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Neelakantappa Vs. Ambamma - Court Judgment

LegalCrystal Citation
SubjectFamily;Criminal
CourtKarnataka High Court
Decided On
Case NumberCrl. R.P. No. 128 of 1984
Judge
Reported inILR1985KAR3969; 1986(1)KarLJ41
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125; Evidence Act, 1872 - Sections 50; Indian Penal Code (IPC) - Sections 494 to 498
AppellantNeelakantappa
RespondentAmbamma
Appellant AdvocateS.M. Kalloor, Adv. for Shivaraj Patil, Adv.
Respondent AdvocateV.T. Rayaraddy, Adv.
DispositionRevision petition dismissed
Excerpt:
.....standard of proof of marriage -- not as required in proceedings under divorce act or indian penal code -- opinion evidence under section 50 of evidence act sufficient.;undoubtedly the proceedings in dealing with a petition under section 125 of the code are summary in nature and speedier in granting the relief so as to prevent vagrancy or destitution of a wife among others who are stipulated therein, unable to maintain herself on the ground of negligence or refusal to maintain her by her husband who possessed sufficient means.;it is also indisputable as the section requires that the wife who claims maintenance from her husband must establish that relationship in the first instance and more so when the other party raises a dispute and denies such a relationship. however, law does not..........under the indian divorce act or inprosecutions under sections 494 to 498 of the indian penal code. the opinion expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject is a relevant piece of evidence in deciding the question of relationship of husband and wife between two persons when such a question comes up for consideration in the proceedings initiated under section 125 of the code. section 50 of the indian evidence act, 1872 lays down this position. section 50 reads :'50. opinion on relationship, when relevant - when the court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such.....
Judgment:
ORDER

Kudoor, J.

1. This Criminal Revision Petition one under Section 397 of the Code of Criminal Procedure (the Code) is directed against the order dated 21-1-1984 passed by the Sessions Judge at Raichur in Cr.R.P.No. 5/81 in allowing the revision and setting aside the order dated 11-12-1980 passed by the J.M.F.C, Sindhanoor, in Cr. Misc. No. 30/77 and directing the learned Magistrate to dispose of the petition filed by the respondent Ambamma under Section 125 of the Code claiming maintenance against the petitioner Neelakantappa on merits on the basis that the respondent had proved that she was the legally wedded wife of the petitioner.

2. I shall refer to the parties in the course of this order as they were arrayed in the Court of the first instance.

3. The matter arises in this way :

The petitioner Ambamma filed a petition under Section 125 of the Code for the grant of maintenance at the rate of Rs.300/- per month against the respondent on the ground that she was the legally wedded wife of the respondent and that the respondent had neglected and refused to maintain her although he had possessed sufficient means. The respondent resisted the claim of the petitioner on several grounds including denying his marital relationship with the petitioner as alleged by the petitioner in the petition contending that she was an utter stranger to him. The Trial Court raised several points on the pleadings of the parties among which the first point formulated was 'Whether the petitioner is the legally wedded wife of the respondent ?'. The Trial Court, on appreciating the evidence adduced by the parties, recorded a negative finding under this point holding that the petitioner had failed to prove that she is the legally wedded wife of the respondent and on that basis it answered all the other points formulated by it as they did not survive for consideration and finally dismissed the petition as per its order dated 11-12-1980.

4. The petitioner, being aggrieved by the order of dismissal of her Petition passed by the Trial Court, carried the matter in revision to the Court of the Sessions Judge at Raichur in Cr. R.P. No. 5/81. The Learned Sessions Judge, after hearing the arguments urged on both sides and also considering the evidence, reached the conclusion that the petitioner has proved that she is the wife of the respondent and on that finding he set aside the order of the Trial Court and remanded the matter for fresh disposal inaccordance with law on the basis of the finding recorded that the petitioner is the legally wedded wife of the respondent as per his order dated 21-1-1984. Hence, this Criminal Revision is by the respondent.

5. Heard the Learned Advocates appearing for both parties. Perused the orders of the Courts below and also the evidence adduced by the parties in support of their respective contentions.

6. The only point that arises for decision in this Revision is whether the finding of the Learned Sessions Judge that the petitioner is the wife of the Respondent is legally sustainable.

