VANAJAKSHAMMA v. P. GOPALAKRISHNA — 1970 DIGILAW 52 (KAR)

( 1 ) THIS petition arises out of proceedings taken under S. 488 Cr. P. C. The 1st petitioner before this Court claims to be the wife of the respondent and the petitioners 2 and 3 are said to be her minor children born to the respondent. The 1st petitioner claimed a total sum of Rs. 150 per month towards maintenance of herself and her 3 minor children. After the enquiry the learned Magistrate dismissed the petition. The petitioners challenge the correctness of the said order passed by the learned Magistrate in this revision petition. ( 2 ) SRI Riazuddin, learned Counsel appearing on behalf of the petitioners, has contended that the learned Magistrate, after having accepted the evidence let in by the petitioners, was wrong in dismissing the petition. He has pointed out that the learned Magistrate has also rejected the evidence let in on behalf of the respondent, but yet strangely dismissed the petition. The learned Magistrate has also given a finding that it had been established in evidence that petitioner 1 was the kept mistress of the respondent. It has been argued that the standard of proof of marriage under S. 488 Cr. P. C. is different from that laid down either in the Divorce act or in prosecutions under Ss. 494, 495 and 498 IPC. The proviso to S. 50 of the Evidence Act makes this clear. The learned Counsel has strongly relied on David v. Nilamoni, AIR. 1953 Orissa 10. and bebi Bai v. Japomony, 1957 Mad. L. J. Cr. 311. in support of his said contention. It is also contended that as the 1st petitioner was a widow, no specific ceremonies need be performed for a valid Hindu marriage. The learned Counsel has relied on All India Reporter 1950 Madras 777. in support of his contention that a Hindu Marriage need not take place in the presence of a priest, and the tying of a 'tali' in the presence of an idol is also one of the forms of a marriage known to Hindu Law. It is argued that the evidence given by petitioner 1 and her witnesses clearly makes out a case that the petitioner 1 was the wife of the respondent and petitioners 2 and 3 are his children born to him after his marriage with petitioner 1. ( 3 ) THE learned Magistrate believed the evidence of P. Ws. It is argued that the evidence given by petitioner 1 and her witnesses clearly makes out a case that the petitioner 1 was the wife of the respondent and petitioners 2 and 3 are his children born to him after his marriage with petitioner 1. ( 3 ) THE learned Magistrate believed the evidence of P. Ws. 1 and 2 examined on behalf of the petitioners. He has stated that P. Ws. 1 and 2 appear to be disinterested and independent witnesses. Further, there was absolutely nothing on record to suggest that they are either interested in the petitioners or that they had any ill-will against the respondent. He has stated that he had carefully examined the evidence of these witnesses and he was satisfied that their evidence is convincing and they have spoken the truth. The learned Magistrate has also dis-believed the evidence of the witnesses exam ned on behalf of the respondent. He has held that they are all inteested witnesses and persons working for the respondent. After reviewing tne evidence, he has accepted the evidence that petitioner 1 and the respondent were living together as husband and wife for a long time, and he finds that petitioner 1 was the kept mistress of the respondent. But strangely enough, after giving such a finding, he has entirely dismissed, the petition filed on behalf of the children for maintenance. With regard to the question whether petitioner 1 is the wife of the respondent, he states as follows:"if really P. W. 4 had married P. W. 3 at Tirupathi, there was no necessity for him to keep P. W. 3 in a separate house. On the evidence placed a presumption that there was a valid marriage cannot be justified. " ( 4 ) THE first question for consideration in this case is whether the 1st petitioner is the wife of the respondent. The 1st petitioner has been examined as P. W. 3 in the case. She has stated that she came to know the respondent about 8 years ago when the respondent was working as a railway contractor in her village. She thereafter developed intimacy with the respondent. Because of this, her parents drove her out of the house. After some time, she and the respondent went to Tirupathi and the respondent married her at Tirupathi. The respondent had tied a 'tali' at Tirupathi temple. She thereafter developed intimacy with the respondent. Because of this, her parents drove her out of the house. After some time, she and the respondent went to Tirupathi and the respondent married her at Tirupathi. The respondent had tied a 'tali' at Tirupathi temple. After the marriage she and the respondent were residing for number of years at different places and she gave birth to petitioners 2 and 3. The first petitioner has not stated in her evidence what were the ceremonies that were performed at the time of her marriage She has also not been cross-examined on this point. The result is that there is no evidence before the Court as to what were the ceremonies that were performed when petitioner 1 was married to the respondent. The evidence of petitioner 1 that she was married at Tirupathi has been corroborated by the evidence of P. W. 2. There is also no reason to disbelieve the evidence of the petitioner 1 that respondent married her at Tirupathi. As