Can’t Claim Maintenance When Woman Accused Man Of Rape & There Was No Husband-Wife Relationship: Jammu & Kashmir & Ladakh High Court

The Petitioners had approached the High Court challenging an order of the Revisional Court whereby it had set aside an order granting interim maintenance of Rs 2,000 and Rs 1,000 in favour of the petitioners.

The Single Bench of Justice Vinod Chatterji Koul held, “As the respondent was admittedly charged with an offence punishable under Section 376 IPC on the complaint of the petitioner, therefore, they cannot be treated as husband and wife for claiming maintenance under Section 125 Cr.PC. The relationship between the parties as husband and wife imposes an 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. The offence under Section 376 IPC would arise when such relationship is missing.”

Advocate Surjeet Singh Andotra represented the Petitioner, while Advocate Pariksha Parmar represented the Respondent.

Factual Background

The Peittioner was not the wife of the respondent. She stated in her petition that the respondent lured her by expressing his willingness for marriage, and with such allurement, the respondent while posing himself to be an unmarried man, maintained physical relations with her. They started living together in a live-in relationship, and for the last 10 years, they appeared as husband and wife. The petitioner became pregnant and gave birth to the second respondent. She thereafter started asking the respondent to contract a marriage with her, but he refused to do so.

Reasoning

The Bench took note of the fact that the petitioner was admittedly not the wife of the respondent. She was living with the respondent as a wife and sought maintenance from him for herself and her child by filing a Petition under Section 125 CrPC. The trial Magistrate directed the respondent to pay interim maintenance of Rs 2000 per month, despite the fact that he was convicted for offence punishable under Section 376 IPC on the complaint filed by her.

Considering that the respondent on the complaint of the petitioner had been prosecuted and ultimately convicted for an offence under Section 376 IPC and he was sentenced to imprisonment for such offence, the Bench noted that it would be difficult to hold that he would be liable to maintain and pay expenses for her maintenance.

“Having regard to the facts and circumstances of the case at this stage, while the petition is yet to be decided, she would not be entitled to grant of any interim maintenance under Section 488/125 of the Code of Criminal Procedure. The learned trial Court has fallen in error, while granting interim maintenance in her favour”, it held.

As per the Bench, no illegality was committed by the Revisional Court, while setting aside the order of the trial Magistrate so far as it pertained to the granting of interim maintenance in favour of the first petitioner. “In my opinion, there is neither any irregularity in the order impugned passed by the learned Sessions Judge, Kathua nor it can be said that passing of the order would cause miscarriage of justice”, it held while dismissing the Petition.

Cause Title: A v. B (Case No.: CRM(M) No.1022/2022 CrlM No.2132/2022)

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