JASHODA SHAMBHUSING SEKHAVAT v. STATE — 1992 DIGILAW 169 (GUJ)

ABICHANDANI, J. ( 1 ) THE petitioner seeks to challenge the impugned Judgment and Order dated 21/12/1991 passed by the learned Judicial Magistrate, first Class, 4th Court, Ahmedabad Rural in Criminal Miscellaneous Application no. 133 of 1991 rejecting the application of the petitioner made under Sec. 125 of the Criminal Procedure Code claiming maintenance at the rate of Rs. 500 per month from the date of the application from the respondent No. 2. ( 2 ) IN her application for maintenance made on 3/06/1991, the applicant stated that she and the respondent No. 2 were in love for over two years. Thereafter the petitioner and the respondent No. 2 married as per Hindu rites in January, 1991. It was stated that as the father of the respondent No. 2 - husband wanted a fat dowry the petitioner who had stayed with her husband-respondent No. 2 for about three months, was driven out. The respondent No. 2 was planning to get married with another girl from sirohi. The petitioner made efforts to see that the respondent No. 2 allowed her to stay with him, but she was told that Rs. 2 lakhs should be given in dowry if she wanted to come back to him. It was contended that respondent no. 2 was serving as a diesel engine driver at Porbandar and was earning about Rs. 4,000 per month and had no other liabilities. An application was made by the petitioner on the same day for interim maintenance which was rejected by the learned Judicial Magistrate, First Class, 4th Court, Ahmedabad rural, on 6-12-1991. The respondent No. 2 in his reply at Exh. 18 denied having married the petitioner and contended that there was only Platonic love between them and there was no talk of any marriage and the entire episode about their marriage as stated by the petitioner was concocted. It was contended that the petitioner had never stayed with him for a period of 3 months as alleged and they had not lived as husband and wife. It was contended that he was earning only Rs. 2,oo0 per month and not Rs. 4,000 as alleged. ( 3 ) THE petitioner in her deposition Exh. 28 stated that she and the respondent No. 2 were married in a temple in January 1991 and that the marriage was registered in the Office of the Sub-Registrar. It was contended that he was earning only Rs. 2,oo0 per month and not Rs. 4,000 as alleged. ( 3 ) THE petitioner in her deposition Exh. 28 stated that she and the respondent No. 2 were married in a temple in January 1991 and that the marriage was registered in the Office of the Sub-Registrar. A certified copy of the registration of marriage was produced at Exh. 30 under the list Exh. 8 which was filed by the learned Counsel for the petitioner. Photographs of the petitioner and the respondent No. 2 were also produced at Exhs. 32 to 35. According to the petitioner, these photographs were taken because the petitioner and the respondent No. 2 were married, while according to the respondent No. 2, they were taken only because the petitioner and the respondent no. 2 were friends. The petitioners case was that, one Purshottam Gaurishankar joshi had got them married. The respondent No. 2 on the other hand denied his signature on the marriage registration form, the original of which was got produced in the Court and a xerox copy of which appears at Exh. 52. ( 4 ) MUCH reliance was placed by Mr. R. S. Rajora, the learned Counsel appearing for the petitioner on the form at Exh. 52 (which is the xerox copy of the original brought before the Court by the clerk of the Sub- registry and a certified copy of which was produced by the petitioner at Exh. 30), to show that the name of the respondent No. 2 was mentioned in it as the husband and there was his signature against his name with date 4-1-1991 written below it. The form also shows the signature of the petitioner as the bride below which she has written date 4-1-1991. Signature of the Priest, Joshi Purshottam Gaurishankar is also there in column No. 7 who has put date 4-1-1991 in Hindi. The form shows on the reverse that it was filed on 10/07/1991. The clerk who was working in the Office of the Sub-Registrar was examined at Exh. 51 and he had brought the original marriage registration form before the Court and of which xerox copy was produced at Exh. 52 and a true copy was produced at Exh. 53. The form shows on the reverse that it was filed on 10/07/1991. The clerk who was working in the Office of the Sub-Registrar was examined at Exh. 51 and he had brought the original marriage registration form before the Court and of which xerox copy was produced at Exh. 52 and a true copy was produced at Exh. 53. It appears that the Court after satisfying itself from the original brought before it in the deposition of the clerk allowed its xerox and certified copy to be kept on the record and returned the original with the clerk. It has come on record that the respondent No. 2 was married to Anila, a girl from Sirohi on 24-6-91. Purshottam Gaurishankar Joshi, who according to the petitioner had got the marriage performed, has in his deposition at Exh. 72 stated that he did not know the respondent No. 2. He has stated that, Mr. R. S. Rajora, the learned Advocate for the petitioner had approached him with blank marriage registration forms and taken his signature in one or two such forms. Two such Marriage registration forms purporting to bear signature of the petitioner and the respondent No. 2 were produced by the learned Counsel in the Court and shown to the said witness Purshottam who admitted his signatures on them. These original forms are at Exhs. 73 and 74. He has further stated that, mr. R. S. Rajora was accompanied by a girl and an elderly woman. He has further stated that, R. S. Rajora told him that they were