Roopsi @ Roop Singh vs State of Rajasthan and Another

G.L. Gupta, J.—This misc. petition u/s 482, Criminal Procedure Code is directed against the judgment dated 24.4.1998 passed by the learned Sessions Judge, Dungarpur whereby he while setting aside the order passed by the Chief Judicial Magistrate held that the respondent Smt. Ganga was entitled to maintenance from her husband @ 500/- per month from the date of application.

The short facts of the case are that on 16.1.1996 Smt. Ganga (respondent) made an application before the Chief Judicial Magistrate for the grant of maintenance allowance with the allegations that she was married to Roopsi @ Roop Singh some 17 years back and that as there was no issue to the wedlock Roopsi started giving beatings to her and turned her out of the matrimonial home. It was also stated that she had even given her consent to Roopsi to marry some other lady yet the husband was causing cruelty to her. In the reply, it was averred that Ganga was already married to someone and she had contacted ''Nata'' marriage with Roopsi. It was stated that Ganga was of eacy virtues and was qurrelsome. It was also stated that she was herself earning Rs. 25/- per day as wages.

In support of her application Smt. Ganga entered into the witness box and examined P.W. 2 Taju and P.W. 3 Deva. In rebuttal, Roopsi examined D.W. 1 Ramji and D.W. 2 Vaga. After hearing the Counsel for the parties, the Chief Judicial Magistrate held that since there was no valid marriage to the parties, Ganga was not entitled to maintenance. The revision petition preferred against that order was allowed by the Sessions Judge holding that even ''Nata'' wife was entitled to maintenance from her husband.

Mr. Jain contended that there should be valid marriage between a man and woman before a woman can claim maintenance u/s 125, Criminal Procedure Code and as in the instant case there was no valid marriage between the parties Ganga was not entitled to maintenance. He placed reliance on the case of Smt. Yamuna Bai v. Anantrao 1988 SC 644: (1988) DMC 205 (SC).

Mr. Rathore, on the other hand, contended that ''Nata'' marriage is prevalent in the State of Rajasthan and by customs it is considered to be a valid marriage. Pointing out that the petitioner (husband) has not denied the performance of the ''Nata'' marriage as per customs on oath, and the performance of the customs required for a valid marriage is proved by the evidence of the wife, he submitted that the Sessions Judge has not erred in allowing maintenance. He placed reliance on the cases of Atma Rao v. Smt. Shantidevi 1997 Cr. L.R. (Raj.) 753, Boli Narayan v. Shiddheswari Morang 1981 Cr. L.J. 674 and Saudamini Dei v. Bhagirathi Raj 1981 Cr. L.J..539.

In have given the matter my thoughtful consideration. At the outset it may be stated that it was not disputed at the time of arguments that there is custom of ''Nata'' marriage in the community to which the parties belong. This Court in the case of Atma Ram v. Smt. Shanti Devi (supra), has observed that ''Nata'' marriage is a valid marriage. No authority taking contrary view has been cited by the Counsel for the petitioner.

Section 7 of the Hindu Marriage Act, 1955 provides that Hindu Marriage can be solemnised in accordance with the customary rites and ceremonies of either party thereto. It is thus obvious that a marriage Solemnised following the customary rites and ceremonies of either party constitute a valid marriage. Of course it is provided in Sub-section (2) of Section 7 that where rites and ceremony include ''Saptpadi'', the marriage becomes complete on the completion of the 7th step but that cannot be interpreted to mean that in all cases ''Saptpadi'' is required for a valid Hindu marriage. The provision only says that if ''Saptpadi'' is necessary ceremony then on taking the 7th step the marriage is complete. It cannot be accepted that in all marriages there should be ''Saptpadi''.

By virtue of Sub-section (1) of Section 7 of the Hindu Marriage Act, a Hindu marriage can be solemnised in accordance with the customs and ceremonies of either party. As already stated, there is no dispute in this position that a ''Nata'' marriage is permissible in the community to which the parties belong. What specific ceremonies are required to be performed in a ''Nata'' marriage is not on record. However the document Ex. P-l and the oral evidence led by Ganga go to show that necessary ceremonies were performed at the time of ''Nata'' marriage. Roopsi had no courage to deny this fact by entering into the witness box. He has examined two persons. They nowhere state that the ceremonies required for the ''Nata'' marriage were not performed. In these circumstances, it will have to be held that ''Nata'' marriage between Smt. Ganga and Roopsi was solemnised as per the customary rites and ceremonies. It is significant to point out that Roopsi admits in his reply that he had brought Ganga in ''Nata'' some 17 years back. It is thus admitted position that Roopsi treated Ganga as his wife for 17 years and the community also accepted Ganga as the wife of Roopsi.

The case of Smt. Yamunabai v. Anantrao (supra) relied on by Mr. Jain does not help him. In that case, it has been held that the expression ''wife'' used in Section 125, Criminal Procedure Code means a legally wedded wife, not covered by Section 11 of the Act. The Apex Court has not expressed any opinion on the ''Nata'' marriages if solemnised after performing required ceremonies. It is to be noticed that their Lordships were considering the case where the marriage had been performed in violation of Clause (i) of Section 5 of the Hindu Marriage Act, the effect of which was that the marriage was void ab-initio. It has been held that if the party was having spouse living at the time of marriage; the marriage would be in contravention of Clause (i) of Section 5 and is null and void u/s 11 of the Hindu Marriage Act. In the instant case, it is not the contention of the Counsel for the husband that the marriage was in contravention of Clause (i) of Section 5 or any other clauses of Section 5 of the Hindu Marriage Act. There is, therefore, no valid ground not to treat Smt. Ganga as the wife of Roopsi.

As regards right of maintenance of a wife the observations of their Lordships at para No. 6 deserve to be reproduced.

"Section 125 has been enacted in the interest of a wife, and one who intends to take benefit under Sub-section (l)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes her status or relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law."

In the instance case, it is not in dispute that there is custom in the community of ''Nata'' marriage. It is then proved by the evidence of the wife that ''Nata'' marriage was solemnised after performing the required ceremonies. It will have, therefore, to be held that Ganga has successfully established here status of wife of the petitioner. The proceedings u/s 125, Criminal Procedure Code are summary in nature. The object is to provide swift and summary remedy to a neglected wife. In such proceedings, the standard of proof required for a marriage is not so high as is required in connection with the proceedings under the Indian Penal Code for the offence of Bigamy.

To conclude, it is not disputed that there is custom of ''Nata'' marriage in the community of the parties. It is established that the ceremonies required for a ''Nata'' marriage had been performed, and that the parties have lived together as husband and wife for 17 years. In such circumstances, it cannot be said that the learned Sessions Judge has committed error in granting maintenance allowance to the wife.

The petition, being devoid of substance, is dismissed.