Judgment:
S.C. Mohapatra, J.
1. When this appeal by defendant came up for orders relating to preparation of paper book I found that it is to be heard by a single Judge. Being satisfied that the suit is for maintenance of the plaintiff who claims to be wife of defendant, I dispensed with preparation of the paper book and heard the appeal on merits.
2. Respondent filed the suit for maintenance claiming to be married to appellant in 1985 alleging desertion and cruelty. Appellant in his written statement has denied the relationship as well as other assertions. His case is that he is married since 1982 with a child and claim of plaintiff is not correct.
3. Plaintiff examined four witnesses to prove her case. Defendant has examined three witnesses and proved the voter's list in support of his case.
4. Referring to assertion in the written statement that he fell in love with plaintiff during his stay in house of father of plaintiff and they stealthly came away to house of defendant in village Khamana where his wife was living and plaintiff stayed for two weeks in their house, trial court held that there was some sort of marital relationship between the two. Trial court also found as asserted in the written statement that Malati drove away plaintiff from defendant's house. Considering the evidence, trial court held that plaintiff married Defendant even though defendant was married prior to marriage of plaintiff.
5. Basis for claim of monthly maintenance of Rs. 500/- by the plaintiff is her marriage with defendant. To prove the marriage, she has examined herself as P.W. 1, her father as P. W. 4, a witness of the neighbouring village which is the place of natural birth of defendant to prove that he continued the marriage negotiations, ward member of plaintiffs village who claims to have attended the marriage. It is stated that the marriage was in conventional form. Though the priest has been named, no explanation is forthcoming why he has not been examined. A picture is intended to be given as if plaintiff and defendant had no relationship earlier to marriage. Since marriage is claimed to be of they ear 1985 only, witnesses to marriage and circumstances leading to such marriage and post marriage events could have been made available to the Court for better appreciation. Plaintiff and her father are conspicuously silent about the assertion of defendant that parties knew each other prior to marriage and defendant had stayed in house of plaintiff where their intimacy had developed. Astonshingly, defendant has not suggested a word about the same to plaintiff or her father.
6. In a traditional marriage ceremony in Orissa women play a vital role. No explanation is forthcoming why any such woman was not examiend. It is stated that village of defendant is about 120 k.m. from village of father of plaintiff. If defendant came to marry in a procession with band party, some villages could have been examined.
7. In the aforesaid background, I am inclined to hold that plaintiff has not been well advised to examine witnesses who would have been more authentic in their version to prove the marriage.
8. Trial court has concluded that there was matrimonial relationship from the version of defendant in written statement. It ought to have considered the effect of non-examination of witnesses to marriage on behalf of the plaintiff.
9. Defendant contests the claim of plaintiff and marriage asserting that he was married in the year 1982 and has a child born who is dead and has now a daughter. He has examined himself as D.W. 1. Father of the girl to whom defendant claims to have been married in the year 1982 has been examined. D.W.3, a villager of nearby village of defendant has been examined to prove such marriage. He has not given out how he has knowledge of such marriage. Natural father, adoptive father of Malati who is claimed to be his wife have not been examined. Even father of the girl does not speak details about the marriage. Voters list of 1988 has been filed to prove that Malati is wife of defendant. This document at best would be a piece of evidence in respect of the position in 1988. That would not prove marriage of 1988. This voters list has come into existence after the dispute arose. Being of the village Khamana, there is no scope for a resident of village 120 k.ms. away to challenge the same. No explanation is given why the voter list of earlier period has not been produced which might have been prepared after 1982. Marriage is a sacrament Recent marriages ought to be proved with cogent evidence.
10. On perusal of materials on record, I am inclined to hold that both parties had been advised to contest by suppressing materials than bringing supporting materials. Trial Court was also not alert in such a situation where life of two young persons are involved directly and another girl has been dragged to the picture who may suffer on account of any finding. Therefore, the impugned judgment has become vulnerable.
11. On perusal of written statement, trial court is correct in coming to a conclusion that realtionship between the parties is not so innocent as defendant wants to be believed. Running away stealthly from paternal home by a girl young in age with a boy also young in age who have no prohibitory relationship for being married to village of the boy, 120 k.ms. away and the development of a relationship are factors which lead to prima facie view that they were having the relationship of husband and wife for short time which by itself may not be sufficient, to come to a conclusion of valid marriage. Invalidity of marriage would also affect the question of maintenance. Since by setting aside the judgment, I am taking away a valuable right of the plaintiff, her prejudice is to be mitigated. I am inclined to hold that payment of Rs. 1,000/- (one thousand) by defendant to plaintiff towards cost for contesting the suit afresh and interim monthly maintenance of Rs. 250/- till disposal of the suit would adequately mitigate prejudice of plaintiff.
12. Cross objection for enhancement of quantum of maintenance is also justified. Trial Court should have taken note of the bare minimum with reference to present day requirement for a young lady to be maintained. A sum of Rs. 200/- per month appears to be inadequate. Judgment on that account is also set aside.
13. In result, both appeal and cross-objection are allowed. Judgment and decree of the trial court are set aside and suit is remanded back for fresh trial. Both parties shall be given opportunity to adduce further evidence. Defendant shall pay Rs. 1,000/- (one thousand) as costs to plaintiff to pursue the suit and he shall pay interim maintenance at the rate of Rs. 250/- (two hundred and fifty) from the month of August, 1992 till disposal of the suit. Trial Court shall fix the time for such payment. Both parties shall appear before the trial court on 1-9-1992 and no notice shall be sent to them any further. There shall be no order as to costs in this appeal.