JUDGMENT
S.C. Mohapatra, J.
1. Unsuccessful plaintiff is the appellant. Her suit is for maintenance both arrear, pendente lite and future and for return of the ornaments and dowry which has been dismissed.
Short case of the plaintiff is that she and defendant are Christians and they were married in the year 1974. As she protested against the illicit relationship of the defendant with another lady, defendant assaulted her and drove her away from his house. He has taken away the ornaments belonging to the plaintiff.
2. Case of the defendant is that there is no marriage as alleged and the allegation that he drove her away is not correct. Taking of dowry or taking away the ornaments is also denied. Defendant asserted that plaintiff was a coolie under him. She is Hindu. She, however, remained with defendant for a long time before going away from his house. Suit is challenged to be not maintainable in view of an order under Section 125, Cr.P.C. in favour of plaintiff and in view of the fact that conditions of permanent alimony under Indian Divorce Act are not satisfied.
3. Trial Court settled five issues. Plaintiff examined six witnesses and exhibited documents which were marked as Exts. 1 to 12 series. Defendant examined two witnesses and has proved 1.2 documents marked as Exts. A to L. Trial Court answered the issue relating to the relationship in favour of the plaintiff, but answered the issue relating maintainability of the suit in favour of the defendant. Other issues were not answered and the suit was dismissed. Hence this appeal.
4. Plaintiff’s suit is a composite one for maintenance as well as for return of ornaments and dowry. Trial Court could not have dismissed the suit for return of ornaments and dowry. It ought to have answered the issue on the basis of evidence adduced. Accordingly, the judgment of the trial Court is vulnerable. However, evidence having been recorded, I considered all issues on merits.
5. There is no dispute that defendant is a Christian and plaintiff as a Hindu girl had continuous cohabitation with defendant residing in his house for a long period. Plaintiff’s case is that during such continuance of relationship, she adopted Christianity and thereafter parties were married. Defendant has challenged both the facts. In case conversion to Christianity is disbelieved, marriage as Christian would also be found against the plaintiff and his case of marriage when fails, she will be a concubine. A discarded concubine has no civil right to be maintained by her paramour. Accordingly, suit to that extent must fail. Therefore, the first question to be considered is whether plaintiff converted and adopted Christianity ? PW 2 is the Pastor of the Church who converted and accepted her as Christian. Although some principles to be followed for conversion were cited, no material has been brought to record to prove that non-compliance of some such principles would vitiate the conversion. Accordingly, in the facts of this case, I have no hesitation to find that before the alleged marriage, plaintiff adopted Christianity.
6. Next important question is whether parties were married. Besides, plaintiff as PW 1 and her father as PW 5, a cousin of defendant as PW 6 speak about the marriage. Pastor of the Church (PW 2) who conducted the marriage has also asserted on oath that parties were married on 1-1-1974. PW 2 has been licensed under Section 9 of the Indian Christian Marriage Act, 1872 to grant certificates of marriage between Indian Christians. He has issued the marriage certificate making entries in the marriage register maintained under the Act. Marriage Register is a statutory document. Certificate is also a statutory document. Requirements of such entry and the certificate have been proved by PW 2. Accordingly, marriage is to be presumed to have been performed. It is a rebuttable presumption. However, effect of disbelieving being non-acceptance of relationship, Court would require strict proof from the person who rebuts the entry in the Register and Certificate of marriage. In the present case when admittedly, both parties were residing as husband and wife in defendant’s house for a long time and were accepted as such by family members, the same is a corroborative fact for the subsequent marriage in accordance with law to give it a legal sanctity to create rights and obligations. Defendant has not been able to disprove the same. Accordingly, I am inclined to agree with the trial Court that the parties were husband and wife being married under the Indian Christian Marriage Act.
7. Trial Court held that alimony is a statutory right under the Indian Divorce Act and maintenance is not a civil right enforceable in a Civil Court independent of the provisions of the Indian Divorce Act. This is assailed by the appellant. Mr. Rath, learned counsel for the defendant-respondent on the other hand submitted that in absence of custom of maintenance of a Christian wife not having been pleaded and proved, trial Court is correct in its finding. This requires careful consideration.
