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PETITIONER:

DWARIKA PRASAD SATPATHY

Vs.

RESPONDENT:

BIDYUT PRAVA DIXIT AND ANOTHER

DATE OF JUDGMENT: 14/10/1999

BENCH:

M.B.Shah, K.T.Thomas

JUDGMENT:

Shah, J.

Leave granted.

Respondent No.1 wife filed application Crl. Misc.

Case No. 26 of 1989 on 15.3.1989 under Section 125 Cr.P.C

before the Judicial Magistrate, Nayagarh for her

maintenance. The Judicial Magistrate allowed the said

application by order dated 28.6.1993 and granted monthly

maintenance of Rs.400/- to her and Rs.200/- to her daughter

w.e.f. 15.3.1989. That order was challenged by the husband

(appellant herein) before the Sessions Court in Crl.

Revision No.114/93. The Revision Application was heard by

the Ist Addl. Sessions Judge, Puri, who by his judgment and

order dated 19.4.1994 partly allowed the revision

application of the appellant and set-aside the maintenance

granted to respondent No.1. However, the order granting

maintenance of Rs.200/- per month to the minor daughter,

till she attains the majority subject to future enhancement,

was maintained.

Against that judgment and order, appellant filed Crl.

Misc. Case No.1338 of 1994 before the High Court of Orissa

at Cuttack. Respondent no.1 wife had also filed Crl.

Revision No.389 of 1994. The High Court heard both the

revision applications together, dismissed the revision

application filed by the appellant and allowed the revision

application filed by respondent no.1 wife. The High Court

held that it is not disputed that the parties are residents

of village Kantilo and at the relevant time, the appellant

was bachelor and working as Junior Employment Officer at

Nayagarh. It was also accepted that he was friend of elder

brother of respondent no.1 and was frequently visiting their

house in connection with a social and cultural organization

of the village. He fell in love with respondent no.1 and

developed an intimacy with her. It has also come on record

that the appellant was proposing a pre-marital sexual

relationship with respondent no.1, which was persistently

refused by her. Thereafter, the appellant took a vow in the

name of Lord Nilamadhab Bije to marry her and thereby won

the faith of respondent no.1. Thereafter, because of the

co- habitation respondent no.1 conceived and hence

respondent no.1 insisted for arranging the marriage, which

the appellant refused on one pretext or the other.

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Respondent no.1 took various actions of writing to the

various authorities including the Chief Minister of the

State and ultimately, she launched hunger strike in front of

the office of the appellant. Thereafter, on the

intervention of the Sub Divisional Officer and other

persons, marriage was arranged in the temple of Lord

Jagannath at Nayagarh, in presence of witnesses. After

marriage respondent no.1 was being taken to the house of

appellant. On the way, she was persuaded to stay at the

paternal house on the ground that his father may not accept

her as a bride. At that stage, she was in advanced stage of

pregnancy. She stayed at her parental house and within 3-4

days she gave birth to a female child, respondent no.2. The

parties continued to live separately as before.

In the proceedings under Section 125 of Criminal

Procedure Code, the appellant denied pre-marital sexual

relations with respondent no.1. He asserted that he was

forced to undergo some sort of marriage with respondent no.1

at the point of knife; that he had not given consent to the

marriage and that he was forced to exchange garlands with

respondent no.1. The learned Magistrate believed the case

of respondent no.1 in toto and arrived at the conclusion

that there had been a marriage between the appellant and

respondent no.1 in the temple of Lord Jagannath and the said

marriage was valid and legal one. It was further held that

child was born out of this wedlock. In the revision, the

Addl. Sessions Judge did not accept the factum of marriage

between the parties by holding that the appellant was forced

to exchange garlands at the point of knife and, therefore,

there was no valid marriage in the eyes of law. So, the

claim of respondent no.1 for maintenance was negatived. He,

however, accepted the plea of respondent no.1 that child was

born because of pre-marital relations and confirmed the

order granting maintenance to the child. The High Court

observed that considering standard of proof in a proceeding

under Section 125 Cr.P.C. it cannot be held that respondent

no.1 had not succeeded in establishing marriage. The court

relied upon the evidence led by respondent no.1 for holding

that in fact a marriage was solemnized in the temple of Lord

Jagannath and she was corroborated by the photographer who

was present at the time of marriage. The evidence of the

brother of respondent no.1 was also referred to for arriving

at the said conclusion. The High Court negatived the

contention of the appellant that the said ceremony was

forcibly held at the point of knife and also held that there

was no reason for disbelieving respondent no.1 that the

appellant and respondent no.1 were having pre-marital sexual

relations and that the child was born out of this

relationship. That order is challenged by filing these

appeals by special leave.

