IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Rev. No. 512 of 2008 Date of decision: February 24, 2009 Prabh Dayal ….. Petitioner Versus Meera Devi ….. Respondent Present: Mr. J.S. Brar, Advocate for the petitioner. *** S.S. SARON, J. This revision petition has been filed by the petitioner-husband against the order dated 15.1.2008 passed by the learned Additional Sessions Judge (Ad hoc) Fast Track Court, Muktsar whereby the revision petition filed by the respondent-wife against the order dated 31.7.2007 passed by the learned Chief Judicial Magistrate, Muktsar has been accepted and the order of the trial Magistrate declining maintenance to the respondent-wife has been dismissed. The respondent-wife filed a petition under Section 125 of the Code of Criminal Procedure (“CrPC” - for short) seeking maintenance from the petitioner-husband namely Prabh Dayal. It was alleged by the respondent wife that she was earlier married to Phool Chand who had died about 20 years earlier. The petitioner Prabh Dayal is the brother of aforesaid Phool Chand and with the intervention of the relatives, her marriage was solemnized with him (petitioner). However, the petitioner developed illicit relations with one Usha Rani about 7-8 months earlier to the filing of the application for the grant of maintenance. He (petitioner) had been residing with said Usha Rani at Navi Basti, Maur Road, Muktsar. When the respondent tried to make him Crl. Rev. No. 512 of 2008 2 understand, the petitioner gave a beating to her. It was alleged that the respondent was an illiterate lady and had no source of income; whereas the petitioner was employed in the Food Corporation of India and was earning about Rs.4,000/- per month as salary. Besides, he also earned about Rs.2,000 per month by doing overtime. Therefore, he was in a position to pay maintenance to the respondents. It was also averred that on 25.5.2004, the Panchayat had compromised the matter between the parties. The petitioner was to pay a sum of Rs.10,000/- to the respondent till 15.6.2004. However, the petitioner had intentionally neglected the respondent and therefore, she has filed the petition. The petitioner-husband in his reply took the stand that the respondent was not his legally married wife. It was stated that his father’s name was Sudeshi Ram and the respondent-wife had intentionally mentioned the name of the father of the petitioner as Chajju Ram. Besides, the petitioner was not the brother of Phool Chand - the previous husband of the respondent. The marriage between the parties was never solemnized and in fact the petitioner had solemnized his marriage with Usha Rani one year earlier. The learned Chief Judicial Magistrate, Muktsar after considering the evidence and material on record dismissed the petition of the respondent-wife by observing that the marriage between the parties was not proved. The learned Additional Sessions Judge, Muktsar, however, set aside the findings of the learned trial Magistrate and allowed the petition of the respondent. It was held that strict proof of performance of essential rites is not required and an order passed under Section 125 CrPC does not finally determine the rights and obligations of the parties. Besides, a party aggrieved by an order of maintenance under Section 125 CrPC can approach the Civil Court for declaration of its status. Accordingly, maintenance to the extent of Rs.800 per Crl. Rev. No. 512 of 2008 3 month was granted by the learned Additional Sessions Judge (Ad hoc) Fast Track Court, Muktsar. The said order is assailed in this petition. Learned counsel for the petitioner has submitted that the learned Additional Sessions Judge gravely erred in setting aside the order of the learned Chief Judicial Magistrate. It is submitted that the compromise recorded between the parties on 25.5.2004 (Ex.PE) and the affidavit dated 25.11.2004 (Ex.R1) deposed by the respondent-wife have not been taken into consideration. It is also submitted that there is no valid or subsisting marriage between the parties inasmuch as the petitioner is married with Smt. Usha Rani. He has referred to the photographs mark 1 to 3 which show that Usha Rani is dressed in a wedding attire and the respondent is standing with the couple. I have given my thoughtful consideration to the contentions of the learned counsel for the petitioner and with his assistance, perused the record. It may be noticed that the learned Additional Sessions Judge (Ad hoc) Fast Track Court, Muktsar has granted maintenance to the respondent-wife to the extent of Rs.800 per month. The question whether the parties are legally married or not would more appropriately be considered and gone into in appropriate proceedings in case the petitioner is aggrieved against his such status. The provisions of Section 125 CrPC as is well-known is a measure of social legislation and has to be construed in a manner which advances the cause of those unable to maintain themselves. In proceedings for grant of maintenance the requisite and essential ceremonies of marriage are not to be proved by leading the evidence as