JUDGMENT - R.A. JAHAGIRDAR, J.:---This petition arises out of proceedings initiated by the first respondent (hereinafter referred to as "the respondent") under section 125 of the Code of Criminal Procedure in the Court of the Judicial Magistrate, First Class, Kirkee. According to the respondent, she is the lawfully wedded wife of the petitioner, heaving been married to him on 19th of May, 1968. She stayed with her husband, who is the petitioner, for four months after the marriage, and thereafter she was driven out by him. The present application under section 125 of the Code of Criminal Procedure has been filed in the year 1975, that is, nearly seven years after the marriage. The petitioner, resisted this application by denying that he was ever married to the respondent at all. According to him, a betrothal ceremony had taken place sometime in the month of May 1968, and though the date of the marriage had been fixed, the event itself did not take place. The question, therefore, which was to be decided by the learned trial Magistrate was whether there was a marriage between the petitioner and the respondent as alleged by the petitioner. 2. Evidence was led on behalf of the respondent and this consists only of oral testimonies of herself, her mother and two other witnesses. The evidence led on behalf of the petitioner consisted of the oral testimony of the petitioner himself and another witness. A clerk from the rationing department was examined for proving an application submitted by the mother of the respondent showing that the maiden name of the respondent was included in that application long after her alleged marriage with the petitioner. It must be said at the outset that there is no contemporaneous documentary evidence to show the marriage of the petitioner with the respondent. Indeed there is no document at all evidencing the marriage. 3. The learned trial Magistrate by his judgment and order dated 8th of March, 1977 held that the respondent had failed to prove that she was married to the petitioner as alleged by her. While so holding he took among others, the following circumstances into consideration :--- (1) Though the witnesses examined on behalf of the respondent spoke of the date of the marriage, none of them mentioned the time of the marriage. While so holding he took among others, the following circumstances into consideration :--- (1) Though the witnesses examined on behalf of the respondent spoke of the date of the marriage, none of them mentioned the time of the marriage. (2) Though the respondent asserted that invitation cards were distributed for the marriage, no such card was tendered in evidence in the instant case. (3) The marriage was alleged to have been solemnized by a priest who was admittedly available for giving evidence, and yet he was not examined on behalf of the respondent. (4) The marriage was alleged to have been solemnized in a dharmasala, and yet no office-bearer of that institution was examined on behalf of the respondent. (5) One Chetwani, a witness examined on behalf of the petitioner, deposed that a year before his marriage, which took place in 1971, a proposal had emanated from the family of the respondent for her marriage with him, but he decided not to marry her. This statement was not specifically challenged in the cross-examination of that witness. (6) That Chetwani had been approached as a possible bridegroom by the mother of the respondent was admitted by the latter. (7) Even after her marriage the respondent continued to be known by her maiden name which was Indira or Indu and not by the name of Sunita, which she is said to have assumed by her after the marriage. (8) An application made by the mother of the respondent for a ration card included the name of the respondent as Indu and not as Sunita. (9) Though the respondent had asserted that she had stayed with the petitioner for four months and that thereafter the marriage broke down, as a result of which some mediation efforts were made by the friends of the family, this was not consistent, according to the learned trial Magistrate, with the fact that immediately after four months she had left her matrimonial house and gone away to Surat. 4. Taking all these facts and circumstances into consideration, the learned trial Magistrate felt compelled to come to the conclusion that the respondent had failed to prove her marriage with the petitioner. With this finding he was naturally obliged to dismiss the application. 5. 4. Taking all these facts and circumstances into consideration, the learned trial Magistrate felt compelled to come to the conclusion that the respondent had failed to prove her marriage with the petitioner. With this finding he was naturally obliged to dismiss the application. 5. This was challenged by the respondent by filing a revision application being Criminal Revision Application No. 74 of 1977, which was heard and allowed by the learned Additional Sessions Judge of Poona by his judgment and Order dated 28th of October, 1977. While so allowing the revision application the learned Additional Sessions Judge was to a great extent influenced by the fact that in this country at any rate a woman or Hindu girl would not try to hold out that she is the legally married wife of another unless she in fact so married. This order of the learned Additional Sessions Judge is challenged by the husband in the present before me. 6. Mr. Agarwal, the learned Advocate appearing for the petitioner, has criticised the judgment of the learned Additional Sessions Judge by contending that while exercising the revisional jurisdiction it was not open to him to interfere with what was essentially a pure finding of fact given by the Court of first instance after considering all the relevant facts and circumstances brought before him. Apart from the bare word of the respondent, her mother and the two witnesses examined on her behalf, there was not any other iota of evidence which could be pressed into service by the respondent for establishing her case or matrimony with the petitioner. On the other hand, says Mr. Agarwal, the learned trial Magistrate has appreciated the probabilities of the case and the conduct of the parties, which are inconsistent with the theory of marriage set up by the respondent. I have advisedly enumerated the facts and circumstances which were taken into consideration by the learned trial Magistrate. I have again mentioned that part from the improbability by a Hindu girl holding out that she is married to a particular person unless in fact she is so married, the learned Additional Sessions Judge has not considered the other facts and circumstances. I am, therefore, inclined to accept the criticism which Mr. Agarwal has levelled against the judgment of the learned Additional Sessions Judge. 