Allahabad High Court
Mohammad Alam vs State Of U.P. And Another on 17 January, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reversed on 05.01.2023 Delivered on 17.01.2023 Court No. - 88 Case :- CRIMINAL REVISION No. - 4360 of 2022 Revisionist :- Mohammad Alam Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Tripurari Pal Counsel for Opposite Party :- G.A.,Rachana Singh Hon'ble Raj Beer Singh,J.
1. This Revision has been preferred against order dated 21.09.2022, passed by the learned Additional Principal Judge, Family Court, Budaun in case no. 1116 of 2020 (Smt. Sajiya Be Vs. Mohd. Alam), under Section 125 Cr.P.C., Police Station Sahaswan, District Budaun, whereby revisionist has been directed to pay maintenance at the rate of Rs. 4,000/- per month to the opposite party no. 2 from the date of application.
2. Heard learned counsel for the revisionist, learned counsel for opposite party No. 2 and learned A.G.A. for State.
3. It has been argued by learned counsel for revisionist that impugned order is against facts and law and thus, liable to be set aside. The amount of maintenance awarded by the court below is quite excessive and arbitrary. It was stated that the version of opposite party No. 2 that her marriage/nikah has taken place with revisionist according to Mahommedan rites and customs, is thoroughly false and baseless. The revisionist has never married with opposite party No. 2 and thus, the opposite party No. 2 is not legally wedded wife of the revisionist and she is not entitled for any maintenance. Learned counsel has referred the copy of Nikahnama, annexed as annexure no. 3 to the present revision, and submitted that the signature of husband shown on this Nikahnama are not of revisionist. The revisionist has neither performed any nikah with opposite party No. 2 nor signed any Nikahnama but court below did not consider the facts of the matter in correct perspective and committed error by granting maintenance to opposite party No. 2. It was further submitted that revisionist is a labourer and he works as a painter and thus, grant of maintenance @ Rs. 4,000/- per month is quite excessive and arbitrary.
4. Learned AGA as well as learned counsel for opposite party No. 2 have opposed the revision and argued that there is no error in the impugned order. The proceedings under Section 125 Cr.P.C. are of summery nature and that the opposite party no. 2 has established by evidence that she is legally wedded wife of revisionist. The Nikahnama has been proved in accordance with law. It was submitted that finding of the court below regarding Nikah of opposite party no. 2 with the revisionist is based on evidence and there is no illegality or perversity in the same and thus, the said finding can not be disturbed in exercise of revisional jurisdiction. It was also submitted that the revisionist is having a residential house in Noida and he is doing work of painter and he has also agricultural land and he earns Rs. 20,000/- per month and thus, the quantum of maintenance cannot be termed excessive or arbitrary.
5. I have considered rival submissions and perused record.
6. The main question that falls for consideration in the instant revision is that whether the opposite party no. 2 has been able to show herself as married wife of revisionist in order to claim maintenance from revisionist under Section 125 CrPC. Here it may be observed that proceedings under Section 125 Cr.P.C. are summary proceeding. In case of Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and Another, AIR 1999 SC 3348, it has been observed the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. The Court explained the reason for the aforesaid finding by holding that an order passed in an application under Section 125 does not really determine the rights and obligations of the parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. It was held that maintenance cannot be denied where there was some evidence on which conclusions of living together could be reached. It was further observed as under :-
"It is to be remembered that the order passed in an application under Section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents. For the purpose of getting his rights determined, the appellant has also filed a Civil Suit, which is pending before the trial court. In such a situation, this Court in S. Sethurathinam Pillai v. Barbara alias Dolly Sethurthinam, {1971 (3) SCC 923} observed that maintenance under Section 488 Cr.P.C., 1898 (Similar to Section 125 Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties."
7. In the case of Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others, (AIR 1978 SC 1807) dealing with interpretation of Section 125 Cr.P.C., the Apex Court observed as under:-
"This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause of the derelicts."
