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2008 DIGILAW 575 (HP)

Pyare Lal v. Basanti Devi

2008-11-24

SURINDER SINGH

body2008
JUDGMENT Surinder Singh, J. 1. The respondent-wife was declined the maintenance by the learned trial Court, under Section 125 of the Code of Criminal Procedure from the petitioner herein, on the ground that she was not his legally wedded wife. 2. The respondent challenged the impugned order before the Court of Sessions, by filing Criminal Revision No. 25-S/10 of 2007, which was allowed vide a detailed judgment dated 10.7.2008, holding that a strict proof of marriage is not required in these proceedings and there was enough evidence to prove the case of respondent wife, as such the order of the trial Magistrate was reversed and she was awarded the maintenance @ Rs. 1,000/- per month w.e.f. 3.5.2007, which has been assailed in this petition preferred under Section 482 Cr.P.C. by the petitioner-husband. 3. Dr. Lalit Kumar Sharma, learned Counsel for the petitioner submitted that parties to this petition are Hindus. The petitioner has denied marriage thus it was required to be strictly proved as per law, to which the respondent-wife failed and the learned Sessions Judge wrongly concluded that the strict proof of marriage was not a sine-quo non in proceedings under Section 125 of the Code of Criminal Procedure and further that the marriage has civil consequences which may follow or flow from such relationship, therefore, the essential ceremonies in the instant case were required to be proved. Mere living together as husband and wife will not establish their relationship, as such, liberal approach adopted by the learned Sessions Judge was wrong and illegal. Therefore, his order is unsustainable. The learned Counsel also cited Bhaurao Shanker Lokhande and Anr. v. The State of Maharashtra and Anr. 1965CriLJ544 and Reema Aggarwal v. Anupam and Ors. 2004CriLJ892 to buttress his arguments. 4. Contra, the impugned judgment has been supported by the learned Counsel for the respondent. While placing reliance on the judgment of the Supreme Court in Dwarika Prasad Sdtpathy v. Bidyut Prava Dixit and Anr. 2000CriLJ1 . v. The State of Maharashtra and Anr. 1965CriLJ544 and Reema Aggarwal v. Anupam and Ors. 2004CriLJ892 to buttress his arguments. 4. Contra, the impugned judgment has been supported by the learned Counsel for the respondent. While placing reliance on the judgment of the Supreme Court in Dwarika Prasad Sdtpathy v. Bidyut Prava Dixit and Anr. 2000CriLJ1 . The legal position stood explained by this Court in Bidhi Chand v. Smt. Kanta Devi Latest 2008 MHLJ 1234 whereby it was held that the validity of the marriage for the purpose of summary proceedings under Section 125 of the Code of Criminal Procedure is required to be determined on the basis of the evidence on record by the parties and the standard of proof of marriage in such proceeding is not as strict as required in a trial of the offence under Section 494 of the Indian Penal Code. If the claimant in such proceedings succeeds in showing that she and her husband lived together as husband and wife, the Court can presume that they are legally wedded spouses and it is not necessary to further probe the matter in the summary proceedings of this nature. 5. In the instant case, the respondent-wife has testified on oath that she was married to the petitioner about 17 years back immediately thereafter Ex.PA an agreement of marriage was executed followed by affidavits of both the parties, which were attested before the Executive Magistrate. It is alleged that she remained together with the petitioner-husband for more than 16 years as husband and wife, thereafter he started mal-treating, refused and neglected to maintain her. She also produced a copy of ration-card issued in the year 2005 Ex.PD in her evidence, showing her as the wife of the petitioner. PW2 Gopal Sharma a witness to the agreement of marriage Ex.PA has proved their marriage. He also testified on oath that after their marriage in the year 1991, both of them lived together as husband and wife. 6. Significantly, the petitioner RW1 has admitted his signatures on the marriage agreement as also on his affidavit, but according to him, these were blank papers. He did not give any reason, why he had signed the blank papers. He also admitted his address on the rationcard Ex.PD wherein he has been shown the head of the family and the respondent as his wife. 7. He did not give any reason, why he had signed the blank papers. He also admitted his address on the rationcard Ex.PD wherein he has been shown the head of the family and the respondent as his wife. 7. Thus the documents discussed above prima-facie proves the marriage inter se the parties, having been solemnized in the year 1991 and further the copy of rationcard Ex.PD issued in the year 2005 also shows that during this period, both of them lived together as husband and wife. The failure of the respondent to prove the essentials of ceremonies performed at the time of her marriage is of no consequence, in view of the documentary proof placed on record which has a precedence over the oral statements. 8. In Tulsa and Ors. v. Durghatiya and Ors. 2008 (1) CCC 797 (sc), the Apex Court held that in long cohabitation as husband and wife, there is presumption of marriage unless rebutted by leading cogent evidence, whereas the petitioner could not rebut this presumption. 9. The judgments cited by the learned Counsel for the petitioner are of no consequence. He appears to be belabouring under misconception of law. Bhaurao Shanker Lokhande's case was a case of bigamy under Section 494 of the Indian Penal Code, where the strict proof of marriage is required to bring home the guilt of the accused. Similarly, in Reema Aggarwal's case the offences were Sections 498-A and 304-B of the Indian Penal Code, the consequences of which are penal in nature as the evils sought to be curbed are distinct and separate. The ratio of these judgments is not applicable in the case on hand. 10. The learned Counsel for the petitioner also placed reliance on Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. 2005CriLJ2141 , that strict proof is required to prove the marriage where it is denied in a case under Section 125 Cr.P.C. I have gone through this judgment. In this case, the alleged wife had unwillingly entered into relationship with a married man and it was held that the scope of the "wife" cannot be enlarged to include a woman unlawfully married, which point is not involved in the present case. Here the respondent wife has succeeded prima-facie in showing that she had married to the petitioner in the year 1991 and executed the documents as referred above. Here the respondent wife has succeeded prima-facie in showing that she had married to the petitioner in the year 1991 and executed the documents as referred above. They lived together as husband and wife, thus from the facts proved on record, the learned Sessions Judge was right in presuming that they were legally married persons. Further the very denial of relationship of husband and wife by the petitioner-husband entitles her for maintenance as neglect and refusal is writ large. 11. I find that the learned Sessions Judge has rightly appreciated the facts and the law, which requires no interference for the reasons aforesaid, as such, the present petition is dismissed. Cr. M.P. No. 597 of 2008. 12. In view of the dismissal of the main petition, this application has become infructuous.