Sudha vs State of U.P.and another

Amar Saran, J.

Heard Shri Shahroze Khan, learned Counsel for the revisionist, Shri Tripathi B.G. Bhai, learned Counsel for opposite party No. 2 and learned Additional Government Advocate.

This criminal revision has been filed by Smt. Sudha against the judgement and order dated 14.7.2005 passed by the learned Sessions Judge, Siddharth Nagar in Criminal Revision No. 185 of 2005 (Lavkush v. Smt. Sudha), under section 125 of the Code of Criminal Procedure whereby the learned Sessions Judge had allowed the criminal revision and set aside the order dated 21.4.2005 passed by the learned Judicial Magistrate in Misc. Criminal Case No. 262 of 2002 by which the learned Magistrate allowed maintenance to Smt. Sudha at the rate of Rs. 3000/ per month from the date of application, i.e. 3.5.2000.

Learned Counsel for the revisionist Smt. Sudha contended that the order passed by the learned Sessions Judge in criminal revision by recording a finding that the revisionistSmt. Sudha was not married to opposite party No. 2Lavkush is illegal and perverse.

The reasons given by the revisional Court for reaching this conclusion were that the revisionistSmt. Sudha has stated that she got married to opposite party No. 2 eight years prior to the date of her moving the application under section 125 Cr.P.C. on 3.5.2000 and by this reasoning the marriage should have taken place in the year 1992. The revisionistSmt. Sudha had even filed a copy of the marriage invitation card dated 5.5.1992, but the same was not proved in accordance with law and that on a prima facie reading the invitation card appeared to be fabricated.

I fail to understand how the invitation card of the village was not genuine or manufactured because one is not expected to'' come across beautiful printed invitation cards in the rural areas and that is hardly any reason for discarding the averments of the revisionistSmt. Sudha that she was married eight years prior to her statement in Court and that a particular document was one of the invitation cards manufactured at the time of her marriage.

Another reason given by the revisional Court for disbelieving the version of the revisionistSmt. Sudha was that she alleged in her application dated 3.5.2000 that after she was thrown out of the house of opposite party No. 2 in December, 1997, on 28.4.2000, opposite party No. 2 had married the daughter of Ram Yagya Mishra, although in her statement in a civil suit No. 62 of 2000 filed on 24.1.2000 seeking to restrain opposite party No. 2 from marrying, she had stated that the intended marriage of opposite party No. 2 was fixed with the daughter of Banshu on 21.4.2000.

I do not think that much benefit could be derived from this discrepancy given in the statement of an illiterate rustic woman in a civil suit especially when opposite party No. 2 himself admits that he had married Shashi Kala alias Sunita, daughter of Ram Yagya Mishra, although the date he claims to have married her is 5.5.1997 and not 24.8.2000.

Learned revisional Court has also tried to make much capital of the statement elicited in the crossexamination of the applicant that the marriage of opposite party No. 2 with Shashi Kala took place 10 years back. Thus, it is argued that the said marriage would have taken place in 1992 as her crossexamination was conducted on 26.10.2002. This date (1992) of alleged marriage with Shashi Kala is obviously the result of some confusion in the testimony of this illiterate woman as opposite party No. 2 himself admits that he had married Shashi Kala on 15.5.1997.

From such suggestions, I think the revisional Court acted perversely in holding that this discrepancy revealed that that illiterate revisionist was not coming out with clean hands and it was doubtful that she was indeed the wife of opposite party No. 2.

It is not understandable why a rural and traditional Indian woman who is completely unconnected with a man would make such an allegation of claiming him as her husband and why she would file a suit on 21.4.2000 for restraining opposite party No. 2 from getting married to another person unless in fact she had been turned out of the house in 1997. She even obtained an exparte stay order in the civil suit restraining opposite party No. 2 from marrying another person. She also filed a certificate of the exPradhan Ikram Nabi Khan dated 11.11.2003 certifying the fact of her marriage with opposite party No. 2. The photograph of marriage of revisionistSmt. Sudha with opposite party No. 2 was also proved about which there was no comment by opposite party No. 2 denying or explaining the circumstance as to how the said photograph which showed the revisionist and opposite party No. 2 together was not genuine.

I also think that the revisional Court erred in holding that the opposite party No. 2 could not have married the revisionistSmt. Sudha in 1992 because as per his high school marks sheet of 1994, his date of birth was mentioned as 10.9.1979, which could have made him only 13 years of age in 1992.

I do not know whether the parents of the opposite party No. 2 gave his correct age at the time of admission and in any case even though there are legal impediments, it is a matter of fact that in villages minors do get married before the legal marriage age.

