Strict proof of marriage is not necessary for maintenance under Sec. 125 CrPC, and the law presumes in favor of marriage when a man and woman have cohabited continuously for a long time.

JUDGMENT :

MALASRI NANDI, J.

Heard Mr K Singha, learned counsel for the petitioner. None has appeared for and on behalf of the respondent.

2. The petitioner has filed an application under Sec. 482 of the Code of Criminal Procedure, 1973, read with Article 227 of the Constitution of India, challenging the Judgment and Order dtd. 23/12/2020, passed in Criminal Revision No. 29/2019, by the learned Sessions Judge, Morigaon, affirming the Judgment and Order dtd. 10/10/2019, passed by the learned CJM, Morigaon, in MR Case No. 6/2017, under Sec. 125 CrPC.

3. The facts in brief leading to filing of the criminal petition is that the respondent filed a petition under Sec. 125 CrPC before the learned CJM, Morigaon, claiming that she is the legally married wife of the petitioner and claimed monthly maintenance of Rs.10, 000.00 from the petitioner. According to her, her marriage with the petitioner was held about 30 years back as per Hindu rites and customs. Since then, the respondent is residing in the house of the petitioner as his wife. Out of their wedlock, a male child was born, Mukuta Bordoloi by name, who is now major.

4. It is also alleged that after birth of their child, the petitioner developed an illicit relationship with a girl, Moloya Bordoloi. When the respondent came to know about the said affair she objected to the same, but the petitioner assaulted her and drove her out from his house. Finding no other alternative, she took shelter in the house of her maternal uncle, along with her son. After one year, the petitioner got married to Moloya Bordoloi.

5. After the said event, when the respondent wanted to file a case against the petitioner for her maintenance, the petitioner pacified the respondent by providing rented house and maintenance to the respondent at Morigaon town. Accordingly, the respondent along with her son started residing in a rented house at Morigaon town and the petitioner was providing them house rent as well as monthly maintenance regularly. However, from one year prior to lodging of the case for maintenance the petitioner did not pay any rent as well as monthly maintenance. Further the petitioner also promised to give landed property to her and his son, when he was confronted regarding non payment of rent as well as monthly maintenance, but the petitioner did not keep his promise and did not provide any maintenance, rent or property and thereafter the petitioner filed the maintenance case before the CJM, Morigaon, claiming maintenance from the petitioner.

6. During trial, the petitioner also submitted written statement in support of his defence, wherein the petitioner denied any relationship with the respondent. It is stated in the written statement that respondent is his own elder sister and both the parties are within prohibited degrees of relationship according to Hindu religion and no marriage could be solemnized between the parties as per Hindu Law.

7. During the proceeding before the trial Court, the respondent has examined herself and three other witnesses, PW-2, Upeswari Konwar, PW-3, Mukuta Bordoloi and PW-4, Haranath Patar and petitioner also adduced himself as DW-1.

8. After hearing both sides, learned trial Court allowed maintenance in favour of the respondent and which was affirmed by the learned Sessions Judge, on revision by observing that the respondent is the wife of the petitioner and she is entitled for maintenance.

9. Learned counsel for the petitioner has argued that the petitioner and the respondent are in brother-sister relationship and marriage cannot be held between the parties. It is also submitted that if any marriage is held in between such prohibited relationship it cannot be accepted as valid marriage.

10. It is further submitted that there was no relationship of husband and wife between the petitioner and the respondent, as no marriage was solemnized between them. According to the petitioner, the story of marriage was a mere concoction, but the learned trial Court as well as the learne