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John Soloman Gundi Vs. Sushila John Gundi - Court Judgment

LegalCrystal Citation
SubjectFamily;Criminal
CourtKarnataka High Court
Decided On
Case NumberCrl. Petition No. 714 of 1983
Judge
Reported inILR1986KAR66
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125 and 488
AppellantJohn Soloman Gundi
RespondentSushila John Gundi
Appellant AdvocateW.K. Joshi, Adv.
Respondent AdvocateC.H. Jadhav, Adv.
DispositionPetition dismissed
Excerpt:
.....or in the course of the trial, i fail to see how the learned sessions judge has permitted the learned advocate for the petitioner to raise such a contention for the first time in the revisional court in dealing with this question, the learned sessions judge has observed in his order that admittedly the marriage has not been solemnized in any church as per the customs......has observed thus :'the husband is examined as d.w. 1. he says in his evidence that his wife sarojini is still alive at hubli. he does not say that the marriage between himself and sarojini is still subsisting in his examination in chief, he has not chosen to examine sarojini or any other independent witness to prove that sarojini is still alive or the marriage is still subsisting.in cross-examination, he has admitted that sarojini is not living with him, no children are born to sarojini and that he has never lived with sarojini. he has denied a suggestion that exts. d1 and d2 are got up documents. even if the alleged first marriage is true, in the absence of any other independent evidence that the first wife is still alive or that the first marriage is still subsisting) we.....
Judgment:
ORDER

Kudoor, J.

1. This Criminal Petition arises out of an order dated 27-8-1983 passed by the I Additional Sessions Judge, Dharwad, in Cr. R.P. No. 54/81 dismissing the revision and confirming the order dated 29-8-1981 passed by the J.M.F.C. II Court, Hubli. in Misc. Case No. 204/79, a Petition filed by the respondent herein against the petitioner under Section 125 of the Code of Criminal Procedure (the Code) claiming maintenance against the petitioner at the rate of Rs. 450/- per month.

2. The facts relevant for the disposal of this Petition may be summarised as follows :

The respondent in her Petition under Section 125 of the Code averred thai she was married to the petitioner on 19-4-1976 at Hospet, that the marriage has been registered in the Sub-Registrar's Office, that after the marriage she and the Petitioner lived together at Basel Mission Compound, Dharwad, that by this wedlock a male child was born to them on 5-9-1977, that after some time the petitioner began to ill-treat the respondent and even threatened to kill her, that the petitioner made the life of the respondent miserable and finally on 5 4-1978 the petitioner snatched a chain from the respondent and drove her out of his house, that therefore the respondent is residing with her mother in her house, that the respondent later got issued a notice to the petitioner but the petitioner did not care to send a reply, that the petitioner neglected to maintain the respondent, that the respondent is unable to maintain herself, that she had already incurred a loan of Rs. 3,000/- for her maintenance, that the petitioner is working in K.S.R.T.C. and getting a salary of Rs. 900/- per month and has sufficient means to maintain her and on these grounds she claimed maintenance at the rate of Rs. 450/- per month.

3. The petitioner resisted the claim of the respondent inter-alia contending that the application for maintenance is not maintainable, that there is no legal marriage between him and the respondent, that the alleged marriage of the respondent with the petitioner on 19 4 1976 was never solemnized, that what was registered was only an agreement of marriage, that the petitioner married one Smt. Sarojini in 1963 and that the said marriage is still subsisting and therefore the alleged marriage of the respondent with the petitioner is not valid under the provisions of the Indian Christians Marriage Act, 1872, that the child born to them is in his custody and that the allegations about the ill-treatment and cruelty etc., are false and denied. On these grounds, he sought for the dismissal of the Petition.

4. The Learned Magistrate, after holding an enquiry, allowed the Petition filed by the respondent partly and granted maintenance at the rate of Rs. 100/- per month.

5. The petitioner carried the matter to the Court of the Sessions at Dharwad in Cr. R.P. No. 54/81. The Revision Petition came to be heard by the I Additional Sessions Judge, Dharwad, who by his order dated 27-8-1983 dismissed the Revision Petition and confirmed the order of the Court of the first instance. Hence this Criminal Petition.

