J & K Criminal Procedure Code, 1973
Section 488 (Sec. 144 of BNSS, 2023)—Interim maintenance—Entitlement—Live-in-partner—Respondent on the complaint of first petitioner had been prosecuted and ultimately convicted for an offence under Sec. 376 of IPC—First petitioner would not be entitled to interim maintenance.
Held : The petitioner no.1 admittedly is not the wife of respondent as she has stated in her petition that he (respondent) allured her to contract marriage by expressing his willingness for the same and with such allurement, respondent while posing himself to be an unmarried man, maintained physical relations with her and consequently, they started living together in live-in-relationship and for the last 10 years they appeared as husband and wife and also while in live-in-relationship in 2016, she became pregnant, and gave birth to respondent no.2. She thereafter started asking him to contract marriage with her and give her the status of legally wedded wife in the society, but he refused to do so. It is stated that he also asked her to abort the pregnancy andwhen he refused to marry her, she filed a complaint against him with the Police Station concerned.
The petitioner no.1 is admittedly not the wife of respondent on the ground that she was living with respondent as wife sought maintenance from him for herself and her child by filing Petition under Section 125 Cr.P.C and 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.
Respondent being aggrieved of the said order dated 14.08.2021 passed by the learned trial Magistrate granting interim maintenance to petitioner nos.1 and 2 @ Rs.2000 and Rs.1000 respectively, challenged the same before the learned Principal Sessions Court, Kathua in revision. The Revisional Court after taking into consideration the fact that the petitioner no.1 was not wife and that on the complaint filed by her the respondent-Balkar Singh was convicted, the Revisional Court set aside the order passed by the learned trial Magistrate granting interim maintenance to her, but maintained the order to the extent of granting interim maintenance to petitioner no.2.
The petitioner no.1 has taken up the ground that she was living with him and their relationship was as husband and wife, therefore, she is entitled to claim maintenance from him. Admittedly no marriage had ever been solemnized between her and respondent-Balkar Singh. She claimed that she had been in live-in-relationship and was neglected by the respondent, thereafter she could claim maintenance. In the present case, on her complaint, the respondent was charged and convicted for offence punishable under Section 376 IPC. She had leveled charge of rape against him and on such allegation and evidence of the petitioner no.1, he has been convicted under Section 376 IPC and sentenced.
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.
The fact that the respondent on the complaint of the petitioner no.1 had been prosecuted and ultimately convicted for an offence under Section 376 IPC and he having been sentenced to imprisonment for such offence makes it 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.
The learned Principal Sessions Judge, Kathua, while dealing with the revision in detail has rightly come to the conclusion that petitioner no.1 would not be entitled to interim maintenance and, accordingly, set-aside the order of the trial Magistrate granting interim maintenance under section 488 Cr.P.C in her favour.
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