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Pachigolla Srinivasarao Vs. Pachigolla Samudram and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1975CriLJ1581
AppellantPachigolla Srinivasarao
RespondentPachigolla Samudram and ors.
Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter...........their status. because of this in cases coming under section 488, criminal p. c. when there is some evidence of marriage having taken place between the parties, it is not necessary to insist upon strict proof of all the formalities of a particular form of legal marriage. in the present case, the evidence goes to show that there was a marriage function and some form of marriage had been gone through between the petitioner and the 1st respondent. the evidence also goes to show that they lived as man and wife for a period of about ten years and respondents 2 and 3 were born to them. therefore there will be a presumption that the marriage entered into between the petitioner and the ist respondent is a valid one. if that is so, the ist respondent is also entitled to maintenance,7. accordingly.....
Judgment:
ORDER

Ramachandra Raju, J.

1. This is a reference made by the First Additional Sessions Judge, Visakapatnam in a matter arising under Section 488, Criminal P. C. to set aside the order of the Magistrate granting maintenance to the 1st respondent. Respondents 2 and 8 are minor children of 1st respondent. Now, the finding of both the Courts is that respondents 2 and 3 were born to the 1st respondent through the petitioner, The respondents filed me maintenance application against the petitioner alleging that about ten years ago, the petitioner married the Ist respondent at Visakapatnam and they were living together till 5 months prior to the filing of the application. Respondents 2 and 3 were born to them. Thereafter, the petitioner married another woman and started living with her and thereafter he has completely neglected to maintain the respondents. The petitioner denied that there was a marriage between him and the Ist respondent and respondents 2 and 3 were born to him. Respondent 3 was born at the Gosha Hospital, Visakapatnam on 21-1-1985. Exhibit P. 1 is the birth register extract relating to his birth. It shows that the petitioner's name was given as the father of the child, The 2nd respondent, who is a girl, was admitted in Tisakha Tutorial College, Visakapatnam. Exhibit P. 2, the letter from the Principal, shows that the name of the petitioner was given as the father of the girl while admitting her in the said College. The 3rd respondent was admitted in the Atchutarama Municipal Basic Patasala, Visakhapatnam. Exhibit P. 3, the letter from the Headmaster of that school, shows that the name of the petitioner was given as the father of the 3rd respondent while admitting the 3rd respondent in the school. Apart from the oral evidence, on the basis of this documentary evidence, both the Courts concurrently found that respondents 2 and 3 were born to the petitioner and the 1st respondent. The other relevant question to be found was whether there was a marriage between the petitioner and the Ist respondent which fact was denied by the petitioner. The Ist respondent was examined as P. W. 1 Besides herself two more witnesses, P. Ws. 2 and 6 spoke about the marriage having taken place between the petitioner and the Ist respondent. It appears the petitioner is a Vaisya and the Ist respondent is a Sail by caste. It is in the evidence of P. W. 1 that no Brahmin officiated at the wedding. The cememony known as 'Saptapadi' was not performed, P. W. 6 has also said that he does not remember if any Brahmin performed the marriage. But, however, he has stated that at the marriage function there was a pandal erected and there was music also, and he had seen the tying of Mangala Sut ram. On the ground that it has been admitted by the witnesses that no Brahmin performed the marriage and the ceremony of 'Saptapadi' was not performed, the learned Sessions Judge came to the conclusion that it cannot be said that there was marriage between the petitioner and the 1st respondent according to persona! law of the parties, viz., Hindu Law. He did not give any finding that as a matter of fact there was no function of marriage at all which had taken place between the petitioner and the Ist respondent. On the ground that the factum of marriage was not established, meaning thereby the factum of legal marriage, between the petitioner and the 1st respondent as alleged by her, the learned Sessions Judge thought that the 1st respondent was not entitled to maintenance though respondents 2 and 3 were entitled to it, even though they can be said to be only illegitimate children, as under Section 488, Criminal P. C. illegitimate children, also are entitled to maintenance though not wife not legally wedded. Accordingly the learned Additional Sessions Judge made a reference to this Court to set aside the order of the Magistrate so far as it relates to granting of maintenance to the Ist respondent.

2. The learned Magistrate gave a categorical finding that the Ist respondent is the legally wedded wife of the petitioner, accepting the evidence adduced on behalf of the respondents. The learned Additional Sessions Judge did not come to the conclusion that no form of marriage had taken place between the petitioner and the Ist respondent. According to the respondents, the petitioner and Ist respondent were married according to Hindu law. On the ground that ceremonies as required by Hindu law to constitute a legal marriage have not been proved to have taken place, the learned Additional Sessions lodge came to the conclusion that no valid legal marriage between the petitioner and the Ist respondent has been made out. But the question for consideration is what is the nature of proof that is required for the purpose of Section 488 Criminal P. C. with regard to a marriage?

3. The Courts have always held that to decide about the relationship of husband and wife for the purpose of Section 488 Criminal P. C. it is not necessary to insist on the strict proof of all the formalities of a particular form of legal marriage as is necessary in civil proceedings where the question of legality of marriage is in issue. It is so held in Baidhyanath v. M. Shefali (1962) 1 Cri LJ 812 (Cal); K.J.B. David v. Nilomoni Devi AIR 1953 Ori 10 : 1953 Cri LJ 260 and Satish Chandra v. Charu Balu AIR 1962 Tripura 61 : (1962) 2 Cri LJ 803.

4. In the decision in Satish Chandra v. Charu Balu AIR 1962 Tripura 61 : (1962) 2 Cri LJ 803 referred to above, it was held that in a petition under Section 488, Criminal P. C. 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. 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 Pi C. was not his legally wedded wife. With great respect, I entirely agree with what was said in the decision mentioned above.

5. In Parvathy Animal v. Copala Gowder (1956) 2 Mad LJ 468, it was held by the Madras High Court that where it is clear that the parties to a marriage went through some form of marriage and it is established that they were living as husband and wife, the general presumption is to favour of a valid marriage and the wife is entitled to maintenance under Section 488, of the Code of Criminal Procedure. To the same effect is another decision of the Madras High Court in Ramachandran Chettiar v. Rajammal 1955 Mad WN 951 where it was held that if a marriage has in fact been established, there will be a presumption in favour of there being a marriage in law.

6. The object of the maintenance proceedings under Section 488, Criminal P. C. is to provide a speedy and summary remedy to deserted wives and children. When there is a dispute with regard to the relationship of die parties i. e. where the relationship of marriage or paternity is not admitted, it is a duty of the Magistrate to determine the issue. But it is always subject to any final adjudication that may be made by a Civil Court between the parties respecting their status. Because of this in cases coming under Section 488, Criminal P. C. when there is some evidence of marriage having taken place between the parties, it is not necessary to insist upon strict proof of all the formalities of a particular form of legal marriage. In the present case, the evidence goes to show that there was a marriage function and some form of marriage had been gone through between the petitioner and the 1st respondent. The evidence also goes to show that they lived as man and wife for a period of about ten years and respondents 2 and 3 were born to them. Therefore there will be a presumption that the marriage entered into between the petitioner and the Ist respondent is a valid one. If that is so, the Ist respondent is also entitled to maintenance,

7. Accordingly the reference made by the Additional Sessions Judge is rejected and the order of the Magistrate granting maintenance to the three respondents is confirmed.


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