Petricia Vs. Purushothaman - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 9, rule 4: [v.k. bali, cj, kurian koseph & k. balakrishnan nair, jj] restoration of petition for enhancement of maintenance dismissed for default held, application under order 9, rule 4 c.p.c., is not maintainable. reason being while exercising powers under section 7(2)(a) and entertaining maintenance petition under section 125 of cr.p.c., family court cannot be deemed or treated as civil court. proceedings for maintenance before the family court under section &(2)(a) is criminal in nature. [kunhimohammammed v nafeesa, 2003 (1) klt 364; 2004 cri lj 1000 (ker) overruled]. reference to full bench; held, single judge cannot refer the case to full bench. he can refer the case to division bench. power to refer to full bench is expressly reserved to division bench. merely because a single judge/division bench entertains another view or merely because another view is possible, the judgment shall not be distinguished. - the respondent married petitioner at vythiri sub registrar's office, their's was a love marriage. the presumption of the law is clearly in its favour. ..thus, where a man and woman have lived together as man and wife, the law will presume, unless the contrary be clearly proved that they were living together by virtue of a legal marriage and not in concubinage. merely because the petitioner failed to state the details of any ceremony, if any, conducted or because she produced exhibit p1 the court cannot infer that the marriage took place by executing exhibit p1. there is also evidence of long cohabitation between the parties, and that they were treated as husband and wife by the society as well as their own relatives. 22. in matters like this, where a claim is made for maintenance under section 125 of the code, the court must set it's mind attune to the frequency of the object of legislation, which is oft-reminded by the various judicial pronouncements across the country.k. hema, j.1. a petition was filed by the petitioner herein before the magistrate's court, claiming maintenance to herself under section 125 of the code of criminal procedure ('the code' for short). the application was allowed and respondent was directed to pay an amount of rs. 500/- per month as maintenance to the petitioner as his wife from the date of petition. the said order was challenged in revision before the sessions court. it was allowed, setting aside the order of the magistrate's court. the legality, propriety and correctness of the said order are challenged in this revision.2. the relevant facts, in brief, are as follows: the respondent married petitioner at vythiri sub registrar's office, their's was a love marriage. they executed an agreement of marriage also, as exhibit p1. they lived as husband and wife in several places and a child was born in the wedlock. the child is in the custody of the respondent. the respondent was originally working in a parallel college and later, he obtained a job in a bank. thereafter, their relationship was strained. they separated after a long period of cohabitation as husband and wife. the respondent thereafter, neglected petitioner and he did not maintain her, though he had sufficient income. he refused to show the child to petitioner, but she meets the child with permission of his parents, once in a year. petitioner is unable to maintain herself and she claimed maintenance at the rate of rs. 500/- per month from the respondent.3. the respondent filed a counter statement. the marriage is disputed. it was contended that the parties belong to different religions; petitioner is a christian whereas respondent is a hindu. they never got married and no marriage was registered, as alleged. they did not live as husband and wife and no child was born in the alleged wedlock. all the allegations were denied. the respondent's liability to maintain the petitioner is also disputed.4. both sides adduced evidence before the court below. oral evidence is that of petitioner and respondent as pw1 and cpw1. exhibits p1 to p9 were marked on the side of the petitioner.5. after analysis of the evidence, learned magistrate found that there was a long cohabitation between the parties after execution of exhibit p1-marriage agreement and that was enough to prove marriage. but, learned sessions judge held that the only claim made by petitioner is that the marriage was performed from the registrar's office by execution of exhibit p1 agreement and that there was no pleading or evidence with respect to any 'marriage ceremony'. the court placed reliance upon the decision reported in punnakkal sreedharan v. vellai padmini 1992 (2) klt sn6 p5 : 1992 (3) ilr ker.572 and it was found that execution of a registered document and making declaration therein to live as husband and wife would not confer upon the parties, status as husband and wife. those findings are mainly challenged in this revision.6. on a reading of the judgment of the sessions court, it is clear that the court misread the case of the petitioner. though the petitioner did not have a specific case in the petition that the marriage was conducted as per exhibit