HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 695 / 2014
Pawan Maru S/o Sh.Badri Ram, by caste Nai, Resident of Flat
No.302-5-B, Green Park, Shanti Park, Meera Road (East) Thane,
Mumbai (Maharashtra)
—-Petitioner
Versus
Seema D/o Moola Ram, by caste Nai, Resident of Village Nokha,
Tehsil: Kolayat, District: Bikaner.
—-Respondent
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For Petitioner(s) : Mr. Vineet Jain
For Respondent(s) : Mr. Kaushal Gautam
__
HON’BLE MR. JUSTICE SANDEEP MEHTA
Judgment / Order
Date of Pronouncement : 27/04/2018
The instant revision is directed against the order dated
30.5.2014 passed by learned Judge, Family Court, Bikaner in
Cr.Misc. Case No.272/2012 whereby, the learned Judge, Family
court accepted the application filed by the respondent Smt.Seema
under Section 125 Cr.P.C. and awarded her a sum of Rs.4000/- per
month as maintenance to be paid by the petitioner.
Facts in brief are that the respondent Smt.Seema and her
son Gauri Shankar filed two separate applications under Section
125 Cr.P.C. against the petitioner herein in the year 2012 claiming
maintenance from him. It was alleged in the applications that
Smt.Seema’s second marriage was solemnised with the present
petitioner in the year 2005. She was having a daughter from her
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previous marriage and that the petitioner, initially permitted the
respondent’s daughter to live with them in the matrimonial home
but later on, he started objecting the presence of her daughter in
the home. After the marriage, the petitioner took the applicant
and her daughter to Thane. The petitioner bluntly conveyed to
Seema that he did not desire to father any child from her. In any
event, the applicant conceived from the petitioner and on coming
to know of her pregnancy, the petitioner allegedly gave some
tablets to the applicant with the intention of aborting her
pregnancy. The petitioner assaulted the applicant, did not give her
food. Owing to this cruel conduct, the applicant’s health
deteriorated. She complained of these incidents to her brother,
who approached the petitioner and requested him to treat the
applicant with respect. However, the petitioner did not accede to
these requests and turned the applicant out of the house on
12.7.2005. The applicant was compelled to return to her father’s
house while carrying the petitioner’s child in her womb. The
petitioner did not take any measures to provide maintenance or
subsistence to the respondent applicant. The applicant gave birth
to a son named Gauri Shanker on 28.2.2006 whereafter, the
application under Section 125 Cr.P.C. was moved on behalf of the
applicant respondent Smt.Seema and her son Gauri Shanker. The
petitioner opposed both the applications denying the averments
made by the respondent in her application and claiming that she
was never married to him. The petitioner resided at Mumbai with
his two sons Praveen Kumar and Manish Kumar. He categorically
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denied that the child Gauri Shanker was born from his
cohabitation with the applicant respondent and thus, craved
rejection of the applications filed by the respondent Smt.Seema
and Gauri Shanker under Section 125 Cr.P.C. Smt.Seema
examined four witnesses in support of her case. The petitioner did
not lead any evidence whatsoever in defence. During pendency of
proceedings, the learned Judge, Family Court directed the
petitioner to submit himself for a DNA test so as to test his denial
of paternity of the child. However, the petitioner failed to provide
his samples, whereupon, the Family Court drew an adverse
inference against the petitioner holding that the child Gauri
Shanker was conceived from the loins of the petitioner. Regarding
the marriage of the present petitioner with Smt.Seema, the trial
court held that Pawan Maru’s earlier wife was no longer alive.
Likewise, Seema’s earlier husband had passed away. The applicant
Smt.Seema did not lead evidence to show that the requisite rites
and ceremonies of Satpadi etc. were performed between her and
Sh.Pawan. After noting these discrepancies in the evidence led by
the applicant Smt.Seema, the trial court held that while deciding
an application under Section 125 Cr.P.C., the court could not insist
upon strict proof of marriage by performance of Satpadi etc. and
in many areas of the country, a valid marriage was permissible by
even exchange of garlands in the temple. Accordingly, the Family
court concluded that it could be reasonably concluded that Seema
was married to Pawan, the petitioner herein. Thereafter, the court
proceeded to hold that the applicant Smt.Seema failed to lead any
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evidence regarding the income of the petitioner and thus, he
quantified a sum of Rs.4000/- per month as maintenance payable
to Seema and sum of Rs.1000/- per month for Gauri Shanker. The
petitioner challenged the order of maintenance passed in favour of
Gauri Shanker by filing a revision No.694/2014 in this Court,
which was withdrawn on 8.11.2017 in view of the admitted
position that the petitioner himself did not appear for undergoing
the DNA test despite the specific direction of the Family Court.
