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Pawan vs Seema on 27 April, 2018

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
__
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
(2 of 8)
[ CRLR-694/2014]

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
(3 of 8)
[ CRLR-694/2014]

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
(4 of 8)
[ CRLR-694/2014]

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
(5 of 8)
[ CRLR-694/2014]

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
(6 of 8)
[ CRLR-694/2014]

union.”

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
(7 of 8)
[ CRLR-694/2014]

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.

(8 of 8)
[ CRLR-694/2014]

Accordingly, the instant revision is dismissed as being devoid

of merit.

(SANDEEP MEHTA),J.

/tarun goyal/

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