ORDER
1. This is petition under section 482, Cr.P.C. to quash the order in M.C. No. 39 of 1989 on the file of the V Metropolitan Magistrate, Hyderabad which has been confirmed in Crl. Revision No. 159 of 1993 of the file of the I Additional Metropolitan Sessions Judge, Hyderabad.
2. The petitioner before the High Court is Sri A. Bal Reddy, an advocate aged about 79 years. M.C. No. 39 of 1989 was filed by one A. Saraswathi, a lady aged about 52 years. She claimed maintenance under S. 125, Cr.P.C. against Mr. Bal Reddy claimed that she is the legally wedded wife of Bal Reddy and that they lived together for a number of years as spouses after the marriage took place in 1950 at Yadagirigutta temple and that one Anitha alias Durgamma and Vijitha were born out of this marriage. She claimed that her elder sister Ramachandramma is the first wife of Bal Reddy and that the entire family including Ramachandramma and her children and her husband Bal Reddy resided in the family house at Himayatnagar in Hyderabad till 1968. In 1968 she was sent to Gangaram village to took after the cultivation. It is also claimed that Bal Reddy looked after the family, educated the girls and in the year 1985 Anitha alias Durgamma, first daughter of the petitioner was married to one Srinivasa Reddy and the marriage was performed by the petitioner and Mr. Bal Reddy and they have performed the Kanyadanam. It is also claimed that the respondent Bal Reddy is a practising advocate earning huge amounts and that he has 25 acres of land in Gangaram village and the agricultural income from his lands comes to about Rs. 40,000/- per annum and from the three houses at Himayatnagar, he gets a monthly rent of Rs. 15,000/-. She claimed that she was driven out from the house in 1985 by subjecting her to entitled to claim maintenance. She claimed maintenance of Rs. 500/- per month. She claimed that after being driven out of the house, she was residing with her daughters. It is also stated that the second daughter is employed and that the first daughter's husband is an earning member working as an officer.
3. The V Metropolitan Magistrate by order dated 5th March, 1993, came to the conclusion that the petitioner is the wife of Bal Reddy and that the petitioner is entitled to maintenance of Rs. 500/- per month from the date of the petition 10-4-1989. She was also awarded costs of Rs. 500/-. Aggrieved by that order Sri Bal Reddy filed Crl. Revision petition No. 159 of 1993 on the file of the I Addl. Metropolitan Sessions Judge, Hyderabad. The learned I Additional Metropolitan Sessions Judge by his order dated 22nd September, 1993, dismissed the revision, confirmed the findings of the order of maintenance passed by the V Metropolitan Magistrate. Aggrieved by that, the present petition is filed under S. 482, Cr.P.C.
4. Sri M. V. S. Suresh Kumar, appearing for the petitioner, contends that the orders of the trial court and the revisional court are unsustainable in law. By the time of the alleged marriage between the petitioner and Saraswathi, Bal Reddy was already married. He had a wife Ramachandramma and children through her. The petitioner is no other than the younger sister of his wife. The trial court committed a blunder in drawing a presumption about the existence of a marriage between the parties after having recorded a finding to the effect that there is no proof of marriage and that no evidence has been produced to establish the factum of marriage. Mr. Suresh Kumar contends that normally a presumption regarding marriage is permissible only with regard to the first marriage. There cannot be a presumption for a second marriage. The courts proceeded on a wrong footing in drawing a presumption of existence of marriage in case of a second marriage in the present instance. He also contends the a presumption of marriage in law arises only when the factum of marriage is proved or some evidence has been established to prove the fact of performance of a marriage function. In support of his contentions, he relies upon the following decisions :
Nagarajamma v. State Bank of India, : AIR1961AP320 , Narayanamma v. Suryapandurangappa, 1969 (1) An WR 287 Deivanai Achi v. Chidambaram Chettiar, : AIR1954Mad657 , Yamunabai v. Anantrao, : 1988CriLJ793 Sumitra Devi v. Bhikan Choudhary, : 1985CriLJ528 . He also contends that Gokul Chand v. Parvin Kumari, AIR 1952 SC 231 a petition under S. 125, Cr.P.C. is maintainable at the instance of the wife only when she establishes that she is the wife. A concubine is not entitled to file a petition under S. 125, Cr.P.C. of maintenance against her paramour.
