Delhi District Court
Nagesh Jain vs Pushpa on 7 August, 2013
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
Nagesh Jain
S/o Sh. Ulfat Rai Jain
R/o H. No. 105, Baird Road
Bangla Saheb Road
New Delhi ...Petitioner (Husband)
VERSUS
Pushpa
R/o 59, Bhagwan Nagar
New Delhi ...Respondent (Wife)
CR No :04/09
Date of institution :24.02.2009
Date of reserving judgment :27.07.2013
Date of pronouncement of judgment :07.08.2013
Computer ID No. :02403R0095912009
AND
Nagesh Jain
S/o Sh. Ulfat Rai Jain
R/o H. No. 105, Baird Road
Bangla Saheb Road
New Delhi ...Petitioner (Husband)
VERSUS
Pushpa
R/o 59, Bhagwan Nagar
New Delhi ...Respondent (Wife)
CR No :05/09
Date of institution :24.02.2009
Date of reserving judgment :27.07.2013
Date of pronouncement of judgment :07.08.2013
Computer ID No. :02403R0095902009
CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain
2
AND
Pushpa Jain
W/o Sh. Nagesh Jain
R/o 59, Bhagwan Nagar
New Delhi-110014 ...Petitioner (Wife)
VERSUS
Nagesh Jain
S/o Late Sh. Ulfat Rai Jain
R/o H. No. 105, Baird Road
Bangla Saheb Road
New Delhi
Also available at
H. No. 16/10, Doctors Lane
Gole Market
New Delhi ...Respondent (Husband)
CR No :41/13 (Old No. 55/09)
Date of institution :16.04.2009 (Date of
Restoration is dated 30.05.2013, in terms of order dated
08.05.2013 of Hon'ble High Court)
Date of reserving judgment :27.07.2013
Date of pronouncement of judgment :07.08.2013
Computer ID No. :02406R0140972013
J U D G M E N T
By this common judgment, I shall decided all the above three revision petitions pending between the parties in this court as these arise out of the same proceedings U/s 125 Cr.P.C. which were initiated by Smt. Pushpa Jain against her husband Sh. Nagesh Jain and are based on similar facts leading to the initiation of the above proceedings for maintenance. For the sake of convenience, the wife Smt. Pushpa Jain is being referred CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 3 to as petitioner/wife and the husband Sh. Nagesh Jain is being referred as respondent/husband.
2. Briefly stated, one application/petition U/s 125 Cr.P.C. for maintenance, being CC No. 503/A, was filed by the petitioner/wife against the respondent/husband on 20.03.2004 and the above petition was contested by the respondent/husband. During the pendency of the above proceedings, it had transpired that due to some mistake the petition/application was titled as an application for interim maintenance and on the basis of the submissions made by Ld counsel for the petitioner/wife, the above petition was directed to be treated as the main petition for maintenance under the above provision vide order dated 26.04.2007. The above petition was finally disposed off by the Ld MM concerned vide judgment dated 13.01.2009 and a maintenance of Rs. 2000/- per month was granted to the petitioner/wife from the date of the above order/ judgment till the time she was legally entitled to receive the same.
3. Being dissatisfied with the above order/ judgment, the petitioner/wife had filed the above revision petition no. 55/09 (New Number 41/13) and notice of the said petition was issued to the respondent/husband and on one of the dates fixed for hearing in the said petition, the presence of the respondent/husband is also found to be recorded and since subsequently none had appeared for him, the petition was finally disposed off CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 4 vide judgment/order dated 17.07.2010 of this court and the maintenance of Rs. 2000/- per month granted to the petitioner/wife by the Ld MM was enhanced to Rs. 4000/- per month and instead of its payment from the date of the above order of the Ld MM, it was also directed to be paid from the date of filing of the above application U/s 125 Cr.P.C.
