ALLAHABAD HIGH COURT
Raj Beer Singh, J.
Irshad Ali – Revisionist
versus
State of U.P. and Anr. – Opp. Parties
Criminal Revision No.1555 of 2020
Decided on 8.1.2021

IMPORTANT POINTS
(1) Standard of proof of marriage in a Section 125, Cr.P.C. proceeding is not as strict as is required in a trial for an offence under Section 494 IPC.
(2) Order passed in application under Section 125 Cr.P.C. does not finally determine rights and obligations of parties.
(3) Court has to keep in mind that exercise of revisional jurisdiction itself should not lead to injustice ex facie.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 125 – Maintenance – Standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC – For the purposes of a proceeding under Section 125 Cr.P.C., factum of marriage has to be prima facie considered – If there is prima facie material on record to suggest that parties have married or are having relationship in nature of marriage, court can presume in favour of woman claiming maintenance – Since provision under Section 125 Cr.P.C. is a measure of social justice and has been enacted to protect women, children or parents and materials on record suggest two views, then view in favour of women should be adopted – Order passed in application under Section 125 Cr.P.C. does not finally determine rights and obligations of parties – Said section is enacted with a view to provide a summary remedy for providing maintenance to wife, children and parents.

Held: The main question that falls for consideration in the instant revision is that whether the respondent No. 2 has been able to show herself as married wife of revisionist in order to claim maintenance from revisionist under section 125 CrPC. At the out set it may be observed that proceedings under Section 125 Cr.P.C. are summary proceeding. In case of Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and Another, AIR 1999 SC 3348, it has been observed the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. The Court explained the reason for the aforesaid finding by holding that an order passed in an application under Section 125 does not really determine the rights and obligations of the parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. It was held that maintenance cannot be denied where there was some evidence on which conclusions of living together could be reached. It was further observed as under:-

“It is to be remembered that the order passed in an application under Section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents. For the purpose of getting his rights determined, the appellant has also filed a Civil Suit, which is pending before the trial court. In such a situation, this Court in S. Sethurathinam Pillai v. Barbara alias Dolly Sethurthinam, {1971 (3) SCC 923} observed that maintenance under Section 488 Cr.P.C., 1898 (Similar to Section 125 Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties.”

It is well settled that for the purposes of a proceeding under Section 125 Cr.P.C., the factum of marriage has to be prima facie considered. If there is prima facie material on record to suggest that the parties have married or are having relationship in the nature of marriage, the court can presume in favour of the woman claiming maintenance. Since the provision under Section 125 Cr.P.C. is a measure of social justice and has been enacted to protect women, children or parents and the materials on record suggest two views, then the view in favour of women should be adopted. An order passed in an application under Section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide a summary remedy for providing maintenance to a wife, children and parents. In case of S. Sethurathiuam Pillai Vs. Barbara it was observed that maintenance under Section 488 Cr.P.C. 1898 (similar to Section 125 Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties. In a proceeding for maintenance under Section 125 Cr.P.C., a Magistrate or Judge of the Family Court has to be prima facie satisfied about the marital status of the parties, as a decision under Section 125 Cr.P.C. is tentative in nature, subject to the decision in any civil proceeding, as has been held in Santosh Vs. Naresh Pal (1998) 8 Supreme Court Cases 447. The court is expected to pass appropriate order after being prima facie satisfied about the marital status of the parties. Even the definition of wife provided in Explanation (b) to Section 125 (1) of Cr.P.C. (Paras 6 and 8)

(B) Criminal Procedure Code, 1973 – Section 125 – Maintenance – Grant of – In a proceeding for maintenance under Section 125 Cr.P.C., Magistrate or Judge of Family Court has to be prima facie satisfied about marital status of parties, as a decision under Section 125 Cr.P.C. is tentative in nature, subject to decision in any civil proceeding – Court is expected to pass appropriate order after being prima facie satisfied about marital status of parties – Validity of marriage will not be a ground for refusal of maintenance if other requirements of Section 125 Cr.P.C. are fulfilled – Either of parties aggrieved by order of maintenance under Section 125, Cr.P.C. can approach civil court for declaration of status as order passed under Section 125 does not finally determine rights and obligations of parties – Exercising revisional jurisdiction it is not required to enter into reappraisal of evidence and court can not substitute its own findings in place of which are recorded in order granting maintenance. (Paras 8 to 11 and 15)

(C) Criminal Procedure Code, 1973 – Section 397 – Revisional Jurisdiction – Scope and ambit – Object of section 397 Cr.P.C. is to set right a patent defect or an error of jurisdiction or law – There has to be a well-founded error and it may not be appropriate for court to scrutinise orders, which upon face of it bears a token of careful consideration and appear to be in accordance with law – Revisional jurisdiction can be invoked where decisions under challenge are grossly erroneous, there is no compliance with provisions of law, finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely – Court has to keep in mind that exercise of revisional jurisdiction itself should not lead to injustice ex facie.

Held: At this juncture it may be stated that recently in case of State of Madhya Pradesh Vs. Deepak [Criminal Appeal No. 485 of 2019] decided on 13.03.2019, Hon’ble Apex Court has laid down that object of section 397 CrPC is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. The revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. In the instant case no such contingency could be shown so as to call any interference by this court in revisional jurisdiction. (Para 19)

Result: Criminal Revision Petition dismissed.