already seated, the evidence of petitioner 1 is corroborated by the independent evidence of P. W. 2. ( 5 ) THERE is also the evidence of P. Ws. 1 to 3 that petitioner 1 and the respondent were living together as husband and wife for a number of years in different places. Petitioner 1 has stated that she married the respondent about 8 years back, and thereafter she lived with the respondent at different places. I have already referred to the evidence of P. W. 2 that petitioner 1 and the respondent were living together as husband and wife for 3 years in Mariammanahalli and for 2 years in Hagari Bommanahalli. P. W. 1, the Midwife who attended to the delivery of the petitioner 1 about 6 years back, has stated that petitioner 1 and the respondent were living together in Mariammanahalli for three years in the same house, and that she attended as Midwife when petitioner 1 gave birth to the second petitioner. The respondent who was living in that house paid the charges. She has also stated that petitioner I and the respondent were living as husband and wife. Even after the birth of the child, they were living together for one more year in that place. The respondent who was living in that house paid the charges. She has also stated that petitioner I and the respondent were living as husband and wife. Even after the birth of the child, they were living together for one more year in that place. ( 6 ) THE learned Magistrate has also accepted the evidence of this witness that petitioner 1 and the respondent were living together for a number of years. In Gokal Chand v. Parvin Kumari, AIR. 1952 SC. 331. their Lordships of the Supreme Court have pointed out that continuous co-habitation of a man and a woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage. But the presumption which may be drawn from long co-habitation is rebuttable. . In the instant case, except denying totally and saying that he never lived with petitioner 1, the respondent has not in any way rebutted the presumption of marriage arising out of the continuous cohabitation as alleged by. petitioner 1 and her witnesses. ( 7 ) IT may also be mentioned that before instituting the proceedings, petitioner 1 had sent a lawyer's notice to the respondent claiming maintenance. In the said notice jt has been specifically stated that the respondent took petitioner 1 to Tirupathi and there married her according to the customary and religious rites. It is also stated that after the marriage, the respondent set up a family and lived with the petitioner at different places where he was doing contract work. It is stated therein that petitioner 1 is the legally wedded wife of the respondent and that she had given birth to 3 children by him. Ex. P-2 is the said notice. Ex. P-3 is the postal acknowledgment form, wherein the respondent has acknowledged the receipt of this notice. In cross-examination, the respondent has admitted that he received the notice Ex. P-2. He has stated that he read the notice, but he has not replied to that notice. The fact that to the registered notice sent by petitioner 1, wherein she has specifically stated that she is the legally wedded wife of the respondent, that they had got married at Tirupathi and that she had three children by him by the marriage, no reply at all has been sent bv the respondent is very significant. The fact that to the registered notice sent by petitioner 1, wherein she has specifically stated that she is the legally wedded wife of the respondent, that they had got married at Tirupathi and that she had three children by him by the marriage, no reply at all has been sent bv the respondent is very significant. This clearly shows that in the beginning the respondent did not seriously dispute that petitioner was his wife and that petitioners 2 and 3 were his children. It is only after the proceedings were instituted, the respondent came forward with this plea of total denial. The respondent has totally denied having had anything to do with petitioner 1. He denied that he had done any contract work in her village Malvi. He has denied that he got married to her and that three children were born to him. He has also denied having ever lived with her at different places. After going through the evidence, I am satisfied that the respondent married the 1st petitioner at Tirupathi and thereafter lived with her as his wife in different places and petitioners 2 and 3 were born to the respondent, and petitioner 1 after their marriage. ( 8 ) IT is contended by Sri Deshpande, learned Counsel appearing on behalf of the respondent, that there is no legal proof whatsoever that the respondent married petitioner 1. Petitioner 1 has not stated what are the ceremonies that were performed at the time of the alleged marriage. She has also not given any evidence about the custom of her community. He argues, there must be strict proof of marriage before maintenance can be awarded under S. 488 Cr. P. C. to the wife. He has strongly relied on bhaurao v. State of Maharashtra, AIR. 1965 SC. 1564. In the said decision, their Lordships have laid down that S. 17 of the Hindu Marriage Act makes the marriage between 2 Hindus void if two conditions are satisfied: (i) the marriage is solemnized after the commencement of the Act and (ii) at the date of such marriage either party had a spouse living. Their Lordships have pointed out that the word (solemnized) means, in connection with a marriage, 'to