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Dnyanoba @ Dnyandeo Mahadeo -vs- Mukta Dnyanoba Kamble on 8 April, 2002

Bombay High Court Dnyanoba @ Dnyandeo Mahadeo -vs- Mukta Dnyanoba Kamble on 8 April, 2002
Equivalent citations:2003 (2) ALD Cri 42, 2002 (5) BomCR 552, 2002 CriLJ 4459
Author: H Gokhale
Bench: H Gokhale, V Daga

JUDGMENT

H.L. Gokhale, J.

1. Heard Shri Warunjikar for the appellant, Shri Nighot appears for the respondent.

2. This appeal seeks to challenge the judgment and order dated 24th May, 1999 passed by the Family Court No. 4, at Pune, allowing a petition numbered as P.E. No. 1726 of 1996, which was filed by the respondent claiming maintenance under section 125 of the Criminal Procedure Code.

3. The facts leading to this appeal are as follows:

Respondent herein had filed the above petition in the Family Court on 27th September, 1996 claiming maintenance from the appellant. The appellant filed written statement and subsequently raised a preliminary objection on 3rd May, 1997 submitting that the marriage between the parties was not a solemnized valid marriage and that issue be decided first. At that stage, a criminal revision application was filed to this Court being Criminal Revision Application No. 234 of 1994. A learned Single Judge of this Court (Pandya J., as he then was), by an order dated 22nd September, 1998, disposed of the said application by holding that in the proceeding under section 125 of Code of Criminal Procedure there is no need to decide such preliminary objection separately, but all points ought to be decided together. He held that the very nature of the proceeding does not admit raising of preliminary point. He however, directed that the trial Court shall decide all questions including this factual aspect of legality and validity of the marriage or even the existence of the marriage, if it was challenged. Thereafter the matter proceeded in the trial Court by recording evidence from both sides and the impugned judgment and order came to be passed.

4. Shri Warunjikar learned Counsel for the appellant submitted that the learned trial Judge was in error in coming to the conclusion on the 3 points which were framed by her. The first point is whether petitioner was legally wedded wife of the respondent. Now, so far as this aspect is concerned, the respondent herein had led evidence to show that the marriage between the two had taken place. When they were married they were minors and were otherwise closely related even before the marriage. They come from a backward community and in their community marriages do take place when both the spouses are minors. It was her case that this marriage took place some 12 years before. Recently, when her mother received some amounts from the employer of her deceased father, the appellant/husband started demanding an amount of Rs. 30,000/- and since that amount was not paid, the respondent-wife was driven out of the matrimonial house. She pointed out that earlier also proceeding under section 498A of the I.P.C., was filed against the respondent on 16th October, 1995. She has submitted that they were living together as husband and wife. As far as respondent-husband is concerned, in his own written statement it is stated that in the marriage of some other relative, the parents of both the parties had shown as if these two persons had been married. It is specifically stated as follows:

“The appellant and respondent are shown to have been married when they were minors inasmuch as this was a child marriage which cannot be recognised in law.”

Thus, the written statement of the appellant itself contains an admission on the fact of marriage, though its legality is disputed.

5. Shri Warunjikar thereafter submitted that the respondent had to lead evidence to prove that marriage had taken place between the parties and they were staying together as husband and wife. As against this, Shri Nighot for the respondent-wife pointed out that this aspect has been considered by the learned trial Judge while deciding point No. 1. He submitted that on the basis of the above admission in the written statement, and proceeding under section 498A of the I.P.C. which was launched in the year 1995, the learned Judge has drawn the inference that they lived as husband and wife. Considering the fact that respondent is not an educated lady and she comes from a backward community, there cannot be any documentary evidence on any of these aspects. These aspects are to be considered from appropriate angle and that is what the learned Judge did while giving the finding on point No. 1.

6. Shri Warunjikar on the other hand submitted that when the matter was considered by learned Single Judge in earlier preceding in Criminal Revision Application No. 234/94, the learned Judge of the Family Court was directed to decide all the questions including this factual aspect relating to legality and validity of the marriage or even existence of marriage between the parties. That was not done strictly as directed by the High Court. Shri Warunjikar submitted that the respondent-wife had to establish that she is legally wedded wife of the appellant and that was the view taken by a Full Bench of this Court in the case of Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, reported in 1982(1) Bom.C.R. 724 : 1983 Cri.L.J. 259. The same view has been confirmed by the Supreme Court in appeal in Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, . Shri Warunjikar also drew our attention to another judgment of the Calcutta High Court in the case of Asit Kumar Barman v. Radha Barman, reported in 1994 Cri.L.J.

