PETITIONER: DWARIKA PRASAD SATPATHY Vs. RESPONDENT: BIDYUT PRAVA DIXIT AND ANOTHER DATE OF JUDGMENT: 14/10/1999 BENCH: M.B.Shah, K.T.Thomas JUDGMENT:
Shah, J.
Leave granted.
Respondent No.1 wife filed application Crl. Misc.
Case No. 26 of 1989 on 15.3.1989 under Section 125 Cr.P.C
before the Judicial Magistrate, Nayagarh for her
maintenance. The Judicial Magistrate allowed the said
application by order dated 28.6.1993 and granted monthly
maintenance of Rs.400/- to her and Rs.200/- to her daughter
w.e.f. 15.3.1989. That order was challenged by the husband
(appellant herein) before the Sessions Court in Crl.
Revision No.114/93. The Revision Application was heard by
the Ist Addl. Sessions Judge, Puri, who by his judgment and
order dated 19.4.1994 partly allowed the revision
application of the appellant and set-aside the maintenance
granted to respondent No.1. However, the order granting
maintenance of Rs.200/- per month to the minor daughter,
till she attains the majority subject to future enhancement,
was maintained.
Against that judgment and order, appellant filed Crl.
Misc. Case No.1338 of 1994 before the High Court of Orissa
at Cuttack. Respondent no.1 wife had also filed Crl.
Revision No.389 of 1994. The High Court heard both the
revision applications together, dismissed the revision
application filed by the appellant and allowed the revision
application filed by respondent no.1 wife. The High Court
held that it is not disputed that the parties are residents
of village Kantilo and at the relevant time, the appellant
was bachelor and working as Junior Employment Officer at
Nayagarh. It was also accepted that he was friend of elder
brother of respondent no.1 and was frequently visiting their
house in connection with a social and cultural organization
of the village. He fell in love with respondent no.1 and
developed an intimacy with her. It has also come on record
that the appellant was proposing a pre-marital sexual
relationship with respondent no.1, which was persistently
refused by her. Thereafter, the appellant took a vow in the
name of Lord Nilamadhab Bije to marry her and thereby won
the faith of respondent no.1. Thereafter, because of the
co- habitation respondent no.1 conceived and hence
respondent no.1 insisted for arranging the marriage, which
the appellant refused on one pretext or the other.
Respondent no.1 took various actions of writing to the
various authorities including the Chief Minister of the
State and ultimately, she launched hunger strike in front of
the office of the appellant. Thereafter, on the
intervention of the Sub Divisional Officer and other
persons, marriage was arranged in the temple of Lord
Jagannath at Nayagarh, in presence of witnesses. After
marriage respondent no.1 was being taken to the house of
appellant. On the way, she was persuaded to stay at the
paternal house on the ground that his father may not accept
her as a bride. At that stage, she was in advanced stage of
pregnancy. She stayed at her parental house and within 3-4
days she gave birth to a female child, respondent no.2. The
parties continued to live separately as before.
In the proceedings under Section 125 of Criminal
Procedure Code, the appellant denied pre-marital sexual
relations with respondent no.1. He asserted that he was
forced to undergo some sort of marriage with respondent no.1
at the point of knife; that he had not given consent to the
marriage and that he was forced to exchange garlands with
respondent no.1. The learned Magistrate believed the case
of respondent no.1 in toto and arrived at the conclusion
that there had been a marriage between the appellant and
respondent no.1 in the temple of Lord Jagannath and the said
marriage was valid and legal one. It was further held that
child was born out of this wedlock. In the revision, the
Addl. Sessions Judge did not accept the factum of marriage
between the parties by holding that the appellant was forced
to exchange garlands at the point of knife and, therefore,
there was no valid marriage in the eyes of law. So, the
claim of respondent no.1 for maintenance was negatived. He,
however, accepted the plea of respondent no.1 that child was
born because of pre-marital relations and confirmed the
order granting maintenance to the child. The High Court
observed that considering standard of proof in a proceeding
under Section 125 Cr.P.C. it cannot be held that respondent
no.1 had not succeeded in establishing marriage. The court
relied upon the evidence led by respondent no.1 for holding
that in fact a marriage was solemnized in the temple of Lord
Jagannath and she was corroborated by the photographer who
was present at the time of marriage. The evidence of the
brother of respondent no.1 was also referred to for arriving
at the said conclusion. The High Court negatived the
contention of the appellant that the said ceremony was
forcibly held at the point of knife and also held that there
was no reason for disbelieving respondent no.1 that the
appellant and respondent no.1 were having pre-marital sexual
relations and that the child was born out of this
relationship. That order is challenged by filing these
appeals by special leave.