6. Heard the Learned Advocates appearing for both the parties.

7. Sri Joshi, in the course of his arguments, contended that the respondent has failed to prove that her marriage with the petitioner was solemnized in a Church as required in their community to constitute a valid marriage ; that her marriage with the petitioner was rendered void since the marriage took place during the subsistence of the petitioner's first marriage and that the respondent is not entitled to maintenance as she was not the legally wedded wife of the petitioner. On these grounds he maintained that the impugned orders of both the Courts below are liable to be set a side and the petition filed by the respondent be dismissed.

8. Per contra, Sri Jadhav, the Learned Advocate appearing for the respondent, argued in support of the orders of the Courts-below. He maintained that the respondent has established by satisfactory evidence her claim against the petitioner for maintenance as stipulated under Section 125 of the Code.

9. The short point that arises for consideration is whether the petitioner is liable to pay maintenance to the respondent in terms of Section 125 of the Code.

10. Chapter IX of the Code provides for maintenance of wives, children and parents. Section 125 contemplates among other things a right to claim maintenance by a wife who is unable to maintain herself against her husband who having sufficient means neglects or refuses to maintain her. The provisions contained in Chapter IX corresponds to the provisions in Chapter XXXVI (Sections 488 to 490) of the 1898 Code (old Code). In Vanajakshamma v. Gopala Krishna, AIR 1970 Mysore 305 this Court dealing with the scope, object and nature of the order to be made under Section 488 of toe old Code held thus :

'Proceedings under Section 488 Cr. P.C. are summary in nature, meant to prevent vagrancy. The standard of proof of marriage in proceedings under the Section need not be so high as required in prosecutions for bigamy or proceedings under the Divorce Act. Thus, even opinion expressed by conduct of persons who had special means of knowledge on the subject may suffice to prove the fact of marriage in a proceeding under the Section. The proviso to Section 50, Evidence Act which does not refer to proceedings under Section 488 only says that such opinion shall not be sufficient to prove marriage in proceedings under the Divorce Act or in prosecutions under the Indian Penal Code for bigamy, etc.

Even though the Criminal Court may come to the conclusion in a proceeding under Section 488, Criminal Procedure Code that the parties are husband and wife, if a Civil Court gives a different finding on the point, the Criminal Court should alter its finding.' (as paraphrased in head notes 'A' & 'B')

In Bhagwan Butt v. Kamla Devi, : 1975CriLJ40 dealing with the scope and object of Section 488 of the Code, the Supreme Court observed as follows :

'Sections 488, 489 and 490 constitute one family. They have been grouped together in Chapter XXXVI of the Code of 1898 under the caption, 'Of the maintenance of wives and children'. This Chapter, in the words of Sir James Fitzstephen, provides 'a mode of preventing vagrancy, or at least of preventing its consequences'. These provisions are intended to fulfil a social purpose, Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple-speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus, Section 488 is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the Section on the Magistrate is mare in the nature of a preventive, rather than a remedial jurisdiction ; it is certainly not punitive. As pointed out in Thompson's case 6 NWP 205 the scope of the Chapter XXXVI is limited and the Magistrate cannot, except as thereunder provided, usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts. Sub-section (2) of Section 489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a Civil Court between the parties regarding their status and civil rights.'

xx xx xx xx 'The object of those provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of life which is neither luxurious nor penurious but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also is taken into account together with the earning of the husband and his committments.'

xx xx xx xx 'We have said and it needs to be said again, that Section 488 is intended to serve a social purpose. It provides a machinery for summary enforcement of the moral obligations of a man towards his wife and children so that they may not, out of sheer destitution become a hazard to the well-being of orderly society.'

