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No Marriage No Maintenance

Kolkata High Court

Decided On Feb-20-1997
Case Number Criminal Revision No. 1029 of 1991
Judge D.P. Sircar-I, J.
Reported in II(1997)DMC214

Chandra Mohan Majhi


Smt. Kaushalya Majhi on 20 February, 1997

Equivalent citations: II (1997) DMC 214

Bench: D Sircar-I
JUDGMENT D.P. Sircar-I, J.

1. In this criminal revisional application under Section 401 and Section 482 of the Criminal Procedure Code the order dated 27.2.1991 passed by the learned S.D.J.M., Purulia in Misc. Case No. 81 of 89 of his Court has been challenged.

2. The present opposite party Kaushalya Majhi filed a petition before the learned S.D.J.M., Purulia against the petitioner in this revisional application Chandra Mohan Majhi @ Hembram under Section 125, Cr. P.C., alleging that Chandra Mohan married heron the 8th paisakh, 1394 B.S. corresponding to 22nd April, 1987, according to Hindu religious rites but subsequently resorted to torture upon her, assaulting her severely and driving her out of his house. Kaushalya prayed for maintenance from Chandra Mohan claiming that Chandra Mohan had sufficient income from cultivation as well as from business in vegetable.

3. Chandra Mohan challenged the petition denying flatly that there was any marriage at all between Kaushalya and himself and that he had any responsibility to maintain her. He also maintained that he had been brought up by his maternal uncle and had no income of his own.

4. The learned S.D.J.M. considered the evidence adduced before him, allowed the petition under Section 125, Cr. P.C. and directed the present petitioner Chandra Mohan to pay maintenance at the rate of Rs. 400.00 per month to Kaushalya and also to pay cost of Rs. 100.00 to her for this revisional application. The aggrieved 2nd party, Chandra Mohan filed his revisional application challenging that order of the learned S.D.J.M., Purulia. In the face of the stout denial by the 2nd party that there was no marriage at all, the learned S.D.J.M. held that Kaushalya, the 1st party, was entitled to get maintenance, as neglected legally married wife of the second party, rejecting the contention of the second party that the case of the 1st party was altogether false and that there was no marriage at all. The learned S.D.J.M. observed that in a petition under Section 125, Cr. P.C. marriage was not required to be proved beyond all reasonable doubt and if a valid marriage on preponderance of probability was proved, the Court should not go into the intricate question of law to find if there was a valid marriage. He again held on the other hand that, to claim maintenance under Section 125, Cr. P.C. the petitioner-wife was to prove that she was a legally wedded wife of the opposite party but the standard of proof was not required to be so high as was required in a case under Sections 494/495/497/498, I.P.C. He also held that strict proof of ceremony of marriage was not necessary.

5. I am afraid that the learned S.D.J.M. over-simplified his responsibility and missed the correct legal stand point. It is true, in a case under Section 125, Cr. P.C. dispute about the marriage need not be so meticulously proved as in a dispute about marriage thrashed in a Civil Court or in the criminal proceeding under Sections 494/495/496/497, I.P.C. But that does not mean that the Court must accept too much credulously and naively whatever the 1st party asserts about her marriage. The Section 125, Cr.P.C, no doubt, provides a swift and cheap remedy against any person who despite means neglects or refuses to maintain his wife etc. and the primary object of this section is to prevent starvation and vagrancy and is a distinct and quite independent of the right which such wife etc. may or may not have under the personal law. But the term “wife” as used in this provision of law undoubtedly means only, legally wedded wife. Consequently, the 1 st party claiming to be wife of the 2nd party must prove that there was a lawfully recognized marriage. Standard of proof need not be so high as under the Divorce Act or under relevant provisions of I.P.C. to warrant a conviction; but the petitioner undoubtedly has to prove with sufficient materials that there was a marriage between the 1st party and the 2nd party as recognized by rites, custom prevalent among their society or secular legal provisions. A petition for maintenance cannot be just lightly allowed and in a slip-slod manner, without sufficient proof of solemnization of a marriage. In case of incident of long past sufficient evidence about living of the 1st party in the house and keeping of the 2nd party since long, recognition of the parties as spouses and of the children born out of such long standing living together which, may, by preponderance of probability, lead the Court to accept the plea that there was a lawful marriage. But under no circumstances, the 1st party just by claiming marriage can be absolved of the responsibility to prove the fact of marriage satisfactorily and sufficiently by reasonable standard of proof acceptable to a man of ordinary prudence. Without sufficient materials to establish the fact, the 2nd party cannot be saddled with the responsibility of marriage and of maintaining the 1st party. Consequently, we must hold that the 1st party claiming maintenance from the 2nd party had her responsibility to prove that there was a marriage as per religious rites and custom or secular legal provisions with the 2nd party and that she was the legally wedded wife of the 2nd party. The learned S.D.J.M.’s observation that “in a petition under Section 125, Cr. P.C. marriage is not required to be proved beyond all reasonable doubts” is, therefore, not justified and is likely to be over-ruled. That order has been challenged by this petitioner is this revisional application.