4. The respondent/husband had also filed one separate revision petition against the above judgment dated 13.01.2009 of the Ld MM, which was registered as the above CR No. 04/09, and notice of the above petition was directed to be issued to the respondent/wife. However, since the notices sent to her at her given address of 59, Bhagwan Nagar, New Delhi-14, which is the same address which she had given in her petition U/s 125 Cr.P.C., could not be served upon her, the above petition CR No. 04/09 was ultimately adjourned sine die and was directed to be consigned to record room vide order dated 06.07.2010 of this court, with liberty to the respondent/husband to get it restored if he was able to find out the present address of the petitioner/wife.
5. However, subsequently the respondent/husband had filed one application dated 09.04.2012 seeking the revival of the said petition/proceedings as he was able to trace the respondent/wife who had by that time initiated execution proceedings against him for recovery of the maintenance amount vide execution application no.
CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 5 488/2011. The said application of the respondent/husband was allowed and the revision petition bearing CR No. 04/09 was directed to restored back vide order dated 30.04.2012 of this court.
6. Even the judgment/order dated 17.07.2010 of this court in CR No. 55/09 (Old Number) (New Number is 41/13), vide which the amount of maintenance was enhanced from Rs. 2000/- per month to Rs. 4000/- per month and was also made payable from the date of the application U/s 125 Cr.P.C. instead of the date of the order, was challenged by the respondent/husband before the Hon'ble High Court in Crl. M.C. (Main) No. 1476/2012 and vide order dated 08.05.2013, the Hon'ble High Court had set aside the above order dated 17.07.2010 of this court and had directed this court to decide the above revision petition afresh, alongwith the other two connected revision petitions bearing CR No. 04/09 and 05/09 of the parties pending in this court, within a period of three months from the date of the said order.
7. As far as the CR No. 05/09 is concerned, during the pendency of the above proceedings U/s 125 Cr.P.C. between the parties, the respondent/husband had filed one application dated 18.01.2006 U/s 340 Cr.P.C. against the petitioner/wife seeking action against her for commission of certain offences of forgery and fraudulent use of counterfeit seal of oath commissioner on her affidavit filed before the Ld trial court by way of her evidence in CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 6 the above proceedings and the said application was dismissed by the Ld MM by a separate order of even date, i.e. 13.01.2009 itself when the main petition U/s 125 Cr.P.C. was disposed off, and being aggrieved by the above said order, the respondent/husband had filed the above CR No. 05/09 against the said order and this revision petition was also earlier adjourned sine die, alongwith CR No. 04/09, and was subsequently restored on 30.04.2012.
8. In view of the above factual background in the above CR No. 04/09 and 05/09 filed by the respondent/ husband, this court has now to decide the legality and propriety etc of the above two separate orders dated 13.01.2009 of the Ld MM vide which she had allowed the maintenance of Rs. 2000/- per month for the petitioner/ wife from the date of the above order and had also dismissed the application U/s 340 Cr.P.C. filed by the respondent/husband. In the third petition CR No. 41/13 (Old Number 55/09) filed by the petitioner/wife, this court has to decide the legality and propriety etc of the above order dated 13.01.2009 of the Ld MM to the extent of quantum of the above maintenance granted by the Ld MM at the rate of Rs. 2000/- per month and also the date from which it should be made applicable, i.e. the date of the passing of the order or the date of filing of the above application.
9. As far as the facts of the case are concerned, CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 7 the petitioner/wife had filed the above petition U/s 125 Cr.P.C. for maintenance against the respondent/husband while alleging that she was married with the respondent according to the Hindu rights in Arya Samaj Mandir, Jor Bagh on 09.12.2001 and it was an arranged marriage. The parents of the petitioner/wife had expired long ago and hence, the arrangements for her marriage were made by her brother and sisters and at the time of negotiations of the above marriage, no demand for any specific article was made by her in-laws and they had only stated that the dowry can be given as per the wishes of the petitioner and her family members.
