T.S. Doabia J.
1. Janki Devi filed a petition under Section 488 of the Code of the Criminal Procedure. She was claiming maintenance from Mohan Lal present petitioner. This application was allowed by the trial court. A sum of Rs. 500/- has been fixed as the maintenance amount. The matter was taken in Revision before Additional Sessions Judge, Kishtwar. Revision petition stands dismissed. Further Revision petition has been filed in this court.
2. The main argument put across by the learned counsel appearing for the petitioner is that there subsisted no relationship of husband and wife. It is submitted that the petitioner did go to the house of the respondent, but marriage ceremony was not performed. This was because some quarrel took place and on account of this marriage ceremony could not take place. For this , reliance is being placed on the statement of one Vidya Lal. He is the Purohit (Pandit), who was supposed to prefer the ceremony. It is this witness, who stated that as quarrel took place the marriage ceremony could not be performed. He was sought to be confronted with the earlier statement made by him in the civil court. The case was adjourned thereafter summons were issued to him, but he refused to appear on the plea that on account of the old age, he is not in a position to attend the court. If this be the petition, then incomplete statement of Vidya Lal cannot be relied upon. Other oral evidence does not support the petitioner. As a matter of fact, documentary evidence available on the record goes against him. This evidence is in the shape of Certificate issued by the Army Authorities, which indicate that the present petitioner was paying maintenance to respondent- -Janki Devi. Again the voter list indicate the status of Janki Devi. She has been described as wife of Mohan Lal.
3. So far as voter List is concerned, this is at page-23 of the record of the trial court. A persual of this list does indicate the status of the respondent. The entries from serial No. 109-115 are being reproduced Below :-
S.no. voter S/oH/o Sex Age
109 Sobha S/o Balak M54
110 Ishri W/o Sobha F 48
111 Mangata S/o Sobha M 38
112 Sanodhi W/o Mangata F 31
113 Janki W/o Mohan lal F 28
114 Krishan Lal S/o Sobha M 22
115 Mohan Lal S/o Sobha M 30
4. The name of the respondent wife figures at S.No. 113 of the voter list. This list pertains to the year 1984 of Parliamentary Halqa 43-46 of Udhampur Lok Sabha Seat. The voter List, which was prepared under the representation of the people Act is a public document and would be a good piece of evidence in terms of Section 35 of the evidence Act.
5. So far as the army record is concerned, the order dated 06 Sept. 1984 is being reproduced below:-
'File 371540 Discipline and Vigilance date (DV-3)
Adjust General's Branch
Army Headquarters
DHq P.O. New Delhi-11001100402/477/DV-3 06-09-84.
The Office-In-charge J & K LI CORPS.
6. Non Maintenance of Rifle No. 9079742 NK Mohan lal 12 J & K LI.
1. Under the provisions of a Section 91 (I) read in Conjunction with AR 193 sanction of the COAS has been accorded to the recovery of the Rs. 155/- per month from the pay and allowances of No. 9079742 Mohan Lal and its payment to Smt. Janki Devi for maintenance. The recovery will commence from the pay and allowances of the NCO for the month of Aug. 84 payable on 01 Sept 84.
2. The expenses incurred in the remittance of the maintenance allowance to Smt. ....................... will be debited to the NCO's accounts.
3. In the event of Smt. Janki Devi remarrying or divorce the payment of maintenance allowance of Rs 155/- per month to her will cease from the date of such remarriage or divorce.
4. Please acknowledge.
Sd/-(Panna Lal)
Co
DDAG IV-2
Copy to :-
Headquarters
Central Command with reference to their No. 1902/5/988/AI
(B) dated 07 Jan.84.
CBA (or) south Madras
The Accounts Officer Incharge J&KLt;
The Officer Commanding J&K; LT
Smt. Janki Devi W/o NK Mohan Lal C/o F-106, New Plot Jammu (J&K;).
7. This communication indicates the status of Smt. Janki Devi.
8. There is yet another order. This is dated 23-09-1997. vide this order, the quantum of maintenance was enhanced.
9. Therefore, to say that there subsisted no relationship between Husband & Wife is an argument, which cannot be accepted.
10. In view of the above, it cannot be said that the Court below has committed an error in placing reliance an oral evidence, which stand fully corroborated by the documentary evidence noted above.
11. Learned counsel appearing for the petitioner submit that before granting maintenance under section 488 of the code of criminal procedure, it has to be established that a valid marriage was performed in accordance with law. Reliance is placed in the case of the Sumitra Devi, Appellant v. Bhikan Choudhary, respondent reported in AIR 1985 S.C. 765 particular reliance is being placed in paragraph 3 of the Judgement. For facility 'of references, paragraph-3 is being reproduced below :-
'3. We are impressed by the fact that the respondent had not seriously disputed the fact of marriage and had taken the stand that such marriage was void being vitiated by fraud and suppression of the material facts as also for non performance of religious rites. The Additional Sessions Judge and the High Court have adopted a technical approach while considering the question of marriage. There is no doubt that 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 scared fire have been considered by the court to be two of the basic 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 referred above and marriages of this type give rise to legal relationship which law accepts. The Additional Sessions Judge as also the learned Single Judge of the High Court did not refer to the fact that for about a decade the parties had lived together. Public records including Voter lists described them as husband and wife and competent witness of the village of the wife as also the husband had supported the factum of marriage. Witness have also spoken about the reputation of appellant being known in the locality as the wife of the respondent. These facts should not have been totally overlooked while considering the case of marriage. It is possible that on account of the lawyer's mistake the appellant's witnesses have not referred to the religious rites which might have been performed at the time of marriage. It is equally possible that the learned Magistrate while recording the evidence has not specifically recorded the details and has only indicated that witnesses have spoken to the fact of marriage. Since the form of the marriage has not been found and traditional marriage according to Hindu law requires performance of certain religious rites, we consider it proper in the peculiar facts of the case to remit the matter to the learned Magistrate for a fresh inquiry at which apart from the evidence already on record both side should be entitled to lead further evidence particularly in support of their respective stands relating to the ractum 01 marriage.
12. So far as the legal position is concerned, there is no dispute with the view expressed by the Supreme Court of India. In the present case, documentary evidence establishes the relationship of husband and wife. No doubt the purohit (Pandit) appeared in the witness box. He made a statement that the marriage could not be performed, but when he was sought to be confronted with his earlier statement made in the Civil Court, he did not appear. Therefore, no reliance could be placed on his statement and this was rightly ignored by the court below.
13. In view of the above, there is no merit in this Revision petition, which is hereby dismissed along with the connected Cr.M.P.