5. On behalf of the respondent, Smt. N. K. Annapurna Devi contends that this is a case where a person married the younger sister of his wife in 1950. The parents of the girl and the near relations, who had witnessed the marriage, are now dead and gone. Considering the fact that the disputes arose after 40 years, there cannot be any direct evidence regarding the factum of marriage or the performance of the marriage. The courts have rightly drawn the presumption on the basis of a long cohabitation and acceptance by the society that the parties are wife and husband. The documentary evidence which describes the daughters of the respondent as the daughters of Bal Reddy, the school certificates, the marriage invitations and the fact that Bal Reddy and Saraswathi sat on the planks and performed the Kanyadanam of Anitha alias Durgamma in 1985 is a proof positive of the fact that Bal Reddy did marry Saraswathi. The presumption of marriage was rightly drawn and the awarding of maintenance is justified. She also submits that judging the facts of the case in the light of the normal human conduct, normally we will not come across any instance of a stranger lady claiming to be the wife of her sister's husband. She places strong reliance upon In re Raghava Reddy, : AIR1968AP117 , P. Srinivasa Rao v. P. Samudram, 1974 (2) An WR 199 : 1975 Cri LJ 1581. She contends that in a civil proceedings regarding the existence of a marriage, a strict standard of proof is insisted upon by courts, but so far as the proceedings under S. 125, Cr.P.C. are concerned, the standard of proof is not so strict for the simple reason that even after an order of maintenance is passed under section 125, Cr.P.C., it is open to the aggrieved party to file a regular suit for declaration that the lady who obtained an order of maintenance is not his legally wedded wife and get the order or maintenance passed by the criminal court quashed. She also contends that normally while exercising revisional jurisdiction and the jurisdiction under S. 482, Cr.P.C., the court ought not to go into questions of fact which had been confirmed in the revisional order.
6. The point that arises for consideration in this petition under S. 482, Cr.P.C. is whether the order of maintenance passed by the court is sustainable
7. A resolution of the above point necessarily involves the question as to whether the lower courts were justified in drawing the presumption regarding the existence of the marriage.
Point :
8. It should be remembered that in the year 1950 when the alleged marriage is said to have taken place, there was no law in the Hyderabad State prohibiting a second marriage for a Hindu male. In 1950 Sri A. Bal Reddy was at liberty to marry a second wife and even a third wife. Polygamy was permitted in the territories of the Hyderabad State till the Hindu Marriage Act came into force in 1956 April. There was no legal obstacle for the marriage between Saraswathi and Mr. Bal Reddy. We have to judge this case bearing this important fact in mind.
9. It is true that Saraswathi in her evidence as P.W. 1 stated that Bal Reddy is her husband and that their marriage took place at Yadagirigutta and it took place as per the customs of Hindu rites. She admitted in her cross-examination that she did not file any document in proof of the marriage with respondent at Yadagirigutta. She further stated that she does not possess any record or certificates in proof of marriage. In her evidence, she did not speak about the rituals of marriage or the customs that were followed in the performance of the marriage. Both the courts have rightly held that there is no direct evidence regarding the factum of marriage. Then the courts have gone into the entire evidence and drew the presumption that by virtue of long cohabitation and by virtue of acceptance by the society and the various other documentary evidence, there is a presumption of marriage and came to the conclusion that Saraswathi is the wife of Bal Reddy. The trial court elaborately discussed the evidence produced before the court. Ex. P. 1 is the certificate of birth given by Municipal Corporation of Hyderabad regarding Vijitha, the second daughter. Ex. P. 2 is the certificate given by the Patwari of the Gangaram Village mentioning Vijitha as the daughter of Bal Reddy. Ex. P. 3 is the admission form wherein Bal Reddy signed as the father of Vijitha. Ex. P. 4 is the Secondary School Certificate pertaining to Anitha, his first daughter. Exs. P. 15 to P. 19 are the positive photographs along with the negatives showing the performance of Kanyadanam of Anitha by the petitioner and the respondent Bal Reddy. One interesting fact in this case is that Bal Reddy, as respondent in the proceedings, admitted the documents Exs. P. 1, P. 3, P. 4, P. 7 to P. 37. He only denied the documents Exs. P. 2, P. 5 and P. 6. In his evidence he claims that there was no marriage and as a measure of charity, he asked Saraswathi to monitor his agricultural operations at Gangaram village in 1968. The evidence of P.Ws. 1 and 2 clinchingly establishes the fact that Saraswathi along with her two children lived in the house of Bal Reddy in Himayatnagar along with the first wife and her children till 1968. The documentary evidence has been analysed and scrutinised by the trial court in great detail. Normally while exercising the revisional jurisdiction under S. 482, Cr.P.C. the High Court will not go into questions of fact. Reading the trial court judgment, I do not find any flaw in the reasoning of the trial court.