11. Keeping in view the above propositions of law I shall now proceed to consider the case on band on its merits.

Both the Courts below have recorded concurrent finding that the respondent has proved by satisfactory evidence that she is the wife of the petitioner and that she is entitled to claim maintenance under Section 125 of the Code. Sri Joshi, the Learned Advocate for the Petitioner, has submitted with his usual fairness that the status of the respondent that she is the wife of the Petitioner is a question of fact and since both the Courts below have recorded a concurrent finding on this question, normally it is not open to this Court in revision to have a further look on the question and record its opinion. However he maintained that since the marriage of the respondent with the Petitioner was not solemnized as required of a valid marriage in the Christian Community to which they belong and that the first marriage of the Petitioner was subsisting when the respondent was married to him, the marital relationship of the respondent with the Petitioner is invalid and unlawful and as such it must be held that there was no valid marriage. On this basis he submitted, that the Court may examine the question whether the respondent is the wife of the Petitioner and entitled to claim maintenance under Section 125 of the Code.

12. That the Petitioner and the respondent lived as husband and wife for over two years is not in dispute. They had entered into an agreement deed Ex.P1 dated 19.4.1976. It was executed by both The document was registered by the Sub-Registrar at Hospet, The document reads that both the parties were loving each other and they were living as husband and wife since one year, that the children both to them will have the legal rights as per law and that they were not within the prohibited degree of relationship. Although Ex.P1 is not a marriage deed, its recitals reflect the mind of both the parties that each of them took the other as his or her spouse with all the legal consequences. The Petitioner took the respondent from Dharwad where both were residing ; went to Hospet, got the document Ex. P1 prepared and signed by both and got it registered by the Registering Authority. The Respondent had honestly believed that the petitioner had taken her as his wife and a life-long partner. Admittedly after this document came into being, they lived as husband and wife together for nearly 2 1/2 years at Dharwad in the house of the petitioner. The petitioner in his evidence has admitted that Ex. P9 was a letter written by his mother to the mother of the Respondent informing her that the Respondent was pregnant. The letter was dated 25-4-1977. The Respondent gave birth to a male child on 5-9-1977. Ex. P2 is the birth extract which shows that the petitioner is the father of the child.

13. There is also evidence to show that the child was administered baptism in the Church at Dharwad as per the Baptism Certificate Ex. P3 in which the name of the child was shown as Soloman Santhosh. The names of the parents of the child as shown were John and Susheela Gundi, the petitioner and the Respondent respectively. This shows that both the parties had declared before the Church that they were the parents of the child being the father and mother and got the child administered baptism. What is further interesting to see in the case is that the child is now in the custody of the petitioner.

14. These facts fairly and satisfactorily go to show that the Respondent is the legally wedded wife of the petitioner. The petitioner, as seen from the evidence, accepted this position at undisputed time on several occasions. The law laid down by this Court as well as the Supreme Court in relation to Section 488 of the Old Code equally applies to a case under Section 125 of the Code although the provisions contained in Chapter IX contain a number of changes from the provisions contained in Chapter XXXVI of the Old Code. In that view, the standard of proof of marriage in proceedings under Section 125 need not be so high as required in prosecution for bigamy or proceedings under the Divorce Act. When the parties themselves have declared before the society, before the Church and before the concerned Registering Authority that they have accepted each other as husband and wife and life long partners, no further proof of the validity of the marriage is required in a proceedings under Section 125. In that view, the conclusion reached by the Courts-below that the Respondent has successfully established that she is the legally wedded wife of the petitioner is unassailable.

15. However, Sri Joshi, in the course of his argument, drew the attention of the Court to a decision of this Court in Savithramma v. Rasmanarasimhaiah, 1962 Mys. L.J 746 and contended that this Court in the said decision by construing Section 488 of the old Code had come to the conclusion that strict proof of the valid marriage is contemplated and the burden of proving the validity of the marriage is upon the wife claiming maintenance. No doubt the reasoning of the Learned Judge in Savithramma's case, 1962 Mys. L.J 746 (supra) would support the contention of Sri Joshi. We find in the very same decision that the Learned Judge had noticed the limited scope of Section 488 and observed :

'The scope of Section 488 of Criminal Procedure Code is rather restricted. Its object is to prevent vagrancy of wife or of the legitimate or illegitimate children. It affords speedy remedy for the aggrieved party. But it does not determine the legal rights as a Civil Court does. Otherwise, it would usurp the jurisdiction of matrimonial Court.'

