T.N.R. Tirumalpad, J.C.
1. This is a revision petition .filed against the order passed by Sri K. P. Dutta, first class Magistrate, on 26-11-59 in Misc. Case Nos. 53 of 1959. Under Section 488 Criminal Procedures Code, granting to the respondent a maintenance of Rs. 15/- per month for herself and Rs, 10-per month for her daughter. The petitioner filed a. revision before the Sessions Judge. But the said revision was dismissed and hence he has now come up to this Court.
2. The finding of the magistrate was that the respondent was the legally wedded wife Of the petitioner and that the daughter was born out of ' is marriage between the petitioner and the respondent. The petitioner did not deny the paternity of the daughter, though he denied the marriage and hence that portion of the Magistrate' order granting maintenance to the daughter cannot be interfered with, as Section 488 Criminal Procedure Code provides for the grant of maintenance to a child whether legitimate or illegitimate.
3. We are concerned, therefore, in this revision petition only with the maintenance granted1 to the respondent. The petitioner did not deny that he was living with the respondent and that two: children, a son and a daughter, were born to her by him. But, according to the petitioner, she was only his concubine and not his wife and hence Under Section 488 Criminal Procedure Code she was not entitled to maintenance. The finding of the magistrate was that the marriage between the, petitioner and the respondent, as spoken to by the witnesses on the respondent's side, was solemnized by exchange of garlands, as it was a case of widow re-marriage, the respondent having been a widow at the time of the said marriage. The magistrate opined that marriage by exchange of garlands was not a new system and was now-a-days quite prevalent in society. He found further that the marriage was not only consummated, but two children, a son and a daughter, were born out of the wedlock. In fact, the petitioner did not deny that the son was with him and was being maintained by him. The Magistrate, therefore, held that the petitioner was bound to maintain the respondent and the daughter.
The learned Sessions Judge also agreed with the Magistrate that the respondent was the wife of the petitioner. According to him, the marriage, which was by exchange of garlands, was more or less of a Gandharva form of marriage and the said form of marriage was prevalent in case of a marriage where a divorced woman or a widow was a party. He said that such Gandharva form was an approved form just like the Brahma form as stated by Manu and Narada. According to the learned Sessions Judge, a marriage ceremony under Hindu law can be performed either according to strict Shastri Vedic rites or according to customary rites. As one of the witnesses had stated that as it was a case of a widow re-marriage, the ceremony consisted of only exchange of garlands, the learned Sessions Judge treated as proved a custom prevalent in the locality, according to which a widow can be legally married by such a ceremony. He also found that there was evidence that the parties lived as husband and wife. Accordingly the learned Judge was of opinion that the court will presume that there was a valid marriage in law and that the necessary ceremonies have been performed.
4. It was argued in revision that the respondent is not the wife of the petitioner, that she was only his concubine, that even according to the evidence given by the respondent's witnesses, the marriage was alleged to have been celebrated in Gandharva form by exchange of garlands, that under Hindu law, such a marriage will not be a valid and legal marriage, which will make the respondent the wife of the petitioner and that therefore the respondent was not entitled to any maintenance Under Section 488 Criminal Procedure Code.
On behalf of the respondent, it was contended that Section 488 Criminal Procedure Code was a summary remedy for a wife deserted by her husband and left destitute, that what the magistrate has got to see, when a petition Under Section 488 was filed before him, was whether the petitioner and the respondent have been living as husband and wife and had been recognized as such by the neighbours, that intricate questions of law as to whether the marriage by exchange of garlands would constitute a valid marriage under Hindu law or whether there was any custom by which in this particular community marriage of a widow by exchange of garlands would constitute a valid marriage without the other religious ceremonies like Panigrahan and Saptapadi were all foreign to and beyond the scope of the enquiry Under Section 48S Criminal Procedure Code and that the evidence given by the witnesses on the respondent's side was quite sufficient to show that the-petitioner and the respondent were living as husband and wife and that two children were born out of the said union, of whom one was admittedly with the petitioner.
5. The respondent in her petition Under Section 488 had stated that she married the petitioner over 5 years ago and that they were living together in his house at Rampur from the time of the marriage and the son and daughter were born, that the petitioner then left the house and went to Battala Bazar with the son leaving the daughter with the respondent in the said house about 6 months before the petition, that they are helpless and that they should be given maintenance. The counter statement of the petitioner did not traverse these allegations, but simply stated that the respondent was not the wife of the petitioner and was not entitled to get any maintenance. He did not state whether there was a marriage ceremony, whether they were living together in his house, whether the two children were born to her by him and whether he left her and went to Battala Bazar taking the son with him. The petitioner did not also adduce any evidence but rested content with cross-examining the 4 witnesses examined for the respondent.
