Harwinder Kaur vs Gursewak Singh @ Sewa Singh

V.S. Aggarwal, J.—Harwinder Kaur petitioner filed an application u/s 125 of the Criminal Procedure Code against respondent Gursewak Singh. She prayed for maintenance. In the said''application she had averred that she was married to the respondent about 27 years'' back. Anand Karaj Ceremony was performed in Village Ladwanzara Kalan. The marriage was solemnized on the day her elder sister was married with Jagan Singh. The said Jagan Singh is the elder brother of the respondent. Since at the time of marriage, the petitioner was very young in age, the Muklawa Ceremony was not performed. Muklawa Ceremony was performed about 9 years back. Thereafter she started living with the respondent as his wife. After one month, she was being taunted and malt reated that the petitioner was not beautiful and had not brought enough dowry. She was beaten mercilessly. Finally, she was turned out of the house. A panchayat comprising of Hardial Singh, Gurdial Singh besides others approached the respondent so that she could be rehabilitated. It had no good effect. It was alleged that she had been neglected and the respondent has refused to maintain her. Thus, the maintenance was claimed.

Needless to say that in the reply filed, the petition has been contested. The respondent controverted the allegations of the petitioner. It was alleged that petitioner had earlier filed an application which was dismissed. He further contended that as per the petitioner, at the time of the marriage, the respondent could only be of 2 years of age. It was denied that petitioner has married the respondent. The question of demanding the dowry and giving her beatings did not arise.

The learned Judicial Magistrate, Sangrur on appraisal of the evidence held that the marriage had been solemnized between the parties. It was further held that the respondent had nut maintained his wife and has deserted her. The petitioner was held liable to seek maintenance. The maintenance was awarded at Rs. 200/-p.m. Aggrieved by the said order, the respondent preferred a revision petition in the Court of Sessions. The learned Additional Sessions Judge, Sangrur held that the parties were not married with each other and therefore, the petitioner was not entitled to maintenance. Aggrieved by the said order passed by the learned Additional Sessions Judge, the present revision petition has been filed.

The basic question that comes up for consideration and is in controversy between the parties is as to whether the petitioner is the legally wedded wife of the respondent or not. The marriage is alleged to have been solemnized when the parties were infants. There are no photographs or any other certificate of registration of marriage to establish the same. The evidence basically is oral besides the other documents to be discussed hereinafter.

The petitioner examined Gurdial Singh as AW 1. He stated that he knew the parties. They had married each other and he had given a Shagun ofRs. 50/-. Entry regarding this fact was made in the account book. The sister of the petitioner was married to the elder brother of the respondent. About 10 years back, the Muklawa Ceremony had been performed. Thereafter, the petitioner went to live with the respondent. During cross-examination the witness stated that he does not know about the age of the respondent but his elder brother is stated to be of about 40/45 years of age. He added that marriage was performed in the month of Phagun. He was questioned as to what was the present Sammat era. He showed ignorance. Bori a Singh AW 2 was the other witness so examined. He too stated that the parties married each other. Muklawa Ceremony was''performed 15 to 16 years later. This witness stated that he had given a Shagun ofRs. 71 /-. During cross-examination he admitted that petitioner is the daughter of his wife''s sister. He was not aware if respondent has any sister or not. He further stated that respondent is younger to Jaswinder Kaur. Ram Baksh AW 3 was the next witness examined in this regard. He also stated that parties married each other. Anand Karaj was performed. According to him Sher Singh was the Granthi but he has since died. A neonda was written in the Bahi regarding the marriage of the petitioner. He was shown the original writing and is stated that copy of the same is Ex. AW-1. Gurdial Singh had given a neonda of Rs. 50/- while Boria Singh son of Hamam Singh gave a neonda of Rs. 71 /-. Hari Singh brother of the petitioner made a similar statement which requiren to repetition.

The oral testimonies of the witnesses are consistent that the parties married each other. To fall back on the statement of Jaswinder Kaur, sister of the petitioner who was married to the brother of the respondent does not cut much ice. She seemingly supports her sister but the statement of this witness is important. Lost between her sister and the brother of her husband, she had made such statement which cannot be ignored. The respondent does not have the''courage and feels shy of examining his brother who is married to Jaswinder Kaur AW 5. He could be the best person to state about her brother having been married to the petitioner or not.

Much reliance on behalf of the respondent was placed on the statement of Harwinder Kaur petitioner. It is true she has made a statement which is not very consistent. This is for the reason that she states that on the day she was married, there was no other marriage solemnized. While in the petition it has been asserted that on the same day her sister was married to the brother of the respondent but the statement of this witness has to be appreciated because she is illiterate. She could not even give the name of her village. She could not be expected to be familiar with the niceties of law. But she categorically stated that she was married to the respondent. This version of the petitioner gets support from the voters lists, copies of which are Exs. A2 and A3 for the years 1979-80 and 1984-85. The petitioner has been recorded to be me wife of the respondent. If there was no marriage that had been solemnized, there was no occasion for such an entry to have been effected. The petitioner is a resident of another village and unless she was married to the respondent, such a voters list will not come into being in village of the respondent.

