Allahabad High Court
Smt. Kasturi Devi Wife Of Prahlad Singh ... vs Prahlad Singh Son Of Ram Nath Khangar And ... on 23 December, 2005
Author: Amar Saran
Bench: Amar Saran
JUDGMENT Amar Saran, J.
1. This criminal revision has been filed by Smt. Kasturi Devi, wife of Prahlad Singh, and Ghanshyam Das (minor), son of Prahlad Singh, against the judgement dated 1.12.1988 passed by the Additional Sessions Judge/ Special Judge (Essential Commodities Act ), Lalitpur whereby the learned Sessions Judge had allowed the criminal revision No, 46 of 1988 and set aside the order dated 30.7.1988 passed by the learned Munsif Magistrate, Lalitpur in case No. 88 of 1985, under Section 125 of the Code of Criminal Procedure awarding maintenance to Smt. Kasturi Devi, wife at the rate of R 150/- per month and Rs. 75/- per month to Ghanshyam Das, child from the date of application.
2. Heard Shri A.N. Tripathi, learned Counsel for the revisionists, Shri Pankaj Saxena, learned Counsel for opposite party No. 1 and learned Additional Government Advocate representing the State.
3. The grounds taken by the learned Sessions Judge for allowing the said revision were firstly; that the Court at Lalitpur where the application for maintenance was filed, had n6 jurisdiction to decide the matter and secondly; that there was no adequate proof of the marriage of Smt. Kasturi Devi with Prahlad Singh and in any case no maintenance ought to have been granted.
4. So far as the first ground is concerned, it may be noted that under Section 126(1) of the Code of Criminal Procedure, proceedings under Section 125 Cr.P.C. may be taken against any person in any district where he is, or where he or his wife resides or where he last resided with his wife, or as the case may be, with the mother of the illegitimate child. In this view of the matter, the application for maintenance could have been filed in a place where the wife resides.
5. It may be noted that there is no requirement of permanent residence at a place by the wife where the application has been filed. In the judgement of the Magistrate, it was mentioned that D.W. 1 Prahlad Singh had stated that he could not say where opposite parties were residing, but he accepted that Kasturi Devi's brother used to ply Rickshaw in Lalitpur. In the plaint it was clearly stated by the revisionists that they were residing in Lalitpur. Learned Sessions Judge, however, mentioned that in her examination-in-chief revisionists have not clearly mentioned that they were residing in Lalitpur, but she had stated in her evidence that she belonged to Mauranipur. Learned Sessions Judge had drawn an inference that Smt. Kasturi Devi's husband Prahlad Singh and revisionists along with Prahlad Singh had never resided in Lalitpur from-the date of her application. In his cross examination P.W. 2 Shyam Sundar, Jija of Smt. Kasturi Devi had stated that Smt. Kasturi Devi was residing with her mother in Lalitpur, but this was only for 6 or 7 months prior to his examination. It may be noted that proceedings under Section 125 Cr.P.C. are not meant to curtail the rights of an abandoned wife, who is claiming maintenance an hyper technical (SIC) of the evidence. There was little reason for Smt. Kasturi Devi to have initiated proceedings under Section 125 Cr.P.C. in Lalitpur if she was not residing in Lalitpur on the day when she moved the application for maintenance and as she has clearly mentioned in her plaint, which was not adequately refuted by Prahlad Singh that she was residing in Lalitpur with her brother, I think the findings of the Magistrate, who awarded maintenance are to be preferred to the conclusion arrived at by the Sessions Judge.
6. So far as the second contention, which found favour of the Revisional Court that there was inadequate proof of the marriage of Smt Kasturi Devi with Prahlad Singh, which was based on the assumption that evidence of the essential rites and ceremonies of the marriage was absent in this case and adequate proof of the same should be given. In this connection even if Smt. Kasturi Devi who was a poor and illiterate woman may not have mentioned all the details, such as conduct of Hawan etc. at the time of marriage, I think the learned Sessions Judge had erred in concluding that Smt. Kasturi Devi had not been able to adduce evidence of her marriage with Prahlad Singh, Ordinarily no Indian woman will slate that she had married a particular person from whom she had even produced a nine year old child unless such an allegation is correct.
7. Moreover, the witnesses of defendant Prahlad Singh, D.W. 2 Ghayshyam, D.W. 3, Sita Saran and D.W. 4, Daya Ram have accepted that Barat of Prahlad Singh had come to the house of Smt. Kasturi Devi. D.W. 3, Ghanshyam even accepted that after Barat arrived at the maternal house of Smt. Kasturi, there was arrangement for a feast.
8. Learned Counsel for the revisionists Smt. Kasturi Devi has placed reliance on paragraph 9 of the decision of the Apex Court in Reema Agarwal v. Anupam AIR 2004 SC 1418, which states that husband and wife who are alleged to have co-habited together, it shall be presumed that they shall be considered to be husband and wife. The following lines from paragraph 9 of the aforesaid decision may be usefully extracted in this connection:
When the fact of celebration of marriage is established it will be presumed in the absence of evidence to the contrary that all the rites and ceremonies to constitute a valid marriage have been gone through. As was said as long as 1869 when once you get to this, namely that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law. See Inderun Valungypboly v. Ramaswamy (1869 (13) MIA 141). So also where a man and woman have been proved to have lived together as husband and wife, the law will presume, until contrary he clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinagae. See Sastry Velaider v. Sembicutty (1881)(6) AC 364) following De Thoren v. Attorney General (1876)(1) AC 686) and Piers v. Piers (LR (2) HLC 331). When a marriage is accepted as valid by relations, friends and others for a longn time, it cannot be declared as invalid.
9. In this view of the matter, I think the learned Sessions Judge was not justified in reversing the findings of fact, recorded by the Magistrate, in the revision filed by Prahlad Singh and he erred in law in concluding that there was want of evidence of Smt. Kasturi Devi having married Prahlad Singh.
10. In view of what has been indicated hereinabove, the judgement of the Additional Sessions Judge, Lalitpur dated 1.12.1988 cannot be sustained, it is accordingly set aside. The judgement of the learned Magistrate dated 30.7.1988 awarding maintenance is upheld. The revision is allowed.