6. The learned Advocate for the petitioner argues before this Court that the claim of the 1st party-opposite party for maintenance is altogether false and must be dismissed as, (i) there was no marriage at all between the parties; (ii) at the time of the alleged marriage the present petitioner (2nd party in the petition under Section 125, Cr. P.C.) was a minor; (iii) the parties in this case belonged to Santhal community, and, as such, members of a Scheduled Tribe and marriage according to Hindu rites if any, was void; (iv) even if the Hindu Marriage Act is assumed to be applicable, the age of the petitioner-2nd party being below 21 years on the date, under Section 5(iii) of the Hindu Marriage Act the marriage was illegal.

7. The learned Advocate for the petitioner argues that the parties, belonging to the Santhal community, had their own custom of marriage, which, undisputedly, not being followed, there was no marriage at all. He argues further that the 1st party opposite-party failed to adduce sufficient evidence about procedure and custom resorted to in the marriage. As such the finding of the learned Magistrate that there was a legally recognised wedding was quite unjustified, illegal, erroneous and must be set aside. He argues that the petitioner- 2nd party is a bachelor even now. He further argues that the petitioner-2nd party has no sufficient means and for that the order of the learned S.D.J.M. about maintenance was not justified. On the contrary, the 1st party-opposite party being an able-bodied woman is quite capable of earning and maintaining herself.

8. The learned Advocate for the opposite party argues that the petitioner did not comply with the order of this Court dated 12.6.1991 and as such made himself liable for punishment for such violation of the order. He further argues that the party admits that although they are members of a Scheduled Tribe, they are governed by Hindu Law and the rituals and customs prevalent among the Hindus. Further in a case under Section 125, Cr. P.C. marriage need not be proved, and, further, there was no denial of marriage.

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9. The arguments of the learned Advocate for the opposite party that there was no denial of marriage is altogether baseless. The 2nd party-petitioner stoutly challenged the first party’s claim of marriage in unequivocal terms and asserted that there was no marriage at all. The argument of the learned Advocate for the opposite party that, in a petition under Section 125, Cr. P.C. the petitioner need not prove the fact of marriage satisfactorily is also incorrect, as may be found from the interpretation of law as discussed above. Only by pleading that there was marriage, the petitioner cannot get maintenance from the 2nd party. She must prove by sufficient and believable evidence that there was a legally valid marriage, recognised by law, the custom, or, the course of event prevailing since. long. Without proving by reasonable standard, acceptable to a man of ordinary prudence, that she is the legally wedded wife of the 2nd party, the 1st party is not entitled to get the maintenance. Therefore, we shall have now to examine whether the 1st party-opposite party has been able to prove by sufficient evidence that she is the legally married wife of the petitioner-2nd party.

