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2023 DIGILAW 2192 (ALL)

Priyanka Singh v. State of U. P.

2023-09-21

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT Ram Manohar Narayan Mishra, J. By means of the present Criminal Revision, the revisionist has assailed the judgment and order dated 23.06.2022 passed by learned Additional Principal Judge, Court No.1, Family Court, Lucknow in Criminal Case No.242 of 2016, under Section 125 Cr.P.C., Priyanka Singh v. Amar Nath Kushwaha, whereby the petition under Section 125 Cr.P.C. filed by applicant Priyanka Singh (present revisionist) has been dismissed. 2. Heard learned counsel for the revisionist and learned A.G.A. for the State-respondent and perused the material available on record. 3. The factual matrix of the case in brief are that petitioner instituted a case under section 125 Cr.P.C. before the court below against her husband (respondent No.2 at present) with a prayer to be granted Rs. 14,000/- as maintenance from her estranged husband. The petitioner has averred that her marriage with opposite party was solemnized on 07.03.2016, in which her father spent around Rs. 15 lakh towards stridhan, gift, dowry and cash. The spouse initially cohabited together in discharge of their matrimonial obligations, but no child could be begotten. The marriage of her husband was initially settled with her elder sister Preeti Singh, but just two days prior to schedule marriage; her husband display unwillingness to marry Preeti Singh, which resulted in much embarrassment to the family of the petitioner, as her parents had already spent a huge amount towards preparation and organising pre-marriage ceremony. The petitioner agreed to marry with opposite party to avoid social disgrace to her family, and in this way the marriage was solemnized between petitioner and opposite party on 07.03.2014. The petitioner was sent off to her matrimonial place after marriage, the behaviour of her husband and in-laws was initially normal for two-three days, but thereafter they started demanding Rs. 5 lakh as dowry and began to pressurize her to bring the amount from her parents. As she expressed her inability to bring this amount from her parents, the opposite party and his family members got infuriated and gave her beating by kicks and fits. She came back to her parental place on 15.03.2014, on Chowth Ceremony and narrated these things to her parents, however they consoled her and convinced her that the situation will improve in course of time, and persuaded her for Vidai. She came back to her parental place on 15.03.2014, on Chowth Ceremony and narrated these things to her parents, however they consoled her and convinced her that the situation will improve in course of time, and persuaded her for Vidai. She again proceeded to her matrimonial place on 23.03.2014, but the behaviour of opposite party and her family members remained unchanged without any improvement. On 06.04.2014 husband tried to get her killed by getting her fell down from motorbike in which she suffered grievous injuries, they even hurled imputation of characterlessness on her and got her pregnancy test done without any rhyme and reason, they got her signatures on many blank papers and prepared a fake suicide note also. When the things became unbearable due to continuous harassment and torture meted out to them, she called her father on 20.04.2014 and requested the opposite party to permit her to leave his place, but her husband and in-laws again misbehaved with her and gave her beatings, they expelled her from their house after retaining her stridhan, mobile and academic papers. Her father died on 29.09.2014 and taking the advantage of this unfortunate incident, the opposite party got his remarriage settled at somewhere else. 4. On 20.12.2015 at around midnight her husband and his elder brother barged into parental house of the petitioner and tried to kidnap her by giving her beatings. However the landlord intervened and the opposite party and his associates escaped from the place. After threatening her she lodged an FIR in Case Crime No.8 of 2016, under Sections 498A, 323, 504, 506, 406, 452 of IPC and Section 3/4 of Dowry Prohibition Act, at Police Station Mahila Thana, Lucknow in which police has submitted a chargesheet against the opposite party and his family members after investigation which is pending before the court. The writ petition has been filed by the accused persons in that case before the Lucknow Bench of High Court against that case in which applicant and her sister Preeti Singh are impleaded as respondent Nos. 3 and 4. The opposite parties were summoned by court below and opposite party No.1 filed his written objection A14 with averments that this is not disclosed that how the marriage of the petitioner and opposite party were solemnized, in fact the parties were never married. 5. 