10. It is alleged that all the dowry goods and original certificates of the petitioner/wife were handed over to the in-laws of the petitioner/wife at the time of solemnization of the above marriage. After the marriage, she was also taken to her matrimonial home at 16/10, Doctors Lane, Gole Market by the respondent/husband and his relatives, but she was made to wait outside for 15-20 minutes. Thereafter, when she was taken inside her above matrimonial home, instead of welcoming her in her new home, she was abused and beaten for not bringing sufficient dowry and the respondent/husband is alleged to have pulled her inside the house and had also given bearing to her for bringing insufficient dowry. She claims that as a result of the above ill-treatment and beatings given to her by the respondent/husband and his relatives, she had fainted and in panic the CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 8 respondent/husband and his family members had given a call to her brother and had made allegations that she was mentally unfit and she was sent back with her brother while all her jewellery was taken away by her in-laws.
11. It is also alleged by the petitioner/wife that in the same night, she was taken to RML Hospital and was given appropriate medicines, but the respondent/husband and his family members had refused to take her back in the matrimonial home on the ground that she was of unsound mind. Subsequently, she was shocked to receive a notice from the Mahila Dakshita Samiti, in the month of December 2001, which proceedings were initiated by her mother-in-law, and on her participation in the same, she was also made to undergo some tests at St. Stephens Hospital and though the results were O.K., but still her mother-in-law had refused to take her back in the matrimonial home and had also refused to return her jewellery and other articles by levelling baseless allegations against her.
12. It was further alleged that she had even tried to speak with the respondent/husband on few occasions, but he had flatly refused to take her back to the matrimonial home until she brought a sum of Rs. 1,00,000/- in cash for him and then she started staying with her brother and sister and had ultimately filed a complaint in the CAW Cell against her in-laws and though one FIR No. 13/03 was registered against the CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 9 respondent/husband and her in-laws, but no dowry articles could be recovered. Though the mother and sisters of the respondent/husband were granted anticipatory bail by the Hon'ble High Court, but the respondent/husband himself had to surrender to custody on 06.12.2003 and he was granted bail on 13.01.2004. It was also claimed that the respondent/ husband was running a book shop in the name of Jain Book Centre at 105, Baird Road, Bangla Sahab Road, New Delhi and it was represented to them at the time of the marriage that he was earning about Rs. 50,000/- per month from the said shop and thus he had sufficient means to keeping and maintain the petitioner/wife.
13. The case of the respondent/husband was that the petitioner was not his wife as no valid or complete marriage between them could be solemnized on 09.12.2001 in the above Arya Samaj Mandir. He had claimed that though the solemnization of the marriage in the above Mandir for the said date was fixed, but only two 'pheras' could be taken before the petitioner/wife had fainted due to some psychiatric problems at around 6.00 PM and though she had regained consciousness at around 8.00 PM, but by that time no pandit was available in the Mandir and she had again suffered an attack at about 10.00 PM and she had to be taken to RML Hospital by him as well as the brother and sister of the petitioner/wife. He had also claimed that the doctor had examined her and had told her to come on the next CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 10 date, i.e. 10.12.2001, when she was again examined by a group of doctors and finally declared her to be a case of psychiatric disorder. He had also claimed that from the hospital, the petitioner/wife had gone to her sister's house and did not return back to him for completing the ceremonies of marriage and she had also taken away all the jewellery and other articles, which were given to her by both the families.
14. He further claimed that thereafter, the petitioner/wife started blackmailing him and he had also sent one cheque for Rs. 10,000/- to her by post, but since he was not able to fulfil the illegal demands made by the petitioner/wife and the same had resulted into the filing of a false complaint U/s 498A/406 IPC by the petitioner/wife against him and his family members. He had further alleged that the petitioner/wife had also demanded an amount of Rs. 25,000/- from his sister on telephone on 27.02.2005 under threat of attachment orders against him in the CAW Cell proceedings and he had also subsequently filed a petition U/s 7(2) of the Hindu Marriage Act seeking nullity of their marriage, which was stated to be pending at that time.