10. The 1st party comes with the case that she was married by the 2nd party on 8th Baisakh, 1394 B.S. corresponding to 22nd April, 1987, according to Hindu religious rites and customs viz Saptapadi, Sindurdan, Homa etc. She does not have any case that the marriage was solemnized according to any procedure special to the members of the Scheduled Tribe which the parties undoubtedly belong to. If such a plea is proved to be true the 1st party must establish by reliable evidence that the family adopted the Hindu system of the so-called upper caste Hindus of Aryan origin by custom. The learned Advocate for the present petitioner-2nd party cites the provision of Section 2, Sub-section (2) of Hindu Marriage Act which provides that the Act is not applicable to the member of any Scheduled Tribe unless the Central Government by notification otherwise directs. The 1st party-opposite party claiming that the marriage was solemnized according to Hindu Law did not produce any such notification and hence the Court has no reasonable ground to hold that the parties are governed by Hindu Marriage Act. The 1st party, therefore, fails to prove that any provision of Hindu Marriage Act is applicable to any of the families of these parties in particular or to the Tribe in general. Consequently marriage, if any of these parties solemnized according to the provisions of Hindu Marriage Act was a nullity. And there is no case of marriage of these parties following the custom prevalent among their own community.

11. I am afraid, the situation would not much improve for the 1st party- opposite party, had she been able to produce any such notification. Even if we assume for arguments’ sake that by any such notification, not produced in Court, the parties belonging to Santhal community (about which there is no dispute) they or either of them came under the spell of Hindu Marriage Act, the 1st party had to establish by reliable evidence the actual customary rites and ceremonies of the Hindu system which the parties or either of the families resorted to in course of long standing practice. Marriage, according to Hindu Law, may be either by the ceremonies prevalent in the society in question, as provided in Sections 5, 6 and 7, or, by registration as provided in Section 8. Undisputedly there was no marriage between the parties by registration. Marriage, if any, was, therefore, solemnized by customary rites and ceremonies. We must examine the evidence to ascertain whether the claim of sacramental marriage has been established by the 1st party by reliable evidence.

12. Hindu society from historical and sociological point of view is a multi- facet society of oceanic vastness, comprising hydra-headed streams of customary rites, ceremonies and sacraments, more oftener than not mutually exclusive of one another, and foreign to one another. It comprises within its fold the rainbow, as it were, of innumerable distinct customs and ceremonies based on innumerable streams of culture and social practices, each peculiar to the society ranging from the crystallised polished Aryan custom, down to occult, prehistoric and rustic one running through the veins of the society from time immemorial, constituting a broad spectrum society, that is called the Hindu society. Marriage solemnized following any of such thousands of custom recognized in any such clan, tribe, group or race absolutely peculiar to it is nevertheless a Hindu customary marriage. A marriage solmnized pursuing any of such customs prevalent among and peculiar to the Santhals or even any particular clan or group of it, is equally a Hindu marriage as solemnized following the system prevalent among the Brahmins and other upper class Hindus of Aryan origin as formulated by the Smritikars through ages. Hindu Marriage Act lays down the law in vogue at present about such marriage and as I have stated earlier, while Section 8 provides for marriage by registration, Sections 5, 6 and 7 lay down the provisions for ceremonial marriage irrespective of the ceremonies honoured by Brahmins or Santhals. Section 5 provides the conditions for solemnization of such marriage violation of any of which renders the marriage as null and void. There must be no incapacity of the parties violating the conditions laid down in Section 5 of Hindu Marriage Act. In this case the 2nd party-petitioner claims that at the time of the alleged marriage he was a minor and adduced some evidence to support that conditions. Under Section 5(iii) of Hindu Marriage Act, in case the Act is applicable to these parties, marriage is invalid unless the groom has attained the age of twenty-one years. Keeping aside that question of age at present and to consider under that perspective whether the marriage if at all held, offended Section 5(iii) of the Act, we shall proceed to ascertain at present if any fact of marriage between the parties as pleaded by the 1st party-opposite party had at all been established keeping also in view that the parties undoubtedly belonged to a Scheduled Tribe, known as the Santhal. But a “Hindu marriage” as it understood in Hindu Marriage Act does not refer to Hinduism as a religion but relates to all persons who are Hindus in the wide connotation of the expression. Then again, the term “Hindu” is not restricted to any ethnological group of human beings or any race. It includes in its fold all these human beings in India who, not converted to any other religion, follow the long standing religious and social rites and customs since the dawn of human society, since the hoary pre-historic past or amended by growing up of new social outlook and turn of history and the word “solemnization” as understood in the Act means, to celebrate the marriage with proper ceremonies and customs recognised and practised in the society since long and in due form. Section 7 rules that a Hindu marriage that is, one made under the present Act must after commencement of the Act be solemnized in accordance with the customary rites and ceremonies at least of either of the parties to the marriage. In the society where such rites and ceremonies prevalent among the parties include “Saptapadi” that ceremony must be observed to make the rituals complete after the seventh step taken. Therefore, the law recognized in Hindu Society does not make “Saptapadi” an indispensable custom in every incident of marriage. What is required is substantial compliance with only those rites and ceremonies, performance of which is, by the customary law of either party, peculiar to it and deemed as absolutely necessary, and, non-performance of which rites and ceremonies of prime necessity would be regarded as failure to solemnize the marriage and no valid Hindu marriage can result. This is because a marriage, not duly solemnized by performance of the essential ceremonies prevalent in the society which the parties or either of them, belong to, is no marriage at all. One particular custom observed in one group or clan is very often not recognized by the other and is often incompatible with the custom followed by any other group of dan or tribe.