For imploring the impugned award of maintenance in favour
of Smt.Seema, Shri Jain placed reliance on the decisions rendered
by Hon’ble Supreme Court in the cases of Savitaben Somabhai
Bhatiya Vs. State of Gujarat Ors. reported in 2005 SCC
(Cri.) 787 and Pyla Mutyalamma @ Satyavathi Vs. Pyla Suri
Demudu Anr. reported in 2012 Cr.L.R. (SC) 64 and urged
that the respondent failed to prove by leading cogent evidence
that she was legally wedded to the present petitioner. Pertinent
cross-examination was done from the respondent regarding the
ceremonies of marriage solemnized between her and the present
petitioner, to which she failed to provide even a semblance of
evidence so as to accept the assertion of a valid hindu marriage
between her and the petitioner. He thus urged that the impugned
order is bad in the eye of law because the respondent cannot be
termed to be a legally wedded wife of the present petitioner so as
to entitle her to claim maintenance under Section 125 Cr.P.C.
Per contra, learned counsel Shri Kaushal Gautam
representing the respondent vehemently opposed the submissions
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advanced by the petitioner’s counsel and urged that the petitioner
was under the burden to disprove the assertion that the marriage
was not performed by following the proper procedure of a hindu
matrimony. He contended that only a bald suggestion was made in
the cross-examination of Smt.Seema that Satpadi etc. were not
performed during the ceremonies and that the respondent and the
petitioner only exchanged garlands with each other for performing
the marriage. He drew the Court’s attention to the following
observations made by Hon’ble Supreme Court in Pyla
Mutyalamma’s judgment (supra) :-
“13. We may further take note of an important legal
aspect as laid down by the Supreme Court in the
matter of Jamuna Bai v. Anant Rai, AIR 1988 SC 793
(paras 4, 5 and 8), that the nature of the proof of
marriage required for a proceeding under Section
125, Cr.P.C. need not be so strong or conclusive as in
a criminal proceeding for an offence under Section
494 I.P.C. since, the jurisdiction of the Magistrate
under Section 125 Cr.P.C. being preventive in nature,
the Magistrate cannot usurp the jurisdiction in
matrimonial dispute possessed by the civil Court. The
object of the section being to afford a swift remedy,
and the determination by the Magistrate as to the
status of the parties being subject to a final
determination of the civil Court, when the husband
denies that the applicant is not his wife, all that the
Magistrate has to find, in a proceeding under Section
125 Cr.P.C., is whether there was some marriage
ceremony between the parties, whether they have
lived as husband and wife in the eyes of their
neighbours, whether children were borne out of the
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and urged that in proceedings under Section 125 Cr.P.C., all
that the Magistrate is required to prima-facie assess as to whether
religious marriage ceremonies were performed between the
parties and that they lived together as husband and wife
thereafter and whether the children were born out of the union.
Shri Gautam submitted that the petitioner had the opportunity to
controvert these allegations by appearing in evidence before the
Family Court and by submitting himself to DNA examination when
the opportunity presented but he intentionally chose not to do so.
He further submits that stray and trivial admissions made by the
respondent in her cross-examination would not take away the core
and substratum of her evidence wherein, she has categorically
stated that she and the petitioner entered into a valid marriage
lived together as husband and wife and that the child Gauri
Shankar was born from their wedlock. On these grounds, Shri
Gautam implored the Court to dismiss the instant revision.
I have given my thoughtful consideration to the arguments
advanced at the Bar and have gone through the material available
on record.
The thrust of Shri Jain’s arguments for challenging the
impugned order was that no valid ceremonies of hindu marriage
were performed between the petitioner and the respondent and
she did not qualify as a wife so as to justify her claim for
maintenance under Section 125 Cr.P.C. Suffice it to say that the
argument so advanced by Shri Jain is per-se untenable and
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fallacious in view of the above noted observations made by
Hon’ble Supreme Court in Pyla Mutyalamma’s judgment (supra)
relied upon by Shri Jain as well as Shri Gautam.
In this judgment, it has categorically been held by the
Hon’ble Supreme Court that the proof of marriage as required in
proceedings under Section 125 Cr.P.C. need not be in the strict
sense as may be required in other collateral proceedings. It would
be enough for the wife to plead that some kind of marriage
ceremonies were performed whereafter, the parties lived in
matrimony. In the present case, the evidence led by the
respondent to this effect has a strong support of the
unimpeachable truth that her child Gauri Shanker was born to her
from the loins of the petitioner. The petitioner had an opportunity
to question the paternity of the child when he was directed to
undergo the DNA test but he intentionally avoided to appear for
giving his samples. Thus, adverse inference was rightly drawn by
the Family Court regarding the petitioner being married to
Smt.Seema and having fathered Gauri Shankar. The petitioner
also failed to appear as a witness for giving evidence in support of
his defence and hence, he is precluded from challenging the
factum of his marriage with the respondent as not having been
validly performed.
As a consequence of the above discussion and finding no
infirmity or shortcoming in the impugned order, I am not inclined
to interfere therein while exercising revisional powers of this
Court.
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Accordingly, the instant revision is dismissed as being devoid
of merit.
(SANDEEP MEHTA),J.
/tarun goyal/