Patna High Court: In a criminal revision petition challenging the Family Court’s order that dismissed petitioner’s maintenance application under Section 125 of the Criminal Procedure Code, 1973 (‘CrPC’) on the ground that she was not the legally wedded wife of the respondent (being the widow of his brother), a Single-Judge Bench of Bibek Chaudhuri, J., set aside the Family Court’s order and observed that the glaring inconsistency in disowning the petitioner solely because the marriage was a levirate marriage, while simultaneously accepting her children as part of the family, reflected not just a legal contradiction but also a moral and social injustice. The Court remanded the matter to the Family Court, directing it to restore the maintenance petition and proceed in accordance with law, giving due opportunity to both parties to lead evidence, particularly on the question of custom and cohabitation
Background
The petitioner, claimed to have married the respondent, a Constable in Bihar Police, in 2010, as per Hindu rites and customs, and 2 sons were born out of their wedlock. The respondent had abandoned her and their children for the last six years, severing all contact and providing no maintenance. Being a pardanashin lady and dependent on her aged and ailing father, she was compelled to file a maintenance petition under Section 125 of the CrPC.
In the reply to the maintenance case, the respondent denied the marriage, claiming that the petitioner was his brother’s widow and thus, any marriage would fall within prohibited degrees of relationship under Hindu Law, rendering it void ab initio. The petitioner had contended that their marriage was solemnized as per long-standing Hindu customs prevailing in their community, where it is acceptable for a widow to marry the younger brother of the deceased husband. Such customs, it was contended, were socially recognized and followed since time immemorial. The Family Court dismissed the maintenance petition, holding it not maintainable solely on the ground that the petitioner was not the legally wedded wife. Aggrieved by this dismissal, the petitioner filed the present criminal revision.
Analysis and Decision
The Court reiterated that in proceedings under Section 125 CrPC, strict proof of marriage is not necessary. A person who has lived with the opposite party as a wife, and where the relationship is accepted socially and within the family, may be granted maintenance even if the marriage is disputed, especially when children are born out of the relationship and their welfare is at stake. The Court referred to Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141, which held that “a broad and expansive interpretation should be given to the term ‘wife’ under Section 125 CrPC”.
The Court addressed the legality of Levirate Marriage, noting that Section 5(iv) of the Hindu Marriage Act, 1955 (‘HMA’) prohibits marriage within prohibited degrees unless custom or usage governing both parties permits such a marriage. The petitioner specifically pleaded that their marriage was solemnized as per long-standing Hindu customs prevalent in their community, practiced for generations following the death of her husband. The Court cited Section 3(a) of the HMA, which defines ‘custom’ as a rule continuously and uniformly observed for a long time, obtaining the force of law. It emphasized that if such a recognized, long-standing, and reasonable custom exists, such a marriage may be legally valid despite otherwise being within a prohibited relationship.
Referring to Gokal Chand v. Parvin Kumari, (1952) 1 SCC 713, the Court held that once a custom is pleaded, Courts are duty-bound to examine its existence before rejecting the claim, and a summary dismissal without framing issues or leading evidence is contrary to law and amounts to denial of justice. The Court noted that in Badri Prasad v. Dy. Director of Consolidation, (1978) 3 SCC 527, the Supreme Court had laid down that long-standing cohabitation gives rise to a strong presumption of valid marriage, especially where society treats the couple as husband and wife.
The Court observed that the petitioner and respondent had resided together for a significant period, giving birth to two children acknowledged and socially accepted by the family. The glaring inconsistency in disowning the petitioner for their marriage being a levirate marriage while accepting her children reflected a legal contradiction and a moral and social injustice. The Court noted that this would set a dangerous precedent where a woman who has fulfilled the role of a wife and mother is discarded without remedy, solely due to patriarchal convenience.
“Social justice and the welfare of the children must prevail over rigid technical interpretations, and gender justice and constitutional morality require protection of maintenance and recognition for such women, especially when the man and his family have benefited from the union for years.”
The Court opined that marriage, being validated by custom, cohabitation, social acceptance, and the birth of children, must be treated as valid in law for the purposes of Section 125 of the CrPC. Disregarding such a union would be legally unsound and send a regressive message to society.
The Court noted that Section 125 CrPC is a welfare-oriented provision, not confined to strict personal law. The Court referred to Sukhdev Singh v. Sukhbir Kaur, 2025 SCC OnLine SC 299, which held that a spouse whose marriage is void under Section 11 of the HMA is entitled to seek permanent alimony or maintenance under Section 25 of the HMA. The Court observed that the petitioner, having lived as a wife, borne children, and been deserted without support, falls within the protective umbrella of Section 125 CrPC and the technical plea of invalidity of marriage cannot be a valid ground to deny her maintenance.
The Court, hence, set aside the findings of the Family Court and remanded the matter to the Family Court, with a direction to restore the maintenance petition to its original number and proceed in accordance with law, giving due opportunity to both parties to lead evidence, particularly on the question of custom and cohabitation.
[Sangeeta Devi v. Pawan Kumar Singh, Criminal Revision No.678 of 2024, decided on 10-07-2025]
Advocates who appeared in this case :
For the Petitioner: Parth Gaurav, Manogya Singh, G. R. Shahi, Ashutosh Kumar Pandey, Advocates
For the Respondent: Pankaj Kumar Singh, Advocate
Buy Code of Criminal Procedure, 1973 HERE
