{"id":245292,"date":"1999-10-14T00:00:00","date_gmt":"1999-10-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dwarika-prasad-satpathy-vs-bidyut-prava-dixit-and-another-on-14-october-1999"},"modified":"2016-06-30T22:38:35","modified_gmt":"2016-06-30T17:08:35","slug":"dwarika-prasad-satpathy-vs-bidyut-prava-dixit-and-another-on-14-october-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dwarika-prasad-satpathy-vs-bidyut-prava-dixit-and-another-on-14-october-1999","title":{"rendered":"Dwarika Prasad Satpathy vs Bidyut Prava Dixit And Another on 14 October, 1999"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dwarika Prasad Satpathy vs Bidyut Prava Dixit And Another on 14 October, 1999<\/div>\n
Author: Shah<\/div>\n
Bench: M.B.Shah, K.T.Thomas<\/div>\n
           PETITIONER:\nDWARIKA PRASAD SATPATHY\n\n\tVs.\n\nRESPONDENT:\nBIDYUT PRAVA DIXIT AND ANOTHER\n\nDATE OF JUDGMENT:\t14\/10\/1999\n\nBENCH:\nM.B.Shah, K.T.Thomas\n\n\n\n\nJUDGMENT:\n<\/pre>\n
      Shah, J.\n<\/p>\n
      Leave granted.\n<\/p>\n
      Respondent  No.1\twife filed application Crl.   Misc.
\nCase  No.  26 of 1989 on 15.3.1989 under Section 125  Cr.P.C
\nbefore\t the   Judicial\t Magistrate,\tNayagarh   for\t her
\nmaintenance.   The  Judicial  Magistrate  allowed  the\tsaid
\napplication  by\t order dated 28.6.1993 and  granted  monthly
\nmaintenance  of Rs.400\/- to her and Rs.200\/- to her daughter
\nw.e.f.\t15.3.1989.  That order was challenged by the husband
\n(appellant  herein)  before  the   Sessions  Court  in\tCrl.
\nRevision  No.114\/93.  The Revision Application was heard  by
\nthe Ist Addl.  Sessions Judge, Puri, who by his judgment and
\norder\tdated\t19.4.1994  partly   allowed   the   revision
\napplication  of the appellant and set-aside the\t maintenance
\ngranted\t to  respondent No.1.  However, the  order  granting
\nmaintenance  of\t Rs.200\/- per month to the  minor  daughter,
\ntill she attains the majority subject to future enhancement,
\nwas maintained.\n<\/p>\n
      Against  that judgment and order, appellant filed Crl.
\nMisc.\tCase No.1338 of 1994 before the High Court of Orissa
\nat  Cuttack.   Respondent  no.1\t wife had also\tfiled  Crl.
\nRevision  No.389  of  1994.  The High Court heard  both\t the
\nrevision  applications\ttogether,   dismissed  the  revision
\napplication  filed by the appellant and allowed the revision
\napplication filed by respondent no.1  wife.  The High Court
\nheld  that it is not disputed that the parties are residents
\nof  village Kantilo and at the relevant time, the  appellant
\nwas  bachelor  and working as Junior Employment\t Officer  at
\nNayagarh.   It was also accepted that he was friend of elder
\nbrother of respondent no.1 and was frequently visiting their
\nhouse  in connection with a social and cultural organization
\nof  the\t village.  He fell in love with respondent no.1\t and
\ndeveloped  an intimacy with her.  It has also come on record
\nthat  the  appellant  was  proposing  a\t pre-marital  sexual
\nrelationship  with  respondent no.1, which was\tpersistently
\nrefused by her.\t Thereafter, the appellant took a vow in the
\nname  of  Lord Nilamadhab Bije to marry her and thereby\t won
\nthe  faith  of respondent no.1.\t Thereafter, because of\t the
\nco-   habitation  respondent  no.1   conceived\t and   hence
\nrespondent  no.1 insisted for arranging the marriage,  which
\nthe  appellant\trefused\t on  one   pretext  or\tthe   other.