p1, the sessions court held that such a claim was made by her. though, on the facts of this case, even without proof of any marriage ceremony, it would be possible to enter a finding that the parties are husband and wife, the court below rejected the claim on the ground that there was no evidence for any marriage ceremony.7. the findings of the revisional court are erroneous and contrary to the pleadings and evidence. i shall elaborate: the respondent admitted at the time of evidence that the parties were living together as husband and wife and that a child was also born in such relationship. even though the respondent had denied marriage, cohabitation, and even paternity of the child and its custody as per counter statement, he admitted in cross-examination that the child born to the parties is under the protection of his own parents.8. several photographs were produced and marked in this case and it is brought out from the evidence of respondent (cpw1) that the couple had taken photographs together with the child, respondent's parents, sisters and also with petitioner's relatives. he also admitted that petitioner had stayed in his house along with his family members, as husband and wife. it is also in evidence that they were living together as husband and wife for a number of years.9. thus, the factum of long cohabitation between the parties as husband and wife has been established. there are also materials to hold that the parties were accepted and recognised by the families, as husband and wife. it is however, difficult to infer that their relationship was construed by the family members of the parties only as a mere concubinage. it cannot also be held that the close relatives of the parties were either conniving at the alleged immoral relationship between the parties. in these circumstances, as per settled position of law, the court can justifiably presume that there was a legal marriage between the parties, on account of the long cohabitation between them, particularly for the purpose of section 125 of the code.10. in dwarika prasad satpathy v. bidyut prava dixit and anr. : 2000crilj1 , it was held that the validity of the marriage, for the purpose of summary proceedings under section 125 of the code, it is to be determined on the basis of the evidence brought on record by the parties. it is beneficial to extract the relevant portion from the said decision as follows:if the claimant in proceedings under section 125 succeeds in showing that she and the respondent have lived together as husband and wife, the court has to presume that they are legally wedded spouses, and in such a situation one who denies the marital status can rebut the presumption. (see also captain ramesh chancier kaushal v. veena kaushal and ors. in : 1979crilj3 .11. referring to several precedents, this court also found in the decision reported in karthyayani amma v. narayanan nair 1997 (1) klt 862 as follows:the presumption of the law is clearly in its favour... the presumption of marriage arising from cohabitation and repute can only be rebutted by clear and satisfactory evidence... thus, where a man and woman have lived together as man and wife, the law will presume, unless the contrary be clearly proved that they were living together by virtue of a legal marriage and not in concubinage. 12. but, it was argued by learned counsel for respondent that such a presumption of marriage cannot be drawn on the facts of this case. since the parties belong to different religions and nobody has a case that there was a registration of marriage under special marriage act, it was submitted that there cannot be a legally valid marriage. the relationship, if any, which existed between the parties could never confer on the petitioner, the status of a wife, as per law. in other words, what cannot normally occur as per law, cannot be presumed in law, to have occurred. this appears to be the argument, learned counsel for the petitioner however, repelled this contention, placing reliance upon the dictum laid down in the decision reported in kunhiraman nair v. annakutty 1967 klt 24. the relevant portion from the said decision can be extracted as hereunder:the indian christian marriage act does not stand in the way of a christian marrying a non-christian, but such marriage will have to be solemnised under the provisions of the said act.13. sreedharan v. pushpa bed alias leela 1978 klt 26 was also cited in support:it may be that the hindu marriage act, 1955 does not contemplate a marriage between a hindu male and a christian female. at the same time, the indian christian marriage act (xv of 1872) permits marriage between christians and non-christians solemnised in accordance with the provisions of that act. therefore, the fact that the petitioner and the respondent follow different religions need not necessarily mean that there could be no marriage between them and the respondent will not get the status of a wife even after undergoing the ceremony of marriage.14. it is thus clear that even if the parties are hindu and christian by religion, there is no bar to have a legally valid marriage between them under the christian law. so, if