6. The respondent examined herself as P.W. 1 and examined 3 other witnesses who were the neighbours of the petitioner and the respondent at Rampur and who had attended the marriage ceremony and who saw the petitioner and the respondent living as husband and wife together for 4 to 4i years and who spoke about the two children being born to the respondent by the petitioner and also 'about the desertion of the respondent by the petitioner taking away with him the son and leaving the daughter with the respondent. In the cross-examination of these witnesses the petitioner simply elicited that the respondent was a widow, that no priest officiated at the marriage and that the marriage was celebrated by exchange of garlands. It is on the basis of these replies which he elicited from the witnesses that the argument was advanced that no legal marriage under Hindu law had taken place and that the respondent was not, therefore, entitled to maintenance.
7. We have to remember that Section 488 Criminal Procedure Code is intended to provide a remedy in cases where a wife or a child is deserted by the husband or father and to prevent destitution and starvation of the wife or child, when the husband or father is in a position to maintain them. In such proceedings complicated questions of law are not expected to be gone into, as in the case of civil suits, to decide whether the marriage spoken to by the witnesses constituted a valid marriage under the personal law of the parties. That will have to be decided if the husband files a suit for a declaration that the wife to whom maintenance was allowed Under Section 488 Criminal Procedure Code was not his legally wedded wife. In a petition Under Section 488 by the wife, if the husband denies that she was his married wife, all that the court will look into is whether there was a marriage, whether the man and woman lived as husband and wife, whether the neighbours regarded them as husband and wife, whether' children were born out of the union and whether the man deserted the woman and children without providing for them. If there was evidence on all these matters, there will be a presumption that the woman was a wife and not a concubine and that the children were legitimate children. All, these were spoken to by the respondent's witnesses in the present cases
8. The petitioner's attempt in cross-examination was only to elicit certain answers from the witnesses which may go to show that there was no valid marriage under the Hindu law. No doubt the petitioner and the 'respondent being Hindus following the payabhaga law, a valid marriage under their personal law would require the observance of certain religious ceremonies like Panigrahan and Saptapadi, whatever may be the form of marriage they went through, whether it is Brahma or Asura or Gandharva or any other form of marriage, unless, of course, it could be proved that there was a custom in that community by which mere exchange of garlands was sufficient and the religious ceremonies were not necessary. No opportunity was given to the respondent's witnesses to show either that the religious ceremonies were performed or that there was any custom. The petitioner was interested only in eliding such answers which would be convenient to mi. All these questions will have to be gone into u a regular civil suit when there will be a full-tress trial and there will be opportunity for both sides to let in all such evidence.
9. In the present case, the petitioner denied that there was any marriage at all, and hence respondent's witnesses spoke of a marriage ceremony, of the joint life after the marriage of the-petitioner and respondent in the husband's house for 4 1/2 years as husband and wife of the neighbours regarding them as a married couple, of the two children being- born out of the union and of the petitioner deserting the respondent leaving the daughter with her and taking the son with him without providing any maintenance for the respondent and the daughter. In a proceeding Under Section 48S, Criminal Procedure Code, this evidence is quite sufficient, in my opinion, to show that the respondent is the wife of the petitioner;
10. In this connection. I may refer to the decision Edward Sailendra Nath Das v. Snehalata Dessi, 41 Cal WN 898. That was also a case Under Section 488 Criminal Procedure Code and there was evidence that the parties who were Indian Christians got converted as Hindus and got married according to Hindu rites. The husband contended that such a marriage cannot be given legal effect to and many authorities were cited in support of this proposition. But the Calcutta High Court held that Section 488 Criminal Procedure Code was intended to give proper and speedy relief and that a magistrate ought not to be burdened with the decision of a point of personal civil law which could not possibly concern him and that the husband if he wished to impeach the validity of the marriage should bring a declaratory suit in a Civil Court when the whole question can be investigated and the authorities pro and con canvassed. I express my respectful agreement with the said decision. I would only add that in such a civil suit both parties will be in a position to adduce detailed evidence regarding the fact of the marriage and regarding the custom in their community and the law can be applied in accordance with such evidence. That is not possible in a proceeding Under Section 488 Criminal Procedure Code. I would hold in the present case that the respondent must succeed on the presumption that there was a marriage and that the respondent was the wife of the petitioner.
11. The revision petition, therefore, fails and it is accordingly dismissed.