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2018 DIGILAW 1103 (RAJ)

Pawan Maru v. Seema Nai

2018-04-27

SANDEEP MEHTA

body2018
JUDGMENT : Sandeep Mehta, J. 1. The instant revision is directed against the order dated 30.5.2014 passed by learned Judge, Family Court, Bikaner in Cr.Misc. Case No. 272/2012 whereby, the learned Judge, Family court accepted the application filed by the respondent Smt. Seema under Section 125 Cr.P.C. and awarded her a sum of Rs. 4000/- per month as maintenance to be paid by the petitioner. 2. Facts in brief are that the respondent Smt. Seema and her son Gauri Shankar filed two separate applications under Section 125 Cr.P.C. against the petitioner herein in the year 2012 claiming maintenance from him. It was alleged in the applications that Smt. Seema's second marriage was solemnised with the present petitioner in the year 2005. She was having a daughter from her previous marriage and that the petitioner, initially permitted the respondent's daughter to live with them in the matrimonial home but later on, he started objecting the presence of her daughter in the home. After the marriage, the petitioner took the applicant and her daughter to Thane. The petitioner bluntly conveyed to Seema that he did not desire to father any child from her. In any event, the applicant conceived from the petitioner and on coming to know of her pregnancy, the petitioner allegedly gave some tablets to the applicant with the intention of aborting her pregnancy. The petitioner assaulted the applicant, did not give her food. Owing to this cruel conduct, the applicant's health deteriorated. She complained of these incidents to her brother, who approached the petitioner and requested him to treat the applicant with respect. However, the petitioner did not accede to these requests and turned the applicant out of the house on 12.7.2005. The applicant was compelled to return to her father's house while carrying the petitioner's child in her womb. The petitioner did not take any measures to provide maintenance or subsistence to the respondent applicant. The applicant gave birth to a son named Gauri Shanker on 28.2.2006 whereafter, the application under Section 125 Cr.P.C. was moved on behalf of the applicant respondent Smt. Seema and her son Gauri Shanker. The petitioner opposed both the applications denying the averments made by the respondent in her application and claiming that she was never married to him. The petitioner resided at Mumbai with his two sons Praveen Kumar and Manish Kumar. The petitioner opposed both the applications denying the averments made by the respondent in her application and claiming that she was never married to him. The petitioner resided at Mumbai with his two sons Praveen Kumar and Manish Kumar. He categorically denied that the child Gauri Shanker was born from his cohabitation with the applicant respondent and thus, craved rejection of the applications filed by the respondent Smt. Seema and Gauri Shanker under Section 125 Cr.P.C. Smt. Seema examined four witnesses in support of her case. The petitioner did not lead any evidence whatsoever in defence. During pendency of proceedings, the learned Judge, Family Court directed the petitioner to submit himself for a DNA test so as to test his denial of paternity of the child. However, the petitioner failed to provide his samples, whereupon, the Family Court drew an adverse inference against the petitioner holding that the child Gauri Shanker was conceived from the loins of the petitioner. Regarding the marriage of the present petitioner with Smt. Seema, the trial court held that Pawan Maru's earlier wife was no longer alive. Likewise, Seema's earlier husband had passed away. The applicant Smt. Seema did not lead evidence to show that the requisite rites and ceremonies of Satpadi etc. were performed between her and Sh. Pawan. After noting these discrepancies in the evidence led by the applicant Smt. Seema, the trial court held that while deciding an application under Section 125 Cr.P.C., the court could not insist upon strict proof of marriage by performance of Satpadi etc. and in many areas of the country, a valid marriage was permissible by even exchange of garlands in the temple. Accordingly, the Family court concluded that it could be reasonably concluded that Seema was married to Pawan, the petitioner herein. Thereafter, the court proceeded to hold that the applicant Smt. Seema failed to lead any evidence regarding the income of the petitioner and thus, he quantified a sum of Rs. 4000/- per month as maintenance payable to Seema and sum of Rs. 1000/- per month for Gauri Shanker. The petitioner challenged the order of maintenance passed in favour of Gauri Shanker by filing a revision No. 694/2014 in this Court, which was withdrawn on 8.11.2017 in view of the admitted position that the petitioner himself did not appear for undergoing the DNA test despite the specific direction of the Family Court. 3. 1000/- per month for Gauri Shanker. The petitioner challenged the order of maintenance passed in favour of Gauri Shanker by filing a revision No. 694/2014 in this Court, which was withdrawn on 8.11.2017 in view of the admitted position that the petitioner himself did not appear for undergoing the DNA test despite the specific direction of the Family Court. 