\nRespondent  no.1  took\tvarious actions of  writing  to\t the
\nvarious\t authorities  including\t the Chief Minister  of\t the
\nState and ultimately, she launched hunger strike in front of
\nthe   office   of  the\t appellant.   Thereafter,   on\t the
\nintervention  of  the  Sub   Divisional\t Officer  and  other
\npersons,  marriage  was\t arranged  in  the  temple  of\tLord
\nJagannath  at  Nayagarh,  in presence of  witnesses.   After
\nmarriage  respondent  no.1 was being taken to the  house  of
\nappellant.   On\t the way, she was persuaded to stay  at\t the
\npaternal  house on the ground that his father may not accept
\nher as a bride.\t At that stage, she was in advanced stage of
\npregnancy.   She stayed at her parental house and within 3-4
\ndays she gave birth to a female child, respondent no.2.\t The
\nparties continued to live separately as before.\n<\/p>\n
      In  the  proceedings  under Section  125\tof  Criminal
\nProcedure  Code,  the  appellant denied\t pre-marital  sexual
\nrelations  with\t respondent no.1.  He asserted that  he\t was
\nforced to undergo some sort of marriage with respondent no.1
\nat the point of knife;\tthat he had not given consent to the
\nmarriage  and  that he was forced to exchange garlands\twith
\nrespondent  no.1.  The learned Magistrate believed the\tcase
\nof  respondent\tno.1 in toto and arrived at  the  conclusion
\nthat  there  had been a marriage between the  appellant\t and
\nrespondent no.1 in the temple of Lord Jagannath and the said
\nmarriage  was valid and legal one.  It was further held that
\nchild  was  born out of this wedlock.  In the revision,\t the
\nAddl.\tSessions Judge did not accept the factum of marriage
\nbetween the parties by holding that the appellant was forced
\nto  exchange garlands at the point of knife and,  therefore,
\nthere  was  no valid marriage in the eyes of law.   So,\t the
\nclaim of respondent no.1 for maintenance was negatived.\t He,
\nhowever, accepted the plea of respondent no.1 that child was
\nborn  because  of  pre-marital relations and  confirmed\t the
\norder  granting\t maintenance to the child.  The\t High  Court
\nobserved  that considering standard of proof in a proceeding
\nunder Section 125 Cr.P.C.  it cannot be held that respondent
\nno.1  had not succeeded in establishing marriage.  The court
\nrelied\tupon the evidence led by respondent no.1 for holding
\nthat in fact a marriage was solemnized in the temple of Lord
\nJagannath  and she was corroborated by the photographer\t who
\nwas  present  at the time of marriage.\tThe evidence of\t the
\nbrother of respondent no.1 was also referred to for arriving
\nat  the\t said  conclusion.   The High  Court  negatived\t the
\ncontention  of\tthe  appellant that the\t said  ceremony\t was
\nforcibly held at the point of knife and also held that there
\nwas  no\t reason\t for disbelieving respondent no.1  that\t the
\nappellant and respondent no.1 were having pre-marital sexual
\nrelations   and\t that  the  child   was\t born  out  of\tthis
\nrelationship.\tThat  order  is challenged by  filing  these
\nappeals by special leave.\n<\/p>\n
      Before  issuing  notice,\tthis Court  by\torder  dated
\n12.10.1998  directed  the appellant to deposit rest  of\t the
\ntotal  arrears\tof  maintenance payable to  respondent\tno.1
\nwithin\t six  weeks.   Thereafter,   notice  was  issued  to
\nrespondent  no.1 and subsequently the matter was directed to
\nbe listed for final disposal.  On 16.7.1999, when the matter
\ncame  up for hearing, the appellant contended that he is not
\nthe  father of the child.  On behalf of respondent no.1,  it
\nwas  pointed out that respondent no.1 was prepared to have a
\nDNA  test for finding out fatherhood of the child.  At\tthat
\nstage,\tthe learned counsel for the appellant sought time of
\nfour   weeks  to  get\tinstructions  from  the\t  appellant.