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13. This leads us essentially to the question as to what is meant by “custom” in such customary celebration. Section 3(a) of the Hindu Marriage Act lays down that the expression “custom” signifies any rule which having been continuously uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family : Provided that the rule is certain and not unreasonable or oppose to public policy : and also provided that, in case of a rule applicable only to a family it has not been discontinued by the family. The custom followed in such cases must be, therefore, ancient, certain and reasonable. All that is necessary to prove is that the custom has been acted upon in practice for a long period of time and with such invariability and continuity as to show that it has by common consent been admitted to be the established governing rule in any local area, tribe, community, group or family.

14. As has been laid down in the ruling , the term “Hindu” is not an anthropological one but is used in a theological sense as is distinguished from national or racial sense. No ceremony of purification is a pre- requisite of Hinduisation. The question has to be decided by coming to the conclusion as to how far the parties have either become Hindus out and out’ or “sufficiently Hinduised’. In case it is established that the parties of non-Hindu origin have been Hinduised that they have adopted the Hindu ceremonies, primafacie they should be taken to be governed by the Hindu Law. Undoubtedly, the Santhal community which the parties belong to is a community of non-Aryans and non-Hindu origin and recognised as the Scheduled Tribe. I state all these as above only for observation that Santhals have their own custom for solemnization of the marriage, prevalent in their aboriginal society since long before, independent and distinct from Aryan ceremonies, and unless it is established by cogent evidence that they adopted the custom of the Aryan Hindus the same cannot be applicable to them. As 1 stated above the Hindus do not have any uniform custom, and, even in case of upper class Hindus the ceremonies like “Saptapadi” are observed only when the same are recognised by the custom of the particular community and the local area etc. and has no universal binding on every Hindu.

15. It essentially leads us to the question that, although the pre-Aryan Tribe, the Santhals, may be recognised as Hindus either ‘out and out’ or ‘sufficiently Hinduised’, they, having their own aboriginal custom retained, what were the customs of marriage in vogue in that community of either of the families, and, what customs, if at all, were resorted to in this marriage in that community or either of the families in that community. The 1st party-opposite party claims that the marriage was solemnized according to Hindu rites. It has to be established by reliable evidence by or on behalf of her the custom in vogue in their community, and, whether they adopted by custom the ceremonies like “Saptapadi”, “Homa” etc., prevalent among some Hindus of Aryan origin. As I stated above custom for such ceremonies can neither be followed nor formulated by anyone single or few stray incidents, Custom for solemnizing marriage in normal course must be one continuously and uniformly observed for a long time obtaining thereby the force of law in a particular community, group or family of the parties or either of them and all of the same are recognised as custom of marriage according to Hindu Law.