3. For imploring the impugned award of maintenance in favour of Smt. Seema, Shri Jain placed reliance on the decisions rendered by Hon'ble Supreme Court in the cases of Savitaben Somabhai Bhatiya vs. State of Gujarat & Ors. reported in 2005 SCC (Cri.) 787 and Pyla Mutyalamma @ Satyavathi vs. Pyla Suri Demudu & Anr. reported in 2012 Cr.L.R. (SC) 64 : 2012 (1) RLW 885 (SC) and urged that the respondent failed to prove by leading cogent evidence that she was legally wedded to the present petitioner. Pertinent cross-examination was done from the respondent regarding the ceremonies of marriage solemnized between her and the present petitioner, to which she failed to provide even a semblance of evidence so as to accept the assertion of a valid hindu marriage between her and the petitioner. He thus urged that the impugned order is bad in the eye of law because the respondent cannot be termed to be a legally wedded wife of the present petitioner so as to entitle her to claim maintenance under Section 125 Cr.P.C. 4. Per contra, learned counsel Shri Kaushal Gautam representing the respondent vehemently opposed the submissions advanced by the petitioner's counsel and urged that the petitioner was under the burden to disprove the assertion that the marriage was not performed by following the proper procedure of a hindu matrimony. He contended that only a bald suggestion was made in the cross-examination of Smt. Seema that Satpadi etc. were not performed during the ceremonies and that the respondent and the petitioner only exchanged garlands with each other for performing the marriage. He drew the Court's attention to the following observations made by Hon'ble Supreme Court in Pyla Mutyalamma's judgment (supra):- "13. were not performed during the ceremonies and that the respondent and the petitioner only exchanged garlands with each other for performing the marriage. He drew the Court's attention to the following observations made by Hon'ble Supreme Court in Pyla Mutyalamma's judgment (supra):- "13. We may further take note of an important legal aspect as laid down by the Supreme Court in the matter of Jamuna Bai vs. Anant Rai, AIR 1988 SC 793 (paras 4, 5 and 8), that the nature of the proof of marriage required for a proceeding under Section 125, Cr.P.C. need not be so strong or conclusive as in a criminal proceeding for an offence under Section 494 I.P.C. since, the jurisdiction of the Magistrate under Section 125 Cr.P.C. being preventive in nature, the Magistrate cannot usurp the jurisdiction in matrimonial dispute possessed by the civil Court. The object of the section being to afford a swift remedy, and the determination by the Magistrate as to the status of the parties being subject to a final determination of the civil Court, when the husband denies that the applicant is not his wife, all that the Magistrate has to find, in a proceeding under Section 125 Cr.P.C., is whether there was some marriage ceremony between the parties, whether they have lived as husband and wife in the eyes of their neighbours, whether children were borne out of the union." and urged that in proceedings under Section 125 Cr.P.C., all that the Magistrate is required to prima-facie assess as to whether religious marriage ceremonies were performed between the parties and that they lived together as husband and wife thereafter and whether the children were born out of the union. Shri Gautam submitted that the petitioner had the opportunity to controvert these allegations by appearing in evidence before the Family Court and by submitting himself to DNA examination when the opportunity presented but he intentionally chose not to do so. He further submits that stray and trivial admissions made by the respondent in her cross-examination would not take away the core and substratum of her evidence wherein, she has categorically stated that she and the petitioner entered into a valid marriage lived together as husband and wife and that the child Gauri Shankar was born from their wedlock. On these grounds, Shri Gautam implored the Court to dismiss the instant revision. 5. On these grounds, Shri Gautam implored the Court to dismiss the instant revision. 5. I have given my thoughtful consideration to the arguments advanced at the Bar and have gone through the material available on record. 6. The thrust of Shri Jain's arguments for challenging the impugned order was that no valid ceremonies of hindu marriage were performed between the petitioner and the respondent and she did not qualify as a wife so as to justify her claim for maintenance under Section 125 Cr.P.C. Suffice it to say that the argument so advanced by Shri Jain is per-se untenable and fallacious in view of the above noted observations made by Hon'ble Supreme Court in Pyla Mutyalamma's judgment (supra) relied upon by Shri Jain as well as Shri Gautam. 7. In this judgment, it has categorically been held by the Hon'ble Supreme Court that the proof of marriage as required in proceedings under Section 125 Cr.P.C. need not be in the strict sense as may be required in other collateral proceedings. It would be enough for the wife to plead that some kind of marriage ceremonies were performed whereafter, the parties lived in matrimony. In the present case, the evidence led by the respondent to this effect has a strong support of the unimpeachable truth that her child Gauri Shanker was born to her from the loins of the petitioner. The petitioner had an opportunity to question the paternity of the child when he was directed to undergo the DNA test but he intentionally avoided to appear for giving his samples. Thus, adverse inference was rightly drawn by the Family Court regarding the petitioner being married to Smt. Seema and having fathered Gauri Shankar. The petitioner also failed to appear as a witness for giving evidence in support of his defence and hence, he is precluded from challenging the factum of his marriage with the respondent as not having been validly performed. 8. As a consequence of the above discussion and finding no infirmity or shortcoming in the impugned order, I am not inclined to interfere therein while exercising revisional powers of this Court. Accordingly, the instant revision is dismissed as being devoid of merit.