Delhi High Court
Mohd. Shakeel @ Shakeel Ahmed vs Sabia Begum & Ors on 28 January, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 21st December, 2021
Pronounced on: 28th January, 2022
+ CRL.REV.P. 588/2018, CRL.M.A. 12593/2018 & CRL.M.A.
13141/2021
MOHD SHAKEEL @ SHAKEEL AHMED ..... Petitioner
Through: Mr. Salim Malik and Ms. Shavana,
Advocates
versus
MST SABIA BEGUM & ORS ..... Respondent
Through: Mr. Aditya Gaur, Advocate.
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
JUDGMENT
(THROUGH VIDEO CONFERENCING)
CHANDRA DHARI SINGH, J.
1. The instant Petition under Section 397/401 of the Code of
Criminal Procedure, 1908, (hereinafter "Cr.P.C.) has been filed by the
Revisionist/Petitioner (hereinafter "Petitioner') seeking setting aside of
the Order dated 3rd April, 2018, passed by the learned Judge, Family
Court, North-East, Karkardooma, Delhi whereby the Petitioner was
directed to pay maintenance to the tune of Rs. 4,000/- per month to
Respondent No. 1 and Rs. 3,000/- to Respondents No. 2 and 3, each till
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attaining the age of maturity, alongwith litigation expenses of Rs.
11,000/-.
FACTUAL MATRIX
2. It has been alleged by the Respondents that the marriage between
Petitioner and Respondent No. 1 was solemnized in January, 1994,
according to Muslim rites and ceremonies. Respondents No. 2 and 3 were
born out of their wedlock. Prior to her marriage with the Petitioner, the
Respondent No. 1 was married to one Likayat Ali and had four children
out of that wedlock, namely, Danish, Monish, Sanah and Farah. It has
been alleged that the Petitioner accepted the children of Respondent No.1
and gave his name as their father in the school records.
3. The Petitioner along with Respondents and said four children were
residing together at their matrimonial house at Khajoori Khas, Delhi.
However, due to disputes between the first wife of the Petitioner and
Respondent No. 1, the Petitioner purchased a separate property at
Ziauddinpur, Delhi and started living there alongwith the Respondents.
4. Subsequently, due to certain matrimonial issues between the
parties, the Petitioner stopped paying maintenance to the Respondents
and aggrieved by the same, Respondent No.1 filed maintenance petition
for herself and Respondents No.2 and 3 under Section 125 of the Cr.P.C.
before the learned Judge, Family Court, North-East District,
Karkardooma Courts, Delhi.
5. The Petitioner in his Written Statement dated 29th February, 2008,
to the Petition under Section 125 of the Cr.P.C., denied his marriage to
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Respondent No. 1 and the birth of Respondents No. 2 and 3 from the
wedlock of the Petitioner and Respondent No. 1. However, Respondent
No.1 refuted the allegations of the Petitioner and agreed to carry out a
DNA test for Respondents No.2 and 3. The learned Trial Court vide order
dated 5th November, 2014, allowed the commission of the test subject to
cost of Rs. 5,000/- to be paid by the Petitioner. However, the test was not
carried out for unstipulated reasons.
6. Following witnesses were examined on behalf of the Respondents
before the learned Trial Court:
Witness Name Examined Relevant part of the depositions
as
Mst. Sabia Begum PW 1 Alleged that her marriage was
(Respondent No. 1) solemnized with the Petitioner.
Tendered her affidavit and
produced photographs of marriage.
(Ex. PW1/1- PW1/7).
Deposed that the marriage was
performed before a Qazi and a
Nikahnama was prepared but it is
in possession of the Petitioner.
The nikah took place at the
Petitioner's house and only
Respondent's mother was there.
Produced her ration card (Ex.
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PW1/8) wherein the Petitioner is
named as her husband.
Copy of voter list showing her and
Petitioner's name at serial no. 1206
and 1205. (Ex. PW1/10).
Due to interference of first wife of
the Petitioner, he stopped paying
for expenses of the Respondents
from February, 2007.
She is a semi-illiterate lady, did not
have any work and had no source
of income to maintain her children.
Petitioner is a man of means, who
is running handicrafts business-and
polishing the handicrafts items and
is earning more than Rs. 60,000/-
per month and his rental income is
more than Rs. 20,000/- per month.
He had huge bank balance and
FDRs in his own name and all
modern facilities, own car, scooter,
etc. and was leading a luxurious
life.
She denied the suggestion that the
Petitioner did labour work of
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polishing and earned Rs. 3,000/-
per month.
Lady Head PW2 Produced summoned record of
Constable Meena Case No. S-340, Diary No.-1911
dated 28th November, 2005,
statements of the Petitioner, Ex.