16. Four witnesses were examined by and on bahalf of the 1st Party-O.P. They were the 1st party herself, her father (P.W.2), maternal uncle (P.W.3) and paternal uncle (P.W.4). All the P.Ws. examined in this case were, therefore, very closely related by blood relations and in a case like this must be highly interested. The 1st party failed to examine any non-relative disinterested and independent witness, as for example, any presbyterian of the society, or any person who attended the alleged marriage as invitce and all those who took part in the festival and adibasi dance at the time of marriage. The P.W.I the 1st party herself claimed that the marriage was solemnized according to Hindu rites and that all the essential ceremonies of Hindu marriage like “Saptapadi”, “Sindurdan”, “Homa” etc. were strictly observed and that after the marriage she resided in the house of the second party as the legally married wife. In her cross-examination the P.W.I deposed that they belonged to Santhal community. But she also deposed that:

“Our marriage takes place as custom, prevailing in our community”. She further deposed that “I cannot say any details of “Ashirbad”, “Saptapadi” and “Home”. I cannot say whether the ceremonies as stated above come within the purview of Santhai religion.”

17. The P.W.I further said that she could not say whether the O.P. that is the second party passed his childhood days in his maternal uncle’s house. In the last part of her deposition she further said that:

“I cannot say what ceremonies a re required to be performed as per Hindu religious rites at the time of marriage.”

It fantastically leads us to suspect that her whole case of marriage is stupendous falsehood.

18. The deposition of the P.W.I – 1st paty is, therefore, quite confusing and we have reason to believe that she was tutored to claim that the custom prevalent among the Hindus of Aryan origin were followed in her marriage and parrot-like she quoted such ceremonies about which she did not have any clear idea at all. It was claimed that all these were ceremonies performed to solemnize her own marriage but, strangely, she had no idea about ceremonies of Hindus of Aryan origin. In her cross-examination she conceded that marriage in their community took place as per custom prevailing in their community. This was a clear contradiction to her own case. Nothing was adduced in evidence to show that the Santhal community, at least in their area, or, their own family, ever resorted at any time before to practise the Aryan customs like “Saptapadi”, “Sindurdan”, “Homa” etc. That the 1st party had no clear idea about the ceremonies revealed the fact that she was tutored to claim solemnization of marriage according to Hindu rites, practised in group or clan of Aryan origin, but no evidence was ever adduced that their community or family ever before resorted to that practice or that any such practice was part of the custom prevalent among the Santhal community. The deposition of the P.W. 1, therefore, made the whole case of marriage very much doubtful. The P.W. 2 was the father of the P.W.1 the 1st party and he also deposed that all the essential ceremonies of the Hindu marriage like “Ashirbad”, “Saptapadi”, “Homa” etc. are strictly observed. Stoutly he claimed that Santhals also were Hindus, but, in cross-examination he gave out that:

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“I do not know whether service of priests is not to be requisitioned in the marriage of Santhals”. He of course gave in when in cross- examination he admitted that “I do not know details of ceremony of Hindu marriage”. On the face of claim of marriage having been challenged stoutly by the 2nd party the father of the so-called bride deposed that:

“I cannot say names of the persons who were present” there. In his cross- examination he further deposed that “Gorachand visited my house after settling his son’s marriage with my daughter but I did not visit his house, it is the duty of the son’s father to visit daughter’s father with a proposal of son’s marriage and the said custom is prevalent in our Santhal community. We belong to Santhal community”. It is evident from the deposition of the father of the 1st party bride that they did not accept the rites and ceremonies of the Vedic Hindus and, therefore, the claim of resorting to the Vedic ceremonies like “Saptapadi”, “Sindurdan”, “Homa” . etc. which are not prevalent even among some upper-class Hindu society, appears to be a falsehood. The next witness P.W.3 was the maternal uncle of the 1st party. In his cross-examination it was divulged that he did not visit the alleged matrimonial home of the 1st party at any time and could not be present even at the time of the marriage. He just deposed that the family of Biswanath, father of the 1st party, followed the religious rites of the Hindus. But the ceremonies and custom followed by the Santhals by tradition with all its peculiarity are also Hindu rites prevalent among their society. Hence, from his deposition we cannot be sure whether the Vedic ceremonies as claimed were actually resorted to, or, such story was invented for giving decent show to the story of marriage. The P.W. 4 paternal uncle of the 1st party claimed that the marriage was solemnized according to Hindu religious rites.

