IMPORTANT POINTS
A lady married to a man and living separated from him for some valid cause and a lady married, but later on has been divorced by him or has obtained a divorce from him and not re-married, alone are entitled to get maintenance-A lady in a live-in relationship is not entitled to get maintenance. The Apex Court in Santosh's case supra has only said that a detailed enquiry on marital status of the parties is not called for in a maintenance case, but, formation of a prima facie opinion based on materials produced is required.

ORDER :

The revision on hand is directed against the order passed by Family Court, Thalassery on 28.04.2018 in M.C.No.248 of 2017. The revision is filed by the counter petitioner in the M.C. seeking to set aside the order directing him to pay maintenance. The parties to this Revision Petition shall be referred to hereinafter as the respondent and the petitioner in accordance with their status before the Family Court.

2. At the outset, it is contended by the learned counsel for the respondent that the alleged marriage between the parties to the revision petition is now declared by a civil court as null and void and therefore the petitioner lost her status as wife of the respondent and is not entitled to get maintenance from him. Certified copies of the judgment and decree dated 20.02.2020 in O.P.No.406 of 2017 of the Family Court, Kannur declaring the marriage as null and void are produced in the revision respectively as Annexures-A1 and A2. The learned counsel has also relied on Santosh (Smt) Vs. Naresh Pal [(1998) 8 SCC 447] to rest his contention that the judgment of a civil court will bind the court dealing with a claim for maintenance under Section 125 Cr.P.C.

3. Sri.K.Ashis, the learned counsel for the petitioner has contended that for being entitled to get maintenance, a lady need not establish her marital bondage with the counter petitioner from whom the claim for that is made. According to him a lady who is in a live-in relationship with the counter petitioner is also entitled to get maintenance under Section 125 Cr.P.C. According to him, the petitioner had lived with the respondent as husband and wife for a certain period and therefore, her claim for maintenance cannot be thrown aside by reversing the impugned order.

4. In Santosh's case supra, the question considered by the Apex Court was whether the appellant before it, is the married wife of the respondent therein who had neglected to maintain her and therefore, is entitled to get maintenance under Section 125 Cr.P.C. The learned Magistrate based on the evidence available to it had arrived at a finding that the husband entered into a second marriage with the lady, a divorcee, after obtaining a divorce from his first wife and therefore is entitled to get maintenance. The High Court took a contrary view that the lady had her first husband and the first marriage having not been established by her as dissolved, is not entitled to get maintenance. In the appeal preferred against the divergent views taken by the courts as above, the Apex Court held:

“2. …......... These are the questions which are required to be thrashed out finally in civil proceedings. In a proceeding for maintenance under Section 125 CrPC the learned Magistrate was expected to pass appropriate orders after being prima facie satisfied about the marital status of parties. It is obvious that the said decision will be a tentative decision subject to final order in any civil proceedings, if the parties are so advised to adopt. Consequently, in our view the High court was not justified in interfering with the pure finding of fact reached by learned Judicial Magistrate in a proceeding under Section 125 CrPC and therefore, only on this short ground and without expressing any opinion on the marital rights of the parties which may have to be adjudicated in civil proceedings, the order of the learned Magistrate passed under Section 125 CrPC will have to be affirmed and the judgment and order of the High Court is set aside........”

5. It is discerned from the above that even if a contention was raised challenging the validity of marriage of the parties to the maintenance case, the court seized of the case need not have to conduct an in-depth inquiry into that issue, it being totally outside its jurisdiction. Only a Civil court is empowered to adjudicate on the validity of marriage and to arrive at a finding on that. A court dealing with a maintenance case has only to arrive at a prima facie satisfaction about the mari