PW1/13 dated 20th December,
2006, and Ex. PW2/1 dated 7th
January, 2006.
Sh. SM Sharma, PW3 Produced summoned record of
Food & Supply ration card bearing no.
Inspector APL52230244 in the name of Smt.
Sabia (Respondent No.1) including
her family members and the
Petitioner issued on 26th October,
2005 and exhibited as Ex. PW1/8.
Testified that the new ration card
was renewed from the old card
which was also issued in the name
of Smt. Sabia w/o Sh. Shakeel
Ahmed (Petitioner) which was
issued on 8th September, 1997 and
it included the names of all her
children from previous marriage,
naming the Petitioner as their
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father.
Sh. SC Gupta, Sub PW4 Produced summoned record
Registrar pertaining to Respondent No. 3 and
testified that he was born on 18th
January, 2000.
Sh. Bishan Pal, PW5 Produced the record of birth of
Official at Mohan Respondent No. 3 and deposed that
Nursing Home he was born on 18th January, 2000.
Mohd. Idris PW7 Resides at B-120, Gali No. 20/3,
(Neighbour) Ziauddinpur, Near Idgah Gate,
New Mustafabad, Delhi, and
testified that his house was in front
of the house of Petitioner and the
had performed 'Quran Khani' and
he and his family were invited to
the religious function.
He deposed that the Petitioner told
him that the Respondent No. 1 was
his wife.
He deposed that his family was
invited by the Petitioner on several
other occasions, including to the
birth of their son (Respondent No.
3). His wife was accompanied by
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the Petitioner to the hospital where
the Respondent No. 3 was born.
He deposed that he has known the
Respondent No.1 since 2005, and
since then her Nikah has not been
held.
Sh. Akbar Ali PW8 Filed an affidavit evidencing that
(Neighbour) he lives at B-128, Gall No.20/3,
Ziauddin Pur, New Mustafabad,
Delhi-94 and lives near the house
of the Petitioner and his family.
He testified that the Respondent
No. 1 alongwith the Petitioner and
their children came into the house
at B-106, Gali No. 20,
Ziauddinpur, Delhi in the month of
December, 1995, and performed
Quran Khani where he and his
family was invited. They were also
invited in the birth of Respondent
No.3 and at other religious
occasions.
Ruksana PW9 Deposed that she resides at B-100,
(Neighbour) Gali No.20/3,ZiauddinPur,New
Mustafabad, Delhi and that her
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house is situated near the house of
the Respondent No. 1 and the
Petitioner where they are residing
with their children.
Stated that she has joined the
Petitioner and Respondent No.1 at
their house at many religious
occasions with her family
members.
Deposed that while the Respondent
No. 1 was admitted during the birth
of her child, the Petitioner asked
her to lookafter Sabia Begum. She
remained three nights at the
hospital with Respondent No. 1 on
his request. She stated that she had
known the Respondent No. 1 for
17-18 years.
Faizan @ Faizee CW1 The Respondent No.2 refused to
(Respondent No. 2) undergo a DNA test, despite the
Order of the Ld. Trial Court. In a
statement recorded on 4th March,
2017, submitted that he was major
and specified his birth to be 27th
July 1999, however, in his
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deposition he stated his date of
birth to be 26th May 1998.
Deposed that the name of their
father was Mohd. Shakeel as per
the school record.
Mohd. Suhail Khan CW2 The Respondent No.3 refused to
(Respondent No. 3) undergo a DNA test. He stated his
date of birth to be 18th January,
2000.
Deposed that the name of their
father was Mohd. Shakeel as per
the school record.
Mohd. Saleem, CW3 Produced admission register/
Principal of School record, wherein, the date of
admission for Respondent No.2
was 14th July, 2003.
7. Taking the above depositions, affidavits and evidence examined,
the learned Trial Court was of the opinion that Respondent No. 1 had
established her relationship with the Petitioner as his wife and she was
entitled to seek maintenance from him.
8. On the question of DNA test, the learned Trial Court observed that
it was not required, in light of the testimonies, documentary evidence as
well as the fact that the children were not inclined to undergo such test.
The evidence recorded was found sufficient for the purpose of
adjudication and as such the DNA test was not found to be necessary.
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9. The income of the Petitioner was estimated to be at least
Rs.50,000/- having regard to the material on record, social status of the
parties and other documents. The learned Trial Court further observed
that the order of maintenance under Section 125 of the Cr.P.C. can be
passed, if any person, having sufficient means, neglects or refuses to
maintain his wife, unable to maintain herself, or his legitimate or
illegitimate minor child, whether married or not, unable to maintain itself.