10. One interesting fact in this case is that Bal Reddy admits that he performed the Kanyadanam of Anitha by sitting on the planks with the petitioner. But he claims that he did it as a godfather. It is strange to think of a godfather performing the marriage of a girl who is not the child of his loins by sitting with another woman on the planks. One can understand if Bal Reddy claimed that he performed the marriage of Anitha as a godfather making his first wife Ramachandramma sit along with him on the planks. No godfather would ever perform a marriage of a girl by sitting on the planks in the company of a stranger woman even if she be the natural mother of the girl for whom Kanyadanam is being performed. On facts, I find that the trial court as well as the revisional court correctly appreciated the facts and came to the correct conclusions. I shall now deal with the further question whether the courts are entitled to draw a presumption of marriage on the basis of the evidence available in this case.
11. Nagarajamma v. State Bank of India (supra) is a single judge decision of Justice Umamaheswaram. The question arose before the court regarding the claim for a joint deposit account. The plea put forward is that a gift was intended or made to the joint account-holders. In that decision, a plea was advanced to the effect that there is a marriage between Nagarajamma and Dalavayi Ramaswami. The two questions as framed by the court are as follows :
(1) The first question that arises for consideration in the appeal is whether by the reason of the fixed deposit being in the joint names of the first defendant and Dalavayi Ramaswami, payable to either or survivor, the amount should be paid to the first defendant alone; and
(2) Whether the appellant-first defendant is the legally wedded wife of Dalavayi Ramaswami and is entitled to a share in the fixed deposit amount kept with the State Bank of India.
12. Dealing with the second question, the court observed that the contention of the learned Advocate General was that the documentary evidence filed in the case proves that she was living with Ramaswamy for several years and reliance is placed on the marriage invitations that were issued by Ramaswamy for the marriage of appellants sister's daughters. Those marriage invitations were issued in the name of Mrs. and Mr. Dalavayi Ramaswami. Reliance was also placed upon a sale deed obtained in the life time of Ramaswamy in which she was described as his wife and some other documents. The contention urged was that as the appellant was continuously living with Ramaswamy from 1935, there is a presumption that they were living as husband and wife and the first defendant was not his concubine. The court further observed as follows :
'There is no doubt that the presumption of law is in favour of marriage and against concubinage when a man and woman have cohabited continuously for a long number of years; Vide Mohabbat Ali v. Md. Ibrahim Khan, AIR 1929 (PC) 135. This presumption is rebuttable as pointed out by Fazal Ali, J. in Gokal Chand v. Parvin Kumari AIR 1952 SC 231.'
Then His Lordship quoted a Privy Council's decision arising in Ma Wuw Di v. Ma Kins 1908-18 MLJ 3 and then observed as follows :
'But when a person is already married, no presumption of a second marriage arises by reason of long cohabitation : vide S.A. No. 592 of 1924, dated 18th January, 1924. It is clear from the facts set out above that Ramaswamy was already married to the 3rd defendant. Exhibit B-11 shows that the 1st defendant and her brother owned a Devadasi inam. The first defendant belongs to Kalavanthula or dancing-girl community. The evidence of D.W. 3, which I accept, is clearly to the effect that Ramaswami was keeping the first defendant as his concubine at Racherla and that he brought her later on to his residential house. I am inclined to hold, on the facts of this case, that the presumption of law is sufficiently rebutted.'
