Full Judgment
1 M.
Cr.C.NO.1029/12.
27.2.2013.
Shri Sanjay Patel, learned counsel for the petitioner.
Shri Rahul Tripathi, learned counsel for respondent No.1.
Shri Alok Tapikar, learned PL for the respondent/ State.
Arguments are heard.
The petitioner has filed this petition under Section 482 of Cr.P.C.
for quashing the order dated 20.7.2012 passed by learned Additional Sessions Judge Mandla in Cr.R.No.43/11 arising out of the order dated 28.1.2011 passed by JMFC Mandal in Special Case No.3/09, by which order passed by the trial Court has been set aside and respondent No.1 wife has been granted maintenance of Rs.2,000/- p.m.and respondent No.2, son has been granted Rs.1,000/- p.m.under Section 125 of Cr.P.C.
Learned counsel for the petitioner submitted that marriage of the petitioner with the respondent No.1 has not been proved and the learned Revisional Court has not justified holding that respondent No.1 is legally married wife of the petitioner, as no ceremony required proving the valid marriage has been proved.
The marriage before Panchayat by exchange of garland could not be treated as valid marriage.
Further, the photos of garlanding before the Panchayat has not been proved by producing negatives of the photos.
Learned counsel for the petitioner has cited the judgment of Orissa High Court in the matter of Madhab Pradhan versus Ketki Pradhan reported in 1995 CRI.LJ.1785, in which it has been held that for the purpose of maintenance under Section 125 of Cr.P.C.
the wife does not include the woman whose marriage is void.
It is 2 further held that the child who is born out of such wedlock is entitled to get the maintenance, though he illegitimate child.
Learned counsel for the petitioner has also cited a case of Orissa High Court in the matter of State versus Prasanna Kumar Senapati reported in 2007 CRI.L.J.1344, in which it has been held that none of witnesses has stated that accused and deceased were staying as man and wife, the alleged marriage at temple by exchange of garland was not recorded in marriage register maintained in temple.
Therefore, it could not be said that valid marriage was subsisting between the accused and the deceased and in the absence f valid marriage Section 498-A of IPC does not come in operation.
Learned counsel for the petitioner has also cited the judgment of Hon'ble the Apex Court passed in the matter of Smt.
Yamunabai Anantrao Adhav versus Anantrao Shivaram Adhav reported in AIR 198.SC 644.in which it has been held that for the purpose of Section 125 of Cr.P.C.
the expression “wife”.
means legally wedded wife.
The marriage of a woman with a man already having living spouse as per Hindu rites is complete nullity.
She is not entitled for maintenance.
Learned counsel for the respondent submitted that the marriage before Panchayat of society of petitioner is a valid marriage and the revisional Court has justified in passing the order of maintenance in favour of the respondents.
In support of his argument he cited the judgment of Orissa High Court passed in the matter of Dukhia Naik Vs Basanti Dei reported in 1994 CRI.L.J.1466, in which it has been held that the parties exchanged garlands in temple and some Pujas performed thereafter- Parties thereafter 3 lived together as husband and wife for nearly three years and a son was born out of such relationship.
This is sufficient to establish the valid claim of maintenance for wife and son.
Such judgment has been passed considering the judgment of the Apex Court in the matter of Smt.
Yamunabai Anantrao Adhav versus Anantrao Shivaram Adhav reported in AIR 198.SC 644.This decision is only authority for proposition when the marriage is void and has no application to the present case.
Learned counsel for the respondent has also cited a judgment of the Calcutta High Court in the matter of Sunil Kr.
Saren versus Smt.
Padmawati Saren reported in 2003 CRI.L.J.2844, in which it has been held that wife claiming that her marriage was performed as per Hindu rites, witnesses examined in support of her claim mentioned all rites and rituals whichever performed during marriage.
Mere omission to mention “Saptapadi”.
is not fatal specially in the petition under Section 125 of Cr.P.C, which does not require strict prove of marriage.
Evidence of the alleged marriage remaining unchallenged, the Court can hold that alleged marriage was performed as per Hindu Shastras.
In the present case, it is an admitted fact by the petitioner that before Panchayat there was exchange of garland between him and respondent No.1, photos were taken on the spot, therefore non- production of negatives of photographs does not give the circumstance that photograph has not been duly proved.
The petitioner and respondent No.1 have exchanged the garland before the Panchayat lived together thereafter as husband and wife and out of that wedlock respondent No.2 was born.
Therefore, the revisional 4 Court has wholly justified in holding that the marriage of the petitioner with respondent No.1 has been proved, at least for the purpose of the proceeding of Section 125 of Cr.P.C., the marriage is deemed to be proved, unless it is set aside by the competent Court and till then respondent No.1 is entitled to get the maintenance and respondent No.2 is child of the petitioner and respondent No.1, therefore, he is also entitled for maintenance.
The amount of maintenance fixed by the trial Court is not improper.
Therefore, no inference is required under Section 482 of Cr.P.C., the Petition is hereby dismissed.
(Anil Kumar Sharma) Judge k