7. On the other hand, Mr. I am, therefore, inclined to accept the criticism which Mr. Agarwal has levelled against the judgment of the learned Additional Sessions Judge. 7. On the other hand, Mr. Keswani, the learned Advocate appearing for the respondent has pointed out that there is a basic error in the approach of the learned trial Magistrate which is apparent from what he has stated in paragraph 12 of his judgment. According to Mr. Keswani, the learned trial Magistrate proceeded to examine the question of the marriage of the parties as if he was dealing with that question in a trial for an offence punishable under section 494 of the Indian Penal Code. Mr. Keswani then said that it is well-settled, at least as far as this Court is concerned, that the marriage in proceedings under section 125 of the Code of Criminal Procedure need not be proved up to the hilt but must be established on probabilities. In support of his contention be invited my attention to a judgment of this Court in (State of Maharashtra v. Vithabai Laxman Hedau)1, 75 Bom.L.R. 447 wherein, according to Mr. Keswani, it is laid down that the burden of proving the marriage in proceedings under section 125 of the Code of Criminal Procedure is infinitely small as compared to it other cases. I must, however, qualify by saying that Vithabais case at no places mentioned that the question of the status of parties can be decided merely on the basis of oral evidence. On the other hand, there are strong observations in the said judgment to the effect that apart from the sworn testimonies of the parties several other factors ought to be taken into consideration. To quote from the said judgment; "If sufficient material is put in such a trial to indicate the truth that the applicant is the wife of the non-applicant, the power has to be exercised. Prima facie case to support such a claim has to be established by the applicant. Evidence tendered on oath by both the parties, circumstances relating to the conduct of the parties, their previous admissions, their movements prior to coming in Court are all valuable guides in such matters". 8. Though Mr. Prima facie case to support such a claim has to be established by the applicant. Evidence tendered on oath by both the parties, circumstances relating to the conduct of the parties, their previous admissions, their movements prior to coming in Court are all valuable guides in such matters". 8. Though Mr. Keswani has with some justification commented upon what is contained in paragraph 12 of the judgment of the trial Magistrate, the manner in which ultimately the Magistrate has disposed of the case shows that he had borne in mind the law down in Vithabais case. He was seeking as indeed he was bound to seek, some corroboration to the oral evidence of the respondent and her witnesses, and he found that none was forthcoming. The Conduct of the parties also in this case indicated that they had not been married. Mr. Keswani, however, predictably underlined that part of the judgment of the learned Additional Sessions Judge in which the probability of the conduct of a Hindu girl was emphasised. In my opinion, that alone could not be decisive of the question whether the status of the parties is involved. On the other hand, there is evidence to the effect that even after her marriage the conduct of the respondent, at least on several occasions was such that it was inconsistent with the theory of the marriage set up by her. 9. While summarising the evidence, I have mentioned that one Chetwani had become the recipient of a proposal from the family of the respondent for her marriage. The learned Additional Sessions judge in paragraph 8 of his judgment has sought to explain why such a proposal could have been made. In my opinion, this paragraph is vitiated by conjectures and surmises. If an explanation had to be given, it had to be given by the parties to the dispute and not to be found out by the learned Additional Sessions Judge. No explanation has been given by either the respondent or by her mother. 10. I am, therefore, satisfied that there was no warrant for the learned Additional Sessions Judge to interfere with what was purely a question of fact which had been recorded by the learned Magistrate after considering all the evidence oral, documentary and circumstantial. 11. In the result, this petition will have to be allowed and is allowed. 10. I am, therefore, satisfied that there was no warrant for the learned Additional Sessions Judge to interfere with what was purely a question of fact which had been recorded by the learned Magistrate after considering all the evidence oral, documentary and circumstantial. 11. In the result, this petition will have to be allowed and is allowed. The Order passed by the learned Additional Sessions Judge of Poona in Criminal Revision Application No. 74 of 1977 is set aside, and the Order passed by the learned Judicial Magistrate, First Class, Kirkee, in Criminal Miscellaneous Application No. 48 of 1975 is restored. Rule is made absolute. -----