his relatives and that a marriage was to be registered and therefore he may put his signature in the forms. He further stated that he knew the said Advocate mr. R. S. Rajora since about 5 to 7 years and that he used to go to the elder brother of his father (mota bapa ). He has also stated that he had got the brother and sister of the said Advocate, R. S. Rajora married. He was shown the xerox copy Exh. 52 of the marriage registration form and he admitted his signature. He denied that he had got the petitioner and the respondent No. 2 married, la the cross-examination, he reiterated that his signature were taken on blank marriage registration forms by the said advocate Mr. He was shown the xerox copy Exh. 52 of the marriage registration form and he admitted his signature. He denied that he had got the petitioner and the respondent No. 2 married, la the cross-examination, he reiterated that his signature were taken on blank marriage registration forms by the said advocate Mr. R. S. Rajora and he had put the signature on all these forms at the instance of Mr. R. S. Rajora though he had not got the marriage performed. ( 5 ) THE material on record, therefore, raised an important question as to whether the petitioner was lawfully wedded wife of the respondent No. 2 and the answer to that to a large extent is dependent on the fact whether the registration form which was filed in the Office of the Sub- registrar, and which was brought before the Court in the deposition of the clerk of the Registry who was allowed to take it back by placing its xerox copy at Exh. 52, the certified copy of which was initially produced on behalf of the petitioner at Exh. 30, was a genuine document or not. ( 6 ) THE learned Judicial Magistrate, First Class, 4th Court, Ahmedabad rural, framed points for his determination which are mentioned in paragraph 3 of his judgment. He framed point No 1 to the effect as to whether it was proved by the petitioner that she was lawfully wedded wife of the respondent No. 2. On this point, the learned Magistrate has held against the petitioner and therefore he held that it was not necessary to give any finding on other points, namely, points Nos. 2, 3 and 4 on the questions as to whether it was proved that the petitioner was deserted without any reasonable cause, as to whether the respondent No. 2 had neglected to maintain her and as to the quantum of maintenance. ( 7 ) IT was contended by Mr. R. S. Rajora, the learned Counsel appearing for the petitioner that the learned Magistrate exceeded his jurisdiction in deciding the question of validity of the marriage. He submitted that the marriage registration form which was brought before the Court in the deposition of the clerk and xerox copy of which was at Exh. 52 showed the signature of the respondent No. 2. He submitted that the marriage registration form which was brought before the Court in the deposition of the clerk and xerox copy of which was at Exh. 52 showed the signature of the respondent No. 2. He submitted that the learned Magistrate has wrongly concluded that the signature was not of the respondent No. 2 by comparing the signature of the respondent No. 2 which he ought not to have done. He submitted that the two forms on which the witness Purshottam Joshi had put his signatures at his instance as alleged by him were produced by him at exhs. 73 and 74 and it should therefore be assumed that the form filed in the Sub-Registry and brought by the clerk before the Court, xerox copy of which is at Exh. 52 and certified copies at Exhs. 30 and 53 was a genuine one reflecting the marriage of these parties. He submitted that it was not necessary for the learned Magistrate to go beyond that registration form and he ought to have accepted it as the prima facie proof of the marriage. He submitted that the question of validity of marriage can be decided only by the Civil Court and the Magistrate while deciding the question of maintenance under Sec. 125 of the Criminal Procedure Code cannot finally adjudicate upon the marital status of the parties. ( 8 ) THERE can be no dispute about the proposition that, a Magistrate entertaining an application under Sec. 125 of the Cr. P. C. cannot finally decide the marital status of the parties and it is ultimately for the Civil Court to decide the question of marital status of a party. However, this does not mean that the Magistrate cannot go into the question as to whether the applicant was a lawfully wedded wife or not for the purpose of deciding the question of maintenance. It is needless to say that reference to wife under Sec. 125 (l) (a) is a reference to a lawfully wedded wife. This aspect came to be considered by this Court in Sulochanaben v. Pandurang Tolaram [reported in 1991 (2) GLH 94 ] in a different context where the question was as to whether a woman having entered into a marriage with a married man was qualified for maintenance and His Lordship Mr. This aspect came to be considered by this Court in Sulochanaben v. Pandurang Tolaram [reported in 1991 (2) GLH 94 ] in a different context where the question was as to whether a woman having entered into a marriage with a married man was qualified for maintenance and His Lordship Mr. Justice J. N. Bhatt, made the following pertinent observations :"at the outset, it may be stated that, in order to qualify for maintenance under sec. 125 of the Code, it is incumbent upon the applicant to prove first of all that she is a legally wedded wife. It is the prerequisite for claiming maintenance under sec. 125 of the Code. The expression wife in Sec. 125 of the Code means legally wedded wife. Therefore, in proceedings under Sec. 125 of the Code, the first condition which is required to be satisfied is that the applicant is lawfully