IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Revision No.55 of 2004. Date of decision: 7.10.2010. Parvati @ Paro & Others … …Petitioners Versus Tek Chand … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioner: Mr.Rakesh Jaswal, Advocate. For the Respondents: Mr.N.K. Thakur, Advocate. Dev Darshan Sud,J. This petition has been filed by the wife against the order of the learned Sessions Judge, Chamba, accepting the revision instituted by the respondent herein setting aside the order of the learned Sub Divisional Judicial Magistrate, Dalhousie granting maintenance of Rs.400/- per month to the petitioner herein and Rs.300/- per month to the children. 2. The petitioner herein approached the learned trial Court claiming maintenance for herself and two minor children on the ground that the marriage was solemnized according to custom with respondent Tek Chand and out of the wedlock, two children were born. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 She then states that the respondent started mistreating her turned her out of the house for no justifiable cause/reason. He was working as a teacher and was earning a salary of Rs.4,000/- per month as on the date when the petition was instituted in the year 1998. 3. Learned trial Magistrate, on the evidence, hold that the petitioner as also the proforma petitioners herein were entitled to the maintenance as claimed. It was urged before the Court that the essential ceremonies of a valid marriage were not established and in these circumstances she was not entitled to any maintenance. This evidence was not accepted by the learned trial Court which allowed the petition. 4. In revision, the learned Sessions Judge has set aside the order basically on the ground that the allegation of the petitioner was that `Jhanjrara’ was performed, but strict proof of performance of marriage has not been brought on the record. The learned appellate Court though notices that proceedings under Section 125 of the Code of Criminal Procedure are summary in nature and do not require strict proof of the marriage, yet the Court holds that there is no satisfactory evidence to prove the marriage on record. 5. In Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and Another, AIR 1999 SC 3348 the Supreme Court holds:- 3 “6. … … … …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 9. 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 4 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.” (pp.3350-3351) (Emphasis supplied) 6. The Court further holds that Section 125 is a measure for advancing the social justice. The Court quoted with approval the decision in Ramesh Chander Kaushal vs. Mrs.Veena Kaushal, AIR 1978 SC 1807 holding:- “10. … … … … … … … … … … … … "This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of 5 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 fulfill. 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 cause - the cause of the derelicts." (p.3351) 7. To similar effect is the decision in Vimala(K.) vs. Veeraswamy (K.), (1991) 2 SCC 375. The Court holds that in these summary proceedings the rights of the parties are not determined finally. 8. Adverting to the judgment in revision, I cannot subscribe to the view of the learned Sessions Judge when he holds that the evidence is of a contradictory nature with respect to the marriage. What the learned appellate Court should have considered first was the fact that it was established on record that two children were born from the petitioner and that there is no challenge to award of maintenance to them. In these circumstances, it could not be said that prima facie it was not established that the parties are not living together as husband and wife. They were tribals and subject to different customs/ceremonies. The learned Magistrate had, in- 6 fact, decided on the evidence on record holding that prima facie the relationship stood proved. In these circumstances, I hold that the learned Sessions Judge was in error in undertaking a meticulous examination on evidence. 8. Learned counsel appearing for the respondent urges that the petitioner herself admits that she is not married to respondent. I cannot accept this contention. On the evidence on record, I do not find any admission which had been made by her when her statement is considered in its entirety. 9. This petition is accordingly allowed. The judgment of the learned Sessions Judge is quashed and set aside and that of the learned trial Court is restored. October 7, 2010 (Dev Darshan Sud) (aks) Judge.