13. It is true that the learned judge observed therein that normally no presumption of a second marriage arises when the man was earlier married. But it should be remembered that the decision of the court turned on the fact that on the basis of the material placed before the court, the court found that Nagarajamma is a dancing girl and that she was a kept concubine of Ramaswami and though there was a proof of long cohabitation in the residential house, the presumption that arose is sufficiently rebutted by the other material on record. On the basis of this decision, it cannot be said that there can be no presumption for a second marriage. It should be remembered that His Lordship did not go into the question that Ramaswamy was entitled to marry Nagarajamma as a second wife in 1935. In the present case on hand, there was no question of invalidity of the second marriage in 1950. A. Bal Reddy was certainly entitled to marry a second wife and a third wife also if he wanted to marry. It cannot be said as a matter of principle that no presumption can be drawn with regard to a second marriage on the basis of a long cohabitation. I hold that this decision is distinguishable.
14. Narayanamma v. Suryapandurangappa (2) (supra) is a Bench decision of this court which lays down the principle that only if the factum of marriage is proved and the functions of the marriage are proved, there will be a presumption to the effect that all the necessary and essential ceremonies were done and that the marriage is valid. In the present case on hand, there is no proof of the performance of the various ceremonies excepting the statement of Saraswathi to the effect that the marriage took place according to the Hindu customs and rites. This is not a case where there is a plea of invalidity of the marriage on the ground that the necessary rituals are not performed. This decision is of no help in the present case.
15. Deivanai Achi v. Chidambaram Chettiar (3) (supra) is a leading decision regarding the forms of marriage and the necessary ceremonies that have to be performed. In a very scholarly judgment, Justice Satyanarayana Rao dealt with the necessary ingredients of marriage functions as prescribed under the sacred texts for different forms of marriage. In paragraph 23 at page 665, the learned judge observed as followed :
'From the above examination of the Smritis and commentaries, it is obvious that there are really two essential elements necessary to constitute a valid marriage under Hindu law according to Shastras; one a secular element viz., gift of the bride of 'Kanyadhana' in the four approved forms, the transference of dominion for consideration in the 'Asura' form and mutual consent or agreement between the maiden and the bridegroom in the 'Gandharva' form. These must be supplemented by the actual performance of the marriage by going through the form prescribed by the 'Grihyasutras' of which the essential elements are 'Panigrahana' and 'Saptapadi'. In the case of 'Rakshasa' and 'Paisacha' forms also, there should be a marriage rite in the form prescribed by the Shastras. This is the religious element. Both the secular and the religious elements are essential for the validity of a marriage. The 'Gandharva' form of marriage is no exception to the rule.'
16. At page 667 in paragraph 31, the learned judge, while dealing with the customs of Nattukottai Chettiars, observed as follows :
'From the foregoing discussion, it is obvious that ceremonies are essential in the case of all the eight forms of marriage and that the said rule applies even to Sudras. This is the strict Hindu law regarding the mode by which a valid marriage could be effected.'
Then dealing with customary practices and customs which have acquired the force of law, the court observed as follows :
'As custom is 'transcendant law' according to the sages, it is open to establish a custom modifying the ordinary Hindu law, i.e., a custom having the force of law. The essentials of a valid custom, whether it is a caste custom or a sub-caste custom or custom of a particular locality or of a family, were judicially considered and laid down in decisions. The subject is discussed elaborately in the latest edition (eleventh) of Mayne at pp. 63 to 67. It is needless to state that the customs must be ancient, certain and reasonable and they cannot be enlarged beyond the usage by parity of reason since it is the usage that makes the law and not the reason of the thing.'
17. In the present case on hand, the party relies mostly upon the documentary evidence and the long cohabitation for drawing the presumption. We are not concerned with the customs prescribed for the marriage.
18. The decision in Gokul Chand v. Parvin Kumari (6) (supra) only lays down that the presumption of marriage on the basis of long cohabitation is a rebuttable presumption. Nobody disputes this promposition.
19. Yamunabai v. Anantrao (4) (supra) lays down the principle that only where an applicant establishes her status or relationship with reference to the personal law as wife that an application for maintenance can be maintained. In the present case on hand, the petitioner Saraswathi established her status as a wife by producing documentary evidence and evidence of long cohabitation and the courts rightly drew the inference.