there is evidence that a marriage was conducted, otherwise than by executing a marriage agreement, parties can be held to be legally married, irrespective of whether they belong to different religion or not. on going through the records, i find that petitioner pleaded and also deposed before court that the parties were 'married'.15. in the maintenance petition filed by the petitioner, she averred categorically that the parties were 'married'. petitioner has no specific case in the petition that the parties were married 'on the basis of exhibit p1 or 'by executing' the said agreement. she only deposed that the parties had executed a marriage agreement. in evidence also, she took the same stand. that means, as per pleading and evidence, her case is that she was 'married' and that she had also executed a marriage agreement, as exhibit pl.16. that does riot, however, mean that the parties were married only by executing a marriage agreement. it cannot be said that the marriage was conducted by execution of an agreement. in the absence of a specific case set up by the petitioner that the marriage was conducted by executing an agreement, the court cannot discover a case contrary to the records that the marriage was 'conducted' by execution of a marriage agreement.17. it is true that the petitioner stated at the time of evidence that she was 'married' at the registrar's office and this fact was not challenged in cross examination. but, the court cannot immediately proceeded to presume that it was by execution of exhibit p1 that the marriage was conducted. only because the venue happened to be the registrar's office, it cannot be held that there was no 'marriage' at all, otherwise than by executing exhibit p1. if as a matter of fact, there had been no 'marriage' or any ceremony in connection with the alleged marriage, it could have been elicited in cross examination.18. in the light of what petitioner deposed in court regarding 'marriage', she ought to have been cross-examined as to the details of the marriage ceremony which took place at the venue stated by her. but, nothing is brought out in evidence to discredit her evidence regarding the conduct of marriage. merely because the petitioner failed to state the details of any ceremony, if any, conducted or because she produced exhibit p1 the court cannot infer that the marriage took place by executing exhibit p1.19. it is also relevant to note that the marriage agreement, exhibit p1 would only show that the parties had only 'decided to marry' and live as husband and wife. there is no recital therein that they were 'married'. so, it cannot be said that the parties married as per exhibit p1. the petitioner could not have given evidence contrary to the contents of exhibit p1. therefore, as per the records, pleading and evidence, apart from taking a decision to marry, the parties were in fact, 'married' also. it can only be concluded that parties 'decided' to marry and they executed an agreement also, incorporating such decision in exhibit p1 and they went a step further and got married.20. in the above circumstances, i hold that the sessions court went wrong in arriving at a conclusion that the claim made by the petitioner was that the marriage was conducted by executing a marriage agreement. this conclusion is contrary to the pleading and evidence as already discussed above. consequently, the revisional court also misapplied the dictum laid down in the decision reported in punnakkal sreedharan v. vellai padmini and anr. 1992 (2) kit sn 6 p. 5 : 1992 (3) ilr ker. 572 to the facts of this case. hence, the order under challenge deserves interference.21. to conclude, i find that there is pleading and evidence to establish that the parties were 'married', which fact was not challenged. there is also evidence of long cohabitation between the parties, and that they were treated as husband and wife by the society as well as their own relatives. in such circumstances, the court can presume that there was a valid legal marriage. if a presumption can be drawn in these lines, the burden is on the respondent to establish that there was no marriage at all. but the respondent did not discharge such burden. at least the version given by pw1 that the parties were 'married' should have been cross-examined. this was not done. to add to all, respondent's denial of marriage, paternity etc. crumbled down to nothing but a heap of dust of falsity.22. in matters like this, where a claim is made for maintenance under section 125 of the code, the court must set it's mind attune to the frequency of the object of legislation, which is oft-reminded by the various judicial pronouncements across the country. only if this is done, pleadings can be correctly read, evidence can be faultlessly appreciated, precedents can be aptly applied and ultimately, the goal of the system of administration of justice can be rightly hit. the fragrance and flavour of justice will then, flow to the deserving and the worthy. let it reach the petitioner also.the order of the learned sessions judge is set aside and that of the learned magistrate is hereby upheld.this revision petition is allowed.