15. Regarding his financial status, he had claimed that he is suffering from acute diabetes and his condition is deteriorating day by day and his right foot had also been amputated in the year 2005 and he had also sustained some burn injuries in the same year and his CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 11 above book shop was already lying closed. However, these detailed submissions were made subsequently in his affidavit which was filed on record by way of his evidence in the said proceedings and initially he had only filed one reply to the interim application for maintenance (as it was titled at that time) moved by the petitioner/wife while alleging the same to be an abuse of the process of the court and while specifically claiming that no complete marriage was performed between them on 09.12.2001 in the above Mandir due to the psychiatric problems of the petitioner/wife.
16. I have heard the arguments advanced by Sh. Rohit Arora, Ld counsel for the petitioner/wife and Sh. Zaryab J. Rizvi, Ld. Counsel for the respondent/husband. The TCR of the proceedings U/s 125 Cr. P.C attached herewith and the record of these revision petitions have also been perused.
17. In the above proceedings U/s 125 Cr.P.C., both the parties have only filed their respective affidavits on the above lines as evidence by way of their examinations in chief and they were also cross examined by the opposite counsels. The petitioner/wife in her affidavit has also brought on record some photographs of their alleged marriage as Ex. PW1/1 collectively, one patient card of St. Stephen Hospital as Ex. PW1/2, copy of one complaint made by her before the Women Cell as Ex. PW1/3, copy of the FIR of the above dowry case as CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 12 Ex. PW1/4 and copies of some complaints filed by her as Ex. PW1/5 collectively and one list of the jewellery and other dowry/stridhan articles Ex. PW1/6 and had claimed a maintenance of Rs. 10,000/- per month. The respondent/husband had also brought on record certain documents in his above affidavit, i.e. one medical certificate of Smt. Pushpa Jain as Ex. RW1/1 and a copy of one statement of account of his above book shop as Ex. RW1/2 to show its closure.
18. It is found that in the above judgment, the Ld MM has reproduced the provisions of Section 125(1) Cr.P.C., which entitle a wife, inter-alia, to seek or claim maintenance from her husband. The Ld MM has also observed that the first requirement for grant of a maintenance under the above provision to a wife is that the relationship of husband and wife should be proved on record. On appreciation of the evidence led during the above maintenance proceedings before the Ld MM, it appears to this court that the Ld MM had not appreciated the evidence led on record correctly for arriving at a just conclusion regarding the above relationship of husband and wife between the parties simply on the basis of the depositions made by the wife in her affidavit to the effect that on 09.12.2001 a marriage between her and her husband was solemnized according to Hindu rights and customs in the above Arya Samaj Mandir or that the Ld counsel for the respondent had failed to give some suggestions to the wife during her cross examination CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 13 that the marriage solemnized on that day was not complete and only two 'pheras' were taken.
19. It cannot be ignored that from the very beginning, the case of the husband had been that the marriage between them could not be completed on that day due to some psychiatric problems of the wife, though it was scheduled to be performed on the said date at about 6.00 PM. It is also on record as an admitted fact that the wife was taken to RML Hospital in the same evening/night when the alleged marriage between the parties was performed. Apart from the rival affidavits of both the parties filed on record in support of their respective claims/pleadings, no other oral or documentary evidence was led on record before the Ld MM for proving the factum of solemnization of the above marriage.
20. It is a fact of common knowledge that whenever a marriage is performed in any Arya Samaj Mandir, the solemnization of the marriage is entered or registered in a separate marriage register maintained in such Mandir and even a marriage certificate is issued by the management of the concerned Arya Samaj Mandir to the parties in this regard. However, in this case neither any marriage certificate between the parties has been produced or proved on record nor even any attempt or effort was made by the petitioner/wife to summon any such record. Even the Pandit or Priest who had CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 14 solemnized the above marriage between the parties was not summoned as a witness by the petitioner/wife and this is despite the fact that the solemnization of the above marriage between her and the respondent/husband was being vehemently disputed and denied.