3 and 4. The opposite parties were summoned by court below and opposite party No.1 filed his written objection A14 with averments that this is not disclosed that how the marriage of the petitioner and opposite party were solemnized, in fact the parties were never married. 5. According to written objection A14 the marriage of opposite party was infact settled with Preeti Singh, the elder sister of the applicant on 07.03.2014, according to Hindu Rites and Rituals without any dowry. However Preeti Singh was in love affairs with Jagroop the brother-in-law of her elder sister Mamta Kushwaha, prior to her marriage with opposite party and she continued her affairs with previous lovers, even after her marriage with the opposite party and she eloped with her ex-lover Jagroop Kushwaha after few days of marriage and never came back to her matrimonial place, and presently she is residing with said Jagroop Kushwaha as his wife. No maintenance petition has been filed by said Preeti Singh against the opposite party. The present petition is a result of conspiracy hatched between the petitioner and her elder sister Preeti Singh with a view to blackmail the opposite party. 6. The learned court below framed as many as five points of determination, in which first point was "whether the applicant Priyanka Singh is legally wedded wife of opposite party". Learned court below after considering the pleadings and evidence adduced the applicant and opposite parties, and placing reliance on section 7 of Hindu Marriage Act, and some case laws cited in impugned judgment reached to the conclusion that matrimonial relationship of the parties is not established by evidence on record. The petitioner has failed to prove the fact that her marriage with opposite party was solemnized according to hindu rituals of "Saptapadi (7 steps) around the sacred fire" as provided under section 7 of Hindu Marriage Act. 7. Learned trial court has observed that the documents filed by the applicant in support of claim of her marriage with opposite party are not duly proved, and some documents are of doubtful credence. Learned trial court has also observed that as marriage of the opposite party with applicant is not duly proved, the applicant is not entitled to receive any maintenance from the opposite party, and on the basis of the finding on point of determination number one the petition filed by the applicant has been dismissed. 8. Learned trial court has also observed that as marriage of the opposite party with applicant is not duly proved, the applicant is not entitled to receive any maintenance from the opposite party, and on the basis of the finding on point of determination number one the petition filed by the applicant has been dismissed. 8. Learned counsel for the revisionist submitted that the learned court below has rejected the petition of the revisionist/applicant mainly on the ground that performance of the marriage of petitioner and opposite party has not been proved, as there is no photograph of evidence in support of the fact that the ritual of "Saptapadi" was performed at the time of their arrange marriage. In fact original CD which contains the marriage ceremony between the parties was a custody of opposite party No.2, who has got its material part deleted, for which the revisionist is not at fault. The learned court below has ignored the evidence of the revisionist and her family members adduced during hearing of the case and rejected her petition by taking hyper technical approach which is not permitted under law. 9. The maintenance proceeding under section 125 Cr.P.C. are summary proceedings, with a view to provide maintenance to a wife who is unable to maintain herself, and has been neglected by her husband having sufficient means to maintain her. The provisions is beneficial legislation and it must be interpreted and applied to receive the object under line therein. He next submitted that the learned court below has observed in the impugned judgment that CD filed by the applicant reveals the performance of ceremony of Jaimal between petitioner and opposite party, even then the court has disbelieved the factum of their marriage and wrongly observed that on account of difference in date shown in receipt, and date of marriage if cannot be treated as proof. The revisionist is living in utter scarcity of money to maintain herself as well as her minor son. The revisionist was deserted by her husband after subjecting her to matrimonial cruelty and torture, and the court below has ignored the pleadings and evidence of the petitioner on this point without sufficient reason. The impugned order is sustainable and deserve to be set aside. 10. The revisionist was deserted by her husband after subjecting her to matrimonial cruelty and torture, and the court below has ignored the pleadings and evidence of the petitioner on this point without sufficient reason. The impugned order is sustainable and deserve to be set aside. 