Dwarika
Prasad Satpathy Vs. Bidyut Prava Dixit & ANR [1999] INSC 385 (14 October
1999)
M.B.Shah,
K.T.Thomas Shah, J.
Leave
granted.
Respondent
No.1 wife filed application Crl. Misc. Case No. 26 of 1989 on 15.3.1989 under
Section 125 Cr.P.C before the Judicial Magistrate, Nayagarh for her
maintenance. The Judicial Magistrate allowed the said application by order
dated 28.6.1993 and granted monthly maintenance of Rs.400/- to her and Rs.200/-
to her daughter w.e.f. 15.3.1989. That order was challenged by the husband
(appellant herein) before the Sessions Court in Crl. Revision No.114/93. The
Revision Application was heard by the Ist Addl. Sessions Judge, Puri, who by
his judgment and order dated 19.4.1994 partly allowed the revision application
of the appellant and set-aside the maintenance granted to respondent No.1.
However, the order granting maintenance of Rs.200/- per month to the minor
daughter, till she attains the majority subject to future enhancement, was
maintained.
Against
that judgment and order, appellant filed Crl. Misc. Case No.1338 of 1994 before
the High Court of Orissa at Cuttack.
Respondent no.1 wife had also filed Crl. Revision No.389 of 1994. The High
Court heard both the revision applications together, dismissed the revision
application filed by the appellant and allowed the revision application filed
by respondent no.1 wife. The High Court held that it is not disputed that the
parties are residents of village Kantilo and at the relevant time, the
appellant was bachelor and working as Junior Employment Officer at Nayagarh. It
was also accepted that he was friend of elder brother of respondent no.1 and
was frequently visiting their house in connection with a social and cultural
organization of the village. He fell in love with respondent no.1 and developed
an intimacy with her. It has also come on record that the appellant was
proposing a pre-marital sexual relationship with respondent no.1, which was
persistently refused by her. Thereafter, the appellant took a vow in the name
of Lord Nilamadhab Bije to marry her and thereby won the faith of respondent
no.1. Thereafter, because of the co- habitation respondent no.1 conceived and
hence respondent no.1 insisted for arranging the marriage, which the appellant
refused on one pretext or the other.
Respondent
no.1 took various actions of writing to the various authorities including the
Chief Minister of the State and ultimately, she launched hunger strike in front
of the office of the appellant. Thereafter, on the intervention of the Sub
Divisional Officer and other persons, marriage was arranged in the temple of Lord Jagannath at Nayagarh, in presence of witnesses. After marriage
respondent no.1 was being taken to the house of appellant. On the way, she was
persuaded to stay at the paternal house on the ground that his father may not
accept her as a bride. At that stage, she was in advanced stage of pregnancy.
She stayed at her parental house and within 3-4 days she gave birth to a female
child, respondent no.2. The parties continued to live separately as before.
In the
proceedings under Section 125 of Criminal Procedure Code, the appellant denied
pre-marital sexual relations with respondent no.1. He asserted that he was
forced to undergo some sort of marriage with respondent no.1 at the point of
knife; that he had not given consent to the marriage and that he was forced to
exchange garlands with respondent no.1. The learned Magistrate believed the
case of respondent no.1 in toto and arrived at the conclusion that there had
been a marriage between the appellant and respondent no.1 in the temple of Lord Jagannath and the said marriage was valid and legal one. It was
further held that child was born out of this wedlock. In the revision, the
Addl. Sessions Judge did not accept the factum of marriage between the parties
by holding that the appellant was forced to exchange garlands at the point of
knife and, therefore, there was no valid marriage in the eyes of law. So, the
claim of respondent no.1 for maintenance was negatived. He, however, accepted
the plea of respondent no.1 that child was born because of pre-marital
relations and confirmed the order granting maintenance to the child. The High
Court observed that considering standard of proof in a proceeding under Section
125 Cr.P.C. it cannot be held that respondent no.1 had not succeeded in
establishing marriage. The court relied upon the evidence led by respondent
no.1 for holding that in fact a marriage was solemnized in the temple of Lord Jagannath and she was corroborated by the photographer who was present
at the time of marriage. The evidence of the brother of respondent no.1 was
also referred to for arriving at the said conclusion. The High Court negatived
the contention of the appellant that the said ceremony was forcibly held at the
point of knife and also held that there was no reason for disbelieving
respondent no.1 that the appellant and respondent no.1 were having pre-marital
sexual relations and that the child was born out of this relationship. That
order is challenged by filing these appeals by special leave.
