1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Ram Niwas Vs. Smt. Kamal (S.B. Criminal Revision Petition No.1277/2009) Date of Order :- October 15th, 2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Ashok Mehta, for the petitioner. Mr.Surendra Sharma, for the respondent. 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. 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 2 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. 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. 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. 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 3 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 Vs. Dy. Director of Consolidation & Ors. (AIR 1978 SC 1557), Dwarika Prasad Satpathy Vs. 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 and in passing the impugned order. In rejoinder, Mr. Mehta has contended that the definition of the word “wife” is limited to a legally married wife or a “divorced” wife. But, the word “wife” cannot be interpreted to the extent so as to include a lady who has not married the man. Moreover, the presumption under law with regard to the marital status of a person is not an absolute presumption, but is a rebuttal one. Ram Niwas has rebutted the evidence of Smt. Kamal by producing his own set of 4 witnesses. According to these witnesses, they had never seen Smt. Kamal living as Ram Niwas's wife. Despite the availability of their testimony, the learned Judge has still granted the benefit of maintenance to Smt. Kamal. Heard the learned counsel for the parties, perused the record and have considered the case law cited at the Bar. This case raises a few interesting legal issues : firstly, about the scope and ambit of Section 125 Cr.P.C. Secondly, the extent of proof that is required to establish a matrimonial relationship between the parties. Thirdly, whether the presumption that the parties are married, based on conduct is absolute or rebuttable one ? Fourthly, whether the petitioner has succeeded in rebutting the presumption drawn in favour of the non-petitioner about the existence of a marriage between the parties or not ? Fifthly, whether the non-petitioner is entitled to the maintenance granted to her or not? The existence of a provision dealing with grant of maintenance to the wife, to the children and to the parents existing in Code of Criminal Procedure, at the first blush, appears to be incongruous. A lay person may wonder about the relationship between a Code dealing with the procedure to be followed in criminal cases and a maintenance to be given by the husband, the father or the children. However, to quote Shakespere, “there is some logic in this madness”. When the British had enacted the old Criminal Procedure Code, they had realised that certain provisions were 5 needed in order to ensure peace and tranquility and stability of the society. Therefore, even the old Code had contained a chapter entitled “Order for maintenance of wives, to children and parents”. The English had realised that the family is the basic unit of the society. Therefore, it is imperative that the family is preserved and protected. Moreover, women, who are abandoned by their husband, are not only a burden on their parental family, but are also a threat to the moral fabric of the society. The Victorian Society was protective of the women. Even under the constitutional scheme of a free and independent India, the State and the Indian Society is aware of its responsibilities towards the women of India. Therefore, even after the drastic amendments carried out in the old Criminal Procedure Code in 1973, the new Code has also retained and refined the provisions relating to maintenance of a wife. Since no society wants its womenfolk to be financially vulnerable, to be physically exploited, the laws have provided provisions for maintenance of a wife. Thus, her maintenance is not only a moral duty of the husband, but is also the legal liability of the husband. In order to protect women, the definition of the word “wife” has been increased to include even those women who are divorced by their husband. Thus, the object of the provision is to protect the weaker section of the society, namely the women, the children and the old parents. Hence, Section 125 Cr.P.C. is a social beneficial piece of legislation. A proceeding under Section 125 Cr.P.C., although is a proceeding under the Criminal Procedure Code, but the proceeding is not like a criminal trial. In fact, it is more in the nature of a civil suit. Therefore, the burden of proof, to prove the existence of marriage, is 6 not as onerous on the petitioner as it would be upon the prosecution in a criminal trial. A case under Section 125 Cr.P.C. can be proved by preponderance of probability and need not be proved beyond a reasonable doubt. In the case of Dwarika Prasad Satpathy (supra), the Apex Court observed as under :- The 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 IPC. 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. 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. 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. It is, indeed, trite to state that in case a man and a woman live together and appear in public, and treat each other in public as husband and wife, then a safe presumption can be made that they are living in wedlock. In the case of Badri Prasad (surpa), the Hon'ble Apex Court has held that if man and woman live together as husband and wife for a long time, a strong presumption arises in favour of wedlock. A strong proof about the factum of marriage by examining the priest and other witnesses is not necessary. However, the presumption is not an absolute one, but is a rebuttable one. While the court will presume the existence of a marital status, the onus of 7 proof shifts to the other party to rebut the said presumption through cogent and convincing evidence. Applying these principles to the present case, let us look at the evidence produced by the warring parties. While the non- petitioner, Smt. Kamal has claimed that she is a lawful wedded wife of the petitioner, the petitioner has denied the said fact. He has claimed that he and the non-petitioner had resided as tenants in the same building for a period of six months. Thus, they were merely good acquaintance. It is only as an acquaintance that he had helped her monetarily. In order to prove her case, besides herself, the non- petitioner had examined four other witnesses including her daughter from her first marriage, Boskey (AW-5). She has also examined Mr. Samiullah Khan (AW-2), Brijmohan Sahu (AW-3), Smt. Leela Vaid (AW-4) as independent witnesses. Mr. Samiullah Khan, (AW-2), clearly states that from 1988 till 1992-1993, the petitioner, Ram Niwas, was his father's tenant. At that time the non-petitioner also used to stay with him. He had seen both of them staying as husband and wife. Of course in his cross-examination, he does admit that he does not have any proof of their marriage. But nonetheless, the fact