Customary marriage between individuals of different religions can confer the status of a wife for maintenance claims under S. 125 Cr.P.C.

In this petition filed under S. 482, Cri.P.C., the petitioner seeks the setting aside of the order for maintenance passed against him in M. C. 35 of 1975 of the Sub-Divisional Judicial Magistrate, Neyyattinkara which has been confirmed in revision by the First Additional Sessions Judge, Trivandrum.

2. The petitioner and the respondent belong to the Nadar community. The petitioner is a Hindu by birth while the respondent professes christianity. The finding of the trial court is that there was a ceremony of marriage according to the custom of the community when the petitioner tied a thali round the neck of the respondent and presented a cloth to her. After the ceremony, the petitioner and the respondent went to the Sub-Registrar's office and executed Ext. P1, a marriage udampady. They lived together as husband and wife and a child was born to them. Thereafter, a rift took place. The petitioner, according to the respondent, began to ill-treat her and lived with a mistress by name Omana. The respondent left him and claimed maintenance for herself and the child. The petitioner admitted the marriage udampady and the birth of the child but denied that there was a ceremony of marriage, or a marriage in law. He contended that the respondent had only the status of a mistress and not that of a wife and as such, she was not entitled to claim maintenance. The Sub-Divisional Magistrate, Neyyattinkara followed the decisions in Kunhiraman Nair v. Annakutty (1967 Ker LT 24) and Maung Pahtan v. Ma San (40 Cri LJ 653) : (AIR 1939 Rang 207) and held that the respondent is the legally wedded wife for purposes of S. 125, Cri.P.C. The Court allowed maintenance at the rate of Rs. 50/- to the respondent and Rs. 30/- to the child. The order granting maintenance to the respondent alone is challenged in these proceedings.

3. The contention put forward by the petitioner is that there could be no legal marriage between him and the respondent in view of their difference in religion. According to him, even admitting that there was a marriage ceremony preceding the execution of Ext. P1, marriage udampady, the respondent did not acquire the status of a wife and as such, she is not entitled to maintenance under S. 125, Cri.P.C.

4. The objection has no force. It is now settled law that the standard of proof required for a marriage in proceedings for maintenance under the Code of Criminal Procedure is not so high as is required in connection with proceedings under the Indian Divorce Act or in a prosecution for bigamy under the Indian Penal Code. There is no controversy between the parties regarding the customary form of marriage prevalent among the Nadar community. The finding is that ceremony of the kind has taken place between the petitioner and the respondent. The dispute is only in respect of the claim of the respondent that she is the legally wedded wife of the petitioner. The contention is that there cannot be a lawful marriage between the petitioner, a Hindu and the respondent, a Christian.

5. It may be that the Hindu Marriage Act, 1955 does not contemplate a marriage between a Hindu male and a Christian female. At the same time, the Indian Christian Marriage Act (XV of 1872) permits marriage between Christians and non-christians solemnised in accordance with the provisions of that Act. Therefore, the fact that the petitioner and the respondent follow different religions need not necessarily mean that there could be no marriage between them and the respondent will not get the status of a wife even after undergoing the ceremony of marriage.

6. In Kunhiraman Nair v. Annakutty (1967 Ker LT 24) there was a ceremony of marriage in accordance with the custom of the Nair community between a Nair male and a woman who was following Roman Catholic faith. It was held that the ceremony of marriage taken along with the fact that the parties thereto lived together and were known as husband and wife was sufficient to confer on the woman the status of wife for