10. Per contra learned A.G.A. submitted that the court below has recorded the finding of fact that the marriage of the petitioner with opposite party is not proved in accordance with statutory provisions of Hindu Marriage Act. The documents filed by her in support of her claim were rightly dealt with by the court below citing sufficient reasons. The judgment and order is well reasoned, and in accordance with material on record as well as law therein. 11. From perusal of the impugned judgment, it appears that the learned court below has observed therein while dealing with the point of determination No.1 that both the parties have filed certain documents in support of their respective claim, the stand regarding existence of marital relationship between them. The petitioner has claimed to be legally wedded wife of the opposite party, whereas the opposite has refuted this claim and has taken stand that the marriage of opposite party was never solemnized with the petitioner. He has taken a stand that his marriage was in fact solemnized on 07.03.2014 with Preeti Singh, her elder sister of the applicant who stayed with him for some time after marriage, when she was sent off to her parental place her matrimonial home. After sometime of marriage she eloped with her exlover Jagroop Kushwaha and never came back to the opposite party, her legally wedded husband. This fact is admitted by the petitioner that marriage of the opposite party was initially settled with her elder sister, which was scheduled to be held on 07.03.2014, but has stated that due to refusal of opposite party to marry her sister she consented to get married with him to avoid social ignominy and to save the reputation of her family. Her marriage with opposite party was solemnized on 07.03.2014 itself. 12. Learned court below has also observed that applicant in her examination in chief has stated that the applicant has filed a CD, photograph and certificate of Gram Pradhan in support of her stand that marital relationship established between her and opposite party. Her marriage with opposite party was solemnized on 07.03.2014 itself. 12. Learned court below has also observed that applicant in her examination in chief has stated that the applicant has filed a CD, photograph and certificate of Gram Pradhan in support of her stand that marital relationship established between her and opposite party. She has also stated in her evidence that she was subjected to harassment by her husband and in-laws due to non-fulfillment of demand of dowry of Rs. 5 Lakh. She was forced to see the obscene pictures and read obscene literature, she was made to signature on blank papers and some other papers by her husband. She was compelled to leave her matrimonial place on 20.04.2014, being victim of cruelty. Whereas opposite party has stated that her marriage with Preeti Singh elder sister of the applicant is still subsisting who is living with her lover Jagroop Kushwaha as his wife. The applicant Priyanka Singh has married with Shailendra Kushwaha son of Shobhit Kushwaha, resident of Nai Duniya Chausa, Police Station Vidisha District Banda after 5-6 months of marriage of his sister Preeti Singh with opposite party. The photographs and CD of marriage filed by the applicant are up to the stage of Jaimal. The DVD has been prepared by Anamika Studio and receipt thereof has been filed, no mixing or editing is done in DVD. 13. As per statement of the applicant in her cross-examination, she has stated that in DVD the programme from Tilak to Jaimal are recorded. The Tilak ceremony was in respect of her sister Preeti Singh and Amarnath. However in this CD the filling of vermilion on her head and garlanding mangalsutra on her neck are not recorded, she provided the CD to Investigating Officer. She admitted that she is not having any proof that Amar Nath had expressed his willingness to marry her sister Preeti Singh. 14. Learned court below has cited the judgment of the Hon'ble Apex Curt in Criminal Appeal No.314 of 1981 (Lakshmi Devi v. Satyanarayan and others) and in Bhaurao Shankar Lokhande & Anr v. State Of Maharashtra & Anr AIR 1965 SC 1564 , in which it is held that for proof of Hindu Marriage performance of Saptapadi 7 Sacred steps must be established. 15. 15. Learned court below has also observed that maintenance can only be claimed by a legally wedded wife under Section 125 Cr.P.C. However Apex Court in Sumitra Devi v. Bhikan Choudhary 1985 (1) SCC 637 clarified that rituals of Saptapadi is traditional ritual of performance of the Hindu Marriage. However, if custom or tradition suggests that performance of Saptapadi is not necessary in that case the Hindu Marriage may be established even in absence of performance Saptapadi. 