Before issuing notice, this Court by order dated
12.10.1998 directed the appellant to deposit rest of the
total arrears of maintenance payable to respondent no.1
within six weeks. Thereafter, notice was issued to
respondent no.1 and subsequently the matter was directed to
be listed for final disposal. On 16.7.1999, when the matter
came up for hearing, the appellant contended that he is not
the father of the child. On behalf of respondent no.1, it
was pointed out that respondent no.1 was prepared to have a
DNA test for finding out fatherhood of the child. At that
stage, the learned counsel for the appellant sought time of
four weeks to get instructions from the appellant.
Thereafter, when the matter was placed for hearing on
20.8.1999, the learned counsel for the appellant stated that
he was not willing to undergo DNA test and, therefore, this
Court ordered that this means appellant is disentitled to
dispute the paternity of the child. This is recorded.. On
the next date of hearing, learned counsel for the parties
were heard at length and it was contended by the learned
counsel for the appellant that there was no valid marriage
between the appellant and respondent no.1 and, therefore,
the order passed by the High Court awarding maintenance to
respondent no.1 is illegal and requires to be set-aside.
Learned counsel for the appellant at the time of
hearing had not disputed the paternity of the child. Hence,
the question is whether the marriage between the appellant
and respondent no.1 was valid or invalid? In our view,
validity of the marriage for the purpose of summary
proceeding under Section 125 Cr.P.C. is to be determined on
the basis of the evidence brought on record by the parties.
The standard of proof of marriage in such proceeding is not
as strict as is required in a trial of offence under section
494 of the I.P.C. If the claimant in proceedings under
Section 125 of the Code succeeds in showing that she and the
respondent have lived together as husband and wife, the
Court can presume that they are legally wedded spouses, and
in such a situation, the party who denies the marital status
can rebut the presumption. Undisputedly, marriage procedure
was followed in the temple, that too, in the presence of
idol of Lord Jagannath, which is worshipped by both the
parties. Appellant contended before the learned Magistrate
that the said marriage was performed under duress and at the
point of knife, he was required to exchange garlands. That
contention is not proved by leading necessary evidence.
Once it is admitted that the marriage procedure was followed
then it is not necessary to further probe into whether the
said procedure was complete as per the Hindu rites in the
proceedings under Section 125 Cr.P.C.
Learned counsel for the appellant relied upon the
decision of this Court in Smt. Yamunabai Anantrao Adhav v.
Anantrao Shivram Adhav and another, {(1988) 2 S.C.R. 809}
and submitted that even in a summary proceeding under
Section 125 Cr.P.C., the Court is required to find out
whether applicant wife was lawfully wedded wife or not. In
the said case, the Court considered the point whether a
Hindu Woman who has married after coming into force of the
Hindu Marriage Act, 1955, with a man having a lawfully
wedded wife, can maintain an application for maintenance
under Section 125 Cr.P.C. In that case, the Court confirmed
the judgment of the High Court and arrived at the conclusion
that the Legislature decided to bestow the benefit of
Section 125 Cr.P.C. even on an illegitimate child by
expressed words but none are found to apply to a de facto
wife where the marriage is void ab initio. The marriage was
null and void because Section 5 inter alia provides that a
marriage may be solemnised between any two Hindus if the
conditions mentioned therein are fulfilled. One of the
conditions is – neither party has a spouse living at the
time of marriage. Under Section 11, such marriage is null
and void. The Court held that marriage of a woman in
accordance with Hindu rites with the man having a living
spouse is complete nullity in the eye of law and she is not
entitled to the benefit of Section 125 of the Code. In our
view the said judgment has no bearing on the facts of the
present case as it is not a case of de facto marriage nor
can it be held that the marriage between the appellant and
respondent no.1 was void ab initio. It is a case where it
is contended that at the time of marriage essential
ceremonies were not performed. Hence in the present case,
we are not required to discuss the issue that unless
declaratory decree of nullity of marriage on the ground of
contravention of any one of the conditions specified in
clauses (i), (iv) and (v) of Section 5 is obtained, it
cannot be held in collateral proceedings that marriage was
null and void. Nor it is required to be discussed that
Legislature has not provided that if, some marriage
ceremonies are not performed, marriage is a nullity under
Section 11 or is voidable under Section 12 of the Hindu
Marriage Act.