It observed that the proceedings under Section 125 of the Cr.P.C. are
based on the principle of preponderance of probability and not on the
principle of proving beyond reasonable doubt. It is further observed that
Section 125 of the Cr.P.C is a measure of social justice especially enacted
to protect women and children and is meant to achieve a social purpose
with the object is to prevent vagrancy and destitution. Thus, it was
observed that if a man is not fulfilling his obligation to maintain his wife
and children, then the burden is on him to show that he has no sufficient
means to discharge his obligation.
10. Vide the impugned Judgment dated 3rd April, 2018, the learned
Trial Court directed the Petitioner to clear the arrears and pay a sum of
Rs. 4,000/- per month to Respondent No. 1 from the date of filing the
petition and Rs. 3,000/- per month to Respondents No. 2 and 3 each, until
they attain majority, alongwith Rs. 11,000/- for litigation expenses.
11. Aggrieved by the said judgment, the Petitioner has preferred the
present Petition.
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SUBMISSIONS
12. The learned counsel appearing on behalf of the Petitioner
submitted that the impugned judgment dated 3 rd April, 2018, is bad in
law, contrary to facts and circumstances and hence, liable to be set aside.
At the very outset, it is submitted that the Nikah between the Petitioner
and Respondent No.1 never took place and as such Respondent No. 1 is
not the wife of the Petitioner and neither are Respondents No. 2 and 3 his
children, and hence, the provisions of Section 125 of the Cr.P.C. do not
apply. It is submitted that the second Nikah of Respondent No. 1 was
solemnized with one Fehmood and Respondent No. 2 and 3 are his
children.
13. It is submitted by the learned counsel for Petitioner that no material
had been placed by the Respondents before the Trial Court to establish
that the marriage between them was ever solemnized. Neither there was
any documentary evidence or Nikahnama on record, nor any Qazi or
Imam was produced before the learned Trial Court to prove that
Respondent No. 1 is the legally wedded wife of the Petitioner. It is
submitted that for a valid marriage under Muslim law, the proposal and
acceptance of marriage are to be made before at least two witnesses, two
males or one male and two females. However, no such witnesses were
produced before the Trial Court as evidence. The counsel for Petitioner
relying upon the provisions of Section 125 of the Cr.P.C, submitted that
the in light of the aforesaid facts, Petitioner is not at all liable to pay any
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maintenance since there is no valid marriage between the concerned
parties.
14. The learned counsel appearing for the Petitioner further submitted
that Respondent No.1 was merely a tenant at the premises bearing no. B-
106, Gali No. 20, Ziauddinpur, Near Idgah Gate, New Mustafabad, Delhi.
She has been living on the rented premises with her children and the
Petitioner does not live at the said address with her. It is submitted that
Respondent No. 1 has been attempting to encroach upon the said
premises on the pretext of marriage, however, she is not the wife of the
Petitioner and the learned Trial Court has wrongfully held that the valid
marriage was solemnized between the parties.
15. It is submitted that despite the order of the learned Trial Court
dated 5th November, 2014, allowing the DNA test of Respondents No. 2
and 3, the Respondents were not taken to the FSL Rohini which reflected
the intention of Respondent No.1 not to get the DNA test conducted. The
learned Trial Court vide its order dated 11th July, 2016, recorded the
submissions of the Petitioner herein that the Respondents were absent
before the FSL when the required DNA test was to be conducted and
hence, the DNA test was directed to be dispensed with, since a substantial
amount of time had already passed. The question was also raised by the
Petitioner in Crl.M.C. No. 173/2018, however, in the absence of any stay
order, the final judgment was passed in the matter without a final decision
in the said miscellaneous application.
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16. Learned counsel appearing on behalf of the Petitioner, further
submitted that the documents such as Voter ID Card, Ration Card, Birth
Certificate, School Certificate etc. produced by the Respondents have
been fraudulently prepared by Respondent No. 1 with a view to present
false evidence. In the ration card produced by Respondent No. 1, the year
of birth of Respondent No. 2 is reflected as 1995, whereas according to
the school records, his date of birth is 26th May, 1998. Similarly, year of
birth of Respondent No. 3 in Ration Card is mentioned as indicates 1997,
however, according to the school records it is 18th January, 2000. It is,
therefore, submitted that the aforesaid contradictions raise questions as to
their veracity and makes them unreliable.
17. Per Contra, learned counsel appearing on behalf of the
Respondents vehemently opposed the present petition and submitted that
the Trial Court has committed no error in awarding maintenance to the
Respondents. It is submitted that the Petitioner has concealed material
information and has not come before this Court with clean hands and
hence, the instant Petition is not maintainable and liable to be dismissed.