Learned Counsel for opposite party No. 2 submitted that the marriage of revisionistSmt. Sudha with opposite party No. 2 has not been strictly proved and evidence of Saptphadi etc. has not been led.

Learned Counsel for the revisionistSmt. Sudha has drawn my attention in this connection to an earlier decision given by me in the case of Smt. Kasturi Devi and another 2006 (54) ACC 921 wherein relying on the decision of the Apex Court in Reema Agarwal v. Anupam, 2004 (48) ACC 442 (SC). that when parties have cohabited together, it shall be presumed that they have got validly married.

Paragraph 8 of Smt. Kasturi Devi (supra) may be extracted herein below:

"8. Learned Counsel for the revisionist Smt. Kasturi Devi has placed reliance on paragraph 9 of the decision of the Apex Court in Reema Agarwal v. Anupam, 2004 (48) ACC 442 (SC) which states that husband and wife who are alleged to have cohabited together, it shall be presumed that they shall be considered to be husband and wife. The following lines from paragraph 9 of the aforesaid decision may be usefully extracted in this connection:

"When the fact of celebration of marriage is established it will be presumed in the absence of evidence to the contrary that all the rites and ceremonies to constitute a valid marriage have been gone through. As was said as long as 1869 when once you get to this, namely that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law. (See Inderum Valungypooly v. Ramaswamy) 1868 (13) MIA 141 So also where a man and woman have been proved to have lived together as husband and wife, the law will presume, until contrary be clearly proved that they were living together in consequence of a valid marriage and not in a state of concubinage. (See Sastry Velaider v. Sembicutty 1881 (6) AC 364 following De Thoren v. Attorney General, 1876 (1) AC 686 and Piers v. Piers. LR(2)HLC 331 When a marriage is accepted as valid by relations, friends and others for a long time, it cannot be declared as invalid."

In Dwarika Prasad Satpathi v. Vidhyut Prawah Dixit, AIR 1989 SC 3348 it has been observed by the Apex Court that the requirements of proof of marriage in a proceedings under section 125 Cr.P.C. are not so strict as those required under section 494 IPC when a person is being prosecuted for bigamy.

For all these reasons, I am of the view that the findings of the learned Judicial Magistrate that the revisionistSmt. Sudha being the legally married wife of opposite party No. 2 was entitled for maintenance be preferred to the findings of the revisional Court that the revisionistSmt. Sudha was not married with opposite party No. 2 cannot be faulted.

Learned Magistrate has also recorded a finding of cruelty by opposite party No. 2 that he had forcibly thrown out the revisionistSmt. Sudha and made illegal dowry demands and that revisionistSmt. Sudha was unable to maintain herself and that her father had even died.

One submission of learned Counsel for opposite party No. 2 that there is no extensive discussion of the capacity of opposite party No. 2 to pay and about his status. Here in this regard, it is stated by the learned Counsel for the revisionistSmt. Sudha that opposite party No. 2 used to earn about Rs. 8,000/ per month and that he even had 20 big has of land. The Magistrate has further recorded a finding that opposite party No. 2 had been given land in some other village also and that he was a healthy bodied man.

When this revision was admitted on 18.8.2005, an interim order was passed by the Court that opposite party No. 2 shall pay interim maintenance at the rate of Rs. 2,000/ per month to the revisionist. Substantially, it is admitted by the learned Counsel for the parties that except for a few months, opposite party No. 2 has been complying with the said order. From this also it is clear that opposite party No. 2 has the capacity to pay maintenance at least at the rate of Rs. 2,000/ each month to the revisionist.

In this view of the matter, this revision is partly allowed. The order of the learned Sessions Judge declaring revisionistSmt. Sudha not to be the legally wedded wife of opposite party No. 2 and denying her maintenance is set aside.

However, in view of the absence of any clear discussion about the issue of the financial capacity of opposite party No. 2, I direct that opposite party No. 2 to pay maintenance at the rate of Rs. 2000/ per month to the revisionist Smt. Sudha by the 7th of each month. It is further directed that the maintenance be payable from the date of order dated 21.4.2005 passed by the learned Magistrate and not from the date of application as no special reasons have been mentioned in the order of the Magistrate why maintenance in this case should be given from the date of application. Opposite party No. 2 is directed to pay all the arrears of maintenance from the date of order (21.4.2005) within a period of three months from the date of production of a certified copy of this order, failing which the partial relief of reducing the maintenance granted by the Magistrate from Rs. 3000/ to Rs. 2000/ per month and directing him to pay maintenance from the date of order rather than the date of application shall stand withdrawn and the Magistrate shall be free to initiate proceedings for the recovery of the said amount.

The revision is partly allowed.

Revision Partly Allowed.