According to the
defence raised by the non-applicant that the applicant was not converted
into Hindu before the marriage and therefore, the marriage was invalid. If
in this context, the provisions of Section 4 of Special Marriage Act, 1954
are examined. Section 4 in Chapter-II of Special Marriage Act, 1954
prescribes with a non-obstinate clause that a marriage between two
persons may be solemnized under the Special Marriage Act, if neither
party has spouse living for incapable of giving consent to it in the
consequence of unsoundness of mind or 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 and
subject to recurrent attacks of insanity and if the male has completed the
age of twenty-one years and the female the age of eighteen years, or
when the parties are not within the degrees of prohibited relationship, then
the marriage can be solemnized.
Herein this case, admittedly there was no shadow of such restrictions
between the parties to solemnize marriage. Only factor pleaded by the
non-applicant that the religion were different i.e. Hindu and Muslim.
Though the applicant has stated to have solemnized the marriage after
conversion even if such statements are sidelined, the provisions of the
Special Marriage Act, 1954 will govern the parties. Meaning thereby the
defence raised by the non-applicant may not be available to him qua
proceeding U/s.125 of Cr.P.C. It is not inconsistent to add that Special
Marriage Act, 1954 do not contemplate the effect of non-registration of
marriage under the Act. So consequence having not been provided for
non-registration and if the registration of marriage is held to be mandatory,
the object of the Special Marriage Act, 1954 would be defeated. So under
the given set of facts, even if the pleadings of non-applicant is admitted,
that parties belonged to different religion i.e. one Hindu and one Muslim,
the status of applicant can not be denied that of wife.
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Revision No. 544 of 2013
Smt. Shikha Majumdar &
Another
VERSUS
Anutosh Majumdar
[Criminal Revision Under Section 19(4) Of The Family Court Act, 1984]
SB: Hon’ble Shri Goutam Bhaduri, J.
(Delivered on 24th December, 2014)
Citation;2015 CRLJ(NOC)193 Chhatis
1.
Challenge in this revision petition is to the order dated 01.07.2013
passed by the First Additional Principal Judge, Family Court, Durg, in a
Criminal M.J.C. No.62/2012 wherein the maintenance claimed by the
applicant Smt. Shikha Majumdar was reused by the Family Court. By the
said order, the maintenance to the daughter Anushka Majumdar was
granted of Rs.2,000/- per month. The refusal to grant maintenance to the
applicant Smt. Shikha Majumdar was on the ground that she was not the
legally wedded wife of non-applicant Anutosh Majumdar and the finding
of such order is under challenge before this Court.
2.
Ms. Fouzia Mirza, learned counsel vehemently attacked the findings on
the ground that the learned Court below while exercising the power under
Section 125 of Cr.P.C. exceeded it's jurisdiction and further was denuded
to go into the legality of the marriage in the teeth of the evidence, which
was existing. She would submit that in the instant case the marriage was
solemnized in the year 2003 and out of wedlock a daughter was born in
the year 2004. It is further contended that the relation between the
parties became strained from the year 2011 onwards which led to report
and counter report and subsequently when the applicant being the wife
was deserted, an application was filed under Section 125 of Cr.P.C. for
maintenance before the Family Court. The Family Court framed an issue
that whether the applicant No.1 Smt. Shikha was a legally wedded wife of
applicant and on that issue after marshaling the evidence, the Court has
given a finding that since the applicant Shikha Majumdar belonged to
Muslim religion, therefore, the marriage performed with Anutosh
Majumdar cannot be said to be a legal marriage. On that premises the
learned Court had denied the status of the applicant to be wife of the
respondent.
Page No.3
3.
Referring to the document placed in this revision, she would submit that
the relation started to become strained that of applicant with her husband
i.e. respondent in the year 2011-12 which led to report vide Ex.AC/1
wherein after the initial report a compromise was arrived at between the
parties by Ex.AC/4 wherein the non-applicant respondent admitted the
fact that the applicant No.1 is legally wedded wife. She therefore submits
that in view of such admission, there was no occasion for the Court to go
into the validity of the marriage for the purpose of determining the
compensation payable under Section 125 of Cr.P.C.