Before
issuing notice, this Court by order dated 12.10.1998 directed the appellant to
deposit rest of the total arrears of maintenance payable to respondent no.1
within six weeks. Thereafter, notice was issued to respondent no.1 and subsequently
the matter was directed to be listed for final disposal. On 16.7.1999, when the
matter came up for hearing, the appellant contended that he is not the father
of the child. On behalf of respondent no.1, it was pointed out that respondent
no.1 was prepared to have a DNA test for finding out fatherhood of the child.
At that stage, the learned counsel for the appellant sought time of four weeks
to get instructions from the appellant.
Thereafter,
when the matter was placed for hearing on 20.8.1999, the learned counsel for
the appellant stated that he was not willing to undergo DNA test and,
therefore, this Court ordered that this means appellant is disentitled to
dispute the paternity of the child. This is recorded.. On the next date of
hearing, learned counsel for the parties were heard at length and it was
contended by the learned counsel for the appellant that there was no valid
marriage between the appellant and respondent no.1 and, therefore, the order
passed by the High Court awarding maintenance to respondent no.1 is illegal and
requires to be set-aside.
Learned
counsel for the appellant at the time of hearing had not disputed the paternity
of the child. Hence, the question is whether the marriage between the appellant
and respondent no.1 was valid or invalid? In our view, validity of the marriage
for the purpose of summary proceeding under Section 125 Cr.P.C. is to be
determined on the basis of the evidence brought on record by the parties.
The
standard of proof of marriage in such proceeding is not as strict as is
required in a trial of offence under section 494 of the I.P.C. If the claimant
in proceedings under Section 125 of the Code 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, and in such a situation, the party who
denies the marital status can rebut the presumption. Undisputedly, marriage
procedure was followed in the temple, that too, in the presence of idol of Lord
Jagannath, which is worshipped by both the parties. Appellant contended before
the learned Magistrate that the said marriage was performed under duress and at
the point of knife, he was required to exchange garlands. That contention is
not proved by leading necessary evidence.
Once
it is admitted that the marriage procedure was followed then it is not
necessary to further probe into whether the said procedure was complete as per
the Hindu rites in the proceedings under Section 125 Cr.P.C.
Learned
counsel for the appellant relied upon the decision of this Court in Smt. Yamunabai
Anantrao Adhav v. Anantrao Shivram Adhav and another, {(1988) 2 S.C.R. 809} and
submitted that even in a summary proceeding under Section 125 Cr.P.C., the
Court is required to find out whether applicant wife was lawfully wedded wife
or not. In the said case, the Court considered the point whether a Hindu Woman
who has married after coming into force of the Hindu Marriage Act, 1955, with a
man having a lawfully wedded wife, can maintain an application for maintenance
under Section 125 Cr.P.C. In that case, the Court confirmed the judgment of the
High Court and arrived at the conclusion that the Legislature decided to bestow
the benefit of Section 125 Cr.P.C. even on an illegitimate child by expressed
words but none are found to apply to a de facto wife where the marriage is void
ab initio. The marriage was null and void because Section 5 inter alia provides
that a marriage may be solemnised between any two Hindus if the conditions
mentioned therein are fulfilled. One of the conditions is - neither party has a
spouse living at the time of marriage. Under Section 11, such marriage is null
and void. The Court held that marriage of a woman in accordance with Hindu
rites with the man having a living spouse is complete nullity in the eye of law
and she is not entitled to the benefit of Section 125 of the Code. In our view
the said judgment has no bearing on the facts of the present case as it is not
a case of de facto marriage nor can it be held that the marriage between the
appellant and respondent no.1 was void ab initio. It is a case where it is
contended that at the time of marriage essential ceremonies were not performed.
Hence in the present case, we are not required to discuss the issue that unless
declaratory decree of nullity of marriage on the ground of contravention of any
one of the conditions specified in clauses (i), (iv) and (v) of Section 5 is
obtained, it cannot be held in collateral proceedings that marriage was null
and void. Nor it is required to be discussed that Legislature has not provided
that if, some marriage ceremonies are not performed, marriage is a nullity
under Section 11 or is voidable under Section 12 of the Hindu Marriage Act.