8. It is well settled that for the purposes of a proceeding under Section 125 Cr.P.C., the factum of marriage has to be prima facie considered. If there is prima facie material on record to suggest that the parties have married or are having relationship in the nature of marriage, the court can presume in favour of the woman claiming maintenance. Since the provision under Section 125 Cr.P.C. is a measure of social justice and has been enacted to protect women, children or parents and in case the material on record suggests two views, then the view in favour of women should be adopted. An order passed in an application under Section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide a summary remedy for providing maintenance to a wife, children and parents. In case of S. Sethurathiuam Pillai vs. Barbara (1971)3 SCC 923, it was observed that maintenance under Section 488 Cr.P.C. 1898 (similar to Section 125 Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties. In a proceeding for maintenance under Section 125 Cr.P.C., a Magistrate or Judge of the Family Court has to be prima facie satisfied about the marital status of the parties, as a decision under Section 125 Cr.P.C. is tentative in nature, subject to the decision in any civil proceeding, as has been held in Santosh Vs. Naresh Pal (1998) 8 Supreme Court Cases 447. The court is expected to pass appropriate order after being prima facie satisfied about the marital status of the parties. Even the definition of wife provided in Explanation (b) to Section 125 (1) of Cr.P.C is inclusive, which reads as follows:
"125(1)(b) - ,,Wife‟ includes a woman who has been divorced by or has obtained a divorce from, her husband and has not remarried"
The above inclusive definition of wife suggests that a divorced woman who cannot be technically called a wife has been treated as wife for the purposes of proceeding under Section 125 Cr.P.C.
9. The Apex Court in the case of Rajathi Vs. C. Ganesan (1999) 6 Supreme Court Cases 326, held that in a case under Section 125 Cr.P.C. the Magistrate has to take prima facie view of the matter and it is not necessary for the Magistrate to go into matrimonial dispute between the parties in detail in order to deny maintenance to the claimant wife. Section 125 Cr.P.C. proceeds on de facto marriage and not marriage de jure. Thus, validity of the marriage will not be a ground for refusal of maintenance if other requirements of Section 125 Cr.P.C. are fulfilled.
10. Perusal of above stated pronouncements shows that if from the evidence which is led, the Magistrate/court is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125 Cr.P.C., which are of summary nature, strict proof of performance of essential rites is not required. Either of the party aggrieved by the order of maintenance under Section 125, Cr.P.C. can approach the civil court for declaration of status as the order passed under Section 125 does not finally determine the rights and obligations of the parties. The nature of proof of marriage required for a proceeding under Section 125 Cr.P.C. need not be so strong or conclusive as in a criminal proceeding for an offence under Section 494 IPC, since, the jurisdiction of the Magistrate under Section 125 Cr.P.C. being preventive in nature, the Magistrate cannot usurp the jurisdiction in matrimonial dispute possessed by the Civil Court. The object of the Section being to afford a swift remedy, and the determination by the Magistrate as to the status of the parties being subject to a final determination by the Civil Court, when the husband denies that the applicant is not his wife, all that the Magistrate has to find, in a proceeding under Section 125 Cr.P.C., is whether there was some marriage ceremony between the parties, whether they have lived as husband and wife in the eyes of their neighbours, whether children were born from the union.
11. Further, it has also to be kept in mind that while exercising the revisional jurisdiction it is not required to enter into re- appraisal of evidence and the court can not substitute its own findings in place of which are recorded in the order granting maintenance. Under the revisional jurisdiction, the question whether the O.P. No. 2 is a married wife of revisionist, being pre-eminently questions of fact, cannot be re-opened in exercise of the revisional jurisdiction, as has been held in the case of Pyla Mutyalamma @ Satyavathi Vs Pyla Suri Demudu and another reported in 201(3) ACR 3538 (SC), wherein it has been held as under:-
"........it is well-settled that the revisional court can interfere only if there is any illegality in the order or there is any material irregularity in the procedure or there is an error of jurisdiction. The High Court under its revisional jurisdiction is not required to enter into re- appreciation of evidence recorded in the order granting maintenance; at the most it could correct a patent error of jurisdiction. It has been laid down in a series of decisions including Suresh Mondal vs. State of Jharkhand AIR 2006 Jhar. R 153 that in a case where the learned Magistrate has granted maintenance holding that the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the revisional court is very limited. The revisional court would not substitute its own finding and upset the maintenance order recorded by the Magistrate.