\nThereafter,  when  the\tmatter\twas placed  for\t hearing  on
\n20.8.1999, the learned counsel for the appellant stated that
\nhe  was not willing to undergo DNA test and, therefore, this
\nCourt  ordered that this means appellant is disentitled\t to
\ndispute\t the paternity of the child.  This is recorded.. On
\nthe  next  date of hearing, learned counsel for the  parties
\nwere  heard  at length and it was contended by\tthe  learned
\ncounsel\t for the appellant that there was no valid  marriage
\nbetween\t the  appellant and respondent no.1 and,  therefore,
\nthe  order passed by the High Court awarding maintenance  to
\nrespondent no.1 is illegal and requires to be set-aside.\n<\/p>\n
      Learned  counsel\tfor  the appellant at  the  time  of
\nhearing had not disputed the paternity of the child.  Hence,
\nthe  question is whether the marriage between the  appellant
\nand  respondent\t no.1  was valid or invalid?  In  our  view,
\nvalidity  of  the  marriage  for   the\tpurpose\t of  summary
\nproceeding under Section 125 Cr.P.C.  is to be determined on
\nthe  basis of the evidence brought on record by the parties.
\nThe  standard of proof of marriage in such proceeding is not
\nas strict as is required in a trial of offence under section
\n494  of\t the  I.P.C.  If the claimant in  proceedings  under
\nSection 125 of the Code succeeds in showing that she and the
\nrespondent  have  lived\t together as husband and  wife,\t the
\nCourt  can presume that they are legally wedded spouses, and
\nin such a situation, the party who denies the marital status
\ncan rebut the presumption.  Undisputedly, marriage procedure
\nwas  followed  in the temple, that too, in the\tpresence  of
\nidol  of  Lord\tJagannath, which is worshipped by  both\t the
\nparties.   Appellant contended before the learned Magistrate
\nthat the said marriage was performed under duress and at the
\npoint  of knife, he was required to exchange garlands.\tThat
\ncontention  is\tnot  proved by leading\tnecessary  evidence.
\nOnce it is admitted that the marriage procedure was followed
\nthen  it is not necessary to further probe into whether\t the
\nsaid  procedure\t was complete as per the Hindu rites in\t the
\nproceedings under Section 125 Cr.P.C.\n<\/p>\n
      Learned  counsel\tfor  the appellant relied  upon\t the
\ndecision  of this Court in Smt.\t Yamunabai Anantrao Adhav v.
\nAnantrao  Shivram Adhav and<\/a> another, {(1988) 2 S.C.R.\t809}
\nand  submitted\tthat  even  in a  summary  proceeding  under
\nSection\t 125  Cr.P.C.,\tthe Court is required  to  find\t out
\nwhether applicant wife was lawfully wedded wife or not.\t In
\nthe  said  case,  the Court considered the point  whether  a
\nHindu  Woman who has married after coming into force of\t the
\nHindu  Marriage\t Act,  1955, with a man\t having\t a  lawfully
\nwedded\twife,  can maintain an application  for\t maintenance
\nunder Section 125 Cr.P.C.  In that case, the Court confirmed
\nthe judgment of the High Court and arrived at the conclusion
\nthat  the  Legislature\tdecided\t to bestow  the\t benefit  of
\nSection\t 125  Cr.P.C.\teven  on an  illegitimate  child  by
\nexpressed  words  but none are found to apply to a de  facto
\nwife where the marriage is void ab initio.  The marriage was
\nnull  and void because Section 5 inter alia provides that  a
\nmarriage  may  be solemnised between any two Hindus  if\t the
\nconditions  mentioned  therein\tare fulfilled.\tOne  of\t the