Before issuing notice, this Court by order dated

12.10.1998 directed the appellant to deposit rest of the

total arrears of maintenance payable to respondent no.1

within six weeks. Thereafter, notice was issued to

respondent no.1 and subsequently the matter was directed to

be listed for final disposal. On 16.7.1999, when the matter

came up for hearing, the appellant contended that he is not

the father of the child. On behalf of respondent no.1, it

was pointed out that respondent no.1 was prepared to have a

DNA test for finding out fatherhood of the child. At that

stage, the learned counsel for the appellant sought time of

four weeks to get instructions from the appellant.

Thereafter, when the matter was placed for hearing on

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20.8.1999, the learned counsel for the appellant stated that

he was not willing to undergo DNA test and, therefore, this

Court ordered that this means appellant is disentitled to

dispute the paternity of the child. This is recorded.. On

the next date of hearing, learned counsel for the parties

were heard at length and it was contended by the learned

counsel for the appellant that there was no valid marriage

between the appellant and respondent no.1 and, therefore,

the order passed by the High Court awarding maintenance to

respondent no.1 is illegal and requires to be set-aside.

Learned counsel for the appellant at the time of

hearing had not disputed the paternity of the child. Hence,

the question is whether the marriage between the appellant

and respondent no.1 was valid or invalid? In our view,

validity of the marriage for the purpose of summary

proceeding under Section 125 Cr.P.C. is to be determined on

the basis of the evidence brought on record by the parties.

The standard of proof of marriage in such proceeding is not

as strict as is required in a trial of offence under section

494 of the I.P.C. 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. Undisputedly, marriage procedure

was followed in the temple, that too, in the presence of

idol of Lord Jagannath, which is worshipped by both the

parties. Appellant contended before the learned Magistrate

that the said marriage was performed under duress and at the

point of knife, he was required to exchange garlands. That

contention is not proved by leading necessary evidence.

Once it is admitted that the marriage procedure was followed

then it is not necessary to further probe into whether the

said procedure was complete as per the Hindu rites in the

proceedings under Section 125 Cr.P.C.

Learned counsel for the appellant relied upon the

decision of this Court in Smt. Yamunabai Anantrao Adhav v.

Anantrao Shivram Adhav and another, {(1988) 2 S.C.R. 809}

and submitted that even in a summary proceeding under

Section 125 Cr.P.C., the Court is required to find out

whether applicant wife was lawfully wedded wife or not. In

the said case, the Court considered the point whether a

Hindu Woman who has married after coming into force of the

Hindu Marriage Act, 1955, with a man having a lawfully

wedded wife, can maintain an application for maintenance

under Section 125 Cr.P.C. In that case, the Court confirmed

the judgment of the High Court and arrived at the conclusion

that the Legislature decided to bestow the benefit of

Section 125 Cr.P.C. even on an illegitimate child by

expressed words but none are found to apply to a de facto

wife where the marriage is void ab initio. The marriage was

null and void because Section 5 inter alia provides that a

marriage may be solemnised between any two Hindus if the

conditions mentioned therein are fulfilled. One of the

conditions is - neither party has a spouse living at the

time of marriage. Under Section 11, such marriage is null

and void. The Court held that marriage of a woman in

accordance with Hindu rites with the man having a living

spouse is complete nullity in the eye of law and she is not

entitled to the benefit of Section 125 of the Code. In our

view the said judgment has no bearing on the facts of the

present case as it is not a case of de facto marriage nor

can it be held that the marriage between the appellant and

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respondent no.1 was void ab initio. It is a case where it

is contended that at the time of marriage essential

ceremonies were not performed. Hence in the present case,

we are not required to discuss the issue that unless

declaratory decree of nullity of marriage on the ground of

contravention of any one of the conditions specified in

clauses (i), (iv) and (v) of Section 5 is obtained, it

cannot be held in collateral proceedings that marriage was

null and void. Nor it is required to be discussed that

Legislature has not provided that if, some marriage

ceremonies are not performed, marriage is a nullity under

Section 11 or is voidable under Section 12 of the Hindu

Marriage Act.