18. It is submitted that the challenge to the marriage being solemnized
between Respondent No. 1 and the Petitioner does not stand on any
ground as the Respondent has already established before the learned Trial
Court that marriage between the concerned parties was performed in
accordance with Muslim rites and ceremonies before a Qazi and a
Nikahnama was also duly prepared, which was in possession of the
Petitioner. In furtherance of the same, several witnesses were examined
and documentary evidence was also produced. After perusal of the
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evidence as aforestated, the learned Trial Court was of the view that
marriage between the concerned parties was duly solemnized. It is further
submitted that Respondent No. 1 has been fulfilling her duties as a legally
wedded wife, however, the Petitioner has been avoiding his social, moral
and legal obligations as well as his duty to maintain his wife and children.
19. Learned counsel appearing on behalf of the Respondents strongly
opposed the arguments advanced by the learned counsel for the Petitioner
that he is not the husband of Respondent No. 1 and submits that the ration
card of Respondent No. 1, produced as Ex. PW1/8 before the learned
Trial Court, indicates the Petitioner's name as her husband and was also
verified by the Food & Supply Inspector in the proceedings before the
learned Family Court. Further, it has been strongly denied by Respondent
No.1 that she married one Fehmood and Respondents No. 2 and 3 are
their children, as being alleged by the Petitioner.
20. It is submitted that the contentions raised by the Petitioner that the
Respondent No. 1 is merely a tenant in his rented accommodation has
never been raised before the Court in the present Petition or before the
learned Trial Court and now to exert pressure on the Respondents and to
evade the liability to pay maintenance the Petitioner is making baseless
and false allegations. Further, it is submitted that there is no evidence
placed on record, either oral or documentary, before the learned Trial
Court or before this Court, to substantiate the averments made by the
Petitioner that Respondent No. 1 was a tenant living at the
abovementioned premises of the Petitioner. There is no rent agreement or
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lease deed produced before the Court at any stage and as such the
contention of the Petitioner is not backed by any evidence whatsoever.
21. It is submitted that the maintenance awarded to the Respondents is,
in fact, less than what the Petitioner can afford, since, his income was
more than Rs. 60,000/- per month from his business of handicrafts, at the
time of filing the maintenance petition, and now since 12 years have
passed since filing of the same, the circumstances and rate of index have
changed and there is every probability that he might be earning in lakhs.
22. Learned counsel appearing on behalf of the Respondents submitted
that the present Petition in light of the submissions made is devoid of any
merit and as such is liable to be dismissed because there is no infirmity in
the order dated 3rd April 2018, passed by the learned Judge, Family Court,
North-East, Karkardooma, Delhi.
ANALYSIS
23. Heard learned counsel for the parties and perused the material on
record.
24. In the present matter, it has been vehemently argued by the learned
counsel for the Petitioner that the Petitioner had never been married to
Respondent No. 1 and that the learned Trial Court had committed grave
error in granting maintenance in favour of Respondents towards whom
there exists no obligation of maintenance. This contention of the
Petitioner raises an important question that needs to be deliberated before
adverting into the award passed by the learned Trial Court and to
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investigate into the same, it is pertinent to analyse the provision under
Section 125 of the Cr.P.C.
SCOPE OF SECTION 125 OF THE CR.P.C.
25. The provision for maintenance under Section 125 of the Cr.P.C.
reads as under: -
"125. Order for maintenance of wives, children and
parents.
(1) If any person having sufficient means neglects or
refuses to maintain--
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a
married daughter) who has attained majority, where
such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or
herself,
a Magistrate of the first class may, upon proof of such
neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or
such child, father or mother, at such monthly rate as
such Magistrate thinks fit and to pay the same to such
person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a
minor female child referred to in clause (b) to make
such allowance, until she attains her majority, if the
Magistrate is satisfied that the husband of such minor
female child, if married, is not possessed of sufficient
means:
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[Provided further that the Magistrate may, during the
pendency of the proceeding regarding monthly
allowance for the maintenance under this sub-section,
order such person to make a monthly allowance for the
interim maintenance of his wife or such child, father or
mother, and the expenses of such proceeding which the
Magistrate considers reasonable, and to pay the same
to such person as the Magistrate may from time to time
direct:
Provided also that an application for the monthly
allowance for the interim maintenance and expenses of
proceeding under the second proviso shall, as far as
possible, be disposed of within sixty days from the date
of the service of notice of the application to such
person.]
Explanation.--For the purposes of this Chapter,
(a) "minor" means a person who, under the
provisions of the Indian Majority Act, 1875 (9 of
1875) is deemed not to have attained his majority;
(b) "wife" includes a woman who has been
divorced by, or has obtained a divorce from, her
husband and has not remarried.