955. It was held in the said judgment that the allegation of the wife that marriage had taken place long back was not tenable, as there was no sufficient evidence to show that the parties had lived together as husband and wife. It is further held that in the maintenance proceeding, proof of an alleged marriage between the parties, is necessary to be provided by convincing evidence direct or circumstantial. Shri Warunjikar submitted that the respondent-wife had failed to establish that she was legally wedded wife of the appellant-husband.

7. Placing reliance on the above decisions, Shri Warunjikar submitted that when a learned Judge passed the order on Criminal Revision Application No. 234 of 1994, what he meant was that validity of the marriage should have been decided strictly. When this appeal came to be admitted, it was observed by the Division Bench which admitted the appeal, that the trial Court had been guided mainly by a judgment of this Court in the case of Malan w/o Balasaheb Gawade v. Balasaheb Bhimrao Gawade. . In that judgment, a

learned Single Judge (Kantharia, J.) has observed that challenge to the validity of marriage cannot be gone into in the summary proceeding under section 125 of the Cri.P.C. As against this, the learned Single Judge of this Court while deciding Criminal Revision Application No. 234/94 arising out of present proceeding had specifically directed the trial Court to decide the question regarding totality and validity of the marriage. What we find is that though not in strict evidence but on circumstantial basis and after considering the totality of the factor, the learned Judge of the Family Court has come to the conclusion that the respondent was the legally wedded wife of the appellant and they had lived together as husband and wife. Mr. Warunjikar criticised this approach and stated that this was the submission which weighed upon the Division Bench while admitting this appeal and Shri Warunjikar pressed it into service by submitting that the fact of marriage though disputed, was not strictly established in the Family Court.

8. Shri Nighot submitted that, the approach of the Family Court was in tune with the view taken by the Apex Court in the case of Dwarika Prasad Sastpathy v. Bidyut Prava Dixit, .

The Apex Court in the said judgment held that in proceeding under section 125 Cri.P.C. strict proof is not required. It is sufficient if claimant prima facie satisfies the Court that claimant and her husband lived together and performance of essential ceremonies need not also proved. The validity of the marriage for the purpose of summary preceding under section 125 Cri.P.C. is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage is not as strictly as is required in a trial under section 494 of the I.P.C. If the claimant in proceeding under section 125 Cri.P.C. 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. In the present case, respondent had brought in before the Court the earlier proceeding under section 498A of the I.P.C. filed in the year 1995. It is her case that they were living together as husband and wife. The appellant has also accepted in the written statement that in the marriage of some other relatives, the parents of the parties showed the parties as married couple. These are the facts which weighed with the learned trial Judge while deciding point No. 1 based on the probabilities and no strict proof in this behalf is required as held by the Apex Court in the above referred case. We do not find any conflict between the order passed while deciding Criminal Revision Application No. 234/94 and the judgment in Malan Gawade’s case (supra). The learned Single Judge while deciding Criminal Revision Application No. 234/94 had directed the validity of the marriage to be decided (if challenged) and the Family Court has decided it on relevant factor which is permissible under the judgment of the Apex Court in Dwarika Prasad’s case (supra). The learned Judge has decided the point for consideration as directed. In our view, the learned Judge was right in deciding the point No. 1.

9. The next questions which arise are whether the respondent is unable to maintain herself and what amount of maintenance should be awarded to the respondent. These we are the points Nos. 2 and 3 raised before the Family Court. As far as this aspect is concerned, the respondent has putforth a case that her mother has received some amount from her father’s service dues. On coming to know about this, the appellant started demanding Rs. 30,000/- from her and since it was not paid, she was driven out by the appellant. As far as fact of getting this amount by the mother of the respondent is concerned, the respondent led evidence of one Narayan Wadekar from Siporax India Ltd., who stated that father of the appellant was working in the said company and after his death his wife was paid a sum of Rs. 40,694/- towards gratuity in full and final settlement. Shri Nighot submitted that the amount will be required by the mother of the respondent. The learned Counsel for the appellant/husband has drawn our attention to the deposition of one Kumar Joglekar, showing that respondent-wife was working as an Aya in Bharatiya Samaj Seva Kendra and she was drawing Rs. 900/- to Rs. 1,000/- p.m. As against this, respondent-wife has placed on record that the appellant-husband owns a ration shop and at the relevant time he was earning Rs. 1200/- per month from the ration shop. Earlier he was running an autorickshaw also. These are the facts which were considered by the learned trial Judge. After considering the material on record the learned trial Judge awarded a sum of Rs. 400/- p.m. towards maintenance to the respondent/wife. Obviously, earning of the respondent is not sufficient to take care of herself. Therefore, this payment of Rs. 400/- has been awarded to the respondent/wife under impugned order, and in our view, it cannot be said to be an unreasonable or unjustified direction.

10. For the reasons stated above, we do not find any fault in the impugned order. Appeal is dismissed. No order as to costs.

Certified copy expedited.

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