The
learned counsel for the appellant next relied upon Maharashtra & another,
{(1965) 2 S.C.R. 837} and contended that two ceremonies are essential to the
validity of a Hindu marriage, i.e. invocation before the sacred fire and sapatapadi
and are required to be established before holding that the marriage performed
in the temple was valid one. In that case, the Court arrived at the conclusion
that the prosecution for the alleged offence under Section 494 I.P.C., had
failed to establish that the marriage was performed in accordance with the
customary rites as required under Section 7 of the Hindu Marriage Act; it was
certainly not performed in accordance with the essential requirements for a
valid marriage under Hindu law and, therefore, accused cannot be convicted
under Section 494, IPC. In our view, in the said case the Court was considering
the evidence which was led before the trial court in a criminal trial for the
offence punishable under Section 494 IPC. In a prosecution for bigamy, the
second marriage has to be proved as a fact.
The
said decision would have no bearing in the proceeding under Section 125 Cr.P.C.,
which is of summary nature.
It is
to be remembered that the order passed in an application under Section 125 Cr.P.C.
does not finally determine the rights and obligations of the parties and the
said section is enacted with a view to provide summary remedy for providing
maintenance to a wife, children and parents. For the purpose of getting his
rights determined, the appellant has also filed a Civil Suit, which is pending
before the trial court. In such a situation, this Court in S. Sethurathinam Pillai
v. Barbara alias Dolly Sethurthinam, {1971 (3) SCC 923} observed that
maintenance under Section 488 Cr.P.C., 1898 (Similar to Section 125 Cr.P.C.)
cannot be denied where there was some evidence on which conclusion for grant of
maintenance could be reached.
It was
held that order passed under Section 488 is a summary order which does not
finally determine the rights and obligations of the parties; the decision of
the criminal court that there was a valid marriage between the parties will not
operate as decisive in any civil proceeding between the parties.
After
not disputing the paternity of the child and after accepting the fact that
marriage ceremony was performed, though not legally perfect as contended, it
would hardly lie in the mouth of the appellant to contend in proceeding under
Section 125 Cr.P.C. that there was no valid marriage as essential rites were
not performed at the time of said marriage. The provision under Section 125 is
not to be utilized for defeating the rights conferred by the Legislature to the
destitute women, children or parents who are victims of social environment. In Ramesh
Chander Kaushal v. Mrs. Veena Kaushal and others, (AIR 1978 SC 1807) Krishna Iyer,
J dealing with interpretation of Section 125 Cr.P.C. observed (at Para 9)
thus:- This provision is a measure of social justice and specially enacted to
protect women and children and falls within the constitutional sweep of Article
15 (3) reinforced by Article 39. We have no doubt that sections of statutes
calling for construction by courts are not petrified print but vibrant words
with social functions to fulfil. The brooding presence of the constitutional
empathy for the weaker sections like women and children must inform
interpretation if it has to have social relevance. So viewed, it is possible to
be selective in picking out that interpretation out of two alternatives which
advances the causethe cause of the derelicts.
dealing
with the contention of husband that the second marriage with the applicant wife
was void on the ground that her first marriage was subsisting, this Court held
that Section 125 Cr.P.C. is meant to achieve a social purpose and, therefore,
the law which disentitles the second wife from receiving maintenance from her
husband for the sole reason that the marriage ceremony though performed in the
customary form lacks legal sanctity can be applied only when the husband
satisfactorily proves the subsistence of a legal and valid marriage
particularly when the provision in the Code is a measure of social justice
intended to protect women and children; the object to prevent vagrancy and
destitution; it provides a speedy remedy for the supply of food, clothing and
shelter to the deserted wife and observed thus:- When an attempt is made by the
husband to negative the claim of the neglected wife depicting her as a
kept-mistress on the specious plea that he was already married, the court would
insist on strict proof of the earlier marriage.
Similarly,
in Santosh (Smt.) v. Naresh Pal [(1998) 8 SCC 447] dealing with the contention
that wife had not proved that she was legally married wife because her first
husband was living and there was no dissolution of her marriage, this Court
held thus: - In a proceeding for maintenance under Section 125 Cr.P.C. the
learned Magistrate was expected to pass appropriate orders after being prima
facie satisfied about the marital status of parties. It is obvious that the
said decision will be tentative decision subject to final order in any civil
proceedings, if the parties are so advised to adopt.
Hence,
in our view from the evidence which is led if the Magistrate is prima facie
satisfied with regard to the performance of marriage in proceedings under
Section 125 Cr.P.C. which are of summary nature, strict proof of performance of
essential rites is not required. Either of the parties aggrieved by the order
of maintenance under Section 125, Cr.P.C. can approach the civil court for
declaration of status as the order passed under Section 125 does not finally determine
the rights and obligations of the parties.
In the
result, the appeals are dismissed with costs quantified at Rs.5,000/-.
Back