2009 Supreme(Raj) 2371
RAJASTHAN HIGH COURT AT JAIPUR BENCH
R.S.Chauhan, J.
Ram Niwas - Appellant
Versus
Smt. Kamal - Respondent
S.B. Criminal Revision Petition No.1277 of 2009.
Decided On : 15-10-2009
Advocates:
For the Petitioner:Mr. Ashok Mehta, Advocate.
For the Respondent:Mr. Surendra Sharma, Advocate.
The presumption of marriage arising from cohabitation is rebuttable, and the burden of proof lies on the party denying the marriage to rebut the presumption.
Headnote:
MAINTENANCE - SECTION 125 CR.P.C. - SECTION 125 CR.P.C. - INTERPRETATION - PRESUMPTION OF MARRIAGE - REBUTTABLE PRESUMPTION - BURDEN OF PROOF - STANDARD OF PROOF - EVIDENCE - SUFFICIENCY - MAINTENANCE - AWARD OF MAINTENANCE - FACTORS TO BE CONSIDERED.
Fact of the Case:
The petitioner, Ram Niwas, challenged the order of the Family Court granting maintenance to the non-petitioner, Smt. Kamal, under Section 125 of the Code of Criminal Procedure (Cr.P.C.). The petitioner denied the marriage and claimed that they were merely acquaintances. The non-petitioner claimed that they were married according to Hindu customs and rites and that the petitioner had neglected to maintain her after his second marriage.
Finding of the Court:
The court held that the non-petitioner had successfully established the factum of marriage through the testimonies of independent witnesses and documentary evidence. The court found that the petitioner had failed to rebut the presumption of marriage drawn in favor of the non-petitioner. The court also held that the learned Judge had meticulously discussed and appreciated the evidence in a proper manner.
Issues: 1. Whether the non-petitioner had succeeded in proving the factum of marriage between the parties? 2. Whether the petitioner had succeeded in rebutting the presumption of marriage drawn in favor of the non-petitioner? 3. Whether the learned Judge had erred in granting maintenance to the non-petitioner?
Ratio Decidendi: 1. The court held that the standard of proof required to establish a matrimonial relationship in a proceeding under Section 125 Cr.P.C. is not as strict as in a criminal trial. The court relied on the case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit & Anr. (AIR 1999 SC 3348) to hold that 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. 2. The court held that the presumption of marriage is not an absolute one, but is a rebuttable one. The court relied on the case of Badri Prasad v. Dy. Director of Consolidation & Ors. (AIR 1978 SC 1557) to hold that a strong presumption arises in favor of wedlock if a man and woman live together as husband and wife for a long time, but this presumption is rebuttable. 3. The court held that the petitioner had failed to rebut the presumption of marriage drawn in favor of the non-petitioner. The court found that the petitioner's witnesses were either interested witnesses or unreliable, and that their testimonies were contradicted by the testimonies of the non-petitioner's witnesses and the documentary evidence.
Final Decision: The court dismissed the petition and upheld the order of the Family Court granting maintenance to the non-petitioner.
JUDGMENT
1. - Aggrieved by the order dated 21.07.2009 passed by the Family Court, Kota whereby the learned Judge had granted a maintenance of Rs.2000/- per month to the non-petitioner, Smt. Kamal, the petitioner, Ram Niwas has approached this Court.
2. The Brief facts of the case are that in 1989, the petitioner and the non-petitioner were married according to the Hindu customs and rites. According to Smt. Kamal, at the time of marriage, Ram Niwas was a student in an engineering college in Kota. However, after the marriage, he was appointed at the Thermal Power, Kota. Subsequently, he got a job at Nasik. But even during his stay at Nasik, he was periodically visiting Smt. Kamal. Subsequently, he went for training to Delhi where he entered into a second marriage. After his second marriage, he has neglected to maintain Smt. Kamal. Therefore, against Ram Niwas, she filed an application for maintenance under Section 125 of Cr.P.C. Ram Niwas filed his written statement and claimed that he was not married to Smt. Kamal. Instead, they were tenants in the same building for four to five months. He further claimed that, at best, Smt. Kamal was an acquaintance. He further stated that she was earlier married to a constable. She had lost her husband and has concocted this entire case against him.
3. In order to buttress her case, Smt. Kamal examined five witnesses. In turn, Ram Niwas also examined five witnesses. After going through the oral and documentary evidence, vide order dated 21.07.2009, the learned Judge granted a maintenance of Rs.2,000/- as mentioned above. Hence, this petition before this Court.
4. Mr. Ashok Mehta, the learned counsel for the petitioner, has strenuously argued that Smt. Kamal is not a reliable witness. For, in her examination-in-chief, she clearly admits that she does not remember the month in which she got married to Ram Niwas. Secondly, she gives a confused chronology of dates with regard to the places where she and the petitioner stayed together allegedly as husband and wife. Thirdly, although she claims that her marriage was attended by her parents and uncles, she has not produced her relatives as witnesses in order to buttress her claim that she was married to Ram Niwas. Thus, she has failed to prove the factum of marriage. Hence, the learned Judge has misappreciated the entire evidence and has erred in granting maintenance to her.
5. On the other hand, Mr. Surendra Sharma, the learned counsel for the respondent, has contended that in a proceeding under Section 125 Cr.P.C., the factum of marriage need not be proved to the same extent as it needs to be proved in an offence under Section 494 IPC. If the parties have lived together as husband and wife, if they have been perceived by others as husband and wife, then the court shall presume that they have lived as husband and wife. In order to buttress this contention, the learned counsel has relied upon the cases of Badri Prasad v. Dy. Director of Consolidation & Ors. (AIR 1978 SC 1557) , Dwarika Prasad Satpathy v. Bidyut Prava Dixit & Anr. (AIR 1999 SC 3348). Secondly, Smt. Kamal had examined sufficient number of persons to make out a strong case in her favour with regard to the parties being husband and wife. Therefore, there was no need for her to further produce her relatives as witnesses. After all, it is not the quantity of witnesses, but the quality of witnesses which matters in a trial. Thirdly, her inability to reveal the exact date of marriage, her alleged confusion about the date on which they lived in a particular neighborhood or house, would not dilute from the veracity of her testimony. According to Smt. Kamal, she had lived as husband and wife for about ten years. It is only after the petitioner had entered into a second marriage that he left her and neglected to maintain her. Lastly, despite the ample proof submitted by Smt. Kamal, the petitioner has failed to rebut her evidence. Hence, the learned Judge was justified in accepting her evidence a
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