JUDGMENT
M.L. Singhal, J.
1. This is a criminal revision filed by Smt. Vinod Kumari under Section 401, Criminal Procedure Code against Surinder Singh whereby she has prayed that the order granting maintenance to her by the Judicial Magistrate, 1st Class, Zira at the rate of Rs. 300/- per mensem vide order dated 13.10.1992 be restored and the order dated 13.10.1993 of the Additional Sessions Judge, Ferozepur setting aside that order and dismissing her claim to maintenance under Section 125, Criminal Procedure Code be set aside.
2. Smt. Vinod Kumari instituted an application under Section 125, Criminal Procedure Code in the Court of Judicial Magistrate, 1st Class, Zira against Surinder Singh, son of Nachhatar Singh claiming maintenance at the rate of Rs. 500/- per mensem on the allegations that she was married to him on 18.4.1986 according to Anand Karaj ceremony at Zira. He began ill-treating her a few days after their marriage saying that the dowry brought by her was Inadequate. She appraised her father that she was being ill-treated by her husband saying that the dowry brought by her was inadequate. Her father thereupon met her husband at Faridkot, which is a place he hails from and requested him that he was poor, unable to give fridge and scooter in dowry. He requested him not to ill-treat her. Her husband’s behaviour towards her remained all right for some time. Thereafter he started imputing various allegations against her namely that she was in ill health and there was stone in her abdomen which was an obstruction in her conceiving. He turned her out of the matrimonial home in October, 1988 and refused to keep her in the matrimonial home. She came to her father as driven out by her husband. Her father joined Balbir Singh with him. She, her father and Balbir Singh contacted the respondent at Faridkot. 24.10.1988 was fixed as the date for assemblage of the people. Assemblage of the people took place on 24.10.1988 at the shop of her father-in-law at Faridkot. That assemblage consisted of some people of Faridkot, her father and said Balbir Singh. It was decided in that assemblage that she would be taken by her father to Zira and got treated and after she got treated, she would be sent to the matrimonial home. Her father got her treated at Zira from a number of doctors and they diagnosed that she was not suffering from any disease but she was under stress. She stayed with her father for 3/4 months. During that period her husband never came to her to take her to the matrimonial home nor posted any letter to her. In March, 1989 her father took her to Faridkot with a view to leave her in the matrimonial home. Her husband, however, sent her back with her father on the pretext that he would be coming to Zira after some time to take her to the matrimonial home. He, however, did not turn up to take her to the matrimonial home. In June, 1990 her father took Panchayat which consisted of Anoop Singh Chakkiwala, Darshan Singh Sodhi, Balwinder Singh and Balbir Singh to her husband and Panchayat made entreaties to her husband that he should allow her induction in the matrimonial home. There was clear neglect of the wife by her husband and refusal to maintain her. She is illiterate, unable to maintain herself. Her husband on the other hand is running a hotel earning Rs. 2,000/- per mensem. He is liable to maintain her. She claimed maintenance to the tune of Rs. 500/- per mensem.
3. Surinder Singh contested those applications, urging that Smt. Vinod Kumari is not his wife. He never married her. In fact she is the wife of one Shingara Singh, son of Puran Singh of Village Santuwala, Tehsil Zira. When she was not his wife there could be no question of his keeping her in the matrimonial home.
4. Judicial Magistrate, 1st Class, Zira vide order dated 13.10.1992 allowed her Rs. 300/- per mensem as maintenance with effect from the date of order, in view of his finding, that Smt. Vinod Kumari was the legally wedded wife of Surinder Singh and that he had neglected her and refused to maintain her, despite his being a man possessed of means sufficient enough to maintain him and her.
5. Aggrieved from this order of Judicial Magistrate, 1st Class, Zira dated 13.10.1992, Surinder Singh went in revision to the Court of Sessions.
6. Additional Sessions Judge, Ferozepur accepted his revision, set aside the order passed by the Magistrate and dismissed the application.
7. Not satisfied with the order of Additional Sessions Judge, Ferozepur, Smt. Vinod Kumari has knocked the door of this Court through this criminal revision under Section 401, Criminal Procedure Code. In this revision the sole question that falls for consideration is : “Whether Smt. Vinod Kumari was the legally wedded wife of Surinder Singh ?”