8. It is the public policy in this Republic to give protection to women who are treated to be a class of sufferers. While considering rights and liabilities, this is to be kept in mind by Courts. Section 125, Cr.P.C. has created a forum where all wives are given maintenance on proving circumstances. However, the same is not conclusive in view of the nature of enquiry conducted by it. Relationship can be proved in a Civil Court contrary to the finding of the Criminal Court. Finding of a Criminal Court would not be res judicata in respect of relationship between the parties. Since Criminal Court gives temporary relief, the maximum amount of maintenance it can grant is limited. When there is a divorce proceeding, Court competent to grant divorce is vested with powers to grant alimony. Both Criminal Court and the matrimonial court can grant alimony or maintenance as an interim protection. This clearly leads to the conclusion that a Christian wife has right to be maintained by her Christian husband which is a part of the right and obligation of marriage. No custom is required to be pleaded or proved in support of the same. This is a need of the society without which a good society shall perish. Accordingly, a person who contests the right of the Christian wife is to prove that there is either a statutory or customary prohibition for a Christian wife to get maintenance from a Christian husband. There is no such evidence. In view of the aforesaid discussion, a Christian wife has a right to get maintenance from her Christian husband where he is responsible for a situation under which the wife is compelled to leave the roof of her husband. Right of such wife for maintenance has also been accepted by the Madras High Court in the decision reported in AIR 1966 Mad. 225 (Mrs. Stella Pakkiam and Ors. v. K.P.P. Rajiah Ratnam).
9. Plaintiff asserted that defendant had extramarital relationship with another lady which was protested to by her. This was the cause for defendant to illtreat and beat her. Plaintiff was also driven away from his house in or about the middle of May, 1976. Defendant denied the same and his case is that plaintiff deserted him. One Manoranjan Samal is enemically deposed towards defendant. His relationship with plaintiff is opposed to all accepted cannons of morality and law. He utilised plaintiff for his own purposes.
10. Defendant has not been able to prove his case by cogent evidence. Plaintiff has proved that defendant had illicit relationship with another woman. After plaintiff left defendant’s house, that lady filed a criminal case against plaintiff in which defendant was a witness for that lady against the plaintiff. Defendant has attributed relationship of plaintiff with another man which by itself is cruelty. These are all circumstances to lead to the conclusion that defendant was responsible to create situation for the plaintiff to leave his house. Accordingly, she is entitled to maintenance from the defendant.
11. Plaintiff has claimed Rs. 200/- for maintenance and Rs. 25/- for residence. No cogent evidence has been led with regard to the actual requirement. However, it is reasonable to accept that any lady would require, annually at least Rs. 1,200/- for food, clothing, residence and other bare necessities. Accordingly, on a reasonable guess work I am inclined to hold that plaintiff is entitled to Rs. 100/- per month. In the proceeding under Section 125, Cr.P.C. plaintiff was directed to be paid Rs. 50/- per month. Such sum is grossly inadequate. Defendant has house, shop and works contract business. Rs. 100/- per month can be paid by him to the plaintiff.
12. Mr. Rath submitted that in the proceeding under Section 125, Cr.P.C., plaintiff could have applied for enhancement and suit was filed maliciously. There is no prohibition that a person who has received compensation under Section 125, Cr.P.C. cannot file a suit. In Criminal Court, process of recovery of maintenance is not the same as in execution of a decree. Accordingly, contention of Mr. Rath has no force.
13. Plaintiff has not been able to prove that gold ornament was taken away by the defendant from her. She has not also been able to prove that her father gave any dowry to defendant. Accordingly, suit to that extent has no merit.
14. Question for consideration is whether plaintiff is entitled to arrear and pendente lite maintenance. Since she has obtained an order from Criminal Court, I am not inclined to grant arrear maintenance. She will be entitled to pendente lite and future maintenance from the date of filing of the suit.
15. In the result, First Appeal is allowed in part with costs.