(2) Any such allowance for the maintenance or interim
maintenance and expenses of proceeding shall be
payable from the date of the order, or, if so ordered,
from the date of the application for maintenance or
interim maintenance and expenses of proceeding, as
the case may be.
(3) If any person so ordered fails without sufficient
cause to comply with the order, any such Magistrate
may, for every breach of the order, issue a warrant for
levying the amount due in the manner provided for
levying fines, and may sentence such person, for the
whole or any part of each months allowance for the
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maintenance or the interim maintenance and expenses
of proceeding, as the case may be, remaining unpaid
after the execution of the warrant, to imprisonment for
a term which may extend to one month or until
payment if sooner made:
Provided that no warrant shall be issued for the
recovery of any amount due under this section unless
application be made to the Court to levy such amount
within a period of one year from the date on which it
became due:
Provided further that if such person offers to maintain
his wife on condition of her living with him, and she
refuses to live with him, such Magistrate may consider
any grounds of refusal stated by her, and may make an
order under this section notwithstanding such offer, if
he is satisfied that there is just ground for so doing.
Explanation.- If a husband has contracted marriage
with another woman or keeps a mistress, it shall be
considered to be just ground for his wifes refusal to
live with him.
(4) No wife shall be entitled to receive an allowance
for the maintenance or the interim maintenance and
expenses of proceeding, as the case may be, from her
husband under this section if she is living in adultery,
or if, without any sufficient reason, she refuses to live
with her husband, or if they are living separately by
mutual consent.
(5) On proof that any wife in whose favour an order
has been made under this section in living in adultery,
or that without sufficient reason she refuses to live with
her husband, or that they are living separately by
mutual consent, the Magistrate shall cancel the order."
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26. A bare reading of the Section 125 of the Cr.P.C. suggests that the
intention of the legislature while making the provision for maintenance
was to ensure that a person shall oblige with his matrimonial and familial
obligations of maintaining his wife and children, when they do not have
sufficient means to sustain themselves. The power to adjudicate on the
issue of maintenance has been given, at the first instance, to the
Magistrate, who may upon being satisfied direct the concerned person to
provide such maintenance/monthly allowance to his wife, children or
parents. There is, therefore, a discretionary power with the Magistrate
that is to be exercised while appreciating the evidence and material on
record when awarding maintenance to the parties.
27. One of the material facts to be considered by the Court while
entertaining a matter under Section 125 of the Cr.P.C., at the very first
instance, is whether the parties before it share a domestic relationship
and/or are legally and lawfully married to each other. This becomes a
prominent factor to be investigated into, especially, when one of the
parties deny any such relationship subsisting between the parties. In
matrimonial matters, the question of marriage between the parties may be
raised during the preliminary stage and be considered and decided to the
prima facie satisfaction of the Court. This implies that before
adjudicating upon the quantum of maintenance, the Court may first, in
light of the provision under Section 125 of the Cr.P.C, be prima facie
satisfied to the point that there exists a lawful domestic relationship
between the parties, which gives rise to the obligations and duties to
maintain the family members. In so far as proving the existence of a
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marital relationship between the parties is concerned, the burden of proof
would lie on the party alleging that such marriage has been solemnized in
accordance with the law applicable, be it statutory or personal. However,
the extent of proof is limited to the prima facie satisfaction and the need
to prove it strictly and/or beyond reasonable doubt does not arise.
28. The principle of prima facie evidence for establishing the existence
of a marital relationship may vary with the facts and circumstances of
each case. The same has to be addressed keeping in view the essentials of
a valid marriage as well as the material facts of the case. There is no
straight jacket formula for judging the validity of the marriage between
the parties. Every case has to be judged on its own merits depending upon
the conditions provided under the statutory or personal law for
solemnization of marriage. The legal standard for determining the
marital status of the parties in maintenance proceedings has been set out
by the Hon'ble Supreme Court in the case of Santosh v. Naresh Pal,
(1998) 8 SCC 447. Therein, the Trial Court found the appellant to be the
legally wedded wife of the respondent, which was subsequently reversed
by the High Court. Thus, the Hon'ble Supreme Court was required to
adjudge, whether the appellant could be considered to be a legally
wedded wife of the Respondent. The Hon'ble Supreme Court restored the
judgement of the Trial Court and observed:
"...However, learned Judicial Magistrate after
considering this question came to the conclusion that
the respondent was already divorced from his first wife
and thereafter he had entered into a second marriage
with the appellant who was also a divorcee. The High
Court took the contrary view and observed that the
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appellant had not proved that she was the married wife
of the respondent and that she had her first husband,
Satendra and there was no dissolution of her marriage
with him. These are the questions which are required
to be thrashed out finally in civil proceedings. In a
proceeding for maintenance under Section 125 CrPC
the learned Magistrate was expected to pass
appropriate orders after being prima facie satisfied
about the marital status of parties. It is obvious that the
said decision will be a tentative decision subject to
final order in any civil proceedings, if the parties are
so advised to adopt."
