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NARESH CHANDRA Vs. MST. RESHMABAI & ANR.

Judgement

Court:MADHYA PRADESH HIGH COURT

Bench: JUSTICE P.N.S. Chouhan

NARESH CHANDRA Vs. MST. RESHMABAI & ANR. On 6 September 1991

Law Point:
Interim maintenance — Applicant accepted the non-applicant as a result of pressure tactics — But, deserted the non-applicant — Application for interim maintenance — Rejected.

 

 

JUDGEMENT

 

The question is whether in absence of facts essential to constitute valid marriage in an application u/Sec. 125 Cr.P.C. the Court can award interim compensation in favour of the spouse?

2. Non-applicant No. 1 Reshmabai conceived as a result of her pre-marital affair with the petitioner whose reluctance to own his involvement landed him in the dock to answer charge of rape on a report lodged by Reshma ‘s mother in the police station This pressure tactics worked and in order to wriggle out of this guagmire, the petitioner accepted the lady and the infant child non-applicant no. 2, who had come in the world by this time by exchanging of garlands in Gayatri temple. The criminal case naturally ended in acquittal. But this tenuous tie could not last long and non-applicant No. 1 was deserted giving rise to her application u/Sec. 125 Cr.P.C. for maintenance to herself and her son non-applicant No. 2. In that Misc. Criminal case No. 61/89 vide order dated 16.5.1989, application for interim maintenance was rejects, Revision No. 65/89 against the said order was allowed by 2nd Additional Sessions Judge, release vide order dated 2.4.1990, which is under challenge in this revision.

3. Petitioner’s learned counsel did not question the award of Rs. 200/- p.m. as Interim maintenance for the minor child but assailed the award in favour of non-applicant no. 1 on the ground that there being no averment of facts constituting valid Hindu marriage the impugned order is parently erroneous and liable to be set aside. Reliance has been placed on Sumitra Devi v. Bhikan Chaudhary, AIR 1985 SC 765, wherein in has been held :

“In order that there may be a valid marriage according to Hindu law, certain religious rites have to be performed, invoking the fire and performing saptapadi around the sacred fire have been considered by the Supreme Court to be two of the basis requirements for a traditional marriage. It is equally true that there can be a marriage acceptable in law according to custom which do not insist on performance of such rites as referred to above and marriages of this type give rise to legal relationship which law accepts.”

Another came cited in Bhaurao Shankar Lokhande and Another v. The State of Maharastra and Another, AIR 1965 SC 1564, which was an appeal arising out of a case of bigamy.

4. In reply non-applicant’s learned Counsel cited Smt. Savitri v. Govind Singh Rawat, AIR 1986 SC 984, which rules that even in absence of express provision in Criminal Procedure Code empowering the Magistrate to grant interim relief in an application u/Sec. 125 Cr. P.C. having regard to the nature of the jurisdiction exercised by the magistrate u/Sec. 125 which is quasi civil and the personal law governing the parties power to grant interim maintenance should be inferred by necessary implication. In this context, it was observed that it is the duty of the Court to interpret the provisions of chapter IX of the Code in such a way that the construction place on them would not defeat the very object of the legislation. There is no dispute that the Magistrate is empowered to grant such relief and in fact the award in favour of the infant has not been challenged as even on illegitimate child is entitled to such maintenance. The above case is no authority for the proposition that even in absence of facts necessary to constitute valid marriage interim maintenance may be awarded to the spouse. No rule of construction warrants that the Court should presume existence of a custom which the wife chooses not to plead either because there is no such custom of for reasons beat known to her. Traditional form of Hindu marriage is not by exchange of garlands. It requires certain essential ceremonies like ‘Horn’ and ‘Saptapadi. Therefore unless the spouse states that such form of marriage by exchange of garlands is sanctioned by custom in her caste or community no inference of a valid marriage having taken place can be drawn. The facts stated in the application u/Sec. 125 and the affidavit filed in support thereof do not indicate existence of any such custom. The argument that the parties have get to land evidence and therefore the absence of such averment at this stage is inconsequential is unacceptable because the issue of interim maintenance must be decided on the basis of material available on record and not on the hypothesis of material likely to be adduced at the time of parties’ evidence. In absence of averment of custom in the petition and the affidavit filed by non-applicant no. 1 there was no material before the learned magistrate to come to to a prima facie conclusion of the status of non-applicant no. 1 as petitioner’s wife.

5. The impugned order is bristling with surmises like the unsigned stamp paper produced by non-applicant no. 1 must have been executed by the petitioner but he cunningly omitted to sign it to defraud non-applicant no. 1. and that in the photograph of marriage produced with the application the face of the green is not clearly visible because the took advantage of the raised hand of the bride to Counsel his face. The principle that the judge is aided by his life experience in evaluation of evidence referred to by 2nd Additional Sessions Judge does not permit free flight of imagination which is likely to destroy the fabric of due process of law. Even if all that is assumed for argument’s sake it only proves that the parties intended to marry by traditional Hindu form as mentioned in the unsigned and undated stamp paper yet instead of going through the essential ceremonies of Hindu marriage they resorted to exchange of garlands in a temple, which does not constitute traditional Hindu marriage. In such circumstances, even if the parties so intended non-applicant no. 1 did not attain the status of applicant’s wife as the material on record does not show that their caste custom permits the marriage by exchange of garlands.

6. In result, the revision partly succeeds. The impugned order dated 2.4.1990 passed by 2nd Additional Sessions Judge, Raigarh in Criminal Revision No. 65/89 is so far as it relates to payment of interim maintenance to non-applicant no. 1 Reshmabai is hereby set aside. The award of interim maintenance to the minor child, non applicant no. 2 is confirmed. No order as to costs. Lower Court record be sent back immediately for expeditions disposal of the case.

Revision partly allowed.

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