Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. MMO No.28 of 2008 Dated of Decision: March 31,2009. Krishan Pal Singh. …..… Petitioner. Versus Smt. Babli @ Kamlesh. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Petitioner : Mr. B.C.Negi, Advocate. For the Respondent : Mr. Vinay Kuthiala, Advocate. Surinder Singh, J (oral): The respondent claimed herself to be the legally wedded wife of the petitioner and alleged neglect and refusal, as such, filed a petition under Section 125 of the Code of Criminal Procedure, which was allowed on 7.5.2007, in Case No.15-4 of 2005, by the learned trial Court and awarded maintenance @ Rs.3,000/- per month from the date of filing of the petition i.e. from 27.6.2005 with costs quantified at Rs.2,000/-. In appeal, the learned Sessions Judge reduced the amount of maintenance to Rs.2,000/- per month, however maintained the cost imposed by the learned trial court. 2 Feeling aggrieved and dissatisfied by the orders of the courts below, the instant petition has been filed, on the grounds that the respondent had failed to prove that she was legally wedded wife of the petitioner and the affidavit Ex.AW1/A placed on record to prove the marriage was insufficient. Shri B.C. Negi, learned counsel for the petitioner contended that the essentials of the marriage were not proved by the respondent by leading cogent and reliable evidence and further that the petitioner belongs to a tribal-area where there is a particular custom to perform the marriage. The respondent could not prove that there existed any legal marriage between her and the petitioner thus findings of the learned trial court to the contrary were incorrect. To support his version, he cited Punnakkal Sreedharan vs. Vellai Padmini and others [1992 Cri.L.J. 3562] and Smt. Santosh Kumari vs. Dalip Chand [1998(1) Shim.L.C. 146] Contra, Shri Vinay Kuthiala, learned counsel for the respondent has vehemently argued that the proceedings under Section 125 of the Code of Criminal Procedure are summary in nature and strict proof for performance of essentials of marriage are not required. He 3 referred to the statements of the parties on record and also the affidavit, executed by the petitioner on 31.8.2004 after his marriage, wherein the petitioner was duly identified by his father who is a literate person and was a government employee. It is argued that after the marriage, both resided and cohabitated as husband and wife in villages Bari and Jeori, but thereafter the respondent-wife was abandoned and denied the maintenance, as such, findings of the courts below are legally and factually correct. I have given my thoughtful consideration to the rival contentions of the parties and have considered the law. It shall be relevant here to refer the statement of AW3 Kamlesh Kumari respondent- wife. According to her, the family members of the petitioner-husband visited her parental house on 31.8.2004 and the marriage was finalized and they agreed to execute the affidavit at the sub-divisional headquarter at Rampur and the affidavits of both the parties were prepared, which were got executed and attested and were exchanged. There was no external pressure on any of the spouses to execute the affidavits. Thereafter she joined 4 the company of her petitioner-husband as his wife and resided at village Kotla, from there she was taken to Reckong-Peo where the petitioner was employed and remained there for about 1½ months. The parents of the petitioner-husband had also visited them and she was taken by them to village Bari where the religious function was also celebrated. Thereafter she remained in the house of her in-laws upto 10.11.2004 and visited Govt. Quarter at Kotla, where she resided with her father-in-law who was in-service. She remained there upto 25.12.2004 along with her husband. Thereafter the petitioner without informing her went somewhere. On inquiry from her parents-in-law, she was told to trace him out, further they told her that he would not keep her as his wife and he would be married somewhere else and requested her to leave the house. She also deposed that there is a custom in Kinnaur area to perform “bottle Pooja” in the house of bridegroom, but that can be deferred and then performed after the procreating the children. She further stated that if this Pooja is not done even then the marriage is recognized, but the bridegroom 5 does not go to the house of her parents till it is performed. The respondent is a literate lady and is graduate. Her father had died in the year 2005. She admitted in her cross-examination that the Hindu Law is not applicable in the tribal areas and denied that the marriage without “bottle Pooja” is never performed. She also denied that the affidavit of the petitioner was prepared under the pressure of the police. Ex.AW1/A is the affidavit of the petitioner-husband which was proved by AW1- Shri Ram Asre, Notary Public. He testified on oath that on 31.8.2004, the petitioner Krishan Pal Singh along with his father came to him accompanied by the respondent. He told him that he had married the respondent and produced the affidavit Ex.AW1/A for its attestation. He was identified by his father Rattan Chand to whom he knew personally. No suggestion was put to this witness that this affidavit Ex.AW1/A was executed under some pressure from the police or otherwise. However, RW1 Krishan Pal Singh petitioner stated that the said affidavit was executed by him under pressure as he was threatened to be 6 implicated in a false case, but it is surprising that he did not make any complaint to the police or higher authorities. He did not whisper even a single word why she wanted to implicate him in a false case. He also admitted the presence of his father at the time of execution of his affidavit. He himself is an educated man and employed as Lecturer in School. His father was working as Superintendent in the Himachal Pradesh State Electricity Board at Jeori, who was residing in the Board quarters, which finds corroboration to the statement of the respondent. Significantly, in the cross- examination, he has admitted that if the bride is non-tribal and bridegroom is tribal, they can solemnize the marriage with their consent. In the affidavit Ex.AW1/A in para-2 there is averment made by the petitioner Krishan Pal Singh that he had solemnized his marriage with Smt. Kamlesh Kumari (respondent) with his consent, sweet will and without any coercion and this is also the case of the respondent. According to her after such marriage both lived together as husband and wife. In Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and another [2000 CRI.L.J.(SC) 1] 7 the Supreme Court with reference of Section 125 of the Code of Criminal Procedure observed that the validity of the marriage for the purpose of summary proceeding under Section 125 of the Code of Criminal Procedure 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 Indian Penal Code. 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. In the instant case, the petitioner could not prove his case by leading necessary evidence to rebut thee presumption of marriage. Once prima-facie, the marriage is proved, it is not necessary to further probe into whether the said procedure was complete as per the Hindu rites or otherwise, in the proceedings under Section 125 of the Code of Criminal Procedure. Dwarika Prasad Satpathy’s 8 case supra, was also followed in Savitaben Somabhai Bhatiya vs. State of Gujarat and others [(2005) 3 Suprme Court Cases 636]. Thus, in view of the aforesaid evidence, it would hardly lie in the mouth of the petitioner to contend in the proceeding under Section 125 of the Code of Criminal Procedure that he was not validly married, in absence of the essential rites at the time of marriage. The provision of Section 125 of the Code of Criminal Procedure is enacted for social justice and specially to protect women and children as also old and infirm poor parents and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. As already stated above, for a wife to prove marriage only a prima-facie proof is required which may be rebutted by the husband by leading cogent and reliable evidence. The case law cited above by the learned counsel for the petitioner is not at all applicable to the present case as Santosh Kumari’s case was a regular suit where the husband had challenged her status as a wife and in Punnakkal Sreedharan’s case, there was no evidence that after the execution of the registered documents both the parties had 9 lived together as husband and wife, but in the instant case as already stated above, after the execution of the affidavits, both the parties had lived together as husband and wife, therefore, for the purpose of Section 125 of the Code of Criminal Procedure, there is a strong presumption of marriage which status may be finally determined by the civil court. Thus, the learned courts below have rightly held the respondent-wife entitled for the maintenance. Hence, no interference in the orders passed by the Courts below is called for. The petition is dismissed. Cr.M.P.No.202 of 2008. Infructuous. March 31,2009. (Surinder Singh) (Pds) Judge.