21. It is further observed from a perusal of the impugned judgment that the Ld MM had given undue weightage to the photographs Ex. PW1/1 of the alleged marriage brought on record. Though the negatives thereof had not been brought on record and even the photographer concerned had not been summoned, but the above photographs of the alleged marriage are found to have been admitted by the respondent/husband as being of their alleged marriage and hence, the same have to be taken as admitted documents on record. However, even from the above photographs, no presumption or inference can be drawn that the ceremonies of marriage between the parties were actually concluded or the 'Saptapadi', which is an essential ceremony to be completed for a Hindu marriage, was performed between the parties. Hence, the inference raised by the Ld MM on the basis of the above photographs regarding the solemnization of a valid and legal marriage between the parties is not found to be correct when the husband had already taken a plea that the marriage ceremonies between them were not concluded and only two 'pheras' were held and not the seven pheras or the 'Saptapadi'.
CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 15
22. Further, though the Ld MM had also observed in her impugned judgment that once the above photographs of their marriage had been admitted by the respondent/husband on record, the onus had shifted upon the husband to prove that only two 'pheras' of marriage were performed and not the complete marriage, but this finding of the Ld MM is also not found to be correct as the onus of proving a legal and valid marriage between the parties was always on the petitioner/wife to establish her claim for maintenance and the same could never have been shifted upon the respondent/husband by just filing of the above photographs when the respondent/husband had already taken a plea that the marriage ceremonies were not completed due to the psychiatric problems of the petitioner/wife and only two 'pheras' were held. Hence, the above photographs are not helpful in arriving at a just conclusion regarding the completion of the ceremonies of marriage and particularly the performance of 'Saptapadi' between the parties. In the considered opinion of this court, the petitioner/wife should have taken steps for summoning the records pertaining to her alleged marriage from the above said Mandir or the Pandit or Priest thereof to prove her claim for solemnization of marriage and the respondent/husband could not have been in a position to lead negative evidence of the above aspect and to prove or corroborate her claim of an incomplete marriage as since the marriage was not completed, no documentary evidence in the form of a marriage certificate or entry CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 16 in the marriage register etc could have existed in the said Mandir. Further, though, the petitioner/wife had also admitted in her cross examination that she had signed some documents or papers concerning the above marriage, but even the record of these documents and papers was not sought to be summoned by her. Hence, the depositions made by the petitioner/wife in her affidavit Ex. PW1/1 or the above photographs are not found to be sufficient to prove the solemnization of a legal and valid marriage between the parties, as concluded by the Ld MM.
23. Apart from the above evidence, Ld MM had also concluded about the existence of the marriage between the parties on the basis of some alleged admissions or submissions made in the bail applications of the husband and his relatives filed in the above FIR. However, no record of any such applications or admissions is found to have been produced during the trial and though, the respondent/husband during his cross examination is found to have admitted that he had applied for bail as the husband of the petitioner/wife, but he has also stated at the same time that the contents of the bail application were not read by him before he had signed on the same. In the considered opinion of this court, the alleged admissions about the above relationship made in such an application, which is usually drafted by an advocate, cannot be used to establish the relationship of husband and wife for the purposes of the provisions CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 17 of Section 125 Cr.P.C., which imposes an obligation on the husband to keep and maintain his wife and children etc.
24. Then the Ld MM had also based her findings about the relationship between the parties to some extent on the proceedings conducted before the Mahila Dakshita Samiti, which were allegedly initiated by the mother-in-law of the respondent. Here also, no record of any such proceedings or the application or petition filed by the mother of the respondent/husband had been brought on record during the trial and though during his cross examination, the respondent/husband had admitted that his mother had initiated the above proceedings to bring the petitioner/wife back to the matrimonial home, but in the absence of any document pertaining to the said proceedings being produced or proved on record during the said proceedings, the Ld MM was not right in drawing an inference regarding the relationship of husband and wife between the parties as the respondent/husband from the very beginning had been disputing the above relationship, and the solemnization of a complete and valid marriage between them.