8. At the trial Smt. Vinod Kumari, AW 1 stated that she was married to Surinder Singh on 18.4.1986 according to Anand Karaj ceremony. After marriage, they went to Mata Chintpurni for paying obeisance. She and her husband Surinder Singh got themselves photographed. Mark A is the photograph. She stated that she was never married earlier to anyone. It was her first marriage with Surinder Singh. She denied the suggestion that she was married to Shingara Singh, son of Puran Singh of Village Santuwala. Shingara Singh filed petition under Section 9 of the Hindu Marriage Act against her at Ferozepur in which she appeared. Amrit Lal, AW 2 who is resident of Faridkot stated that Smt. Vinod Kumari is the wife of Surinder Singh. Assemblage of the people took place at the shop of Surinder Singh’s father at Faridkot for Vinod Kumari’s induction to the matrimonial home. In that assemblage, Surinder Singh refused to allow the induction of Vinod Kumari in the matrimonial home on that pretext that there has a stone in her abdomen. A writing took place in the assemblage which is Ex. AW 2/A. That writing was described by one Balbir Singh. In the wake of that writing she was taken to Zira by her father with a view to get her treated for stone in the abdomen. In his cross-examination Amrit Lal, AW 2 stated that as a neighbour of Surinder Singh he had known about the marriage of Vinod Kumari with Surinder Singh. Sukh Ram, AW 3 is the father of Vinod Kumari. He stated that Vinod Kumari was married to Surinder Singh in the year 1986 according to Anand Karaj ceremony. She cohabited with Surinder Singh for about two years after marriage. She did not bear any child as the respondent alleged that there was a stone in her abdomen. He alongwith Balbir Singh went to Faridkot. At Faridkot, assemblage took place which consisted of Amrit Lal. Nachhatar Singh, Surinder Singh and 2/3 others of Faridkot. It was resolved that Surinder Singh would contract another marriage. He brought her with him to Zira. Writing Ex. AW 2/A took place at Faridkot which was signed among others by Nachhatar Singh and Surinder Singh. In the wake of that writing he took her to Zira for treatment. He got her medically checked. No stone was found in her abdomen during medical checkup. Panchayat was again taken to Faridkot. Surinder Singh and his father were told that there was no stone in her abdomen. Surinder Singh refused to keep her in the matrimonial home without any reason. Sukh Ram stated that his daughter was not married to anybody else prior to her marriage with Surinder Singh. It was her first marriage with Surinder Singh. He categorically denied his daughter’s marriage with Shingara Singh. Surinder Singh, RW 1 on the other hand stated that he was never married to Vinod Kumari. There was only a talk regarding his marriage with Vinod Kumari but that talk did not materialise. Amrit Lal was mediator. He became annoyed when the negotiations for marriage between him and Vinod Kumari fell through. Vinod Kumari was married to Shingara Singh. Ganda Singh, RW 3 stated that he mediated the marriage of Vinod Kumari with Shingara Singh. Vinod Kumari was married to Shingara Singh about 8 years ago according to Hindu rites. Pandit Satpal performed the marriage ceremony between them. He attended this marriage. Fauza Singh, PW 4 stated that on 31.3.1985 a writing Ex. R2 took place between Vinod Kumari and Shingara Singh. Writing Ex. R2 was signed by Vinod Kumari, Shingara Singh and Sukh Ram and others. Nachhatar Singh, RW 5 who is Surinder Singh’s father stated that Surinder Singh was never married to Vinod Kumari. Only negotiations for marriage took place through the mediation of Amrit Lal which fell through because Vinod Kumari was already married to Shingara Singh.
9. In this case thus it emerges that Vinod Kumari was married to Shingara Singh on 30.8.1984 to 31.7.1985. Their marriage was put to an end by them by their mutual consent before the ‘Kashyap bradari’. It marriage of Vinod Kumari with Shingara Singh was put an end to on 31.7.1985, she was free to re-marry thereafter.
10. Faced with this position learned Counsel for Surinder Singh submitted that Smt. Vinod Kumari had to prove strictly that she was married to Surinder Singh and this was the marriage ceremony which they went through to unite themselves into wedlock. In his case Vinod Kumari has stated only this much that Anand Karaj ceremony was gone through. She has not stated the name of Pathi who performed the marriage ceremony. She has not stated that they were professing Sikh faith or either of them was professing Sikh faith. If they both were Hindus, there could be no valid marriage between them through Anand Karaj ceremony. Marriage between them through Anand Karaj ceremony would have been void. It was submitted that Vinod Kumari should have proved her marriage with Surinder Singh quite strictly particularly when her marriage with him was denied by him in reply to the application. In proceedings under Section 125, Criminal Procedure Code strict proof of marriage is not required. In these proceedings it is not required that wife should prove the particular ceremony which was gone through by them to unite themselves into wedlock. Wife has simply to prove that she was not a concubine but was a wife. In this case the wife has proved that she was married to Surinder Singh on 18.4.1986 and he cohabited with her for quite some time. Her husband became indifferent to her when he found that she was not capable of conceiving because of suspected stone in her abdomen. Assemblage took place at Faridkot. At that assemblage writing Ex. AW 2/A took place on 24.10.1988. In the wake of that writing her father took her to Zira for treatment on the request of Surinder Singh. Writing Ex. RW 2/A was signed among others by Surinder Singh, his father Nachhatar Singh, Vinod Kumari’s father Sukh Ram Singh and others. In writing Ex. AW 2/A there is admission by Surinder Singh that Vinod Kumari was his wife. No effort was made by Surinder Singh to say that writing Ex. AW 2/A did not bear his signatures. It became still more necessary for Surinder Singh to prove that writing Ex. AW 2/A is forged when it was suggested to Amrit Lal, AW 2 that writing Ex AW 2/A was forged. Nachhatar Singh, RW 4 who is Surinder Singh’s father admitted his signatures on writing Ex. AW 2/A. No effort was made by him to negative the effect of the writing Ex. AW 2/A.