29. The Patna High Court has made observations in the case of
Zulekha Khatoon v. The State of Bihar, (2000) SCC Online Pat 425
concerning the similar question of law. In this case, the wife was granted
maintenance by the Chief Judicial Magistrate. The order came to be
challenged before the Additional Sessions Judge in a revision petition,
where the order granting maintenance was set aside. In the revision
petition, it was averred by the Revisionist that neither he was the legally
wedded husband nor the father of the daughter, who were to be
maintained. The Revisional Court's setting aside of order came to be
challenged before the High Court. The High Court restored the order
granting maintenance and in doing so observed as under:
"5.The learned Addl. Sessions Judge has not given due
weight on the birth certificate (Ext. 2). The learned
Addl. Sessions Judge has rejected the Nikahnama (Ext.
2), because it did not bear the thumb impression of the
petitioner. In her evidence she has stated that she is an
illiterate person and had put her thumb impression
on Nikahnama. The finding of the learned Addl.
Sessions Judge is otherwise. He says that there was no
thumb impression. Opposite party no. 2 the signature
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on the Nikahnama. He, however, did not make any
prayer for examination of signature by expert. The
entire onus lay on him to prove that the petitioner was
not his legally married wife. Opposite party no. 2 also
alleged that the petitioner was having illicit relation
with some body but he did not disclose the name. The
learned Addl. Sessions Judge has drawn adverse
inference because out of two witnesses Alim Mian was
not examined.
6. It has been held in 1984 Cr. L.J. 1145 that in a
summary proceeding under section 125 Cr. P.C. the
wife is entitled to claim maintenance unless the
illegality or invalidity of her marriage is apparent and
without any scope for doubt or dispute. As held in 1982
Cr. L.J. 539 and other cases section 125 is not
intended to provide for a full and final determination of
the status and personal rights of the parties. In a
proceeding under section 125 Cr. P.C., the factum
of marriage and not legality thereof is material. When
the status of wife is disputed by the husband on flimsy
grounds, the Magistrate will not lose his jurisdiction
and he has to find out whether the ground raised by the
husband is a serious one and a bona fide one. He has
to satisfy himself whether prima facie the parties are
married and to afford them the immediate and speedy
relief provided under section 125 Cr. P.C. without
prejudice to the contentions of the parties to establish
their real matrimonial links before the Civil Court.
7. The document of Nikah in the instant case is
supported by the evidence of witnesses. Thus, in my
view, under section 125 Cr. P.C. the proof
of marriage need not be so strong or conclusive, as in
prosecution for the offence relating to marriage or in a
civil proceeding for divorce. The husband has not
denied that the petitioner ever lived with him."
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30. A Coordinate Bench of this Court has dealt with the issue of
marital status in maintenance matter in the case of Nasir Khan v.
Sarphina George, (2019) SCC Online Del 8467. In this case, the
Petitioner husband impugned the order granting maintenance in the
revisional jurisdiction. It was contended that the Trial Court erred in
passing the order on maintenance since the respondent was not her legally
wedded wife. Further, he argued that no witnesses were produced to
establish the factum of marriage between the parties. This Court negated
the contentions of the Petitioner mainly on the ground that the parties to
the marriage were living together for several years and this raised a
reasonable presumption in favour of the accused. Additionally, the Court
while negating the contentions of the husband also noted his inconsistent
stand throughout the proceedings. The Court after extensive analysis
observed:
"15. As held by the Supreme Court in Kamala v. M.R
Mohan Kumar unlike matrimonial proceedings where
strict proof of marriage is essential, in the proceedings
under section 125 Cr.P.C, such strict standard of proof
is not necessary as it is summary in nature meant to
prevent vagrancy. 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. Further it was held that
when the parties live together as husband and wife,
there is a presumption that they are legally married
couple for claim of maintenance of wife under Section
125 Cr.P.C.
16. It is fairly well settled that law presumes in favour
of marriage and against concubinage when a man and
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woman have cohabited continuously for a number of
years.
17. Supreme Court has further held that when the
family court has held that there was a valid marriage,
the High Court being the Revisional Court has no
power to reassess the evidence and substitute its views
on findings of fact.
18. In the present case, the Trial Court has extensively
considered the material on record and found that the
parties have resided together as husband and wife for
20 years and there is a presumption of marriage. In
view of the same I find no infirmity in the view taken by
the Trial Court that the respondent has been able to
establish that she is married to the Petitioner."