19. These were all the evidences adduced on behalf of the 1st party. As I stated earlier no disinterested knowledgeable persons, that is, none who was not the close relative of the 1st party, was examined in this case. It appears that only those who were very closely related with the 1st party supported her cause. Evidently they were highly interested. There is no explanation as to why the disinterested villagers who attended the alleged marriage ceremonies, feast and dances etc. were not examined to prove the marriage if it was held at all. If it is assumed that the family of the 1st party turned over to the Vedic system of rituals and ceremonies, there must have been a priest and barber to solemnize the marriage. No such person has been examined. If there was any marriage at all, one or the other villager, not related with the petitioner by blood, would surely come forward to support the cause. We would surely get sufficient evidence to show that in the marriages held previous to this one in the family of the 1st party the Vedic ceremonies were observed. Failure on the part of the petitioner to adduce evidence to that effect demolishes the whole case of marriage of the 1st party with the 2nd party. Undisputedly no marriage was held as per aboriginal custom.

20. On the other hand, the 2nd party adduced evidence by examining disinterested knowledgeable persons who thwart the story of marriage satisfactorily, vouchsafing facts leading reasonably to the conclusion that there was no marriage at all. The O.P.W.l Sagar Majhi was a man of 33 years and a school teacher. The 1st party did not have any suggestion to that effect that he was related with the 2nd party or interested in any way. As a school teacher belonging to the Santhal community it was quite expected that he was well-versed with the custom followed in the Santhal community. While the 1st party failed to show by cogent evidence that they, belonging to Santhal community ever resorted to custom and ceremonies proclaimed by Smritikars of Aryan stock and from which date the O.P.W.l deposed that there were customs and ceremonies peculiar to Santhal community and that:

“preliminary ceremonies during marriage in our community is ‘guarda’ that is taking a molasses by the bridegroom, followed by “chumard’ that is blessing ceremony. ‘Matkombabla’ that is bride will marry a Mohul tree, etc. Then comes ceremony of ‘Cirmudili’ that is, father of the bridegroom presents bangles to the bride.”

“Priest and barber do not play any part in our marriage ceremony as governed by Santhal rites. The Hindu ceremonies like “Saptapadi”, “Sindurdan”, exchange of garlands and putting a vermillion on the forehead of the bride are not observed in our Santhal community. Presence of Majhi (Headman), Nayeke (Dy. Headman) and Godeth (Manager) is essential in Santhal Marriage.”

21. The O.P.W.2, the father of the 2nd party, O.P.W.3, the maternal uncle of the 2nd party and O.P.W. 4 a neighbour and O.P.W. 5 the 2nd party himself stoutly denied the story of marriage between the 1st party and the 2nd party.

22. While on the one hand the 2nd party and the witnesses examined by and on bahalf of him stoutly denied the story of marriage, the 1st party claiming such marriage according to Aryans customs and ceremonies failed hopelessly to bring home the story of such marriage. Had the family undisputedly belonged to Santhal origin had resorted at any previous marriage to the Aryan custom etc., the 1st party would be able to adduce evidence about such resorting to Aryans practice by examining sufficient number of villagers and by adducing evidence the system followed in case of previous marriages of other members of their family and dynasty namely, the agnates and cognates of her.

23. Under these circumstances, I am constrained to hold that the learned S.D.J.M., Purulia failed to take all the points to consideration and to come to a reasonable conclusion about the marriage as alleged in this case. His decision that there was a marriage between the 1st party and the 2nd party was quite hasty, naive, unjustified, and divorced from reason and careful consideration and cannot be agreed with.

24. As the 1 st party failed to prove that there was any marriage at all and that she was ever the legally wedded wife of the 2nd party, her case under Section 125, Cr. P.C. cannot but fail. Other points are, therefore, redundant and left unanswered.

25. Hence, the revisional application is allowed on contest. The judgment and order passed by the learned S.D.J.M., Purulia in Misc. Case No. 81 of 89 of his Court on 27.2.1991 are hereby set aside. The petition filed by the 1st party-opposite party under Section 125 Cr. P.C. is hereby dismissed.

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