In revision against the maintenance order passed in proceedings under Section 125, Cr.P.C., the revisional court has no power to re-assess evidence and substitute its own findings. Under revisional jurisdiction, the questions whether the applicant is a married wife, the children are legitimate/illegitimate, being pre-eminently questions of fact, cannot be reopened and the revisional court cannot substitute its own views. The High Court, therefore, is not required in revision to interfere with the positive finding in favour of the marriage and patronage of a child. But where finding is a negative one, the High Court would entertain the revision, re-evaluate the evidence and come to a conclusion whether the findings or conclusions reached by the Magistrate are legally sustainable or not as negative finding has evil consequences on the life of both child and the woman. This was the view expressed by the Supreme Court in the matter of Santosh (Smt.) vs. Naresh Pal , as also in the case of Parvathy Rani Sahu vs. Bishnu Sahu. Thus, the ratio decidendi which emerges out of a catena of authorities on the efficacy and value of the order passed by the Magistrate while determining maintenance under Section 125, Cr.P.C. is that it should not be disturbed while exercising revisional jurisdiction.''
12. Keeping the aforesaid position of law in mind, in the instant matter it may be stated that the case of opposite party no. 2 is that her nikah was solemnized with revisionist five years back, whereas the case of the revisionist is that his marriage/nikah has never been solemnized with opposite party no. 2 and they have never lived as husband and wife together and in fact he was married with one Tarana and from that marriage he has three children. The document relied by the respondent No. 2 in support of her claim is Nikahnama, wherein date of Nikah of revisionist has been shown as 26.10.2014. The statement of opposite party no. 2/PW-1 Smt Sajja Be to the effect that her Nikah was solemnized with revisionist, is quite clear and cogent and no such important fact could emerge in her cross-examination so as to affect her credibility. She has also filed her ''aadhar' card, wherein she has been shown wife of the revisionist. Merely because the revisionist has also married with another lady, it cannot be said for the purpose of section 125 CrPC that the marriage of the opposite party No. 2 did not take place with the revisionist.
13. Learned court below has made detailed discussion of entire facts and evidence of both the parties and concluded that opposite party no. 2 has established that her nikah with revisionist. As discussed above, the position of law is that if from the evidence which is led, the Magistrate/court is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125 Cr.P.C., which are of summary nature, strict proof of performance of essential rites is not required. Either of the parties aggrieved by the order of maintenance under Section 125, Cr.P.C. can approach the civil court for declaration of status as the order passed under Section 125 does not finally determine the rights and obligations of the parties. Here it may be reiterated that proceedings under Section 125 Cr.P.C. are summary proceeding and the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. In proceedings under Section 125 Cr.P.C the court does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents. In fact this provision is a measure of social justice and that the factum of marriage has to be prima facie considered. In the instant case there is material on record to suggest that the parties have married and they had relationship in the nature of marriage. Further, in the instant proceedings of criminal revision, it is not required to enter into re- appraisal of evidence and the court can not substitute its own findings in place of one recorded by trial court in the order granting maintenance. The question whether the opposite party No. 2 is a married wife of revisionist, is a question of fact and thus, this court cannot upset the finding of the trial court by entering into re-appreciation of evidence, unless it is shown such a finding is not based on evidence or some patent error of jurisdiction is shown. In instant case no such eventuality could be shown. In fact if the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the revisional Court is very limited.
14. Considering the facts and evidence of the matter, the court below has also found that the opposite party no. 2 has sufficient reasons to live separately from her husband/ revisionist and that she has no source of income to maintain herself and that the revisionist has neglected her maintenance. Regarding income of revisionist, she has alleged that revisionist is working as painter and he has also agricultural land and he earns Rs. 60,000/- per month. Though in his statement, revisionist has denied the allegations of opposite party no. 2 but in view of these facts and evidence on record, the court below has granted maintenance at the rate of Rs. 4,000/- per month to the opposite party no. 2 from the date of application. In view of evidence on record, the quantum of maintenance appears reasonable and just. The grant of maintenance from the date of application can also not be said arbitrary or against law.
15. After considering averments and evidence of parties, it is apparent that court below has considered entire relevant facts and evidence and that findings of the court below are based on evidence. No illegality, perversity or error of jurisdiction could be shown in the impugned order. The quantum of maintenance awarded by the court below can also not be said excessive or arbitrary.
16. In view of the aforesaid facts and circumstances of the case, the instant criminal revision lacks merit and accordingly, the same is dismissed.
Order Date :- 17.01.2023 Anand