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Saudamini Dei Vs. Bhagirathi Raj - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in53(1982)CLT93; 1982CriLJ539
AppellantSaudamini Dei
RespondentBhagirathi Raj
Cases Referred(Kunhiraman Nair v. Annakutty) and
Excerpt:
.....become a hazard to the well-being of a orderly society. all the circumstances, therefore, in my view clearly show that the petitioner had married the respondent. repelling the contention that the orissa decision was no longer good law in view of bhaurao's case 1965 (2) cri lj 544 (supra), the learned judge said: after the panchayati, both the parties lived happily together for three months whereafter dissension arose followed by assault and illtreatment and she left her husband's place for good. regarding proof of marriage need not be so strong or conclusive as in the case under section 494 ipc......the circumstances and held that if there was no marriage, the circumstances could not exist. the learned judge observed (para 6) :-.she was living with the parents of the petitioner. she has also two' children one of whom is 7 years old and the other is younger. she could not have had children and she could not have lived in the same chawl where the carnets of both the parties stay, with the parents of the petitioner unless she was married. both are respectable parties. in the ordinary course therefore such things could never have happened if there was no marriage. all the circumstances, therefore, in my view clearly show that the petitioner had married the respondent. now it may be that the evidence led by her is not as adequate as it should be for a prosecution under section 494,.....
Judgment:
ORDER

R.C. Patnaik, J.

1. This revision by the wife is directed against the judgment of the learned Sessions Judge in revision reversing the decision of the Magistrate granting maintenance to the petitioner at the rate of Rs. 30/- per month in a proceeding Under Section 125 of Criminal P.C.

2. Facts shortly stated:

The parties were married in Falguna 1974 in Gandharba form by exchange of garlands. After some time the initial warmth vanished and there was dissension, and it is alleged by the petitioner, she was illtreated and later on driven out. The petitioner took shelter under the care of her father. At the instance of her falher a Panchayati was convened and at the said Panchayati, the decision was that the opposite party would take back the petitioner and look after her properly. A Panchayati Patra (Ext. 2) was prepared. The gentlemen as well as the parties signed the same. In pursuance of the said settlement, the petitioner was taken back by the opposite party. However, amity did not long prevail and the petitioner was driven out again at the end of about three months. As the opposite party neglected/refused to maintain the petitioner, the petitioner was compelled to file the application.

3. The opposite party while traversing the allegations stated that there was never any marriage and the case had been filed at the instance of the villagers who had combined against him.

4. The petitioner examined eight witnesses and proved the Panchayati Patra (Ext. 2). On a consideration of the evidence, the learned Magistrate found that petitioner was the wife of the opposite party and granted maintenance at the rate of Rs. 30/- per month from the date of the order. The opposite party carried a revision and the learned Sessions Judge reversed the decision of the learned Magistrate holding that the petitioner 'failed to prove that she is the legally married wife of the opposile party'.

5. Shri B. K. Biswal, appearing for the petitioner, submitted that the provisions contained in Chapter IX provide a speedy and summary remedy for providing maintenance and for' preventing vagrancy. The decision of the Criminal Court not being decisive and it being always open to the husband to institute appropriate civil proceeding for a decisive decision, the learned Sessions Judge should not have gone into the niceties of questions of law to find if there was a valid marriage. He drew my attention to authorities reference to which have been made in a latter part.

6. Mr. Murty, learned Counsel appearing for the husbanrl, submitted that the form of marriage alleged to have been gone through had no sanction in law and so, there being no marriage, the application of the petitioner was not maintainable and in that context, he referred me to the provisions contained in Section 7 of the Hindu Marriage Act which provided that 'a Hindu marriage might be solemnized in accordance with the customary rites and ceremonies of either party thereto'. He contended that the alleged marriage having not been solemnized according to the requirements of Sub-section (1) of Section 7, the petitioner could not claim to be the wife of the opposite party and the learned Sessions Judge rightly dismissed the application of the wife.

7. Against the background of the submissions made and the nature of the issues raised, it is necessary to determine the nature and scope of an enquiry Under Section 125 of Criminal P. C. Their Lordships of the Supreme Court held:-

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 moral obligations 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 destitute 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 more 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.

They further observed:.It provides a machinery for summary enforcement of the moral obligation 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 a orderly society....' (See Bhagawan Dutt's case : 1975CriLJ40 . In Sethurathinam's case (1970) 1 SC WR 589, the Supreme Court observed:-

We do not think it necessary in this case to decide the case on merits. The order passed in an application filed Under Section 488 of the Code of Criminal Procedure is a summary order which does not finally determine the rights and obligations of the parties thereto....The decision of the Criminal Court that there was a marriage between Barbara and Sethurathinam and that it was a valid marriage will not operate as decisive in any civil proceeding between the parties for determining those questions....

In K. J. B. David v. Nilamoni Devi : AIR1953Ori10 this Court opined:-.one may reasonably infer that for proof of marriage in a proceeding Under Section 488, Cr. P. C. the standard of proof need not be so high as required either in a proceeding under the Indian Divorce Act or in prosecutions Under Section 494, 495, 497 or 498 of the Indian Penal Code....

Janaki Amma, J. observed in Govindan Nadar's case 1978 Cri LJ 1213 (Ker) (para 4):-.It is now settled law that the standard of proof required for a marriage in a proceeding for maintenance under the Code of Criminal Procedure is not so high as is required in connection with proceedings under the Indian Divorce Act or in a prosecution for bigamy under the Indian Penal Code....