As against this evidence, the respondent had examined Jang Singh as RW 1 who stated that respondent had not accompanied the marriage party of his brother. But too much importance cannot be given to the statement of this witness keeping in view the copies of the voters list which clinches the issue in favour of the petitioner. This is for the added reason that respondent is feeling shy of examining his own brother. Thus, accordingly the findings of the learned Additional Sessions Judge cannot be sustained.

9.ItistruethatnormallythisCourtwillnotupsetthefindingsoffactbutwhen the learned Additional Sessions Judge had examined the evidence on the wrong premises, this Court would be failing in its duty in not appraising the evidence.

Confronted with that position, the respondent urged that the marriage was solemnized when the petitioner and the respondent were under-age and, therefore, the marriage was a nullity. In this regard reference may be made to Section 5 of the Hindu Marriage Act. It reads:

"5. Conditions for a Hindu Marriage-A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely :

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party,-

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subjected to recurrent attack of insanity or epilepsy;

(iii) the bridegroom has completed the age of (twenty-one years) and the bridge the age of (eighteen years) at the time of marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapind as of each other, unless the custom of usage governing each of them permits of a marriage between the two;

(vi) where the bride has not completed the age of eighteen years / the consent of her guardian in marriage, if any, has been obtained for the marriage."

It is apparent from Clauses (iii) and (vi) of the Act that amongst the Conditions prescribed that the bridegroom and bride have not to be below a specific age, u/s 11 of the said Act, any marriage solemnized after the commencement of the Act Shall be null and void and could be declared to be null and void if it contravenes Clauses (i), (iv) and (v) of Section 5 of the Act. It does not refer to Clauses (iii) and (vi) which prescribe minimum age as referred to above. Similarly u/s 12 of the Hindu Marriage Act, certain marriages are voidable but two clauses pertaining to the minimum age of the bridegroom and the bride are not attracted. Reference may be made to the Full Bench decision of the Andhra Pradesh High Court in the case Pinninti Venkataramana and Another Vs. State, . It was held that if there is a marriage in contravention of Clause (iii) of Section 5, it is not void or voidable. Same was the view-point of Madhya Pradesh High Court in the case of Kedar Narain v. Mulibai & Anr. AIR 1988 HL 606. The matter in this regard would be clinched by the decision of the Supreme Court in the case of Smt. Lila Gupta v. Laxmi Narain & Ors. : AIR 1978 SC 1351. It was held:

"A comprehensive review of the relevant provisions of the Act unmistakably manifests the legislative thrust that every marriage solemnized in contravention of one or of her conditions prescribed for valid marriage is not void. Section 5 prescribes six conditions for valid marriage. Section under marriage solemnized in contravention of conditions (i), (iv) and (v) of Section 5 only, void. Two incontrovertible propositions emerge from a combined reading of Sections 5 and 11 and other provisions of the Act, that the Act specifies conditions for valid marriage and a marriage contracted in breach some but not all of them renders the marriage void. The statute thus prescribes conditions for valid marriage and also does not leave it to inference that each one of such conditions is mandatory and a contravention, violation or breach of any one of them would be treated as a breach of a pre-requisite for a valid marriage rendering it void. The law while prescribing conditions for valid marriage simultaneously prescribes that breach of some of the conditions but not all would render the marriage void. Simultaneously, the Act is conspicuously silent on the effect on a marriage solemnised in contravention or breach of the time-bound prohibition enacted in Section 15. A further aspect that stares into the face is that while a marriage solemnised in contravention of Clauses (iii), (iv), (v) and (vi) of Section 5 is made penal, a marriage in contravention of the prohibition prescribed by the proviso does hot attract any penalty. The Act is suggestively silent on the question as to what is the effect on the marriage contracted by two persons one or both of whom were incapacitated from contracting marriage at the time when it was contracted in view of the fact that a period of one year had not elapsed since the dissolution of their earlier marriage by a decree of divorce granted by the Court of first instance."

In other words, the marriage of the parties keeping in view the above finding to which there is no hesitation to be in agreement cannot be held to be void. They could be prosecuted but not the marriage would be void or voidable. The said argument, therefore, is without any force.

As regards the quantum of the maintenance fixed, the same not only is requisite but no other argument even was advanced in this regard as had been fixed by the Trial Court.

For these reasons, the petition is accepted. The judgment of the learned Additional Sessions Judge is set aside, restoring that of the learned Trial Court.