remains that he claims to have seen both of them as “living as husband and wife”. His testimony is further corroborated by Mr. Brijmohan Sahu (AW-3), who claims that both the parties were his tenant for a period of one and half years. He further claims that both the parties were living as husband and wife and they had a daughter whose name is Boskey. Smt. Leela Ved (AW-4) further corroborates the statement of Mr. Brijmohan Sahu (AW-3). She claims that she had known the petitioner for many years, from the time he was staying as 8 her tenant. She further claims that although initially, she was introduced to the petitioner as a relative of the non-petitioner, but subsequently both the parties got married clandestinely. She further tells the court that even during his training at Nasik, the petitioner periodically visit the non-petitioner. She further claims that the petitioner had left the non-petitioner about ten to twelve years ago. In her cross-examination, she does admit that she has stated that the parties were married on the basis of statement made by the non- petitioner. However, what is essential to notice is the fact that all the three independent witnesses categorically state that they have seen the parties living as husband and wife for a number of years. Since the testimonies of these witnesses have not been demolished in cross- examination, there is no reason for doubting the veracity of their testimonies. The testimony of Boskey (AW-5) is equally material. In her cross-examination, she clearly states that both the parties got married through the “Nata” practice – a practice which is prevalent amongst the “Meena” community in Rajasthan. She also states that in 1989, she was a child of seven-eight years old. She further claims that she does not remember the exact ceremonies which was performed at the “Nata”, but she does clearly remember that there were a plenty of guests in the house. She also claims that she addresses the petitioner as her father because it is he who had brought her up. She also identifies a birthday card sent by the petitioner to her. She also verifies the letters written by the petitioner to the non-petitioner. Although this witness can be termed as a interested/related witness, but the fact remains that her testimony has been corroborated not only by the testimony of the independent witnesses, mentioned above, but also by the documentary evidence. 9 Similarly the testimony of Smt. Kamal has been corroborated by the testimonies of independent witnesses as well as by the documentary evidence in the form of letters written by the petitioner to her. A bare perusal of the letters clearly reveals that these are not letters which an acquaintance would have written to a person. The letter dated 07.08.1992 clearly reveals the intimacy that existed between the parties both in its graphic depiction of a heart and in the written language. These letters demolish the case of the petitioner that he knew the non-petitioner merely as an acquaintance. Thus, there is an overwhelming evidence to prove the factum of marriage between the parties. Per contra, the petitioner has also examined four other witnesses, beside himself, namely Ramkesh Meena (NAW-2), Khyali Ram Meena (NAW-3), Jagdish Prasad Meena (NAW-4) and Indra Narayan Saxena (NAW-5). Although the petitioner denies the factum of marriage, although he claims that he hardly knew the non- petitioner, but in his cross-examination, he does admit that the letters (Exhibits 3 & 4) were written by him. He further admits that the greeting card (Exhibit-5) was also sent by him to the non-petitioner's daughter on her birthday. He further admits that even the postcard (Exhibit-6) was also written by him. Ramkesh Meena (NAW-2) happens to be the real brother of the petitioner. He states that he has never seen the non-petitioner living with the petitioner. This statement is rather surprising. Since on the one hand, he claims that he had visit the petitioner in Kota and yet he claims that he had never seen the non-petitioner living with the petitioner. Yet, on the other hand, independent witnesses like AW-2, 3 & 4 claim that the 10 petitioner was, indeed, living with the non-petitioner as husband and wife in Kota. Considering the fact that Ramkesh Meena (NAW-2) is a related witness, his testimony cannot take precedent over the testimony of independent witnesses produced by the non-petitioner. Similarly, Jagdish Prasad Meena happens to be a cousin brother of the petitioner. This witness also claims that the petitioner had stayed at Kota under his supervision. And that he used to meet the petitioner in Kota. He further claims that he had never seen non-petitioner. He further denies that the petitioner got married with the non-petitioner. However, as stated above even his testimony is contrary to the testimony of independent witnesses. Since he is an interested witness, his testimony is unacceptable over the testimonies of independent witnesses. Mr. Indra Narain Saxena (NAW-5) has been produced as an independent witness on part of the petitioner. Mr. Indra Narayan Saxena, (NAW-5) does state in his examination-in-chief that the non-petitioner has been staying as his tenant since 1995 along with her daughter. He further states that he had never seen the petitioner. He further claims that he had seen the petitioner for the first time in the court today. However, interestingly in his cross- examination, he clearly states that this morning the petitioner came to his house and asked him to appear as a witness in this case. He further admits that in the notice given by him to the non-petitioner on 17.09.1994, he had shown Smt. Kamal as the wife of Ram Niwas. He further admits that he had filed a civil suit for ejecting Smt. Kamal from his house. Lastly, he admits that even on the day, when the testimony was recorded, another eviction suit is pending between him and Smt. Kamal. Considering the fact that a civil litigation is pending between the Mr. Indra Narayan Saxena, (NAW-5) and Smt. 11 Kamal, an element of animosity appears to be existing between the two. Curiously, the witness appears on behalf of a person whom he claims to be total stranger; considering these two factors, the testimony of Mr. Saxena becomes doubtful. A bare perusal of the evidence produced by the petitioner clearly reveals that he has been unable to rebut the cogent and convincing evidence produced by the non-petitioner. Whereas Smt. Kamal has produced both the independent witnesses and documentary evidence, the petitioner has produced merely interested witnesses and an unreliable independent witness. Hence, in the opinion of this Court, the petitioner has not been able to rebut the presumption drawn by the learned Judge. A bare perusal of the impugned order also reveals that the learned Judge has meticulously discussed the evidence and has appreciated it in a proper manner. For the reasons stated above, this petition is devoid of any merit, it is, hereby, dismissed. (R.S.CHAUHAN)J. Manoj Solanki-