The question of standard of proof of marriage in proceedings under Section 488 and the object of the provisions contained in Chapter XXXVI of the Old Code was not considered in the said decision as they were considered in the later decisions by this Court in Vanajakshamma's case, AIR 1970 Mysore 305 and by the Supreme Court in Bhagwan Dutt's case, : 1975CriLJ40 (supra). The decision proceeded on the basis of strict construction of Section 488 and in thai view the observation of the Learned Judge in that case that the strict proof of the valid marriage is needed under Section 488 must be held to be applicable to the facts of that case and it shall not have a general application in a proceedings under Section 488 in view of the later decisions referred supra.

16. The petitioner, in his objection statement, has challenged the validity of the marriage pleaded by the respondent, on the ground that the petitioner had married one Smt. Sarojini in the year 1963 under the Indian Christians Marriage Act, 1872 in Dharwad Hepich Memorial Church, that marriage is still subsisting and as such the marriage of the respondent with the petitioner took place at Hospet is not valid under the Indian Christians Marriage Act and that the registered agreement of marriage executed on 19-4-1976 at Hospet is void, under Section 23 of the Indian Contract Act, being immoral and opposed to Public policy. The Learned Sessions Judge, dealing with the question of the alleged first marriage of the petitioner with Smt. Sarojini and its subsistence, has observed thus :

'The husband is examined as D.W. 1. He says in his evidence that his wife Sarojini is still alive at Hubli. He does not say that the marriage between himself and Sarojini is still subsisting in his examination in Chief, He has not chosen to examine Sarojini or any other independent witness to prove that Sarojini is still alive or the marriage is still subsisting.

In cross-examination, he has admitted that Sarojini is not living with him, No children are born to Sarojini and that he has never lived with Sarojini. He has denied a suggestion that Exts. D1 and D2 are got up documents. Even if the alleged first marriage is true, in the absence of any other independent evidence that the first wife is still alive or that the first marriage is still subsisting) we cannot say that the marriage of the parties in this case is not valid.'

There is no material on record to reach a different conclusion than the one reached by the Learned Sessions Judge on the question of the subsistence of the alleged first marriage of the petitioner with Smt. Sarojini.

17. It is seen from the order of the Learned Sessions Judge that it was contended on behalf of the petitioner obviously for the first time in the Revisional Court that the marriage of the respondent with the petitioner has not been solemnized in a Church as per the rules and customs as stipulated under Sections 4 and 5 of the Indian Christian Marriage Act, 1872, and so the said marriage must be held to be a void marriage and has no legal consequence.

18. There is no pleading in this case, questioning the validity of the marriage between the parties on the ground that the marriage has not been solemnized in a Church as required under the provisions of the Indian Christian Marriage Act, 1872. Such a case appears to have not been urged in the course of the Trial nor at the time of the argument in the Court of the first instance. There is no reference in the Trial-Court order to any such contention. Whether the marriage between the parties was solemnized in a Church according to the provisions of the Indian Christian Marriage Act, 1872 is a question of fact. Since that question was not raised either in the pleadings or in the course of the trial, I fail to see how the Learned Sessions Judge has permitted the Learned Advocate for the Petitioner to raise such a contention for the first time in the Revisional Court In dealing with this question, the learned Sessions Judge has observed in his order that admittedly the marriage has not been solemnized in any Church as per the customs. I do not find any support for this observation either from the pleadings or from the evidence of the parties as the question of solemnization of the marriage had ever crept in, in the case in the Court of the first instance and there was no occasion for the parties to admit the same. However, the learned Sessions Judge has observed that absence of solemnization of marriage as required by the Christian custom or that there is a defect or there is no proper registration of the marriage, do not affect the validity or legality of the marriage so far as the summary proceedings in this case are concerned. I do not propose to express my view about the correctness of this observation as it is not necessary, since the validity of the marriage was not assailed by the petitioner on the ground that the marriage was not solemnized as per the provisions of the Indian Christian Marriage Act, 1872.

19. No other contention was canvassed in this Petition.

20. In the light of the above discussion and also the conclusion reached, the Petition fails and the same is dismissed.


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