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2001 DIGILAW 298 (MAD)

Susilamma v. Chandrappa

2001-03-07

A.RAMAMURTHI

body2001
Judgment :- The petitioner has preferred the revision aggrieved against the orders passed by the learned Additional Sessions Judge, Dharmapuri at Krishnagiri made in Cri. R.C. No. 79 of 1994 dated 6-9-1995. The case in brief is as follows :- The petitioner filed an application for maintenance against the respondent and claimed a sum of Rs. 500/- per month. The marriage between the petitioner and the respondent took place on 20-2-1993 in Soolagiri Police Station according to the custom prevailing in the community. Both of them lived an husband and wife at Peria Thinnanoor village for a period of 1 1/2 months. Thereafter, at the instigation of the family members, the respondent failed to take care of her and he had also married another girl. The respondent is getting a sum of Rs. 25,000/- per month, but the respondent opposed the application and stated that the alleged marriage on 20-2-1993 was done in the Police Station out of compulsion. He never took her to his village and led a marriage (married) life. Even before the alleged marriage dated 20-2-1993, the respondent already married and living with his wife. The petitioner and the respondent are neighbours and due to land dispute and previous enmity, the petitioner filed the application claiming maintenance. The learned Magistrate on the basis of the evidence of P.Ws. 1 to 3 and R.Ws. 1 to 5 and Exs. P.1 and P.2 and Ex. D.1 allowed the application and awarded a sum of Rs. 300/- per month by way of maintenance. Aggrieved against this, the respondent preferred revision before the Sessions Court in Crl. R.C. No. 79 of 1994 and the revision was allowed and the order passed by the trial Court was set aside on 6-9-1994 and aggrieved against this, the present revision petition has been filed by the wife. The respondent/husband has been served, but in spite of service, neither the respondent appeared nor engaged any counsel. Heard the learned counsel for the petitioner. The point that arises for consideration is whether the petitioner is entitled to claim maintenance and if so, to what amount ? Point : The petitioner/wife has come forward with a specific case that her marriage with the respondent took place in Soolagiri Police Station on 20-2-1993 according to the custom prevailing in the community. The point that arises for consideration is whether the petitioner is entitled to claim maintenance and if so, to what amount ? Point : The petitioner/wife has come forward with a specific case that her marriage with the respondent took place in Soolagiri Police Station on 20-2-1993 according to the custom prevailing in the community. They lived in the village of the respondent for a period of 1 1/2 months and thereafter, the respondent failed to maintain her and he had also taken a second wife. However, the marriage of the respondent with the petitioner has been disputed and according to the respondent, only out of compulsion, the marriage was performed in the Police Station and it cannot be a valid marriage according to law. Under the circumstance, the petitioner is not the legally wedded wife entitled to claim maintenance. On this ground alone, the revision filed by the husband was allowed by the Sessions Court. Learned counsel for the petitioner contended that the evidence of P.Ws. 1 to 3 as well as Exs. P1 and P2 proved that there was a marriage between the petitioner and the respondent. The learned Sessions Judge, reversed the finding of the trial Court by accepting the evidence of D.Ws. 1 to 4. No material has been produced on the side of the respondent to show that his marriage with the petitioner took place or compulsion. The respondent falsely claimed a marriage between him and D.W. 2 on 9-9-1992 by producing Ex. D1. P.W. 1 was conceived at the time of marriage through the respondent has also not been considered by the Sessions Court. The exchange of garlands between the petitioner and the respondent is sufficient to hold that there was a valid marriage recognised under law and, as such, the petitioner is the wife of the respondent entitled to claim maintenance under S. 125 of Criminal Procedure Code. The exchange of garlands was also admitted by the respondent in the course of evidence. It is clear from the evidence of P.Ws. 1 to 3 that the marriage of P.W. 1 and R.W. 1 took place in the Police Station on 20-2-1993. Ex. P.1 series are the photos and Ex. P.2 series are the negatives. After perusing these photographs and the evidence of P.Ws. 1 to 3 only, the trial Court came to the conclusion that there was a valid marriage between the parties. Ex. P.1 series are the photos and Ex. P.2 series are the negatives. After perusing these photographs and the evidence of P.Ws. 1 to 3 only, the trial Court came