25. Apart from the above discussion and the facts and circumstance of this case also, it appears that the ceremonies of marriage, including the ceremony of 'Saptapadi' which is an essential ingredient of a Hindu marriage, were not completed between the parties. The CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 18 case of the petitioner/wife is that after the solemnization of marriage, she was taken to her above matrimonial home by the respondent/husband and his family members, but she was made to wait outside the house for 15-20 minutes. Thereafter, when she was taken inside the matrimonial house, she was abused and beaten by all of them due to the insufficiency of dowry. However, these submissions and depositions of the petitioner/wife do not inspire any confidence as it is the admitted case of the parties that the marriage was to be solemnized in an Arya Samaj Mandir and there is no other oral or documentary evidence on record in the form statements of any relatives of the petitioner/wife or of any bills of purchase of such articles or photographs etc to show that any such dowry articles were actually given or handed over to the respondent/husband or his relatives. Though one list of the jewellery and dowry articles/stridhan allegedly given from the side of the petitioner/wife in the above marriage was brought on record as Ex. PW1/6, but the above list was only prepared subsequently during the above criminal proceedings initiated by the petitioner/wife and the same was not prepared at or around the time of solemnization of the marriage.
26. Further, it is also the admitted case of the petitioner/wife that there was no demand of any dowry articles from the side of the respondent/husband at the time of settlement of the marriage. The parents of the CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 19 petitioner/wife had already expired and the marriage was being arranged by her brother and sisters. Even the details of the dowry articles allegedly given in the marriage are found missing in the depositions of the petitioner/wife recorded in these proceedings. The depositions of the petitioner/wife also does not appear to be inspiring any confidence as far as the same relate to the giving of abuses and beatings to her on the day of marriage itself, when she had just entered in the matrimonial home, and rather the version of the incident as is being put forward by the respondent/husband appears more acceptable that the petitioner/wife had never even entered the matrimonial home as she had fainted just after taking two 'pheras' and was straight way taken to RML Hospital from the Arya Samaj Mandir. Even the OPD slip of RML Hospital of the date of alleged marriage itself, i.e. 09.12.2001, corroborates the case of the respondent/husband as the symptoms recorded in the above OPD card/slip regarding the condition of the petitioner/wife and the treatment prescribed are suggestive of the fact that the petitioner/wife was having some psychiatric problems.
27. Though in the impugned judgment of the Ld MM, there is a reference of one judgment in case Smt. Nirmala Devi Vs. Sh. Jagdish Kumar 1993 (25 DRJ) 524, which was relied upon by Ld counsel for the petitioner/ wife, but the facts of the above case and the present case are distinguishable as in the above case the CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 20 dispute was also as to whether a marriage solemnized according to 'Anandkaraj' was as per the Hindu rites and ceremonies whereas in the present case, the very solemnization of the marriage is disputed on the ground that the 'Saptapadi', i.e. the taking of seven steps by the bride and the bridegroom around the secret fire, was not performed as only two steps or 'pheras' were taken by the parties. Though in his written submissions filed in this court, Ld counsel for the petitioner/wife had also relied upon some other judgments in cases Sudha Vs. State of U.P. 2008 CRLJ (NOC) 1130 (Allahabad), Tulsi Mehto Vs. State of Jharkhand 2008 CRLJ (NOC) 707, Amit Aggarwal Vs. State of U.P. AIR 2007 (NOC) 441, Mast Ram Vs. Shanti Devi 2002 CRLJ 1617 (1617) H.P. and Ram Shankar Tiwari Vs. Sharda Tiwari 2003 CRLJ (NOC) 21 in support of his submissions that a strict proof of marriage for the purposes of the proceedings U/s 125 Cr.P.C. is not required, but even the above judgments being relied upon by him are found to be not applicable in the peculiar facts and circumstances of this case as in this case, it is the contention of the respondent/ husband that the marriage ceremonies were not completed and the petitioner/wife had never even entered into her matrimonial home, what to say of residing together by the parties as husband and wife.