In Jalandar Gorakh Kirtikar v. Smt. Shobha 1973 Cri LJ 1501 (Bom) Bhole, J., took into consideration the circumstances and held that if there was no marriage, the circumstances could not exist. The learned Judge observed (para 6) :-.She was living with the parents of the petitioner. She has also two' children one of whom is 7 years old and the other is younger. She could not have had children and she could not have lived in the same chawl where the carnets of both the parties stay, with the parents of the petitioner unless she was married. Both are respectable parties. In the ordinary course therefore such things could never have happened if there was no marriage. All the circumstances, therefore, in my view clearly show that the petitioner had married the respondent. Now it may be that the evidence led by her is not as adequate as it should be for a prosecution Under Section 494, 495, 497 or 498 I.P.C. or for a proceeding under the Indian Divorce Act. In a proceeding Under Section 488, Cr. P. C. the standard of proof need not be so high as in other proceedings....

8. Mr. Murty for the husband relied on the cases of Bhaurao Shankar Lokhande v. State of Maharashtra : 1965CriLJ544 and Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh AIR 1971 SC 1153 : 1971 Cri LJ 939. In both the cases, their Lordships were, considering a case of prosecution for bigamy Under Section 494, IPC and those decisions can be distinguished.

In the words of Santosh, J., in Vena-jakshamma's case AIR 1970 Mys 305 : 1970 Cri LJ 1584 :-.Their Lordships were considering a case of prosecution for bigamy Under Section 494 IPC and in that context their Lordships held that the prosecution should prove that the marriage has been duly solemnized. It has to be remembered that proceedings Under Section 488, Criminal Procedure Code are summary in nature, meant to prevent vagrancy. The standard of proof of marriage in proceedings Under Section 488, Criminal Procedure Code need not be so high as required in prosecution for bigamy or proceedings under the Divorce Act.

Following the ratio in David v. Nilamoni : AIR1953Ori10 the learned Judge said (para 8) :-.His Lordship observed that even an 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 Section 488j Criminal Procedure Code.

Repelling the contention that the Orissa decision was no longer good law in view of Bhaurao's case 1965 (2) Cri LJ 544 (supra), the learned Judge said:.It therefore follows that the strict proof required for proving a marriage in a criminal prosecution or in proceedings under the Divorce Act. is not necessary in a summary proceeding Under Section 488, Criminal Procedure Code ....

In Baidhyanath Ghose v. Sm. Shefali Ghose 1962 (1) Cri LJ 812 (Cal), Amaresh Roy, J. observed :-

To decide as to whether a relationship of husband and wife exists for the purposes of Section 488, Cr. 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 questinr of the legality of mariage is a primary issue.

(Underlining supplied)

9. In this case, the petitioner examined herself and stated that she married the opposite party in the Gandharba form and in the presence of witnesses the marriage was solemnized and after the exchange of garlands, certain ceremonial rites were performed. Thereafter she was taken to the house of the opposite party where she lived until marital bliss was interrupted by misunderstanding and cruelty. She testified to the Panchayati and proved the Panchayati Patra (Ext. 2), signed by the petitioner and the opposite party. After the Panchayati, both the parties lived happily together for three months whereafter dissension arose followed by assault and illtreatment and she left her husband's place for good. Witnesses have lent testimony that there was a Panchayati and the petitioner lived with the opposite party; and the community accepted and treated the narties as husband and wife. Taking into consideration the evidence of the witnesses, the admission of the opposite party in Ext. 2 and the circumstances, the learned Magistrate held that the petitioner was the wife of the opposite party. The learned Sessions Judge upset the decision of the Magistrate testing the evidence analytically against the provisions contained in the Hindu Marriage Act. The learned Sessions Judge found that the evidence did not satisfy the requirements of marriage as contained in Section 7 of the Hindu Marriage Act.

In the scheme of Chapter IX of the Criminal P. C, 1973, Section 125 provides a swift and summary remedy for providing maintenance to neglected wives, parents and children by compelling the man to perform his moral' obligation. In such a summary proceeding, it is not necessary to go into intricacies of law. The facts and circumstances of this case indicate that the man and the woman lived together as husband and wife and were treated as such by the community and the man treated the woman as his wife. The Panchayati Patra is his unequivocal declaration. For the limited propose of Section 125, it may be inferred that there was marriage. I am emboldened to so hold on the authorities cited above and other authorities, e. g., 1967 Ker LT 24 (Kunhiraman Nair v. Annakutty) and 1972 Ker LR 734. In the former case, it has been held :--

Under this section it is sufficient if the wife proves that she has been treated as wife by the person from whom maintenance is claimed. It is not material how the marriage was solemnized.

In the latter case, it has been observed : -

The nature of evidence in a proceeding Under Section 488, Cr. P. C. regarding proof of marriage need not be so strong or conclusive as in the case Under Section 494 IPC....

It has also been said that in maintenance proceedings 'the Magistrate is not expected to go into complicated questions; relating to validity of the marriage. Living as husband and wife and being treated by the public as such, is quite sufficient for the award of maintenance.

10. Having regard to the standard of proof in a proceeding Under Section 125 of the Criminal P. C. and the admission of the opposite party and the fact that the petitioner and the opposite party lived together as wife and husband on two occasions, though not for lengthy spells, and the decision of the Panchayati which went to indicate the recognition accorded by the community and the conduct of the husband, I am of the opinion that the learned Sessions Judge 'should not have judged the case as if he was trying issues in a civil suit. In my opinion, the learned Sessions Judge did not keep in mind the object of the provisions and the nature of the proceeding.

11. For the reasons stated above, the judgment of the learned Sessions Judge is reversed and that of the Magistrate restored.


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