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High Court Of Madhya Pradesh
R. P. GUPTA
KUMARI BAI - Appellant
Versus
ANANDRAM - Respondents
CRI. REF. 238 Of 1992
Decided On : 02/18/1998
MAINTENANCE - SECTION 125, CR. P. C. - INTERPRETATION - CUSTOMARY MARRIAGE AMONG GOND TRIBE - VALIDITY - CONDITIONS - MAINTENANCE AWARDED TO WIFE.
Fact of the Case:
The petitioner, Kumaribai, claimed maintenance from her husband, Anandram, under Section 125, Cr. P. C. She alleged that they were married according to the custom of 'churi wearing' prevalent in the Gond tribe and had two sons together. However, Anandram denied the marriage and claimed that Kumaribai was only his keep. The Magistrate granted maintenance to Kumaribai, but the Sessions Court reversed the order, holding that Kumaribai was not the legally wedded wife of Anandram.
Finding of the Court:
The High Court held that the Sessions Court erred in its finding. It noted that the Gonds are an Aboriginal Tribe and are governed by their own customs with regard to marriages. The court found that there was sufficient evidence to establish that a customary marriage had taken place between Anandram and Kumaribai and that two children were born from that marriage. The court also found that there was no evidence that Kumaribai had become unchaste.
Issues: 1. Whether the petitioner, Kumaribai, was the legally wedded wife of the respondent, Anandram? 2. Whether the customary marriage between Anandram and Kumaribai was valid? 3. Whether Kumaribai was entitled to maintenance from Anandram?
Ratio Decidendi: 1. The court held that the Sessions Court erred in its finding that Kumaribai was not the legally wedded wife of Anandram. The court noted that the Gonds are an Aboriginal Tribe and are governed by their own customs with regard to marriages. The court found that there was sufficient evidence to establish that a customary marriage had taken place between Anandram and Kumaribai and that two children were born from that marriage. 2. The court held that the customary marriage between Anandram and Kumaribai was valid. The court noted that the Gonds have their own customs and traditions regarding marriage, and that these customs are recognized by law. The court found that the marriage between Anandram and Kumaribai was valid according to the customs of the Gond tribe. 3. The court held that Kumaribai was entitled to maintenance from Anandram. The court noted that Anandram had failed to provide maintenance to Kumaribai since their separation in 1985. The court also found that Kumaribai was not unchaste.
Final Decision: The High Court set aside the order of the Sessions Court and restored the order of the Magistrate granting maintenance to Kumaribai.
( 1 ) THIS revision petition is directed against order dated 13-3-1992 of Vth Addl. Sessions Judge, Raipur, passed in Cr. Rev. No. 241/88 whereby the learned A. S. J. accepted the revision filed by the husband (now respondent) against the order dated 4-7-1988 of J. M. F. C. , Gariyaband in Cr. Case No. 148/85. The Magistrate had allowed the application of the wife (now petitioner) u/s. 125, Cr. P. C. against the husband granting maintenance @ Rs. 150/- p. m. to her. The maintenance was allowed from the date of application i. e. 31-10-1985.
( 2 ) THE petitioner claimed to be the married wife of the respondent. The marriage was performed according to the custom of 'churi wearing' prevalent in the Gond tribe about 12 years back and two sons were born to the parties. She lived with the husband for 5 years and then he turned her out of the matrimonial house and did not maintain her. He was also ill-treating her. He is possessed of 30 acres of agricultural land earning Rs. 50000/- per year. Hence she claimed maintenance @ Rs. 500/- p. m. for self and Rs. 250/- p. m. each for the sons.
( 3 ) IT was ultimately found that the sons are residing with the father who is maintaining them, so no maintenance was allowed for them. The Magistrate allowed Rs. 150/- p. m. for the wife holding that there was customary marriage between them as the provisions of Hindu Marriage Act, 1955 did not apply to them as per provi-sions of Sec. 2 (ii) thereof. They have bee declared as Aboriginal Tribe under the provisions of Arts. 366 (25) and 342 of the Constitution of India. The Gonds have been so declared as Aboriginal Tribe vide Notification No. 3000-905-I-7-N-1, dated 25-11-1960, published on 2-12-1960.
( 4 ) THE revisional Court held that the petitioner was not the legally wedded wife of the respondent and hence dismissed the claim petition. The Sessions Court observed that Kumaribai had married in village Bedamuda before starting living with respondent. Her witness Kartikram had stated so and he had not alleged that she has been divorced by her earlier husband. The Court observed that there can be no marriage performed by a lady when her husband was alive. Her marriage was subsisted, so she could best be a keep of Anandram and was not entitled to maintenance.
( 5 ) COUNSEL for the petitioner had argued that the appreciation of evidence by the Magistrate was proper whereas the Sessions Court had wrongly selected certain portions of witnesses out of context and totally ignored the admission of the respondent and his witnesses.
( 6 ) IN view of the conflicting finding of fact by the trial Magistrate and the first revisional Court, it appears clear that this Court should go into the certain aspects of the statements of the wit-nesses to assess what are their versions regard-ing marriage between the petitioner and respondent. It is not in dispute that provisions of Hindu Marriage Act do not apply to these parties. These are people of Aboriginal Tribe of Gonds, so they are governed by the local customs with regard to marriages. Among them it is now well accepted that ceremony of marriage need not be performed as formally as in Shastrik Hindu Law. They have their customary forms of marriages. At least in second marriages which are common among them, they follow the custom of offering Churi to the bride by bridegroom. There is also accepted custom of leaving the wife and this results in divorce when there is an express agreement to divorce.
( 7 ) IT is also to be noticed that in a petition u/s. 125, Cr. P. C. the extent of proof to establish marriage is not of the same standard as in a complaint of bigamy for offence u/s. 494, I. P. C. In fact among Gonds second marriage is also common. These have become accepted customs over the years among this tribe in this part of India.
( 8 ) IT may be noticed that in the petition the petitioner had asserted that she was wife of the respondent and had two sons from him. In reply he denied that she was wife
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