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Govindan Nadar Sreedharan Vs. Retna Bai Pushpa Bai - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1978CriLJ1213
AppellantGovindan Nadar Sreedharan
RespondentRetna Bai Pushpa Bai
Cases ReferredMohan Ram v. Shantha Kumari
Excerpt:
- .....marriage between the petitioner, a hindu and the respondent, a christian.5. it may be that the hindu marriage act, 1955 does not contemplate a marriage between a hindu male and a christian female. at the same time, the indian christian marriage act (xv of 1872) permits marriage between christians and non-christians solemnised in accordance with the provisions of that act. therefore, the fact that the petitioner and the respondent follow different religions need not necessarily mean that there could be no marriage between them and the respondent will not get the status of a wife even after undergoing the ceremony of marriage.6. in kunhiraman nair v. annakutty 1967 ker lt 24 there was a ceremony of marriage in accordance with the custom of the nair community between a nair male and a.....
Judgment:
ORDER

Kumari P. Janaki Amma, J.

1. In this petition filed under Section 482, Cri. P. C., the petitioner seeks the setting aside of the order for maintenance passed against him in M. C. 35 of 1975 of the Sub-Divisional Judicial Magistrate, Neyyattinkara which has been confirmed in revision by the First Additional Sessions Judge, Trivandrum.

2. The petitioner and the respondent belong to the Nadar community. The petitioner is a Hindu by birth while the respondent professes Christianity. The finding of the trial court is that there was a ceremony of marriage according to the custom of the community when the petitioner tied a thali round the neck of the respondent and presented a cloth to her. After the ceremony, the petitioner and the respondent went to the Sub-Registrar's office and executed Ext. P1, a marriage udampady. They lived together as husband and wife and a child was born to them. Thereafter, a rift took place. The petitioner, according to the respondent, began to ill-treat her and lived with a mistress by name Omana. The respondent left him and claimed maintenance for herself and the child. The petitioner admitted the marriage udampady and the birth of the child but denied that there was a ceremony of marriage, or a marriage in law. He contended that the respondent had only the status of a mistress and not that of a wife and as such, she was not entitled to claim maintenance. The Sub-Divisional Magistrate, Neyyattinkara followed the decisions in Kunhiraman Nair v. Annakutty 1967 Ker LT 24 and Maung Pahtan v. Ma San 40 Cri LJ 653 : AIR 1939 Rang 207 and held that the respondent is the legally wedded wife for purposes of Section 125, Cri. P. C. The Court allowed maintenance at the rate of Rs. 50/- to the respondent and Rs. 30/- to the child. The order granting maintenance to the respondent alone is challenged in these proceedings.

3. The contention put forward by the petitioner is that there could be no legal marriage between him and the respondent in view of their difference in religion. According to him, even admitting that there was a marriage ceremony preceding the execution of Ext. P1, marriage udampady, the respondent did not acquire the status of a wife and as such, she is not entitled to maintenance under Section 125, Cri. P. C.

4. The objection has no force. It is now settled law that the standard of proof required for a marriage in proceedings 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. There is no controversy between the parties regarding the customary form of marriage prevalent among the Nadar community. The finding is that ceremony of the kind has taken place between the petitioner and the respondent. The dispute is only in respect of the claim of the respondent that she is the legally wedded wife of the petitioner. The contention is that there cannot be a lawful marriage between the petitioner, a Hindu and the respondent, a Christian.

5. It may be that the Hindu Marriage Act, 1955 does not contemplate a marriage between a Hindu male and a Christian female. At the same time, the Indian Christian Marriage Act (XV of 1872) permits marriage between Christians and non-christians solemnised in accordance with the provisions of that Act. Therefore, the fact that the petitioner and the respondent follow different religions need not necessarily mean that there could be no marriage between them and the respondent will not get the status of a wife even after undergoing the ceremony of marriage.

6. In Kunhiraman Nair v. Annakutty 1967 Ker LT 24 there was a ceremony of marriage in accordance with the custom of the Nair community between a Nair male and a woman who was following Roman Catholic faith. It was held that the ceremony of marriage taken along with the fact that the parties thereto lived together and were known as husband and wife was sufficient to confer on the woman the status of wife for claiming maintenance under Section 488 Cr. P.C. 1898.

7. In Maung Pahtan v. Ma San (1939) 40 Cri LJ 653 : AIR 1939 Rang 207, a Budhist woman married to Mohammadan claimed maintenance. It was held that although the marriage was not strictly in accordance with Mohammadan law, she was entitled to relief under Section 488 Cr. P.C., 1898.

8. In Smyth v. Mrs. Hannah Smyth : AIR1951Cal293 , a Roman Catholic married a woman professing Jewish faith. It was held that the marriage was not invalid so as to render an order for maintenance passed by a Criminal Court illegal.

9. In Barbara v. Sethurathinam Pillai 1970 Cri LJ 1721 (Mad), the Madras High Court had to consider whether a Christian woman undergoing a ceremony of marriage with a Hindu male was entitled to maintenance Under Section 488, Cr. P.C. The claim was upheld, holding that there is no rule of Hindu law which forbids the subsistence of a marriage one of the parties of which is a non-Hindu. The order granting maintenance was confirmed by the Supreme Court in appeal in S. Sethurathinam Pillai v. Barbara (1970) 1 SCWR 589. The Supreme Court observed:

We do not think it necessary in this case to decide the case on the merits. The order passed in an application filed under Section 488, Cri. P. C. is a summary order which does not finally determine the rights and obligations of the parties thereto. It is an order made in a proceeding under a provision enacted with a view to provide a summary remedy for providing maintenance, and for preventing vagrancy. 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.

10. Though the above cases were under the Cri. P. C. 1898, the principles will apply with equal force in cases arising under the new Code of 1973. (See also Mohan Ram v. Shantha Kumari 1977 Cri LJ (Notes) 45 (Kant)).

11. In the instant case, the Sub-Divisional Magistrate has entered a finding based on the evidence adduced that there was a ceremony of marriage in accordance with the custom of the community. For the purpose of this case it is not necessary that the Court should consider whether the ceremony fulfilled the conditions for a marriage under the Indian Christian Marriage Act. It is the common case of the parties that a marriage udampady has been executed, that the petitioner and the respondent were living as husband and wife and that a child was born to them. It was on the basis of the above facts, which are either admitted or proved that the petitioner was directed to pay maintenance to the respondent under Section 125 Cr. P.C., 1973. The order is neither irregular nor improper as to require interference in proceedings under the inherent powers. The order will not affect the right of the petitioner, if any, to challenge the validity of the marriage in other appropriate proceedings if so advised.

The petition is dismissed.


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