20. In Re Raghava Reddy (7) (supra) lays down the principle regarding the essential ceremonies of a marriage between Reddis. At page 120 in para 12, after observing that the same ceremonies are stated to be usually performed in marriage between the persons belonging to Kapus or Reddys in Caste and Tribes of Southern India by Thurston and Rangachari, the court observed as follows :
'Omitting the other side ceremonies, the essential ceremonies must be tying of Mangalasutra and putting the toe ring, throwing rice over each other's head and the ceremony connected with the yoke. If these ceremonies are performed the marriage of a Reddy couple gets completed and binding on the parties.'
21. It should be remembered that in that decision, the argument raised was to the effect that marriage is invalid because Homam and Saptapadhi and other functions were not performed. The court held what are the essential customary rituals that will have to be performed for the validity of a Reddy marriage. In the present case on hand, as there is no proof of the rituals that were performed, such a situation does not arise.
22. The last decision in which the respondent's advocate places reliance on is P. Srinivasa Rao v. P. Samudram (8) (supra). The learned judge, dealing with the scope of maintenance proceedings under Section 488, Cr.P.C. (corresponding to proceedings under S. 125, Cr.P.C.) observed as follows :
'The object of the maintenance proceedings under S. 488, Criminal Procedure Code, is to provide a speedy and summary remedy to deserted wives and children. When there is a dispute with regard to the relationship of the parties, i.e., where the relationship of marriage or paternity is not admitted, it is the duty of the Magistrate to determine the issue. But it is always subject to any final adjudication that may be made by a civil Court between the parties respecting their status. Because of this in cases coming under S. 488, Criminal Procedure Code, when there is some evidence of marriage having taken place between the parties, it is not necessary to insist upon strict proof of all the formalities of a particular form of legal marriage. In the present case, the evidence goes to show what there was a marriage function and some form of marriage had been gone through between the petitioner and the 1st respondent. The evidence also goes to show that they lived as man and wife for a period of about ten years and respondents 2 and 3 were born to them. Therefore, there will be a presumption that the marriage entered into between the petitioner and the 1st respondent is a valid one if that is so, the 1st respondent is also entitled to maintenance.'
23. In the case on hand, there is elaborate evidence of P.W. 1 regarding the fact that a marriage took place in 1950 though she did not speak about the rituals that took place at the time of the marriage. According to her evidence, a few relations and her parents who attended the marriage are now dead and hence she is unable to examine any evidence regarding the factum of marriage. she also stated that she does not have any record or documents regarding the performance of a marriage at Yadagirigutta temple. There are numerous other documents which clinchingly established that the petitioner and Bal Reddy lived as husband and wife for a long time and the two children, who are now well educated and well-settled, were born to them. There are records to show that in several papers Bal Reddy signed as father of these children. Considering the voluminous documentary evidence and the long cohabitation between the parties the courts rightly drew the presumption of marriage.
24. Considering the fact that in 1985 Saraswawith was driven out she had to seek shelter in the residence of her married daughter, she is certainly entitled to claim maintenance. I hold that the lower courts rightly drew the presumption regarding the existence of marriage tie between the parties.
25. I may also mention in this connection that if the petitioner feels that criminal courts have wrongly granted maintenance, he is entitled to file a declaratory suit in a civil court for a declaration that A. Saraswathi is not his legally wedded wife. Following the decision reported in P. Srinivasa Rao v. P. Samudram (8) (supra), which has been referred to by the trial court, I hold that in proceedings under S. 125, Cr.P.C., the court need not go further into the question and the finding of fact recorded by the trial court which has been confirmed by the revisional court has necessarily to be upheld. I may also mention in passing that while exercising revisional jurisdiction and while exercising jurisdiction under S. 482, Cr.P.C., it is not open to this court to upset the findings of fact or to go into questions of fact which have become final.
26. If and when the petitioner Sri A. Bal Reddy files a declaratory suit, the civil court shall be free to go into the entire question untramelled by the findings of fact recorded by the criminal courts.
27. In the result, the petition is dismissed. The order of maintenance is confirmed.
28. Petition dismissed.