The learned counsel for the appellant next relied upon

the case of B.S. Lokhande & another Vs. State of

Maharashtra & another, {(1965) 2 S.C.R. 837} and contended

that two ceremonies are essential to the validity of a Hindu

marriage, i.e. invocation before the sacred fire and

sapatapadi and are required to be established before holding

that the marriage performed in the temple was valid one. In

that case, the Court arrived at the conclusion that the

prosecution for the alleged offence under Section 494

I.P.C., had failed to establish that the marriage was

performed in accordance with the customary rites as required

under Section 7 of the Hindu Marriage Act; it was certainly

not performed in accordance with the essential requirements

for a valid marriage under Hindu law and, therefore, accused

cannot be convicted under Section 494, IPC. In our view, in

the said case the Court was considering the evidence which

was led before the trial court in a criminal trial for the

offence punishable under Section 494 IPC. In a prosecution

for bigamy, the second marriage has to be proved as a fact.

The said decision would have no bearing in the proceeding

under Section 125 Cr.P.C., which is of summary nature.

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.

After not disputing the paternity of the child and

after accepting the fact that marriage ceremony was

performed, though not legally perfect as contended, it would

hardly lie in the mouth of the appellant to contend in

proceeding under Section 125 Cr.P.C. that there was no

valid marriage as essential rites were not performed at the

time of said marriage. The provision under Section 125 is

not to be utilized for defeating the rights conferred by the

Legislature to the destitute women, children or parents who

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are victims of social environment. In Ramesh Chander

Kaushal v. Mrs. Veena Kaushal and others, (AIR 1978 SC

1807) Krishna Iyer, J dealing with interpretation of Section

125 Cr.P.C. observed (at Para 9) thus:-

This provision is a measure of social justice and

specially enacted to protect women and children and falls

within the constitutional sweep of Article 15 (3) reinforced

by Article 39. We have no doubt that sections of statutes

calling for construction by courts are not petrified print

but vibrant words with social functions to fulfil. The

brooding presence of the constitutional empathy for the

weaker sections like women and children must inform

interpretation if it has to have social relevance. So

viewed, it is possible to be selective in picking out that

interpretation out of two alternatives which advances the

causethe cause of the derelicts.

In Vimala (K.) Vs. Veeraswamy (K.), (1991) 2 SCC 375,

dealing with the contention of husband that the second

marriage with the applicant wife was void on the ground

that her first marriage was subsisting, this Court held that

Section 125 Cr.P.C. is meant to achieve a social purpose

and, therefore, the law which disentitles the second wife

from receiving maintenance from her husband for the sole

reason that the marriage ceremony though performed in the

customary form lacks legal sanctity can be applied only when

the husband satisfactorily proves the subsistence of a legal

and valid marriage particularly when the provision in the

Code is a measure of social justice intended to protect

women and children; the object to prevent vagrancy and

destitution; it provides a speedy remedy for the supply of

food, clothing and shelter to the deserted wife and observed

thus:-

When an attempt is made by the husband to negative

the claim of the neglected wife depicting her as a

kept-mistress on the specious plea that he was already

married, the court would insist on strict proof of the

earlier marriage.

Similarly, in Santosh (Smt.) v. Naresh Pal [(1998) 8

SCC 447] dealing with the contention that wife had not

proved that she was legally married wife because her first

husband was living and there was no dissolution of her

marriage, this Court held thus: -

In a proceeding for maintenance under Section 125

Cr.P.C. the learned Magistrate was expected to pass

appropriate orders after being prima facie satisfied about

the marital status of parties. It is obvious that the said

decision will be tentative decision subject to final order

in any civil proceedings, if the parties are so advised to

adopt.

Hence, in our view from the evidence which is led if

the Magistrate is prima facie satisfied with regard to the

performance of marriage in proceedings under Section 125

Cr.P.C. which are of summary nature, strict proof of

performance of essential rites is not required. Either of

the parties aggrieved by the order of maintenance under

Section 125, Cr.P.C. can approach the civil court for

declaration of status as the order passed under Section 125

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does not finally determine the rights and obligations of the

parties.

In the result, the appeals are dismissed with costs

quantified at Rs.5,000/-.