7. Before adverting to the question on merits, it will be necessary to deal with the scope and nature of the enquiry on a Petition under Section 125 of the Code. Undoubtedly the proceedings in dealing with a Petition under Section 125 of the Code are summary in nature, and speedier in granting the relief so as to prevent vagrancy or destitution of a wife among others who are stipulated therein, unable to maintain herself on the ground of negligence or refusal to maintain her by her husband who possessed sufficient means. It is also indisputable as the Section requires that the wife who claims maintenance from her husband must establish that relationship in the first instance and more so when the other party raises a dispute and denies such a relationship. However, law does not postulate that the standard of proof of marriage in proceedings under Section 125 of the Cods would be as high as required in the case of proof of marriage in proceedings under the Indian Divorce Act or inprosecutions under Sections 494 to 498 of the Indian Penal Code. The opinion expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject is a relevant piece of evidence in deciding the question of relationship of husband and wife between two persons when such a question comes up for consideration in the proceedings initiated under Section 125 of the Code. Section 50 of the Indian Evidence Act, 1872 lays down this position. Section 50 reads :

'50. Opinion on relationship, when relevant - When the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact.'

It is seen from Section 50 that when the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge on the subject is a relevant fact. However, the proviso restricts theoperation of the main part of Section 50. It stipulates that such opinion as stipulated under the main part of Section 50 shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act or in prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code. Advisedly Section 488 of the old Cr. P.C. which is in pari materia with Section 125 of the Code was not brought within the ambit of the proviso and as such the opinion of such relationship stipulated under the main part of Section 50 does apply in considering the question of the relationship of marriage in a proceedings under Section 125 of the Code. The illustration (a) to Section 50 sheds better light to understand the scope of the opinion stipulated under Section 50. It illustrates that on a question whether A and B were married, the fact that they were usually received and treated by their friends as husband and wife, is relevant.

7A. Dealing with the question of standard of proof of marriage in a proceedings under Section 488 of the old Cr. P.C., this Court in Vanajalakshmamma -v.- P. Gopala Krishna, AIR 1970 Mysore 305. after reviewing several earlier rulings on the subject, held '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 aproceeding under the Section. The proviso to Section 50 of the 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 proceedings under the Indian Penal Code for bigamy, etc.' (as paraphrased in Head Note (A).

8. On the same question, the Andhra Pradesh High Court in Pachigolla Srinivas Rao -v- Pachigolla Samudram and Others, 1975 Cr. L.J. 1581observed :

'In cases coming under Section 488 when there is some evidence of marriage between the parties, it is not necessary to insist on strict proof of all the formalities of a particular form of legal marriage. Where the evidence shows that there was a marriage function and some form of marriage had been gone through and also that the parties lived as man and wife for a period of about ten years and two children were born to them, there will be a presumption that the marriage is a valid one.'

9. Bearing these principles in mind, I shall now proceed to consider the question, whether the conclusion reached by the first revisional Court on the question of marriage between the petitioner and respondent is legally sustainable.

10. The petitioner, in support of the proof of her marriage with the respondent, examined 5 witnesses including herself. She was examined as PW. 1 and her elder brother was examined as PW.5. PWs. 2 to 4 were theneighbors of PW.1. PWs. 1 to 5 were all the residents of Sindhanoor. The respondent was residing at Lingasugur at the time of the alleged marriage. The case of the petitioner is that her marriage with the respondent took place at Chavani, a locality in Lingasugur about 25 years ago. She belongs to Kuruba Community. Her marriage with the respondent was performed in accordance with the customs prevailing in their community. She has given the details of the marriage ceremony of her marriage with the respondent. About two months after the marriage, she joined the respondent. She lived with him happily for about two years. During that period, she gave birth to a son by name Basavaraj. After delivery in her parents house, she again went to therespondent's house. However, she states that the attitude of the respondent towards her on her joining him after delivery at his house was quite different. The respondent began to ill-treat her such as beating her and not giving proper food at the instance of his mother. However she suffered all these hardships and stayed with the respondent for about two years. Finally, the respondent drove her out and the petitioner went to her parents house along with her son. She made several efforts to join the respondent, but in vain.

11. PW. 1 gave evidence on all these points before the Court of the first instance. In support of her marriage with the respondent, besides her own sworn statement, she examined 4 witnesses including her elder brother PW. 5. PWs. 2 to 4 were theneighbors of PW. 1. All of them have stated that they attended the marriage and witnessed the ceremony. The details of the marriage ceremony spoken to by these witnesses substantially corroborate the details of the marriage ceremony spoken to by PW.l. PW. 5 the elder brother of PW. 1 in his evidence has supported the case put forward by the petitioner in all respects.