\nconditions  is\t– neither party has a spouse living  at\t the
\ntime  of marriage.  Under Section 11, such marriage is\tnull
\nand  void.   The  Court\t held that marriage of\ta  woman  in
\naccordance  with  Hindu rites with the man having  a  living
\nspouse\tis complete nullity in the eye of law and she is not
\nentitled  to the benefit of Section 125 of the Code.  In our
\nview  the  said judgment has no bearing on the facts of\t the
\npresent\t case  as it is not a case of de facto marriage\t nor
\ncan  it be held that the marriage between the appellant\t and
\nrespondent  no.1 was void ab initio.  It is a case where  it
\nis  contended  that  at\t the   time  of\t marriage  essential
\nceremonies  were not performed.\t Hence in the present  case,
\nwe  are\t not  required\tto discuss  the\t issue\tthat  unless
\ndeclaratory  decree of nullity of marriage on the ground  of
\ncontravention  of  any\tone of the conditions  specified  in
\nclauses\t (i),  (iv)  and (v) of Section 5  is  obtained,  it
\ncannot\tbe held in collateral proceedings that marriage\t was
\nnull  and  void.   Nor it is required to be  discussed\tthat
\nLegislature   has  not\tprovided   that\t if,  some  marriage
\nceremonies  are not performed, marriage is a nullity under
\nSection\t 11  or is voidable under Section 12 of the  Hindu
\nMarriage Act.\n<\/p>\n
      The learned counsel for the appellant next relied upon
\nthe  case  of  B.S.   Lokhande\t&  another  Vs.\t  State\t  of
\nMaharashtra  & another, {(1965) 2 S.C.R.  837} and contended
\nthat two ceremonies are essential to the validity of a Hindu
\nmarriage,  i.e.\t  invocation  before  the  sacred  fire\t and
\nsapatapadi and are required to be established before holding
\nthat the marriage performed in the temple was valid one.  In
\nthat  case,  the  Court arrived at the conclusion  that\t the
\nprosecution  for  the  alleged\toffence\t under\tSection\t 494
\nI.P.C.,\t had  failed  to  establish that  the  marriage\t was
\nperformed in accordance with the customary rites as required
\nunder Section 7 of the Hindu Marriage Act;  it was certainly
\nnot  performed in accordance with the essential requirements
\nfor a valid marriage under Hindu law and, therefore, accused
\ncannot be convicted under Section 494, IPC.  In our view, in
\nthe  said case the Court was considering the evidence  which
\nwas  led before the trial court in a criminal trial for\t the
\noffence\t punishable under Section 494 IPC.  In a prosecution
\nfor  bigamy, the second marriage has to be proved as a fact.
\nThe  said  decision would have no bearing in the  proceeding
\nunder Section 125 Cr.P.C., which is of summary nature.\n<\/p>\n
      It  is  to be remembered that the order passed  in  an
\napplication  under  Section  125 Cr.P.C.  does\tnot  finally
\ndetermine  the rights and obligations of the parties and the
\nsaid  section  is  enacted with a view\tto  provide  summary
\nremedy\tfor  providing maintenance to a wife,  children\t and
\nparents.   For the purpose of getting his rights determined,
\nthe  appellant has also filed a Civil Suit, which is pending
\nbefore\tthe trial court.  In such a situation, this Court in
\nS.    Sethurathinam   Pillai  v.     Barbara   alias   Dolly
\nSethurthinam,  {1971 (3) SCC 923} observed that\t maintenance
\nunder  Section\t488  Cr.P.C., 1898 (Similar to\tSection\t 125
\nCr.P.C.)  cannot be denied where there was some evidence  on
\nwhich  conclusion for grant of maintenance could be reached.
