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2007 DIGILAW 38 (JK)

Wajahat Hassan v. Huma Zaffar

2007-04-04

MANSOOR AHMAD MIR

body2007
1. Petitioner has involved jurisdiction of this court in terms of Section 561-A Criminal Procedure Code (for short the Code) for quashing proceedings drawn and initiated by the Judicial Magistrate Sub Judge, Small Causes Court, Srinagar, in a petition for grant of maintenance filed by respondent no. 1 Mrs. Huma Zaffar on her behalf and on behalf of her son respondent no.2 on the grounds taken in the petition. 2. Heard. Learned counsel for the petitioner has argued that in a petition under Section 488 of Code proceedings drawn and orders passed are abuse of process of law on the ground that respondent no. 1 Mrs. Huma Zaffar, applicant no. 1 before the trial court has contracted marriage with petitioner herein Wajahat Hussain during the subsistence of her first marriage, thus the marriage is void and proceedings under Section 488 of the Code are not maintainable. She does not fall within the definition of Wife as given in section 488 of the Code. 3. Learned counsel for respondent no. 1 argued that no marriage was performed by respondent no. 1 with any other person but a fraud was practiced upon her and in order to cheat and defame respondent no. 1 a conspiracy was hatched and marriage documents were manipulated and managed. Respondents after noticing the said fact immediately invoked jurisdiction of the competent court and obtained a decree from the said court. 4. The sole question which needs determination is where this petition is maintainable? And whether grounds are available to the petitioner in order to seek quashment of the petition under Section 488 of the Code, the answer is negative for the following reasons. 5. It is profitable to reproduce para no. 1 of Section 488 of the Code here under: "If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the Chief Judicial Magistrate or any other Judicial Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife of such child, at such rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs." 6. The question is what does word "wife" mean. The question is what does word "wife" mean. Normally it means that parties- husband and wife must have entered into valid contract of marriage and performed religious ceremonies as per the personal law applicable. The Magistrate while passing order under Section 488 of the Code is not to decide intricate questions of law but has to hold that the parties lived as husband and wife and they were treated as such in order to achieve the purpose ,aim and object of granting maintenance. The Apex Court in a case Ranganath Parmeshwar P. Mali v. E.G.Kulkarni reported in AIR 1996 SC 1290 held that presumption of valid marriage can be safely drawn in respect of two persons who live as husband and wife for continuous and long period to the knowledge of others. It is profitable to reproduce para no. 6 of the judgment as under:" "... It has been held by this Court in the case of S.P.S. Balasubramanyam v. Surutayan, (1994) 1 SCC 460 (1993 AIR SCW 3765) that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality or marriage existing between the two. But the presumption is rebuttable. The High Court, committed an error of law in recording a finding that the presumption would arise only if the factum of marriage is proved. We are afraid if factum of marriage is proved, the question of raising presumption does not arise. The lower appellate Court on the other hand has merely entered into the arena, of conjecture and surmises by interfering the finding of the trial judge without considering the relevant and material evidence on the point. In this view of the matter findings arrived at by the lower appellate Court as well as by the High Court on the question of relationship of Panditrao and Shevantabai cannot be sustained in law. In our considered opinion a legal presumption arises on the admitted fact that they were living together as husband and wife and the said presumption has not been rebutted..." 7. In the case in hand, admittedly petitioner Wajahat Hussain and respondent no. 2 were living as husband and wife for a considerable period and they have given birth to son respondent no. 2. 8. In the case in hand, admittedly petitioner Wajahat Hussain and respondent no. 2 were living as husband and wife for a considerable period and they have given birth to son respondent no. 2. 8. Orissa High Court in case Dukhia Naik v. Basanti Dei reported in Criminal Law Journal 1994(2) held that the standard of proof to establish a marriage is not rigid. It is sufficient to establish that parties were living as husband and wife and were recognized as such where they lived. It is profitable to reproduce para no. 6 of the judgment as under: "Now coming to the question of proof of a valid marriage of the parties, it is by now well settled in law that the quantum of proof necessary to establish a marriage is not rigid and that it suffices, so far as the claim of maintenances is concerned, only to establish that the marriage had been gone through. Indeed, even when the marriage is not proved, it is sufficient to establish that the parties were living as husband and wife and were recognized as such by the community where they lived." 9. As discussed above petitioner and respondent no. 1 were living as husband and wife and were recognized as such. 10. The Apex Court in case Dwarika Prasad Satpathy v. Bidvut Prava Dixit reported in Criminal Law Journal 2001 Vol. 1 page 1 held that any order passed under Section 125 of the Central Code which corresponding Section 488 of the Code does not finally determine the rights and liabilities of the parties. Parties can file civil suit for determining their status. Further Their Lordships held that husband cannot raise a plea that marriage was not valid if they lived as husband and wife and it is sufficient if claimant- applicant prima-facie satisfy the court that she and her husband lived as husband and wife. It is also not necessary for her to prove that all the essential ceremonies were performed. It is profitable to reproduce para no. 6 and 10 of the judgment hereunder: "6. Learned counsel for the appellant at the time of hearing had not disputed the paternity of the child. Hence, the question is whether the marriage between the appellant and respondent no. 1 was valid or invalid? It is profitable to reproduce para no. 6 and 10 of the judgment hereunder: "6. Learned counsel for the appellant at the time of hearing had not disputed the paternity of the child. Hence, the question is whether the marriage between the appellant and respondent no. 1 was valid or invalid? In our view, validity of the marriage for the purpose of summary proceeding under Section 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 Section 494 of the I.P.C. If the claimant in proceedings under Section 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. Undisputedly, marriage procedure was followed in the temple, that too, in the presence of idol of Lord Jagannath, which is worshipped by both the parties. Appellant contended before the learned Magistrate that the said marriage was performed under duress and at the point of knife, he was required to exchange garlands. That contention is not proved by leading necessary evidence. 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 Section 125 Cr.P.C. 10. After not disputing the paternity of the child and after accepting the fact that marriage ceremony was performed, though not legally perfect as contended, it would hardly lie in the mouth of the appellant to contend in proceeding under Section 125, Cr.P.C that there was no valid marriage as essential rites were not performed at the time of said marriage. The provision under Section 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. In Ramesh Chander Kaushal v. Mrs. The provision under Section 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. In Ramesh Chander Kaushal v. Mrs. Veena Kaushal, AIR 1978 SC 1807: 1979 Cri LJ 3) Krishna lyer J. dealing with interpretation of Section 125 C.P.C observed (at para 9) thus:- "This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause- the cause of the derelicts." 11. Applying the test to the instant case it is the case of the respondent that she had not contracted any marriage but some fraud was played for which she obtained a verdict from the court. Parties have yet to lead evidence before the trial court. It is too premature to hold that the marriage of respondent no. 1 and petitioner was not valid. 12. In the given circumstances of the case, the petition merits dismissal and is, accordingly, dismissed. Observations made shall not affect the right of the petitioner in any way and shall not also influence the mind of the trial Court at any stage during the pendency of the proceedings. The trial court is free to decide the issues involved after scanning the evidence. Registry is directed to send copy of this order to the trial court for information.