance even if the marriage is disputed — especially when children are born out of the said relationship and their welfare is at stake.

9. The Hon’ble Supreme Court in Chanmuniya v. Virendra Kumar Singh Kushwaha , reported in (2011) 1 SCC 141, has held that “a broad and expansive interpretation should be given to the term 'wife' under Section 125 Cr.P.C.” The same principl