\nIt was held that order passed under Section 488 is a summary
\norder  which  does  not\t finally determine  the\t rights\t and
\nobligations  of\t the parties;  the decision of the  criminal
\ncourt  that  there was a valid marriage between the  parties
\nwill not operate as decisive in any civil proceeding between
\nthe parties.\n<\/p>\n
      After  not  disputing the paternity of the  child\t and
\nafter\taccepting  the\tfact   that  marriage  ceremony\t was
\nperformed, though not legally perfect as contended, it would
\nhardly\tlie  in\t the mouth of the appellant  to\t contend  in
\nproceeding  under  Section  125 Cr.P.C.\t that there  was  no
\nvalid  marriage as essential rites were not performed at the
\ntime  of said marriage.\t The provision under Section 125  is
\nnot to be utilized for defeating the rights conferred by the
\nLegislature  to the destitute women, children or parents who
\nare  victims  of  social  environment.\t In  Ramesh  Chander
\nKaushal\t v.   Mrs.  Veena Kaushal and others<\/a>, (AIR  1978  SC
\n1807) Krishna Iyer, J dealing with interpretation of Section
\n125 Cr.P.C.  observed (at Para 9) thus:-\n<\/p>\n
      This  provision  is a measure of social  justice\tand
\nspecially  enacted  to protect women and children and  falls
\nwithin the constitutional sweep of Article 15 (3) reinforced
\nby  Article 39.\t We have no doubt that sections of  statutes
\ncalling\t for construction by courts are not petrified  print
\nbut  vibrant  words  with social functions to  fulfil.\t The
\nbrooding  presence  of\tthe constitutional empathy  for\t the
\nweaker\t sections  like\t women\t and  children\tmust  inform
\ninterpretation\tif  it\thas to have  social  relevance.\t  So
\nviewed,\t it is possible to be selective in picking out\tthat
\ninterpretation\tout  of two alternatives which advances\t the
\ncausethe cause of the derelicts.\n<\/p>\n
      In Vimala (K.) Vs.  Veeraswamy (K.), (1991) 2 SCC 375,
\ndealing\t with  the  contention of husband  that\t the  second
\nmarriage  with\tthe applicant  wife was void on the  ground
\nthat her first marriage was subsisting, this Court held that
\nSection\t 125  Cr.P.C.  is meant to achieve a social  purpose
\nand,  therefore,  the law which disentitles the second\twife
\nfrom  receiving\t maintenance from her husband for  the\tsole
\nreason\tthat  the marriage ceremony though performed in\t the
\ncustomary form lacks legal sanctity can be applied only when
\nthe husband satisfactorily proves the subsistence of a legal
\nand  valid  marriage particularly when the provision in\t the
\nCode  is  a  measure of social justice intended\t to  protect
\nwomen  and  children;\tthe object to prevent  vagrancy\t and
\ndestitution;   it provides a speedy remedy for the supply of
\nfood, clothing and shelter to the deserted wife and observed
\nthus:-\n<\/p>\n
      When  an\tattempt is made by the husband to  negative
\nthe  claim  of\tthe  neglected\t wife  depicting  her  as  a
\nkept-mistress  on  the\tspecious plea that  he\twas  already
\nmarried,  the  court  would insist on strict  proof  of\t the
\nearlier marriage.\n<\/p>\n
      Similarly,  in Santosh (Smt.) v.\tNaresh Pal<\/a> [(1998) 8
\nSCC  447]  dealing  with the contention that  wife  had\t not
\nproved\tthat she was legally married wife because her  first
\nhusband\t was  living  and there was no\tdissolution  of\t her
\nmarriage, this Court held thus:\t –\n<\/p>\n
      In  a  proceeding for maintenance under  Section\t125
\nCr.P.C.\t  the  learned\tMagistrate   was  expected  to\tpass
\nappropriate  orders after being prima facie satisfied  about
\nthe  marital status of parties.\t It is obvious that the said
\ndecision  will be tentative decision subject to final  order
\nin  any civil proceedings, if the parties are so advised  to
\nadopt.\n<\/p>\n
      Hence,  in our view from the evidence which is led  if
\nthe  Magistrate is prima facie satisfied with regard to\t the
\nperformance  of\t marriage in proceedings under\tSection\t 125
\nCr.P.C.\t  which\t are  of  summary nature,  strict  proof  of
\nperformance  of essential rites is not required.  Either  of
\nthe  parties  aggrieved\t by the order of  maintenance  under
\nSection\t 125,  Cr.P.C.\t can approach the  civil  court\t for
\ndeclaration  of status as the order passed under Section 125
\ndoes not finally determine the rights and obligations of the
\nparties.\n<\/p>\n
      In  the  result, the appeals are dismissed with  costs
\nquantified at Rs.5,000\/-.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Dwarika Prasad Satpathy vs Bidyut Prava Dixit And Another on 14 October, 1999 Author: Shah Bench: M.B.Shah, K.T.Thomas 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-245292","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDwarika Prasad Satpathy vs Bidyut Prava Dixit And Another on 14 October, 1999 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dwarika-prasad-satpathy-vs-bidyut-prava-dixit-and-another-on-14-october-1999\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dwarika Prasad Satpathy vs Bidyut Prava Dixit And Another on 14 October, 1999 - 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