celebrate the marriage with proper ceremonies and 5n due form'. Their Lordships have pointed out that the word (solemnized) means, in connection with a marriage, 'to celebrate the marriage with proper ceremonies and 5n due form'. It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and due form' it cannot be said to be 'solemnized'. It is therefore essential for the purpose of S 17 of the Act. that the marriage to which S. 494 IPC. applies on account of the provisions of the Act, should have been celebrated with proner ceremonies and in due form. Merely poing through certain ceremonies with the intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved bv anv established custom. Their Lordships have also laid dowa, prima fade, the expression "whoever. . . . . . marries" In S. 494, ipc. must mean 'whoever. . . . . . marries" validly. The bare fact of a roan and a woman living as husband and wife does not, at anv rate, normally give them the status of husband find wife even though they may hold themselves out before society as husband and wife and the society treats them as huband and wife. ( 9 ) SRI Deshpande has also relied on Deivanai Achi v. Chidambaram chettiar, AIR. 1054 SC. 657. . In the said decision, their Lordships have considered what are the essential ceremonies that are necessary to constitute a vaplid marriage under the Hindu Law. Their Lordships have referred to the various forms of marriage and the ceremonies that are necessary to be performed to constitute a valid marriage. Their Lordships have also referred to the essentials of a valid custom. The custom must be ancient, certain and reasonable and it cannot be enlarged beyond the usage bv party of reason since it is the usage that makes the law and not the reason of the thing. ( 10 ) THE petitioner 1 has stated that she got married to the respondent at Tirupathi. She has not been asked what were the ceremonies that she underwent during the said marriape. There is no evidence to show that she has not undergone the ceremonies necessary for a valid marriage. In the notice. Ex. P-3. given by her to the respondent, she has stated that she has undergone the marriage according to the religious rites. She has not been asked what were the ceremonies that she underwent during the said marriape. There is no evidence to show that she has not undergone the ceremonies necessary for a valid marriage. In the notice. Ex. P-3. given by her to the respondent, she has stated that she has undergone the marriage according to the religious rites. In the Supreme court decision mentioned above Bhaurao's case. their Lordships were considering a case of prosecution for bigamy under S. 494 IPC. and in that context their Lordships held that the prosecution should prove that the marriage has been duly solemnized. It has to be remembered that proceedings under S. 488 Cr. P. C. are summary in nature, meant to prevent vagrancy. The standard of proof of marriage in proceedings under s. 488 Cr. P. C. need not be so high as required in prosecution for bigamy or proceedings under the Divorce Act. In this connection, reference may be made to the proviso to S. 50 of the Indian Evidence Act. S. 50 reads as follows:"when the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed, by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act or in prosecutions under Ss. 494, 495, 497 or 498 of the IPC. "illustration (a) to the above section says:"the question is, whether A and B were married. The fact that they were usually received and treated by friends as husband and wife is relevant. "it is pertinent to point out that the proviso does not refer to proceedings under S. 488 Cr. P. C. It only says that such opinion shall not be sufficient to prove marriage in proceedings under the Indian Divorce Act or in prosecutions under the Indian Penal Code for bigamy, etc. ( 11 ) IN David v. Nilamoni Devi, Narasimham, J. (as he then, was) has pointed out that S. 488 Cr. P. C. is not included in the proviso to S. 50 of the Evidence Act. Hence, for proving a marriage, in proceedings under s. 488 Cr. ( 11 ) IN David v. Nilamoni Devi, Narasimham, J. (as he then, was) has pointed out that S. 488 Cr. P. C. is not included in the proviso to S. 50 of the Evidence Act. Hence, for proving a marriage, in proceedings under s. 488 Cr. P. C. , the standard of proof need not be so high as required in proceedings under the Indian Divorce Act or in prosecutions under s. 494 IPC. His Lordship observed that even an opinion expressed by conduct of persons who had special means of knowledge on the subject, may suffice to prove the fact of marriage in a proceeding under S. 486, criminal Procedure Code. ( 12 ) IT is contended by Sri Deshpande that the said Orissa decision may not be a good law in view of the later decision of the Supreme Court referred to earlier, i. e. . . , Bhaurao's case (5 ). He also contends that after the hindu Marriage Act came into force, the requirements laid down in S. 7 should be fully complied with to prove a marriage. As already pointed out, the Supreme Court decision dealt with the case of a prosecution for. bigamy and did not consider the question of proof of marriage arising under S. 488 Cr. P. C. S. 50 of the Evidence Act and the proviso stand unaltered. It therefore follows that the strict proof required for proving a marriage in a criminal prosecution or in proceedings under the Divorce act, is not necessary in a summary proceeding under S. 488 Cr. P. C. It may be pointed out that even though the Criminal Court may come to the conclusion, in a proceeding under S. 488 Cr. P. C. that the parties are husband and wife if a Civil Court gives a different finding on the point, the criminal Court should alter its finding. In this connection, it is pertinent to point out that sub-sec. (2) of S. 489 Cr. P. C. which reads as follows:"where it appears to the Magistrate that, m consequence of any decision of a competent Civil Court, any order made under S. 