11. In application under Section 125, Criminal Procedure Code strict proof of marriage is not required. All that is required to show that there has been marriage. Inference of marriage may be drawn from cohabitation as husband and wife.
12. In Mahendra Varman v. Ramani and Anr., 1993 (3) RCR 1, a Division Bench of Madras High Court held that strict proof of marriage may not be taken strictly as sine qua non for considering the relief claimed under Section 125 of the Code of Criminal Procedure.
13. Learned Counsel for respondent-Surinder Singh submitted that where marriage was not solemnized under any recognised customary rites, no maintenance allowance can be claimed under Section 125 of the Code of Criminal Procedure by the woman who states that she was the wife. In support of this submission, he drew my attention to Punnakkal Sreedharan v. Vellali Padmani and Ors., 1993 (1) RCR 131, where it was held that to constitute a traditional marriage invoking the fire and performing saptapadi around the sacred fire were considered by the Supreme Court as the basic requirement but there can be marriage without observing the above two rites if the customs prevailing among the community do not insist upon them.
14. In Punnakkal Sreedharan’s case (supra) woman had stated that she was in love with the man. She became pregnant and thereafter Ex. P1 was executed, in which it was mentioned that they were in love with each other and they were living as husband and wife and that it became necessary to execute the said document. It was mentioned that the man had agreed to accept her as his wife and both of them agreed to live as husband and wife from the date of document i.e. 3.10.1987. On these facts, it was held that there was no marriage between the two and, therefore, woman was not entitled to maintenance. In the case referred to above there was no pleading in the petition that she was married in accordance with the customary rites prevailing in the community of either party.
15. In Bibbe v. Ram Kali, AIR 1982 Allahabad 248, cited by learned Counsel for the respondent there was a civil suit filed by plaintiff No. 1 who claimed to be the widow of one Ram Sarup and plaintiff No. 2 who claimed to be daughter of Ram Swarup claiming 2/3rd share in the house belonging to Ram Swarup for themselves. Defendant No. 1 was also said to be the daughter of Ram Swarup. Suit was resisted by defendant No. 2 on the ground inter alia that plaintiff No. 1 was not the legally wedded wife of Ram Swarup and that the plaintiff No. 2 and the defendant No. 1 also did not have any share in the said house. The contention of plaintiff No. 1 that she was married to Ram Swarup in the year 1958 was denied. It was held that where factum of marriage is disputed essential ceremonies constituting the marriage must have been pleaded and proved. Person alleging marriage must plead and prove that marriage had been solemnized in accordance with the customs and usage applicable to either of them. Where a widow examined certain persons to show that some ceremony had been performed but there was no evidence to the effect that such ceremony of alleged marriage was in accordance with usage or custom applicable to her community, it could not be said that the factum of marriage was duly proved.
16. In my opinion, this principle is not applicable to proceedings under Section 125 of the Code of Criminal Procedure. Proceedings under Section 125 of the Code of Criminal Procedure are summary proceedings intended to provide ‘succour’ to the neglected wife speedily so that there was no vagrancy on her part.
17. In Phankari and Ors. v. The State, AIR 1965 Jammu and Kashmir 105, it was held that word “marries” appearing in Section 494, Indian Penal Code undoubtedly denotes that the accused must have undergone some form of marriage but the form of marriage which this section contemplates is a form which is recognised by law, otherwise there would be hardly any difference between concubine and a lawful marriage. The Legislature has not made any provision for punishing a person who keeps merely a concubine even when his first spouse is still living.
18. In my opinion, principles applicable to proceedings under Section 494, Indian Penal Code cannot be applied here as in Section 494, Indian Penal Code the words used are, “whoever, having a husband or wife living, “marries” in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Whereas the words used in Section 125 of the Code of Criminal Procedure are, “If any person having sufficient means neglects or refuses to maintain-
(a) his "wife", unable to maintain herself or (b) xxx xxx xxx (c) xxx xxx xxx (d) xxx xxx xxx"
19. In proceedings under Section 125 of the Code of Criminal Procedure in my opinion only this much is to be proved that there had been marriage between the two and not that the woman had been putting up with the man as his mere “Mistress”. It appears to me that in proceedings under Section 125 of the Code of Criminal Procedure strict proof of marriage is not required. Strict proof of marriage is required if there be a suit for declaration by the plaintiff that the defendant is not his wife and that she should not claim herself to be his wife or if there be proceedings under the. Hindu Marriage Act between them.
20. So this revision succeeds and is accepted and the order passed by the Additional Sessions Judge is set aside and the order passed by the Magistrate is restored.