regards the solemnization of marriage for the purpose of determining the validity of marriage. In Dwarika Prasad Satpathy v. Bidyut Prava Dixit, 1999(4) RCR (Crl.) 577 it was observed by the Supreme Court that the standard of proof of marriage in proceedings under Section 125 CrPC is not a strict one as may be required for proving the Crl. Rev. No. 512 of 2008 4 marriage in case of a trial under Section 494 Indian Penal Code. A Magistrate is required to prima facie satisfy himself with regard to performance of marriage. Strict proof of performance of essential rites is not required. Besides, an order under Section 125 CrPC does not finally determine the rights and obligations of the parties and the party aggrieved by an order granting maintenance can approach the Court for declaration of his status. In the present case, the marriage according to the respondent-wife was solemnized with the brother of the deceased-husband and such marriages are performed in the villages and have the force of custom. Therefore, in the face of the findings reached at by the learned Additional Sessions Judge, no interference is called for in exercise of the inherent jurisdiction or revisional jurisdiction of this Court against the said order. As regards the compromise dated 25.5.2004 (Ex.PE), it may be noticed that the same is in the form of an application submitted by both the parties to the Station House Officer, Police Station City, Muktsar. It is stated by the respondent-wife that the application that she had given against the petitioner Prabh Dayal had been compromised in the presence of respectable persons in a Panchayat and that there was now no dispute pending between the parties. Besides, the compromise be accepted. It was agreed that the petitioner Prabh Dayal would pay the respondent a sum of Rs.10,000/- by 15.6.2004 and that there would be no interest payable on the said amount. In case Prabh Dayal (petitioner) did not adhere to the compromise then Sham Lal would be bound to give the amount. Besides, in case the respondent Meera Devi takes any step, she herself would be responsible. In terms of the affidavit dated 25.11.2004 (Ex.R1) deposed by the respondent Meera Devi, it has been stated that she had received a sum of Rs.10,000/- from Prabh Dayal and she had no dispute with said Prabh Dayal and that she would now not file any criminal or Crl. Rev. No. 512 of 2008 5 civil case against him in any Court. Moreover, on the next date of hearing, she would take back the case of maintenance from the Court. According to the case of the respondent-wife, as amount of Rs.10,000/- was not paid by the petitioner Prabh Dayal as was promised. Learned counsel for the petitioner has however laid strong emphasis on the affidavit dated 25.11.2004 (Ex.R1) deposed by respondent. However, it may be noticed that admittedly the said affidavit has been marked as an exhibit in the evidence of the petitioner-husband. It has not been put to the respondent-wife while she was appearing in the witness-box. In Sait Tarajee Khimchand and others v. Yelamarti Satyam and others, AIR 1971 SC 1865 it was held that mere marking of a document as an exhibit does not dispense with its proof of documents. The same was reiterated in Narbada Devi Gupta v. Birendra Kumar Jaiswal and another, (2003) 8 SCC 745. Therefore, mere marking and production of documents is not enough and the execution has to be proved by admissible evidence. In the circumstances, merely because the affidavit of the respondent has been exhibited on record and that too in the deposition of the petitioner-husband, the same cannot be held to be valid. Even otherwise, it may be noticed that the contents of the affidavit were not put to the witness when she was appearing in the witness- box. In Sita Ram Bhau Patil v. Ramchandra Nago Patil, AIR 1977 SC 1712 it was observed that even if the admission is proved in accordance with the provisions of the Evidence Act and if it is to be used against the party who has made it, it is sound that if a witness is under cross-examination on oath, he should be given an opportunity, if the documents are to be used against him, to tender his explanation and to clear up the point of ambiguity or dispute. This is a general salutary and intelligible rule. Therefore, a mere proof of admission, after the person whose admission it is alleged to be has concluded his evidence, Crl. Rev. No. 512 of 2008 6 will be of no avail and cannot be utilized against him. Admittedly, the aforesaid affidavit (Ex.Q1) has not been put to the respondent-wife when she appeared as a witness. Therefore, in the circumstances, it is evident that the affidavit dated 25.11.2004 (Ex.R1) has merely been marked as an exhibit and even otherwise, the contents of the same were never put to the respondent when she was appearing in the witness-box. As such, not much reliance is to be placed on the said affidavit as has been contended by the learned counsel for the petitioner. In the circumstances, there is no merit in the revision petition and the same is accordingly dismissed. (S.S. SARON) JUDGE February 24, 2009 amit