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IN THE HIGH COURT OF BOMBAY
H.L. Gokhale V.C. Daga, JJ.
Dnyanoba @ Dnyandeo Mahadeo Kamble .... Appellant.
Versus
Mukta Dnyanoba Kamble.... Respondent.
Family Court Appeal No. 40 of 1999, decided on 8-4-2002.
Advocates appeared :
Uday Warunjikar, for appellant.
U.B. Nighot, for respondent.
Criminal Procedure Code, 1973- Section 125 - Grant of maintenance. - Grant of maintenance of Rs. 400/- p.m. to wife though employed found not earning enough to take care of her livelihood is just and proper.
Criminal Procedure Code, 1973 - Section 125 - Maintenance - Proceedings for - Objected - Legality and validity of marriage challenged - High Court while deciding criminal revision directed trial Court to decide validity of marriage - On the basis of circumstantial evidence Family Court held marriage valid - Resisted by appellant/husband - Contended that validity of marriage cannot decided in summary proceedings under Section 125 of Code - Held - If claimant succeeds is showing that she and appellant have lived together as husband and wife - Presumption can be drawn that they are legally wedded spouses - No strict proof in this behalf required. - 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 u/o Balasaheb Gawade v. Balasaheb Bihmrao Gawade, reported in 1988 (3) Bom CR 666 : 1988 Mh LJ 1135. 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 Cr PC. 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. It was held 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.
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, reported in 2000 (5) Bom SC 1731 : AIR 1999 SC 3348. The Apex Court in the said judgment held that the in proceeding under Section 125, Cr PC 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 proceeding under Section 125, Cr PC 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 IPC. If the claimant in proceeding under Section 125, Cr PC succeed in showing that the 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 498-A of the IPC 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 that 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. Court does not find any conflict between the order passed while deciding Criminal Revision Application NO. 234/94 and the judgment in Malan Gawadas 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. The learned Judge was right in deciding the point No. 1.
Criminal Procedure Code, 1973 - Section 125 - Proceedings for grant of maintenance. - Since validity of marriage decided by Family Court based in circumstantial evidence and considering totality of evidence as per directions of single Judge is revision hence strict proof of marriage not required.
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 498-A 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 498-A 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 responden
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