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (2) of S. 489 Cr. P. C. which reads as follows:"where it appears to the Magistrate that, m consequence of any decision of a competent Civil Court, any order made under S. 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. "this clearly shows that the finding given by the learned Magistrate is not final and if there is a decision of a competent Civil Court, the magistrate should cancel the order or vary it. ( 13 ) AFTER the abovementioned decision of the Supreme Court, in bebi Bai v. Japamony, the Madras High Court held that in a proceeding under S. 488 Cr. P. C. , the standard of proof of marriage need not be so high as required either in a proceeding under the Indian Divorce Act or in a prosecution under Ss. 494, 495, 497 or 498 IPC. Thus, even opinion expressed by conduct of persons who had special means of knowledge on the subject may suffice to prove the fact of marriage in a proceeding under the section. ( 14 ) THE learned Magistrate has not applied his mind properly to the question of marriage of petitioner 1 with the respondent. The reasons given by him for coming to the conclusion that there was no valid marriage between them cannot be supported. The finding given by the learned magistrate is as follows:" If really R. W. 4 had married P. W. 3 at Tirupathi, there was no necessity for him to keep P. W. 3 in a separate house. On the evidence placed a presumption that there was a valid marriage cannot be justified. "i accept the evidence of petitioner 1 that the respondent married her at Tirupathi. This evidence of petitioner 1 is corroborated by the evidence of P. W. 2. There is no reason to reject the evidence given by these two witnesses. The fact that the respondent married the 1st petitioner at Tirupathi is also set out in the registered lawyer's notice, Ex. P-2, sent by petitioner 1 to the respondent. As already pointed out, though the respondent received the same, he did not send any reply denying the facts mentioned therein that he had married petitioner 1 at Tirupathi. The fact that the respondent married the 1st petitioner at Tirupathi is also set out in the registered lawyer's notice, Ex. P-2, sent by petitioner 1 to the respondent. As already pointed out, though the respondent received the same, he did not send any reply denying the facts mentioned therein that he had married petitioner 1 at Tirupathi. ( 15 ) THE next question for consideration is whether it has been proved that petitioners 2 and 3 are the children of the respondent, born to him after his marriage with the 1st petitioner. ( 16 ) I have therefore no hesitation in coming to the conclusion that the 2nd and 3rd petitioners are the children born to the respondent after his marriage with the 1st petitioner at Tirupathi. ( 17 ) THE next question for consideration is as to what rate of maintenance petitioners 1 to 3 are entitled. Petitioner 1 in her evidence has stated that the respondent is a contractor, that he owns a house and 10 acres of land. She has also stated that he owns a lorry and he earns on an average Rs. 700 to Rs. 800 per month. She has also stated that she requires rs. 150 per month for their maintenance. The respondent in his cross-examination has admitted that he has got 14 acres of land in his own name at Kollegal. He has also admitted that he is doing contract work along with his elder brother. He has admitted that they had one lorry, but stated that they have now sold it. He has also admitted that they pay income-tax. The respondent stated that when there is work he gets about rs. 200 to Rs. 300 per month from the contract work. Though he admitted that he has got 14 acres of land, he has stated that he gets an income of only Rs. 100 per year from the land. Talking the admission of the respondent himself, it shows that he has got 14 acres of land in his own name. He has also admitted that he is doing contract work and paying income-tax. Taking the evidence let in by the parties with regard to the income of the respondent, I am of opinion that it is reasonable to award a maintenance of Rs. 35 (Rupees thirty five only) per month to the 1st petitioner and Rs. He has also admitted that he is doing contract work and paying income-tax. Taking the evidence let in by the parties with regard to the income of the respondent, I am of opinion that it is reasonable to award a maintenance of Rs. 35 (Rupees thirty five only) per month to the 1st petitioner and Rs. 25 (Rupees twenty five) each, per month to the 2nd and third petitioner, from the date of the petition. ( 18 ) IN the result, for the reasons mentioned above, I allow this revision petition set aside the order passed by the learned 1st Additional Munsiff-Magistrate, bellary and award maintenance at Rs. 35 per month to the first petitioner, and at Rs. 25 each per month to the 2nd and the 3rd petitioners from the date of the petition. --- *** --- .