The learned counsel for the appellant next relied upon
the case of B.S. Lokhande & another Vs. State of
Maharashtra & another, {(1965) 2 S.C.R. 837} and contended
that two ceremonies are essential to the validity of a Hindu
marriage, i.e. invocation before the sacred fire and
sapatapadi and are required to be established before holding
that the marriage performed in the temple was valid one. In
that case, the Court arrived at the conclusion that the
prosecution for the alleged offence under Section 494
I.P.C., had failed to establish that the marriage was
performed in accordance with the customary rites as required
under Section 7 of the Hindu Marriage Act; it was certainly
not performed in accordance with the essential requirements
for a valid marriage under Hindu law and, therefore, accused
cannot be convicted under Section 494, IPC. In our view, in
the said case the Court was considering the evidence which
was led before the trial court in a criminal trial for the
offence punishable under Section 494 IPC. In a prosecution
for bigamy, the second marriage has to be proved as a fact.
The said decision would have no bearing in the proceeding
under Section 125 Cr.P.C., which is of summary nature.
It is to be remembered that the order passed in an
application under Section 125 Cr.P.C. does not finally
determine the rights and obligations of the parties and the
said section is enacted with a view to provide summary
remedy for providing maintenance to a wife, children and
parents. For the purpose of getting his rights determined,
the appellant has also filed a Civil Suit, which is pending
before the trial court. In such a situation, this Court in
S. Sethurathinam Pillai v. Barbara alias Dolly
Sethurthinam, {1971 (3) SCC 923} observed that maintenance
under Section 488 Cr.P.C., 1898 (Similar to Section 125
Cr.P.C.) cannot be denied where there was some evidence on
which conclusion for grant of maintenance could be reached.
It was held that order passed under Section 488 is a summary
order which does not finally determine the rights and
obligations of the parties; the decision of the criminal
court that there was a valid marriage between the parties
will not operate as decisive in any civil proceeding between
the parties.
After not disputing the paternity of the child and
after accepting the fact that marriage ceremony was
performed, though not legally perfect as contended, it would
hardly lie in the mouth of the appellant to contend in
proceeding under Section 125 Cr.P.C. that there was no
valid marriage as essential rites were not performed at the
time of said marriage. The provision under Section 125 is
not to be utilized for defeating the rights conferred by the
Legislature to the destitute women, children or parents who
are victims of social environment. In Ramesh Chander
Kaushal v. Mrs. Veena Kaushal and others, (AIR 1978 SC
1807) Krishna Iyer, J dealing with interpretation of Section
125 Cr.P.C. observed (at Para 9) thus:-
This provision is a measure of social justice and
specially enacted to protect women and children and falls
within the constitutional sweep of Article 15 (3) reinforced
by Article 39. We have no doubt that sections of statutes
calling for construction by courts are not petrified print
but vibrant words with social functions to fulfil. The
brooding presence of the constitutional empathy for the
weaker sections like women and children must inform
interpretation if it has to have social relevance. So
viewed, it is possible to be selective in picking out that
interpretation out of two alternatives which advances the
causethe cause of the derelicts.
In Vimala (K.) Vs. Veeraswamy (K.), (1991) 2 SCC 375,
dealing with the contention of husband that the second
marriage with the applicant wife was void on the ground
that her first marriage was subsisting, this Court held that
Section 125 Cr.P.C. is meant to achieve a social purpose
and, therefore, the law which disentitles the second wife
from receiving maintenance from her husband for the sole
reason that the marriage ceremony though performed in the
customary form lacks legal sanctity can be applied only when
the husband satisfactorily proves the subsistence of a legal
and valid marriage particularly when the provision in the
Code is a measure of social justice intended to protect
women and children; the object to prevent vagrancy and
destitution; it provides a speedy remedy for the supply of
food, clothing and shelter to the deserted wife and observed
thus:-
When an attempt is made by the husband to negative
the claim of the neglected wife depicting her as a
kept-mistress on the specious plea that he was already
married, the court would insist on strict proof of the
earlier marriage.
Similarly, in Santosh (Smt.) v. Naresh Pal [(1998) 8
SCC 447] dealing with the contention that wife had not
proved that she was legally married wife because her first
husband was living and there was no dissolution of her
marriage, this Court held thus: –
In a proceeding for maintenance under Section 125
Cr.P.C. the learned Magistrate was expected to pass
appropriate orders after being prima facie satisfied about
the marital status of parties. It is obvious that the said
decision will be tentative decision subject to final order
in any civil proceedings, if the parties are so advised to
adopt.
Hence, in our view from the evidence which is led if
the Magistrate is prima facie satisfied with regard to the
performance of marriage in proceedings under Section 125
Cr.P.C. which are of summary nature, strict proof of
performance of essential rites is not required. Either of
the parties aggrieved by the order of maintenance under
Section 125, Cr.P.C. can approach the civil court for
declaration of status as the order passed under Section 125
does not finally determine the rights and obligations of the
parties.
In the result, the appeals are dismissed with costs
quantified at Rs.5,000/-.