Question of Law Involved Archives

A single judge of Calcutta High Court held as follows:

On an examination of the controversy involved in the present case in the background of the law laid down in Rakesh Malhotra (supra) once it comes to the knowledge of the learned Magistrate that the marriage between the parties have been dissolved by a decree of divorce under the relevant provisions of Section 13B of the Hindu Marriage Act and it is found that the wife has received a lump-sum amount as onetime payment towards maintenance, what would be the procedure adopted in the following circumstances:
(a) A fresh case under Section 125 of the Code of Criminal Procedure is filed.
(b) The proceedings under Section 125 of the Code of Criminal Procedure was pending and the Civil Court has dissolved the marriage by decree of divorce and there was no information before the Civil Court regarding the pendency of the proceedings under Section 125 of the Code of Criminal Procedure.
(c) Procedure/steps to be adopted by the learned Magistrate if the proceedings under Section 125 of the Code of Criminal Procedure and the proceedings under Section 13B of the Hindu Marriage Act (which has already been decided) are in different sub-divisions or different districts or different States.
As the aforesaid questions involve serious ramification so far as the proceedings under Section 125 of the Code of Criminal Procedure are concerned, I am of the view that the same is to be referred and settled by a Larger Bench (as there are conflicting judgments of this Court on the point).
Accordingly, the record of the case be placed before The Hon’ble The Chief Justice (Acting), High Court at Calcutta.

Prasenjit Mukherjee Vs State of West Bengal and Ors on 02 Sep 2021

The case was ordered to be listed but it’s been over 8 months, the Judges did not find time to look in it…

Prasenjit Mukherjee Vs State of West Bengal and Ors on 10 Sep 2021 (List Matter)

This is the landmark ruling from Hon’ble Supreme Court wherein it was held that

“We are of the opinion that a broad and expansive interpretation should be given to the term “wife” to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 CrPC, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual.”

Chanmuniya Vs Virendra Kumar Singh Kushwaha & Anr on 7 October, 2010

But in a para prior to this para, this case was referred to a larger bench (this was a 3-judge bench). But this case was but after two years dismissed as the advocate for appellant dies and the appellant did not pursue the case. Here is the Dismissal Order:

Chanmuniya Vs Virendra Kumar Singh Kushwaha and Anr on 5 September 2014

Here is the Para 45,

45.We, therefore, request the Hon’ble Chief Justice to refer the following, amongst other, questions to be decided by a larger Bench. According to us, the questions are:

1. Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C?

2. Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr.P.C. having regard to the provisions of Domestic Violence Act, 2005?

3. Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.?

So, this judgment is NOT a landmark judgment as the question of law was NOT decided either by this Court nor by a larger bench of this Court.

Citation: [2011 ANJ SC 1 26], [2010 AIOL 681], [2011 SCC 1 141], [2011 ALLMR CRI SC 346], [2010 SCALE 10 602], [2011 BOMCR SC 2 787], [2011 SCC CRI 2 666], [2011 CRLJ SC 96], [2010 RCR CIVIL SC 4 801], [2010 JT 11 132], [2010 AIR SC 6497], [2011 SCC CIV 1 53]

Other Source links: https://indiankanoon.org/doc/1949767/ or https://www.casemine.com/judgement/in/5609aedbe4b0149711414ea0

But this judgment declared it so here.

Reproduced in accordance with Section 52(q) of the Copyright Act 1957 (India) from main.sci.gov.in/judgments, judis.nic.in, lobis.nic.in, indiacode.nic.in and other Indian High Court and District Court Websites such as ecourts.gov.in

Shades of Knife

True Colors of a Vile Wife

Tag: Question of Law Involved

Chanmuniya Vs Virendra Kumar Singh Kushwaha & Anr on 7 October, 2010