JUDGMENT
Amaresh Ku. Singh, J.
1. Heard the learned Counsel for the petitioner. This petition under Section 482, Criminal Procedure Code is directed against the order dated 1st July, 1996 passed by the learned Additional Sessions Judge, Bikaner in Criminal Revision No. 19/95, Raju @ Rajkumar v. Mst. Pushpa Devi & Anr., whereby the learned Additional Sessions Judge, Bikaner dismissed the revision petition and confirmed the order dated 9th January, 1995, passed by the learned Civil Judge (Sr. Division) and Chief Judicial Magistrate, Bikaner in Criminal Misc. Case No. 88/91, Smt. Pushpa Devi v. Raju @ Rajkumar.
2. By the aforesaid order dated 4th January, 1995, the learned Chief Judicial Magistrate allowed the application filed by Smt. Pushpa under Section 125, Criminal Procedure Code for grant of maintenance to her and her minor son and awarded maintenance allowance at the rate of Rs. 200/- per month to Smt. Pushpa Devi and maintenance allowance at the rate of Rs. 150/- per month to Nathu.
3. According to the averments made in the application filed under Section 125, Criminal Procedure Code by Smt. Pushpa Devi for grant of maintenance to her as well as her minor son Nathu, her marriage took place with Raju @ Rajkumar in the year 1984 according to Hindu rites. After her marriage, she lived for about 8 years with her husband and during this period, she gave birth to Nathu. A daughter was also born to her during the aforesaid period, but she expired. It was further stated in the application that after the birth of two children, her husband started treating her with cruelty and often insulted her on account of being of the Naik caste. In short, the allegations were that Raju @ Rajkumar treated Smt. Pushpa Devi with cruelty and neglected to maintain her as well as minor son. In support of her submission that she was the legally married wife, she filed a photograph (Ex. D2).
4. In his reply, Raju @ Rajkumar, who is the petitioner in this case denied that his marriage took place with the non-petitioner Smt. Pushpa Devi. It was also denied by him that he is the father of Nathu. In short, he denied the factum of marriage as well as his relationship with the applicant Smt. Pushpa Devi and Nathu and prayed for the dismissal of the application filed under Section 125, Criminal Procedure Code.
5. Both the parties produced their evidence.
6. The learned Chief Judicial Magistrate came to the conclusion that Smt. Pushpa Devi was legally married wife of Raju @ Rajkumar and that Nathu was the son of the non-applicant Rajkumar. Other allegations regarding the cruelty and omission to maintain the cruelty were also found proved. Consequently, the learned Chief Judicial Magistrate granted maintenance allowance to Smt. Pushpa Devi @ Rs. 200/- per month and to Nathu @ Rs. 150/- per month from the date of his order.
7. The petitioner preferred a revision petition before the learned Additional Sessions Judge. The revision petition was dismissed by the learned Additional Sessions Judge.
8. Feeling aggrieved by the orders passed by the learned Chief Judicial Magistrate and the learned Additional Sessions Judge, this petition under Section 482, Criminal Procedure Code has been filed by the petitioner.
9. The learned Counsel for the petitioner has submitted that the factum of marriage has not been proved and in fact it was been admitted by Smt. Pushpa Devi in her cross-examination that the marriage was celebrated without there being any ‘Pandit’ and by mere act of garlanding her husband. The argument advanced by Mr. Moinuddin appearing for the petitioner is that the petitioner Raju @ Rajkumar is admittedly of Modi caste and among the Modis, for a valid marriage, Saptapadi is essential. It is also submitted by him that the non-petitioner No. 1 Smt. Pushpa Devi is a resident of Rajasthan and among the Naiks of Rajasthan, Saptapadi is essential for a valid marriage and both the Courts below have committed a grave error of law in holding that Saptapadi was not essential. It is also submitted by him that in view of the clear admission of Smt. Pushpa Devi that at the time of marriage, no ‘Pandit’ was present and marriage was celebrated by garlanding alone, other evidence could not be relied upon by the Courts below to hold that the marriage had been celebrated in accordance with law.
10. I have carefully gone through the evidence adduced by the parties. It is an admitted case of the non-petitioner No. 1 that the petitioner Raju @ Rajkumar belongs to Modi caste. According to Sub-section (1) of Section 7 of the Hindu Marriage Act, 1955, the Hindu Marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. In the instant case, there is no evidence at all to show that the petitioner Raju @ Rajkumar agreed to solemnize the marriage in accordance with the rites and ceremonies prevalent in the Naik community. Therefore, it will have to be inferred that if at all any marriage was intended to take place between the petitioner and the non-petitioner No. 1, the ceremonies and rites necessary for a valid marriage among tine Modis were necessary. Besides, in the absence of evidence to show that among the Naiks of Rajasthan, Saptapadi is not essential for a valid marriage, it would be presumed that Naiks being an integral part of the Hindu community do follow the normal Hindu rites and traditions, and therefore, Saptapadi is essential for a valid marriage. Thus, from either angle, it appears that Saptapadi was essential for a valid marriage between the petitioner and the non-petitioner No. 1.
11. In her cross-examination, the non-petitioner No. 1 has clearly admitted that no engagement ceremony had taken place before her marriage and at the time of solemnizing of the marriage, no ‘Pandit’ was present and the marriage was solemnized by garlanding her husband. In view of this admission of the non- petitioner No. 1, it must be inferred that at the time of alleged solemnizing of the marriage, Saptapadi did not take place and as such a valid marriage within the meaning of Section 7 did not come into existence.
12. For the reasons mentioned above, I find force in the submission made by the learned Counsel for the petitioner mat the Courts below have committed a grave error of law as well as for in coming to the conclusion that a valid marriage had taken place between the petitioner and the non-petitioner No. 1 Smt. Pushpa Devi. In view of this finding, it must be held that the non-petitioner No. 1 has not been proved to be the legally married wife of the petitioner, and therefore, she is not entitled to any maintenance allowance under Section 125, Criminal Procedure Code.
13. So far as the grant of maintenance allowance to Nathu is concerned there is sufficient material on record to show that there was an intimate relationship between the petitioner and the non-petitioner No. 1 and that the non-petitioner No. 1 lived with the petitioner for a considerable time and gave birth to two children one of whom, Nathu, is alive and the other was a daughter, who had expired. I, therefore, have no hesitation in coming to the conclusion that the finding of tine Courts below that the petitioner is the father of non-petitioner No. 2 Nathu is correct. In view of this finding, the grant of maintenance allowance to Nathu appears to be perfectly justified.
14. For the reasons mentioned above, the petition is partly allowed. The order granting maintenance allowance to the non-petitioner No. 1 Smt. Pushpa Devi is hereby quashed and set-aside. So far as the grant of maintenance allowance to non- petitioner No. 2 Nathu is concerned, this petition does not have any force. It deserves to be dismissed and is hereby dismissed.