to the conclusion that there was a valid marriage between the parties. No doubt, D.Ws. 1 to 5 were examined on the side of the respondent to show that out of compulsion only, the marriage was performed in the Police Station. It is further stated that R.W. 1 was already married to another girl, thereby Indicating that the marriage now stated by P.W. 1 is only a second marriage and, therefore, It is not valid under law. Ex. D1, the marriage invitation dated 9-9-1992 has been filed. Although R.W. 1 stated that he had already married one Alamedu Ammal and relied upon Ext. D1, the marriage invitation has not been substantiated. If really R.W. 1 married R.W. 2 earlier in point of time : then the officials could not have performed the marriage in the Police Station. Moreover, it has come out in the evidence that P.W. was conceived even at the time of her marriage due to the respondent and for which only, complaint was given by her and thereafter in the Police Station, the marriage was performed. This is one circumstance to show that there was exchange of garlands and it is sufficient compliance to construe as a marriage recognised under law. Now, R.W. 1 would state that after compulsion only, he has exchanged the garlands. It is necessary to state that if really the marriage between P.W. 1 and R.W. 1 was made under compulsion, R.W. 1 would not have kept quiet without sending petitions to the higher officials or to move the Civil Court to declare the marriage as null and void. There is no record to show that any such step was taken by the respondent. The learned Sessions Judge simply acted upon the evidence of D.Ws. 1 to 5 as well as Ex. D1 and between R.Ws. 1 and 2 and under the circumstances, the marriage between P.W. 1 and R.W. 1 is only a second marriage, it is not valid under law and as such, the petitioner cannot claim the legal status of a wife and claim maintenance. 1 to 5 as well as Ex. D1 and between R.Ws. 1 and 2 and under the circumstances, the marriage between P.W. 1 and R.W. 1 is only a second marriage, it is not valid under law and as such, the petitioner cannot claim the legal status of a wife and claim maintenance. The entire approach made by the Sessions Court is not proper and correct and this being a proceedings under S. 125 of Criminal Procedure Code, which is summary in nature, if the petitioner is able to establish that there was valid marriage under law and both of them were living together as husband and wife, she is entitled to claim maintenance. Learned counsel for the petitioner also relied on the decision reported in Dwarika Prasad Satpathy v. Bidyut Prava Dixit, 2000 Cri LJ 1 : ( AIR 1999 SC 3348 ), the decision of the Supreme Court, wherein it was stated as follows :- "The validity of the marriage for the purpose of summary proceedings under S. 125, Cr. P.C. is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceeding is not as strict as is required in a trial of offence under S. 494 of the I.P.C. If the claimant in proceedings under S. 125 of the Code succeeds in showing that she and the respondent have lived together as husband and wife, the Court can presume that they are legally wedded spouses, and in such a situation, the party who denies the marital status can rebut the presumption. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the said procedure was complete as per the Hindu rites in the proceedings under S. 125, Cr. P.C. From the evidence which is led if the Magistrate is prima facie satisfied. With regard to the performance of marriage in proceedings under S. 125, Cr. P.C. which are of summary nature, strict proof of performance of essential rites is not required. ........ The provision under S. 125 is not to be utilized for defeating the rights conferred by the Legislature to the destitute women, children or parents who are victims of social environment. P.C. which are of summary nature, strict proof of performance of essential rites is not required. ........ The provision under S. 125 is not to be utilized for defeating the rights conferred by the Legislature to the destitute women, children or parents who are victims of social environment. Moreover order passed under S. 125 does not finally determine the rights and liabilities of parties and parties can file civil suit to have their status determined." This decision is applicable to the case on hand in all fours. Hence, I am of the view that the order passed by the Sessions Court is not proper and correct and, as such the order passed by the trial Court has to be maintained. For the reasons stated above, the revision-petition is allowed and the order passed by the Sessions Court in Crl. R.C. No. 79 of 1994 dated 6-9-1995 is set aside and the order passed by the trial Court in C.C. No. 3 of 1993 dated 17-10-1994 is restored. Consequently, Crl. M.P. No. 4857 of 1995 is closed. Petition allowed.