4.
Further referring to the document and the photographs which are placed
on record, the counsel referred to the birth certificate of the child which is
marked as Ex.AC/7 and would submit that after the marriage out of the
wedlock a daughter was born who was named Anuska Majumdar and in
the birth certificate too, the name of the father was shown that Anutosh
Manumdar. She further relied on the document marked as Ex.C-17 and
C-18 which are voter I.D. Card and the Pass-port of the respondent and
would submit that in such Pass-port on self disclosure of the respondent,
applicant was shown as wife of the respondent. Further the LIC policy
which is marked as Ex.C-21 and C-22 while making reference the
counsel would submit that in such LIC policies which were issued in the
year 2008, the name of the applicant was shown as nominee being the
wife. She further referred to certain photographs and would submit that
perusal of such photographs would clearly demonstrate the fact that the
applicant was married to the respondent.
5.
Learned counsel would submit that since the Family Court was deciding
the question of maintenance to be paid under Section 125 of Cr.P.C. and
in the facts in this case since the paternity of the child was accepted, the
Page No.4
presumption of valid marriage follows. Relying on the case law reported
in AIR 1999 SC 3348 (Dwarika Prasad Satpathy v. Bidyut Prava Dixit
and another), the counsel would submit that under the same principle,
the Hon'ble Supreme Court has awarded the maintenance. Similar
reliance was placed in 2014 (1) SCC 188 (Badshah v. Urmila Badshah
Godse and another) and it is stated that Section 125 of Cr.P.C. is a
benevolent provision considering the long relationship of the parties as
has been established by the witness, which was clear before the Court to
hold that the presumption of valid marriage exists and under the
evidence available the applicant should have been held to legally
wedded wife and maintenance should have been provided.
6.
It was further contended in the likewise case reported in 2011 (1) SCC
141 (Chanmuniya v. Virendra Kumar Singh Kushwaha and another),
2009 (4) SCC 774 & 2011 (12) SCC 189 (Pyla Mutyalamma Alias
Satyavathi v. Pyla Suri Demudu and another), it is stated that before
the Court below since the Court was exercising the power under Section
125 of Cr.P.C., as such it was not within the jurisdiction of the Court to go
into the validity of marriage even otherwise also the valid marriage was
established that the applicant had converted from Muslim to Hindu
religion. Therefore it is stated that such finding arrived at by the learned
Court below is misconceived and misreading of the evidence.
7.
Per contra, the learned counsel appearing on behalf of the respondent
advanced his arguments on the case law reported in AIR 1988 SC 644
and submit that in order to get maintenance under Section 125 of Cr.P.C.
one fact has to be established that the applicant is a legally wedded wife.
He would submit that in this case though the statement has been made
that before the marriage she had converted into Hindu religion but the
Page No.5
evidence of the Pandit who was examined in this case has not supported
the case of the applicant and they have stated that no such conversation
had taken place. Meaning thereby on the date of marriage, applicant
belong to other religion of Muslim therefore the marriage even if have
been said to have solemnized it cannot be said to be valid marriage as
per Hindu law.
8.
The learned counsel for the respondent/non-applicant further placed his
reliance in the case law reported in AIR 1995 SC 895, (2005) 3 SCC 636
( Savita Ben Somabhai Bhatiya Vs. State of Gujrat and others), and
1988 Criminal Law Journal 1206 (P.P. Puthiyanal Attakoya Thangal
and another Vs. Union Territory of Lakshadweep and another) and
would submit that in this case, the applicant never converted into Hindu
before marriage, therefore, the marriage itself was not valid as the non-
applicant was Hindu at the time of marriage and the applicant was
Muslim. Therefore, she can not be treated to be Hindu without
conversion. It is further submitted that unless and until conversion
according to Hindu law is done she will remained to be a Muslim so the
marriage in between the applicant and the non-applicant can not be
treated to be valid marriage so as to treat the applicant as legally wedded
wife.
9.
I have heard the learned counsel for the parties and perused the entire
documents.
10.
Since the matter pertains to denial of maintenance on the ground that no
valid marriage was found, it will be necessary to refer the law laid down in
AIR 1999 SC 3348 (Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit).
