Hetram Choudhary vs Chhitiya Bai

Subhash Kakade, J.—Heard.

This revision under Section 397/401 of Cr.P.C. has been filed by the applicant against the order dated 06.12.2004, passed in Criminal Revision No. 151/2004, by Sessions Judge, District Shahdol, whereby the learned Sessions Judge, reversed the order of Judicial Magistrate First Class, Kotma, dated 19.04.2004, passed in Misc. Criminal Case No. 82/2000 and awarded Rs.500/- per month as maintenance to the respondent.

The respondent Smt. Chhitiya Bai @ Sitabai Choudhari has filed an application under Section 125, Cr.P.C. for grant of maintenance and stated that the marriage of the applicant and respondent was solemnized according to Hindu rites and customs prevalent in the Adivasi community. The respondent was earlier married with Kallu but taken divorce from Kallu and thereafter married with the applicant. The applicant is an employee of Colliery and getting salary of Rs.8,000/- per month and further has income from the agriculture. He has kept another lady, therefore, she is living separately and entitled to get maintenance.

It is mainly contested by the learned counsel for the applicant that the respondent has not taken divorce from her first husband, and therefore, she is not entitled to get maintenance from the applicant because the respondent is not his wife. The learned learned trial Judge has also held that the respondent is not legally married wife of the applicant, and therefore, dismissed the application for grant of maintenance. The respondent filed a revision which has been allowed by the learned Sessions Judge and granted maintenance of Rs.500/- per month to the respondent.

The initial onus to prove the relationship is upon the respondent wife . Proof by wife that she has been treated as wife is sufficient. They lived together as husband and wife and were treated as such by the community. The law presumes in favour of marriage and against concubinage. Accordingly, continuous cohabitation of a man and a woman as husband and wife and their treatment as such for a number of years raise the presumption of marriage.

Strict proof of marriage is not necessary - Sumitra Devi Vs. Bhikan Choudhary, . In considering application for maintenance by wife, the criminal court cannot enquire whether marriage was legal or illegal. The standard of proof need not be so high as required either in a proceeding under the Divorce Act or in prosecutions under Sections 494, 495, 497 or 498, Dwarika Prasad Satpathy Vs. Bidyut Praya Dixit and Another, .

In a prosecution for bigamy under Section 494 IPC, the second marriage has to be proved as a fact - Bhaurao Shankar Lokhande and Another Vs. State of Maharashtra and Another, ; but the propositions of law "have no bearing in the proceeding under section 125 Cr.P.C., which is a summary nature.

A woman who comes to the life of a man, gives herself to the man, takes the family life of the man and the man, on the other hand, uses her as such, recognizes her as such, must come within the fold of the term ''wife'', absence of ceremonial marriage notwithstanding.

Because, order passed in an application under section 125 Cr.P.C. 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 Section 125 Cr.P.C. is not to be utilized for defeating the rights conferred by the Legislature to the destitute woman, children or parents who are victims of social environment. In a proceeding under section 125 Cr.P.C., the Magistrate is expected to pass appropriate order after being prima facie satisfied about the marital status of the parties. But this would be a tentative decision. Either of the parties can approach the civil court for a decision on his or her status notwithstanding the decision in the summary proceeding.

Where there is prima facie proved that the man and woman were living together for a long time, the man acknowledging the woman''s children as his own children and treating the woman as his wife and they were recognized by all persons concerned as man and wife, the presumption would be that the woman was the wife of the man.

In the light of above discussed requirements the relation for the purpose of maintenance awarded under the provisions of Section 125 of the Code is sufficient that the applicant and respondent were living together for a long time as husband and wife.

Learned Revisional Court, after appreciation of evidence of respondent Chhitiyabai (PW1), Kuteniyabai (PW2), Mandhari (PW3) and Devmani (PW4) rightly come to the conclusion that the respondent was wedded with the applicant as per prevailing traditions and ceremonies in the Adiwasi community in presence of elder persons of the community after celebration. Though, the applicant Hetram (DW1) claimed that Munnibai is still living with him, but could not dare to examine her in the trial Court.

Learned Revisional Court rightly found this fact proved that applicant and respondent were living together as husband and wife. The applicant according to customs prevalent in his community married with the respondent by bangle ceremony 20 years ago and after leaving his first wife Munnibai.

Hetram (DW1) also admit filing of FIR by the respondent against him, it give sufficient right to the respondent living separately from the applicant.

It is the obligation of the husband to maintain wife, father to maintain children and son to maintain parents. It will, therefore, be for him to show that he has no sufficient means to discharge his obligation: Rajathi Vs. C. Ganesan, . Means does not signify only visible means, such as real property or definite employment: Basanta Kumari Mohanty Vs. Sarat Kumar Mohanty, . An able-bodied person has sufficient means: Kandaswami Moopan Vs. Angammal, . It is pertinent to mention here that the applicant Hetram (DW1) admitted his profession as SECL employee and never denied his income.

In the light of above mentioned facts and circumstances and legal position learned Revisional Court rightly held that the applicant also having sufficient means of income to pay maintenance and, therefore, rightly awarded the maintenance amount.

Accordingly, the application stands dismissed.

A copy of this order be sent to the Court below with record.