31. Further, the subject was also in contention before the Patna High
Court in Firoz Alam v. State of Bihar, (2014) SCC Online Pat 2783,
wherein, the Trial Court had granted maintenance to the wife and the
order of maintenance was challenged before the High Court in revision
on the ground that the parties to the proceedings were never married and
the Trial Court was erred in passing the order for payment of
maintenance. In this context, it was reiterated by the High Court:
"If the prima facie materials are 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 the materials
on record suggest two views, then the view in favour of
women should be adopted."
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32. A similar question has also been dealt by the Allahabad High Court
recently in the case of Irshad Ali v. State of U.P. (2021) SCC Online All
92. In this case, a challenge was made against the order granting
maintenance to the wife in a revision Petition before the High Court. It
was contended by the revisionist/husband that the wife at the time of
marriage was minor and thus, incompetent to enter into marriage. It was
also argued that the Nikahnama filed by the revisionist did not bear the
signature of the husband and was fabricated by the wife. In toto, it was
argued that the respondent wife was not the legally wedded wife of the
revisionist and the order of maintenance was perverse and against the
law, thus liable to be quashed. In this background, the High Court was
required to adjudged with the marital status of the parties for deciding the
validity of the order on maintenance. The High Court upheld the order
granting maintenance and laid down the law and examined the appraisal
of the evidence as done by the Court below. In this context, certain
portion of the judgement deserves to be extracted, which is as follows:
"11. 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 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. 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
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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."
33. Therefore, the Court, in proceedings under Section 125 of the
Cr.P.C., is required to merely decide the quantum of maintenance based
on the prima facie evidence regarding the marital status of the parties. If
the party alleging the solemnisation of marriage has sufficient material to
prima facie establish the existence of a marriage, then the husband may
be directed to maintain her without going into the strict requirements of
evidence. The task of deciding the marital status of the parties has been
conferred with the Civil Courts and the Court under maintenance
proceedings under Section 125 of the Cr.P.C. may not usurp the
jurisdiction of the Civil Courts. Thus, the litmus test for determining the
marital status of the parties in maintenance proceedings is prima facie
satisfaction of the concerned Magistrate and nothing more. It is also
pertinent to note that the abovementioned decisions bring out the fact that
the proceedings under Section 125 of the Cr.P.C. are designed to reduce
the vagaries of the neglected wife and children. In line with this, the
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Magistrate under such proceedings cannot be expected to wait for the
determination of the marital status by the concerned Court. Thus, to
preserve the social intent of Section 125 of the Cr.P.C., the Magistrate
can render the prima facie finding about the factum of marriage, which
will not be a conclusive finding for any other purpose apart from the
order on maintenance. Any other interpretation would defeat the social
intent of the legislation and must be avoided.
SECTION 125 OF THE CR.P.C. AND REVISIONAL JURISDICTION
34. It is an established law that the Revisional Court need not re-assess
or re-appreciate the material and evidence on record before the Trial
Court. A Revisional Court is to limit its jurisdiction for adjudicating upon
the material illegalities and irregularities apparent in the impugned orders.
The conclusive determination of marital status in cases of maintenance
under Section 125 of the Cr.P.C., shall therefore, be declared by the Civil
Court and the Revisional Court shall restrain itself to the questions before
it without reopening the evidence.
35. In Pyla Mutyalamma v. Pyla Suri Demudu (2011) 12 SCC 189,
the Hon'ble Supreme Court has set out the standards of revisional
jurisdiction to be exercised by the High Courts in maintenance
proceedings under Section 125 of the Cr.P.C., when it observed as under:
"16. In a revision against the maintenance order
passed in proceedings under Section 125 CrPC, the
Revisional Court has no power to reassess evidence
and substitute its own findings. Under revisional
jurisdiction, the questions whether the applicant is a
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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 the child and the
woman. This was the view expressed by the Supreme
Court in Santosh v. Naresh Pal [(1998) 8 SCC 447], as
also in Pravati Rani Sahoo v. Bishnupada
Sahoo [(2002) 10 SCC 510: 2004 SCC (Cri) 1140].
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 CrPC is that it should
not be disturbed while exercising revisional
jurisdiction."
36. To prevent sufferings and vagaries of woman and children, the
Hon'ble Supreme Court has held that in cases where the Trial Court has
rendered a positive finding with respect to marriage of the parties, the
High Court need not substitute its views in such questions of facts
especially in their revisional jurisdiction. However, when a negative
finding is given, the High Court can revise and revaluate the evidence in
order to protect the wife and the children from the evil consequences that
might ensue due to non-payment of maintenance, if such an exercise is
not undertaken.