The Hon'ble Supreme Court while interpreting the scope of Section 125 of
Cr.P.C. held that proceedings U/s.125 Cr.P.C. is to be determined on the
Page No.6
basis of the evidence brought on record by the parties which are summary
in nature. The standard of proof of marriage in such proceedings is not as
strict as is required in a trial of offence under Section 494 IPC. 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 with evidence once it is admitted that the marriage procedure
was followed then it is not necessary to further probe into whether the said
procedure was complete as per the Hindu rites in the proceedings under
Section 125 of Cr.P.C., The same view is also reiterated by the Hon'ble
Supreme Court in the recent case law reported in 2014 (1) SCC 188,
Badshah Vs. Urmila Badshah Godse and another, the Court in this
case has followed the principles laid down in Dwarita Prasad Satpathhy's
case. It is further held that it is to be remembered that the order passed in
application U/s.125 of Cr.P.C. does not finally determine the rights and the
obligations of the parties and the said section is enacted with a view to
provide summary remedy for providing maintenance to the wife, children
and parents. Herein the paternity of the child has not disputed.
11.
The Court also reiterated the view taken in case of S. Sethurathinam
Pillai Vs. Barbara, reported in (1971) (3) SCC 923, wherein it was held
that the maintenance to the wife can not be denied where there was some
evidence on which conclusion for grant of maintenance could be reached.
Therefore, the series of judgment has evolved that the prima-facie
evidence to be considered as to whether the maintenance can be granted
on the prima-facie evidence available. Therefore, the defence is further
examined in the light of the principles which has been laid down by the
Hon'ble Supreme Court.
Page No.7
12.
In the instant case, the documents which were placed by the applicant in a
proceedings U/s.125 of Cr.P.C. includes a report made by her on
17.11.2012, wherein a complaint was made to the police station Purani
Bhilai alleging that the applicant was married to the respondent 10 years
back and thereafter first three years the relations were cordial and very
good and further it was stated that relations started deteriorating
thereafter. The said document was marked as Ex.AC-1. It further makes a
reference that in the year 2008 an agreement was entered in between the
applicant and the respondent, wherein the respondent admitted the fact
that the applicant is the wife and further under took that he will not further
enter into any dispute and will perform second marriage during her life
time i.e. the applicant. The said documents was marked as Ex.AC-4 and
contains signatures of both applicant and non-applicant. The said
documents is preceded by document Ex.AC-3 a declaration given by
applicant that she do not want any further action on her report provided
she is kept with honour and prestige. The document AC-5 pertains to the
birth certificate of the applicant No.2, wherein the mother's name is shown
as Shikha Majumdar and father is shown as Anutosh Majumdar. The
photographs Ex.A-11 is also placed on record, wherein the applicant and
non-applicant have been shown together with their daughter. All these
documents have not been specifically questioned by the non-applicant and
prima-facie the documents are not in dispute which leads to form opinion
that applicant and non-applicant lived as husband and wife.
13.
The document AC-15 is the report of the police department, which was in
response to some report made by the applicant and the matter was
returned with an observation that the applicant and non-applicant have
performed love marriage and due to their wedlock the daughter was also
born. The report purports that it was dispute between husband and wife
Page No.8
and no further action was taken being non-cognizable offence. So by
reading of all the document, one fact emerges out that on the primary
enquiry it was found that the applicant and non-applicant got married. The
facts are further fortified by the voters I.D. Card Ex. C-17 of applicant,
wherein the name of the husband is shown as Anutosh Majumdar. The
other document importantly is the pass-port of the non-applicant marked
as Ex.C-18. In the document, the applicant has been shown as the wife of
Anutosh Majumdar, and copy of the passport also contains the name of
the father and mother of the non-applicant. The document Ex.C-19 is the
copy of ration card, wherein the name of the applicant, non-applicant and
the daughter are recorded as unit of the family.
14.
