Important point
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.

Headnote:Code of Criminal Procedure, 1973-Section 125-Maintenance -Proof of marriage-Standard of proof in summary proceedings u/s 125 is not as strict as is required in a trial of offence u/s 494 IPC-If claimant succeeds in showing that she and respondent lived together as husband and wife, Court can presume legally wedded spouses-Presumption can be rebutted-Validity of marriage cannot be decided in proceedings u/s 125 Cr. P.C.
       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. (Para 6)
        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. 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. (Paras 9 & 13)
       In the instant case the claimant contended that the respondent had pre-marital sexual relationship resulting into pregnancy of the claimant and later the respondent married her and a child was born out of wedlock. The claimant while not disputing parentage of the child contended that the marriage was at knife point and not valid and there being no valid marriage he was not liable to pay maintenance.
       Held : 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. 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. 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. (Paras 6, 7 & 10)

Judgment

Shah, J.-Leave granted.

2. 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 1st 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.

3. 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 and 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.

4. 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

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1999 Supreme(SC) 1221

Cases Referred (6)