married wife of the opposite party. "i am in respectful agreement with the above observations made by His lordship, Mr, Justice J. N, Bhatt and am of the view that they correctly reflect the legal position incorporated in the provisions of Sec. 125 (l) (a) of the Code of Criminal Procedure. It, therefore, cannot be said that the learned Magistrate was not justified in going into the question as to whether the petitioner was proved to be a lawfully wedded wife of the respondent no. 2. However, any finding which may be given by the Magisterial Court on such application would be relevant only for the purposes of the provisions of Sec. 125 of the Code and can have no effect of finally adjudicating upon the marital status of the parties. The declaration as to marital status can be given by a Civil Court under the provisions of Sec. 34 of the specific Relief Act. The question of validity of marriage can also be decided under the relevant Matrimonial Law by the competent Civil Court. ( 9 ) MR. Rajora, the learned Counsel for the petitioner relied upon the decision of the Calcutta High Court in Bengali Prosad v. Smt. Draupadi dedi (reported in 1979 0 Crlj 454 ) in which it was held that the Magistrate is not a full-fledged Civil Court to go into the validity of the marriage and it is sufficient that the marriage is admitted by the petitioner. In that case also the husband had challenged the validity of the marriage in an application for maintenance under Sec. 125 of the Code and the learned Magistrate on the basis of the evidence including the deposition of the wife together with a certificate of registration of their marriage and also an agreement executed by the parties affirming (he marriage had granted maintenance. On the facts and circumstances of the case, the High Court held that the certificate of marriage relating to the registration of marriage between the parties was sufficient proof that the parties were married. It appears that, validity of the certificate of marriage was not in challenge in (hat case. A certificate of registration of marriage is an important document recording the factum of marriage. Ordinarily, in a proceeding under Sec. 125 of the Code, when a certificate of marriage is produced, it deserves its due weight and there would be prima facie presumption of marriage having taken place between the parties. The magisterial Court was not required to decide the marital status of a party like a full-fledged Civil Court and therefore it can act on a valid certificate of marriage produced before it for the purpose of deciding an application under Sec. 125 of the Code. However, when the question of validity of registration is itself in issue, such as in the instant case coupled with the fact that the Priest who is said to have performed the marriage while admitting his signature on the marriage registration has stated that he had never performed the marriage and that he had put his signatures on the marriage registration forms brought to him by the Advocate for the petitioner and at his instance because of their long standing aquaintance, a grave situation arises which merits consideration of the validity of the registration certificate especially when the reliance is mainly placed on such registration of marriage and there is no other reliance evidence adduced. The learned Magistrate in paragraph 11 of his Judgment has embarked upon the task of comparing the signatures of the respondent no. 2 on the marriage registration form (presumably the one which was brought by the Clerk who had also produced the Xerox Copy thereof at exh. 52) and the admitted signatures of the respondent No. 2. The learned Magistrate in paragraph 11 of his Judgment has embarked upon the task of comparing the signatures of the respondent no. 2 on the marriage registration form (presumably the one which was brought by the Clerk who had also produced the Xerox Copy thereof at exh. 52) and the admitted signatures of the respondent No. 2. Even though under Sec 73 of the Indian Evidence Act, in order to ascertain whether a signature is that of a person by whom it purports to have been written, the Court may compare it with the one which is an admitted signature of such person, it would, in a matter of this type involving grave consequences, be hazardous on the part of the Court to take upon itself the task of comparing the signature and reach to a conclusion that the, registration did not bear the signature of the respondent No. 2. The learned Magistrate had not framed any point on the question as to whether the parties were married as stated in the registration form filed in the Office of the Sub-Registrar, a Xerox copy of which is at Exh. 52. In absence of having framed such point which it was necessary to frame, having regard to the acute nature of controversy, the parties did not get adequate opportunity of leading evidence on that aspect. Therefore, without expressing any view on other aspects of the matter, the case is remanded on the short ground that the learned Magistrate ought to frame a further point for his determination to the effect as to whether it was established that the petitioner and the respondent No. 2 were lawfully married as evidenced from the registration of marriage done as per the registration form which was brought before the Court in the deposition of the Clerk from the Registry and a xerox copy of which is at Exh. 52 and a certified copy of which is produced on behalf of the petitioner at Exh. 30, and decide the matter afresh. The question whether the petitioner was lawfully married or not will be decided again by the Magistrate on the basis of the evidence on record and such other evidence as may be adduced by the parties or the Court may find it necessary to recall in