12. The learned Sessions Judge, in the course of his order, has extracted portions of the evidence tendered by PWs. 1 to 5 on the question of marriage. Allthe witnesses were subjected to searching cross-examination. As observed by the Learned Sessions Judge, I find nothing material has been brought out in their cross-examination so as to doubt their veracity relating to the marriage ceremony performed at the marriage of the petitioner with the respondent. By and large, the evidence tendered by PWs-1 to 5, as rightly observed by the Learned Sessions Judge, has satisfactorily established the marriage between the petitioner and the respondent as claimed by the petitioner.

13. Dealing with the approach of the Court of the first instance in considering the evidence of these witnesses, this is what the Learned Sessions Judge has observed in his order :

'.... But on going through the order of the Learned Magistrate he tried to weigh the evidence of the petitioner and of her witnesses who are village rustics in golden scale and he gave undue importance to minor discrepancies appearing here and there in the evidence of the petitioner and of her four witnesses and on going through the order of the Learned Magistrate he has picked up certain sentences from the depositions of the witnesses in their cross-examination while discussing their evidence and treated them as major contradictions about the ceremonies performed in the marriage but in my opinion the Learned Magistrate is not correct in reading the evidence in compartments but he has to take the evidence of the witnesses as a whole, considering the evidence of the petitioner and of her witnesses who are speaking about the ceremonies performed in the marriage after a lapse of a long period and that too they are illiterate and ignorant villagers and such minor discrepancies are bound to occur. So, the Learned Magistrate ought not to have given much importance to such minor discrepancies and he could have only looked to the substance of their evidence regarding the proof of marriage of the petitioner with the Respondent.'

On going through the order of the Learned Magistrate, I feel that the learned Sessions Judge was right in his comment on the approach made by the Learned Trial Magistrate in appreciating the evidence. Looking at the evidence of PWs-1 to 5 in the light of the standard of proof of marriage that is required in a proceedings under Section 125 of the Code, I am inclined to agree with the findings recorded by the Learned Sessions Judge on the question of marriage of the petitioner with the respondent.

14. Sri Kalloor, the Learned Advocate appearing for the petitioner, contended that all the witnesses examined in support of the petitioner's case are interested witnesses and as such law requires strict scrutiny of their evidence and in that view he strenuously contended that the approach of the Court of the first instance in considering their evidence was unexceptionable. It is true that the interested testimony of the witnesses are liable to strict scrutiny at the hands of the Court before its acceptance. But the question forconsideration in this case is who among the 5 witnesses examined by the petitioner in support of her case are the interested witnesses. No doubt PW-1 being the petitioner and PW-5 her elder brother can be said to be interested in the case of the petitioner. But the same thing cannot be said in the case of PWs. 2 to 4 who appear to me quite independentwitnesses. The only thing that was said against them by Sri Kalloor was that they were the neighbors of the petitioner. I do not think that the residence of a particular witness being a neighbour or that he belongs to the same caste and community may not be the ground to hold that the testimony of a witness is interested. An interested witness is one who gains some advantage by giving such evidence either for himself or for his kith and kin. In the instant case, no such criticism could be levelled against PWs. 2 to 4 except that they were the neighbors. The probabilities of their presence at the place and time of the marriage, their special means of the knowledge on the subject namely that the conduct of the petitioner and the respondent after the marriage, cannot be questioned in the light of the evidence they gave before the Trial-Court. It is true that somediscrepancies in their evidence have been brought out in the course of the cross-examination. As rightly observed by the Learned Sessions Judge, due allowance will have to be given to such discrepancies in the evidence of these witnesses especially taking into consideration their place in the social life, the long lapse of time when they gave evidence before the Court-below after the marriage in question and the normal and natural failure in memory of the details of the marriage spoken to by them in the Court which is quite human more so in the case of village rustics. Thus, I find not much force in this submission.

15. The next contention urged was that it was most unlikely that the petitioner could have given birth to a son within two years after her marriage as, according to her evidence, she would have been hardly 12 years of age at the time of the marriage. This argument was built up on the foundation that in the deposition sheet of PW-1 her age was recorded as 37 years and if the marriage had taken place about 25 years before she gave evidence, she was about 12 years of age at the time of her marriage. This argument does not appear to me sound. The petitioner, in her Petition which was presented in the year 1977, gave her age as 41 years. On this basis, if her age at the time of the marriage is calculated, her age was 23 years at the time of the marriage. On the strength of her age noted while recording her evidence in the Court, it is difficult to reach a positive conclusion that that age was the correct age especially when the age of the petitioner as given in her Petition shows that she was about 23 years of age at the time of her marriage. The attempt made to show that the marriage of the petitioner with the respondent was highly improbable on this ground seems to me without force.

16.On a careful consideration of all the relevant material, I find no merit in this Revision Petition.Accordingly, it is dismissed.


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