The document Ex.C-21 and C- 22 are the copies of LIC policies. Such
policies project that the non-applicant Anutosh Majumdar was the
proposer, wherein the name of the applicant is recorded as wife Shikha
Majumdar to be the nominee and is vice-a-versa. The record also contains
the copy of an affidavit of Shikha Majumdar, wherein she had stated that
after marriage she had changed her religion and has adopted Hindu
religion. The list of documents which was proved by the non-applicant also
contains certain documents, which is Ex.NA-6C, which was a report to the
police by the father of the non-applicant namely Paritosh Majumdar and in
such report certain allegations of theft was made and the charges were
also attributed to the non-applicant Shabina Begum @ Shikha Majumdar
clamping allegations of theft. The document Ex. NA-8C was also placed
which was with respect to some dispute in between the applicant and non-
applicant respondent. Therefore, the examination of these documents
referred above speaks about relations between the parties wherein prima-
facie it would reveal that non-applicant had admitted the applicant to be
his wife. The witness of non-applicant i.e. D.W.-10 had also stated the
Page No.9
presence of applicant in house of non-applicant and it was stated that the
identity was disclosed to be daughter-in-law by the mother of non-
applicant. So prima-facie the documents and admissions on record shows
that applicant was recognized as a wife of the non-applicant.
15.
Section 50 of the Evidence Act speaks for opinion on the relationship
which reads as under :-
“50.- Opinion on relationship, when relevant. – When the
Court has to form an opinion as to the relationship of one
person to another, the opinion, expressed by conduct, as to
the existence of such relationship, or any person who, as a
member of the family or otherwise, has special means of
knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a
marriage in proceedings under the Indian Divorce Act, 1869
(4 of 1869) or in prosecution under Section 494, 495, 497 or
498 of the Indian Penal Code (45 of 1860).”
16.
Further reading of Section 50 of the Evidence Act would reveal that
Section 125 (488) earlier is not covered within the proviso. Therefore, the
opinion expressed by the conduct of the person herein the non-applicant
who had special means of knowledge of the subject may be held sufficient
to prove the fact of marriage in a proceeding U/s.125 of Cr.P.C.
17.
The admission made by the non-applicant at various stage in the different
documents shows the fact of existence of state of mind and the intention
and knowledge of the persons, who has executed such documents. There
is no plausible explanation existing on the face of the record except the
fact that the non-applicant had stated that the marriage itself is void. The
Court ignored the fact that the Court was deciding the proceeding under
Section 125 of Cr.P.C.. Therefore, according to the opinion of this Court
the Family Court exceeded in it's jurisdiction to go into the validity of
Page No.10
marriage. Qua 125 of Cr.P.C. Further if the documents are examined in
another angle, the Section 58 of the Evidence Act leads that facts
admitted need not be proved. Therefore, in view of the admission by the
non-applicant husband, it could be safely presumed that applicant was the
wife for the purpose while exercising the jurisdiction U/s.125 of Cr.P.C..
18.
Further in case law decided in between Pyla Mutyalamma @ Satyavathi
Vs. Pyla Suri Demudu and another, reported in (2011) 12 SCC 189, the
Supreme Court had interpreted the word wife and has laid down that law
presumes favour of marriage and against concubinage when a man and
women have cohabited continuously for a long number of years and when
the man and women are proved to have lived together as a man and wife,
the law will presume, unless the contrary is clearly proved, that they were
living together in consequence of a valid marriage and not in a state of
concubinage.
19.
Here the paternity of the child has not been questioned and the series of
admission goes to show that the applicant and the non-applicant were
living together, wherein the applicant was given the status of wife. In the
case law decided Supra, the Supreme Court further held that in a
revisional jurisdiction if the finding is negative like the nature in case in
hand, the revisional Court can re-evaluate the evidence since negative
finding has evil consequence on life of both the child and woman.
20.
Here in this case under consideration sufficient evidence in the form of
admission is present by the non-applicant husband that the applicant was
given the status of wife. Apart from the document, photographs which
were filed clearly demonstrate the fact about such cordial relation between
the parties when they were in the good time. The finding arrived at by the
learned Court below going into the question of validity of marriage U/s.125
Page No.11
of Cr.P.C., appears to be prima-facie incorrect. The defence raised by the
non-applicant was not that the applicant was not a wife but it was stated
that the marriage was not actually performed according to the rituals of
Hindu law.
21.