28. Rather the judgment being referred to by Ld counsel for the respondent/husband in case Sarup Chand Vs. State ILR 1974 Delhi 215 is found to be relevant in CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 21 the given context, which was also referred to before the Ld MM and is even found mentioned in the impugned judgment, as though the above judgment was given in criminal proceedings while interpreting the concept of marriage for the purposes of the provisions of Section 494 IPC, but it is observed therein that the ceremony of 'Saptapadi' is an essential ceremony of a Hindu marriage. One previous judgment in case Kunta Devi Vs. Siri Ram Kalu Ram is also found mentioned wherein their lordships had made some observations with regard to a Hindu marriage solemnized in an Arya Samaj Mandir according to the Vedic rites. The above observations are being reproduced herein below:-
"It is well known that according to Vedic rites there is a Kannya Dan. Obviously, there was no guardian of the girl present to do the Kannya Dan. Saptapadi is a very essential rite and neither Pt. Dharma Pal nor any other witness has deposed to this essential ceremony having been performed.
There is no reference even to Homam. He has merely made a bold statement that the ceremony was performed according to Vedic rites. There is complete lack of proof to show what the ceremonies were and whether the basic and essential ceremonies had been performed in this case or not. " xx. xx. xx. xx. xx. xx. Section 7 of the Hindu Marriage Act lays down CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 22 that where such rites and ceremonies include the Saptapadi, the marriage becomes complete and binding when the seventh step is taken. There is no proof on the record of this case that the rite of Saptapadi, or as a matter of that, other essential rites, were performed, xx. xx. xx. xx. xx. xx. I am of the view that no valid marriage was performed between the parties."
29. Therefore, in view of the above discussion, I hold that the impugned judgment dated 13.01.2009 of the Ld MM is not sustainable in the eyes of law as the same is based on some incorrect and illegal findings of the facts and law and is liable to be set aside. Hence, the above judgment of the Ld MM, which is the subject matter of CR No. 04/09, directing the respondent/husband to pay a maintenance of Rs. 2000/- per month to the petitioner/wife from the date of the above order is hereby set aside.
30. As far as the above revision petition CR No. 05/09 is concerned, as discussed above, this revision petition has been filed by the petitioner/wife against the above impugned order of the Ld MM vide which the maintenance of Rs. 2000/- per month only was directed to be paid from the date of the order. Since the impugned judgment dated 13.01.2009 has itself been set aside by this court, there is no question of awarding of the CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 23 maintenance from the date of the application instead of the date of the order or enhancement thereof, as desired by the petitioner/wife in this revision petition, and hence, this revision petition is also being dismissed for the aforesaid reasons.
31. However, as far as the third revision CR No. 41/13 (Old Number 55/09) is concerned, this revision petition has been filed by the respondent/husband as he was aggrieved by the separate order dated 13.01.2009 of the Ld MM passed on his application U/s 340 Cr.P.C. filed in the said proceedings as the same was dismissed by the Ld MM. Even this court has not been able to find any fault with the above order of the Ld MM dismissing the above application U/s 340 Cr.P.C. of the respondent/husband as the allegations made therein do not disclose the commission of the alleged offences of fabrication of the affidavit by the petitioner/wife or the use of counterfeit stamp of oath commissioner etc by her. Even otherwise, the provisions of Section 340 Cr.P.C. are meant to be used by the court in exceptional cases where the court is satisfied regarding the commission of the alleged offences in respect of documents filed or used in the judicial proceedings etc and these provisions cannot be allowed or permitted to be misused by the parties to achieve their illegal designs or to harass the opposite party. Hence, the separate order of the Ld MM dated 13.01.2009 dismissing the application U/s 340 Cr.P.C. moved by the CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain 24 respondent/husband in the above maintenance proceedings is being upheld and this revision petition is dismissed.
32. All the three revision petitions CR No. 04/09, 05/09 and 41/13 (Old Number 55/09) stand disposed off accordingly. Let a copy of this judgment be placed in all the three files and the files of revision petitions be consigned to record room. TCR be also sent back, with a copy of the judgment.
Announced in the open
court on 07.08.2013 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South District
Saket Court Complex
New Delhi
CR No. 04/09 Nagesh Jain Vs Pushpa. CR No. 05/09 Nagesh Jain Vs Pushpa. CR No. 41/13 Pushpa Jain Vs Nagesh Jain