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FINDINGS
37. In the present matter, the objection to marriage by the Petitioner
was first raised before the learned Trial Court. The Respondents produced
10 witnesses during evidence to establish their relationship with the
Petitioner. By the testimony of the neighbours, it is apparent that the
Petitioner and Respondent No. 1 were cohabiting in the premises in
question, i.e., B-106, Gali No. 20, Ziauddinpur, Near Idgah Gate, New
Mustafabad, Delhi. The examination of PW-7, PW-8 and PW-9 suggested
that at several occasions they were invited and welcomed by the
Petitioner and Respondent No. 1 to their house, at the abovementioned
address, where the witnesses have seen them resides as a family.
Witnesses, in their examination, have also stated that they were present at
the time of the birth of Respondent No. 3 and were a part of the
celebrations and rituals at the time of his birth. The statements of the
witnesses/neighbours, clearly imply that the parties were living together
for a long time and were known to be husband and wife to the people
residing in their neighbourhood. Similar situation was also dealt by a
Coordinate Bench of this Court in Nasir Khan v. Sarphina George
(supra), wherein it was held that where the parties have been living
together as husband and wife, the assumption is in favour of them being
legally married. Therefore, the statements of the neighbours favour the
version of Respondent No.1, that there existed a marital relationship
between the parties.
38. Further, Respondent No. 1 produced her ration card, exhibited as
Ex. PW1/8, which bears the name of the Petitioner as her husband, and as
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per the statement of PW-3, it was made in the year 1997. When the said
card was renewed in the year 2005, the names of the children of
Respondent No. 1 with her previous husband as well as Respondents No.
2 and 3 were added and both the ration cards were verified by PW-3, who
is a competent authority. Such documentary evidence negates the
contention of the Petitioner that the identity cards were created only after
institution of the maintenance suit. Production of the ration card as a
documentary proof of marital relation between the parties met the
requirement of prima facie evidence in establishing the matrimonial
relationship between the parties.
39. There is no force in the argument of the Petitioner that Respondent
No.1 was merely a tenant at his premises, since, he had not been able to
produce any documents or other evidence to substantiate the contention.
Moreover, the statements of the witnesses/neighbours also clarified that
the parties were living as husband and wife, which in itself was sufficient
to corroborate the fact that they were in a matrimonial relationship and
not that of a tenant and landlord.
40. With respect to the question of DNA test, the learned Trial Court
need not have satisfied itself to the question of DNA in terms of strict
proof, since, the only requirement, as per the provision under Section 125
and the various judgments cited, is prima facie satisfaction. After more
than 10 years of adjudication into the question of subsistence of a marital
relationship between the Petitioner and Respondent No. 1, it was not
necessary to go into the legitimacy of the birth of the children, when
prima facie proof was already produced in their favour.
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41. The learned Trial Court was well within the powers while
adjudicating the question of whether there existed a relationship between
the parties and in doing so, had appreciated the evidence before it to its
prima facie satisfaction, which in itself was sufficient to pass the award
of maintenance in favour of the Respondents.
42. Furthermore, the Respondents were able to show that they had no
source or means of income to sustain themselves and as such it was only
the Petitioner who could have maintained them. They were also able to
establish that the income of the Petitioner was no less than Rs. 50,000/-
per month, owing to his several rented properties and his business in
handicrafts. Moreover, due regard was also given by the learned Trial
Court to the fact that the Petitioner had another family to maintain. The
maintenance awarded to the tune of Rs. 4,000/- per month to Respondent
No. 1 and Rs. 3,000/- to Respondents No. 2 and 3, each till attaining the
age of majority, is hence seen to be justified in light of the relationship
between the parties and the conduct and negligence of the Petitioner
towards the Respondents.
CONCLUSION
43. After taking into consideration all the facts and circumstances of
this case, the law laid down, the precedents analyzed, arguments
advanced as well as the perusal of pleadings, this Court does not find any
gross illegality or impropriety in the findings and analysis of the learned
Trial Court in upholding the existence of a martial relationship between
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Petitioner and Respondent No.1 and accordingly, awarding maintenance
to the Respondents.
44. The learned Family Court, Karkardooma, Delhi, vide its judgment
dated 3rd April, 2018, has taken the right view in light of the
circumstances present before it. This Court does not find any substantial
ground for invoking the Revisional Jurisdiction to interfere with the
impugned judgment. In view of the above, this revision petition is
dismissed as being devoid of any merit. Pending applications, if any, also
stand disposed of.
45. The judgment be uploaded on the website forthwith.
(CHANDRA DHARI SINGH)
JUDGE
January 28, 2022
Aj/Ms
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