16. Learned court below has observed that PW1 Priyanka Singh has stated in her cross-examination that she never met Shailendra Singh, she did not know Shivdutta Kushwaha, she is not aware that Shailendra Singh had contest the election of Gram Pradhan or not. The applicant has admitted her signature on affidavit filed before District Magistrate, even then she has stated that she had signed on blank paper and she did not read the same. The applicant is a graduate lady and such statement by her on this score that she did not read this contents must be accepted as having no force. If she was not acquainted with Shailendra Kushwaha how she could file a number of papers involving him. She failed to file negatives of the photographs C-20/21 relied by her. The receipt C-20/21 is disbelieved by the court below, but the grounds of difference of dates between date of marriage and date of receipt. On this count, the court below has observed that due to difference in date it cannot be held that this receipt is in respect CD made on occasion of her marriage. 17. In inquiry report filed by the police on complaint made by the applicant before the State Commission of Human Rights it is stated that Preeti Singh had refused to marry Amar Nath, on arrival of the grooms party, in that situation the emphasis laid by the court below on stand of the petitioner that in her petition she stated that Amar Nath himself expressed his unwillingness to marry Preeti Singh two days prior to schedule date of marriage is not of much significance. 18. The Hon'ble Supreme Court in Pyla Mutyalamma @ Satyavathi v. Pyla Suri Demudu & Anr 2011(12) SCC 189 held as under:- "20. 18. The Hon'ble Supreme Court in Pyla Mutyalamma @ Satyavathi v. Pyla Suri Demudu & Anr 2011(12) SCC 189 held as under:- "20. We may further take note of an important legal aspect as laid down by the Supreme Court in the matter of Jamuna Bai v. Anant Rai, 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 7 AIR 1988 SC 793 (paras 4, 5 and 8) proceeding for an offence under Section 494 IPC 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. 21. It was still further laid down in the case of Sethu Rathinam v. Barbara (1970) 1 SCWR 589 that if there was affirmative evidence on the aforesaid points, the Magistrate would not enter into complicated questions of law as to the validity of the marriage according to the sacrament element or personal law and the like, which are questions for determination by 8 the civil court. If the evidence led in a proceeding under Section 125 Cr.P.C. raises a presumption that the applicant was the wife of the respondent, it would be sufficient for the Magistrate to pass an order granting maintenance under the proceeding. But if the husband wishes to impeach the validity of the marriage, he will have to bring a declaratory suit in the civil court where the whole questions may be gone into wherein he can contend that the marriage was not a valid marriage or was a fraud or coercion practiced upon him. 22. But if the husband wishes to impeach the validity of the marriage, he will have to bring a declaratory suit in the civil court where the whole questions may be gone into wherein he can contend that the marriage was not a valid marriage or was a fraud or coercion practiced upon him. 22. Fortifying this view, it was further laid down by the Supreme Court in the matter of Rajathi v. C. Ganesan also, that in a case under Section 125 Cr.P.C., the Magistrate has to take prima facie view of the matter and it is not necessary for the Magistrate to go into matrimonial disparity between the parties in detail in order to deny maintenance to the claimant wife. Section 125, Cr.P.C. proceeds on de facto marriage and not marriage de jure. Thus, validity of the marriage will not be a ground for refusal of maintenance if other requirements of Section 125 Cr.P.C. are fulfilled." 19. This Court in a judgment in Criminal Appeal No.1555 of 2020 Irshad Ali v. State of U.P. and another held as under:- "8. It is well settled that for the purposes of a proceeding under Section 125 Cr.P.C., the factum of marriage has to be prima facie considered. If there is prima facie material on record to suggest that the parties have married or are having relationship in the nature of marriage, the court can presume in favour of the woman claiming maintenance. Since the provision under Section 125 Cr.P.C. is a measure of social justice and has been enacted to protect women, children or parents and the materials on record suggest two views, then the view in favour of women should be adopted. An order passed in an application under Section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide a summary remedy for providing maintenance to a wife, children and parents. In case of S. Sethurathiuam Pillai v. Barbara it was observed that maintenance under Section 488 Cr.P.C. 1898 (similar to Section 125 Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. In case of S. Sethurathiuam Pillai v. Barbara it was observed that maintenance under Section 488 Cr.P.C. 1898 (similar to Section 125 Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties. In a proceeding for maintenance under Section 125 Cr.P.C., a Magistrate or Judge of the Family Court has to be prima facie satisfied about the marital status of the parties, as a decision under Section 125 