view of the additional point which is required to be framed as directed above. The question whether the petitioner was lawfully married or not will be decided again by the Magistrate on the basis of the evidence on record and such other evidence as may be adduced by the parties or the Court may find it necessary to recall in view of the additional point which is required to be framed as directed above. It will be appropriate for the lower Court to require the original registration form on which reliance was placed and which was once brought before the Court in the deposition of the Clerk who was allowed to take it back by placing its xerox copy on record at Exh. 52. ( 10 ) THE registration form which is filed in the Sub-Registry is an important document as to the factum of marriage and it is obvious that by producing a true copy of that document at Exh. 30, the learned Counsel for the petitioner and the petitioner sought heavy reliance on that document with a view to show that the petitioner was lawfully wedded wife of the respondent No. 2 and was entitled to claim maintenance under Sec. 125 of the Code. If it ultimately transpires that the respondent No. 2 has falsely denied signature in the marriage registration form, it might entail consequence of prosecution for perjury. On the other hand, if it is found that the marriage registration form, which was filed on 10th june, 1991 much after the alleged marriage that took place on 4/01/1991 between the petitioner and the respondent No. 2 and in fact after the marriage of the respondent No. 2 with Anila at Sirohi on dated 24-6-1991, was a forged document which has been used in the Court proceedings, necessary action under Sec. 195 of the Criminal Procedure Code may be required to be taken by the Court coming to that conclusion. It will also be examined whether any of the offences under Sec. 195 (l) (b) are committed in respect of any other documents such as Exhs. 73 or 74 on record or any other evidence adduced in these proceedings. The Courts cannot be silent spectators to any naked attempt by the parties to commit perjury or to get an order of the Court on the basis of forged documents and perjury. 73 or 74 on record or any other evidence adduced in these proceedings. The Courts cannot be silent spectators to any naked attempt by the parties to commit perjury or to get an order of the Court on the basis of forged documents and perjury. It is quite likely that if any forgery is established in respect of the marriage registration form on which reliance was sought to be placed by the petitioner and her Counsel, even if (he petitioner may not have been aware of the legal consequences, there may be others who may have been iinvolved in a conspiracy to create evidence and secure an order from the Court by false evidence and use of forged documents in the Court proceedings. It would be the bounden duty of the Magisterial Court to take appropriate action by filing the complaint under Sec. 195 of the Criminal Procedure Code, if it is ultimately found that any of the offences enumerated in Sec. 195 (l) (b) have been prima facie committed in these proceedings against those who might be found to be prima facie involved in committing the offences. The very foundation of the Institution will be eroded if the concerned Court rests merely by deciding the application without discharging its duty to act under Sec. 195 (l) (b) of the Code, if it comes to the finding that any offence under Sec. 195 (1 ) (b) (ii) of the Code is committed in relation to the judicial proceedings before it. ( 11 ) THE decision on the question of an application for maintenance is undoubtedly an important matter to be expeditiously dealt with, with all the sympathy that human misery may deserve. It is not necessary at this stage to express any opinion on the evidence as it stands on the record since the matter is required to be remanded to the Magisterial Court for deciding it afresh in light of the observations made in this Judgment. The disposal of the proceedings after this remand obviously, would take some time and therefore, it would by just and proper to award interim maintenance to the petitioner. There is no valid reason for denying interim maintenance even where validity of marriage may be disputed and it would not be appropriate to defer the grant of interim maintenance until all questions are finally decided by the magisterial Court. There is no valid reason for denying interim maintenance even where validity of marriage may be disputed and it would not be appropriate to defer the grant of interim maintenance until all questions are finally decided by the magisterial Court. Having regard to the facts and circumstances of the case, it is hereby directed that, by way of interim maintenance, the respondent No. 2 shall pay a sum of Rs. 200 per month to the petitioner from the date of her Maintenance Application till the maintenance application is finally disposed of by the Magisterial Court after this remand. The respondent No. 2 is also directed to pay a sum of Rs. 1,000 towards the initial cost of the proceedings. The amounts which are directed to be paid shall be deposited by the respondent No. 2 in lower Court within two weeks from today and the petitioner shall be at liberty to withdraw such amount without furnishing any surety. ( 12 ) THE Special Criminal Application is, therefore, accordingly allowed and the impugned order passed by the learned Judicial Magistrate first Class, 4th Court, Ahmedabad Rural, Mirzapur on 21-12-1991 in miscellaneous Criminal Application No. 133 of 1991, is hereby set aside and the matter is remanded to the said Court for deciding it afresh in light of the observations made in this judgment. Rule made absolute accordingly. .