The matter can be looked in to from the other angle. According to the
defence raised by the non-applicant that the applicant was not converted
into Hindu before the marriage and therefore, the marriage was invalid. If
in this context, the provisions of Section 4 of Special Marriage Act, 1954
are examined. Section 4 in Chapter-II of Special Marriage Act, 1954
prescribes with a non-obstinate clause that a marriage between two
persons may be solemnized under the Special Marriage Act, if neither
party has spouse living for incapable of giving consent to it in the
consequence of unsoundness of mind or 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 and
subject to recurrent attacks of insanity and if the male has completed the
age of twenty-one years and the female the age of eighteen years, or
when the parties are not within the degrees of prohibited relationship, then
the marriage can be solemnized.
22.
Herein this case, admittedly there was no shadow of such restrictions
between the parties to solemnize marriage. Only factor pleaded by the
non-applicant that the religion were different i.e. Hindu and Muslim.
Though the applicant has stated to have solemnized the marriage after
conversion even if such statements are sidelined, the provisions of the
Special Marriage Act, 1954 will govern the parties. Meaning thereby the
defence raised by the non-applicant may not be available to him qua
proceeding U/s.125 of Cr.P.C. It is not inconsistent to add that Special
Marriage Act, 1954 do not contemplate the effect of non-registration of
marriage under the Act. So consequence having not been provided for
non-registration and if the registration of marriage is held to be mandatory,
the object of the Special Marriage Act, 1954 would be defeated. So under
the given set of facts, even if the pleadings of non-applicant is admitted,
that parties belonged to different religion i.e. one Hindu and one Muslim,
the status of applicant can not be denied that of wife.
23.
According to opinion of this Court, sufficient material has been placed on
record to prima-facie form an opinion that the applicant was the legally
married wife of the non-applicant. There is no plausible explanation why
such admissions were made. Therefore, in the opinion of this Court, the
applicant was able to prove by cogent and strong evidence that the
applicant and the respondent had married to each other.
24.
Further as has been reiterated the principles by the Hon'ble Supreme
Court in case between Badshah Vs. Urmila Badshah Godse, reported
in (2014) 1 SCC 188 that purposive interpretation needs to be given to the
provisions of Section 125 Cr.P.C. While dealing with the application of a
destitute wife or hapless children or parents under this provision, the Court
is dealing with the marginalised sections of the society. The purpose is to
achieve 'social justice' which is the constitutional vision, enshrined in the
Preamble of the Constitution of India. The Preamble to the Constitution of
India clearly signals that we have chosen the democratic path under the
rule of law to achieve the goal of securing for all its citizens, justice, liberty,
equality and fraternity. It is specifically highlights achieving their social
justice. Therefore, it becomes the bounden duty of the courts to advance
the cause of the social justice. While giving interpretation to a particular
provision, the court is supposed to bridge the gap between the law and
society.
Page No.13
25.
Having held that the maintenance can be claimed U/s.125 Cr.P.C., now
coming to the question of quantum of maintenance, at para 26 of
statement, the non-applicant/husband has denied the suggestion that he
was still working as an accountant and was getting Rs.30,000/- per month.
He further admitted the suggestion that in between first July, 2011 to
October, 2011 there had been a lacks of transactions were entered into
the account and volunteered with an statement that those amounts
belonged to his friends. Such statement of the non-applicant, that bank
account of non-applicant was being used by the friends wherein the lacks
of transaction were held is difficult to admit and untrustworthy as no
friends were examined. Therefore, considering the various documents
which were placed before the Court below and taking into statement and
the considerations of the price index which is prevailing at market I deem
it proper to grant an amount of Rs.5000/- per month to the applicant wife
from the date of application filed U/s.125 of Cr.P.C., before the Court
below. Therefore, it is directed that the non-applicant shall pay an amount
of Rs. 5000/- to the applicant apart from the maintenance which has
already granted to the children. Further a litigation cost of Rs.5,000/- is
awarded.
26.
With such above direction, the revision stands allowed. The non-applicant
shall pay the accumulated arrears within a period of 6 months in six equal
installments. The current amount of maintenance shall be paid by 10th of
every months.
JUDGE
Ask/balram
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