Cr.P.C. is tentative in nature, subject to the decision in any civil proceeding, as has been held in Santosh v. Naresh Pal (1998) 8 SCC 447 . The court is expected to pass appropriate order after being prima facie satisfied about the marital status of the parties. Even the definition of wife provided in Explanation (b) to Section 125(1) of Cr.P.C is inclusive, which reads as follows: "125(1)(b) - ,Wife includes a woman who has been divorced by or has obtained a divorce from, her husband and has not remarried" The above inclusive definition of wife suggests that a divorced woman who cannot be technically called a wife has been treated as wife for the purposes of proceeding under Section 125 Cr.P.C. 9. The Apex Court in the case of Rajathi v. C. Ganesan (1999) 6 SCC 326 held that in a case under Section 125 Cr.P.C. the Magistrate has to take prima facie view of the matter and it is not necessary for the Magistrate to go into matrimonial dispute between the parties in detail in order to deny maintenance to the claimant wife. Section 125 Cr.P.C. proceeds on de facto marriage and not marriage de jure. Thus, validity of the marriage will not be a ground for refusal of maintenance if other requirements of Section 125 Cr.P.C. are fulfilled. 20. Section 125 Cr.P.C. proceeds on de facto marriage and not marriage de jure. Thus, validity of the marriage will not be a ground for refusal of maintenance if other requirements of Section 125 Cr.P.C. are fulfilled. 20. On the basis of foregoing discussions and case laws cited above in light of submissions of learned counsels appearing for the parties I am of the considered opinion that the learned court below has rejected the claim of maintenance made by the revisionist in her application for maintenance led before the court below under Section 125 Cr.P.C. taking hyper technical approach that marriage of the petitioner with opposite party has not been duly proved. The proceedings of Section 125 Cr.P.C. are of summary nature, this is a social legislation to make provision for maintenance of wife, child and old parents to avoid vagrancy and provide sustenance to these vulnerable sections. 21. The Hon'ble Supreme Court in Dwarika Prasad Satpathy v. Bidyut Prava Dixit And Another 1999(7) SCC 675 held that unlike matrimonial proceedings were strict proof of marriage is essential. In proceedings under Section 125 Cr.P.C. such strict standard proof is not necessary as is summary in nature meant to prevent vagrancy. The Hon'ble Apex Court also observed in that case that the High Court being regional court has no power of reassigning the evidence and substitute his views on finding of facts. 22. The Hon'ble Supreme Court in Kamala v. M.R. Mohan Kumar 2018 SCC Online SC 2121 decided on 24.10.2018 held that when the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance of wife under Section 125 Cr.P.C. The proceedings under Section 125 Cr.P.C. do not require strict standard proof of marriage. 23. Proceedings under Section 125 Cr.P.C. are primarily civil in nature, are summary proceedings and unlike criminal proceedings strict rules, rules of evidence are not applied by the courts in summary proceedings. The object behind Section 125 Cr.P.C. is to ensure that the wife, minor child and old parents do not suffer in destitution. This provision is a measure of social justice and specially enacted to protect women, children and old parents and falls within the constitutional sweep of Article 15(3) of a constitution which enables the State to make special provision for women and children herein. 24. This provision is a measure of social justice and specially enacted to protect women, children and old parents and falls within the constitutional sweep of Article 15(3) of a constitution which enables the State to make special provision for women and children herein. 24. In the present case the learned court below has held in impugned judgment that on the basis of evidence on record the marriage of petitioner with opposite party is not established and with this finding the petition has been dismissed. The court while giving above finding has taken hyper technical approach in assessment of evidence, which is not required in a summary proceedings like that under Section 125 Cr.P.C.. The impugned judgment and order is not sustainable with aforesaid reasons and judicial authority cited above as same is vitiated by illegality and irregularity. 25. The revision stands allowed. The impugned judgment and order passed by the Court below is set-aside and the matter is remanded to court below with direction to decide the maintenance petition afresh in accordance with law in light of the observations of this Court in this judgment. The court below will be at liberty to summon any other witness like Preeti Singh sister of the revisionist or any other important witness or summon any documents to arrive at the truth, if it considers fit, either on its own motion or on an application of any of the parties.