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2006 Supreme(Bom) 188
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
R. C. CHAVAN, J.
Jagdish s/o. Rushi Nandeshwar – Appellant
Versus
Smt. Shobha w/o. Jagdish Nandeshwar - Respondent
Criminal Application No. 1483 of 2001
Decided on 10th February, 2006.
Shri. G. G. BADE, Advocate for the Applicant.
Shri. A. M. QUAZI, A.P.P., for the State.
Headnote:Criminal Procedure Code, 1973 - Section 125 Application for maintenance by wife Proof of marriage Evidence showing that there was a valid marriage between the parties Application for maintenance allowed and husband directed to pay maintenance. The evidence tendered by the applicant would show that he had tied marriage necklace and also applied vermilion on wife’s forehead in the presence of several others. Witness had stated that marriage had taken place at Buddha Vihar and both the parties were sitting on chairs and that 100 to 150 people had gathered. ’Ashtagatha’ was read and the parties garlanded each other. Thus, the fact that parties had accepted each other as husband and wife, in the presence of people, has been sufficiently established. The standard of proof of marriage for the purpose of proving an offence would obviously be stricter than that for the purpose of proving liability to pay maintenance. The finding recorded by the Additional Sessions Judge duly takes into consideration all the relevant facts regarding marital status of the p arties. They are neither perverse nor improbable. No interference is called for in the order holding that the marriage was proved and that applicant husband was liable to pay maintenance at the rate of Rs. 400/per month to non-applicant-wife.
2. The fact, which gave rise to the present proceeding are as under:
Non-applicant Shobha Nandeshwar claims to have been married to applicant Jagdish after she had carried the applicant's child in her womb. Since, the applicant neglected and failed to maintain her, inspite of the fact that he owns four acre land and also earns Rs.50/- per day from agricultural labour, the said Shobha filed an application under Section 125 of the Code of Criminal Procedure before the learned Judicial Magistrate, First Class, Sakoli. She claimed maintenance allowance at the rate of Rs.500/- per month from applicant Jagdish.
3. Jagdish filed reply, denying that Shobha was married to him as per the customs or the prevalent rites applicable to the Buddhists. He denied having consented to any such marriage, though he admitted that Shobha was carrying pregnancy of nine months and also that she had given report to Police Station Arjuni Morgaon against Jagdish. He also admitted that Shobha had delivered a child in a hospital at Nawegaon Bandh and that the child died. He claimed that he was a teenage student of Junior College and, therefore, neither possessed any means nor any income, to be able to pay any maintenance to Shobha.
4. Upon consideration of the evidence tendered before him, the learned Judicial Magistrate, First Class, Sakoli rejected the application of Shobha for grant of maintenance, holding that the marriage was not proved. When Shobha took the matter in revision before the learned Additional Sessions Judge, the learned Additional Sessions Judge reversed the order passed by the learned Magistrate, holding that the marriage was proved and that Jagdish was liable to pay maintenance at the rate of Rs. 400/- per month to Shobha. Aggrieved thereby, Jagdish has preferred this application.
5. I have heard the learned counsel for applicant Jagdish and also learned counsel for non-applicant Shobha.
6. Relying on the decision of this Court in Babi w/o. Jayant Jagtap Vs. Jayant Mahadeo Jagtap & Ors. reported at 1981 Mh.L.J. 614, the learned counsel for applicant Jagdish stated that customary ceremony of Buddhist marriage enumerated in the aforesaid judgment had not been proved to have been followed in the present case. Therefore, according to him, the learned trial Magistrate had rightly concluded that the marriage was not proved. The learned counsel assailed the finding of the learned Additional Sessions Judge that the law does not require strict proof of ceremonies and rites of the marriage for the purpose of invocation of jurisdiction under Section 125 of the Code.
7. The learned Additional Sessions Judge had observed that some sort of ceremony and formalities were observed by the parties at the time of marriage and, therefore, it was a valid marriage for the purpose of Section 125 of the Code. The learned Judge had observed that unless the provision of Section 5 of the Hindu Marriage Act is shown to have been violated, the marriage would not be void and since, such was not the present case, the marriage was valid, entitling Shobha to maintenance allowance.
8. The contention of the learned counsel for the applicant that the ceremonies referred to in Babi w/o. Jayant Jagtap Vs. Jayant Mahadeo Jagtap & Ors., have not been proved has to be rejected because the decision in Babi w/o. Jayant Jagtap Vs. Jayant Mahadeo Jagtap & Ors., came in the context of the offence punishable under Section 494 r/w. 109 of the Penal Code. In that case, the complainant alleged that she was married to accused according to the Buddhist rites, which she had described in her complaint. It was the allegation of the complainant that during the subsistence of said marriag
