Crl.Pet./139/2021
2023 Latest Caselaw 79 Gua

                                                                            Page No.# 1/13

GAHC010013112021




                      THE GAUHATI HIGH COURT AT GUWAHATI
           (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                               PRINCIPAL SEAT AT GUWAHATI


                               Criminal Petition No. 139 of 2021


             Sri Kanuram Bordoloi,
             Son of Late Tulsi Bordoloi,
             R/o- Village Nowkata,
             P.S.- Morigaon,
             District.- Morigaon, Assam
                                                              ..................Petitioner
                      -Versus-


             Smti Budheswari Mahanta Bordoloi,
             W/o-Sri Kanuram Bordoloi,
             Village- Rajagaon, Biharipatty,
             P.S.- Morigaon, P.O.- Morigaon,
             Assam:- 782105
                                                                   ...............Respondent

Advocates for the petitioner       :       Mr K Singha,
Advocate for the respondent        :       None appeared.
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                                           BEFORE
                       HON'BLE MRS. JUSTICE MALASRI NANDI


Date of Judgment                  :     05.01.2023




                             JUDGEMENT AND ORDER (CAV)

Heard Mr K Singha, learned counsel for the petitioner. None has appeared for and on

behalf of the respondent.

2. The petitioner has filed an application under Section 482 of the Code of Criminal

Procedure, 1973, read with Article 227 of the Constitution of India, challenging the Judgment

and Order dated 23.12.2020, passed in Criminal Revision No. 29/2019, by the learned

Sessions Judge, Morigaon, affirming the Judgment and Order dated 10.10.2019, passed by

the learned CJM, Morigaon, in MR Case No. 6/2017, under Section 125 CrPC.

3. The facts in brief leading to filing of the criminal petition is that the respondent filed a

petition under Section 125 CrPC before the learned CJM, Morigaon, claiming that she is the

legally married wife of the petitioner and claimed monthly maintenance of Rs. 10,000/- from

the petitioner. According to her, her marriage with the petitioner was held about 30 years

back as per Hindu rites and customs. Since then, the respondent is residing in the house of

the petitioner as his wife. Out of their wedlock, a male child was born, Mukuta Bordoloi by

name, who is now major.

4. It is also alleged that after birth of their child, the petitioner developed an illicit

relationship with a girl, Moloya Bordoloi. When the respondent came to know about the said

affair she objected to the same, but the petitioner assaulted her and drove her out from his Page No.# 3/13

house. Finding no other alternative, she took shelter in the house of her maternal uncle,

along with her son. After one year, the petitioner got married to Moloya Bordoloi.

5. After the said event, when the respondent wanted to file a case against the petitioner

for her maintenance, the petitioner pacified the respondent by providing rented house and

maintenance to the respondent at Morigaon town. Accordingly, the respondent along with her

son started residing in a rented house at Morigaon town and the petitioner was providing

them house rent as well as monthly maintenance regularly. However, from one year prior to

lodging of the case for maintenance the petitioner did not pay any rent as well as monthly

maintenance. Further the petitioner also promised to give landed property to her and his son,

when he was confronted regarding non payment of rent as well as monthly maintenance, but

the petitioner did not keep his promise and did not provide any maintenance, rent or property

and thereafter the petitioner filed the maintenance case before the CJM, Morigaon, claiming

maintenance from the petitioner.

6. During trial, the petitioner also submitted written statement in support of his defence,

wherein the petitioner denied any relationship with the respondent. It is stated in the written

statement that respondent is his own elder sister and both the parties are within prohibited

degrees of relationship according to Hindu religion and no marriage could be solemnized

between the parties as per Hindu Law.

7. During the proceeding before the trial Court, the respondent has examined herself and

three other witnesses, PW-2, Upeswari Konwar, PW-3, Mukuta Bordoloi and PW-4, Haranath

Patar and petitioner also adduced himself as DW-1.

8. After hearing both sides, learned trial Court allowed maintenance in favour of the Page No.# 4/13

respondent and which was affirmed by the learned Sessions Judge, on revision by observing

that the respondent is the wife of the petitioner and she is entitled for maintenance.

9. Learned counsel for the petitioner has argued that the petitioner and the respondent are

in brother-sister relationship and marriage cannot be held between the parties. It is also

submitted that if any marriage is held in between such prohibited relationship it cannot be

accepted as valid marriage.

10. It is further submitted that there was no relationship of husband and wife between the

petitioner and the respondent, as no marriage was solemnized between them. According to

the petitioner, the story of marriage was a mere concoction, but the learned trial Court as well

as the learned revisional Court without considering the evidence adduced by the petitioner

granted maintenance in favour of the respondent.

11. In support of his submission, learned counsel for the petitioner has placed reliance on

the following case-law:-

(2018) (1) GLT 767; Mantush Chouhdury @ Mantu Choudhury vs. State of Assam

& Anr.

12. Though notice was served upon the respondent but none has appeared to represent

the respondent before this Court, as a result of which, the case is decided after hearing the

learned counsel for the petitioner.

13. I have gone through judgments of the learned trial Court as well as the learned

Sessions Judge. I have also perused the scanned copy of the record.

14. Before proceeding further, it would be desirable to take note of definition of the term

"Hindu" as given in Sub-section (3) of Section 2 of the Hindu Marriage Act, 1955, which reads Page No.# 5/13

as under:

"2(3). The expression 'Hindu' in any of this Act shall be construed as if it included a person

who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by

virtue of the provisions contained in this section."

15. In so far as the question of marriage is concerned, the respondent as PW-1 in her

evidence claimed that she is the legally married wife of the petitioner and after their marriage

they lived together as husband and wife and out of their wedlock a male child was born and

she has reiterated the same thing whatever she has stated in her claim petition.

16. In her cross-examination, PW-1 replied that her mother is the second wife of Tulsi

Bordoloi of Nowkata. The name of his mother is Senehi Bordoloi. She is the only child of

Senehi Bordoloi. Tulsi Bordoloi's first wife's son is the petitioner, Kanuram Bordoloi. After the

death of Tulsi Bordoloi, she was the legal heir, and she appealed before the public twice,

demanding her share of property. Even though the public wanted to provide her the share of

property, but Kanuram Bordoloi did not allow them to provide the said property.

17. PW-1 stated that she got married to Kanuram Bordoloi socially according to Hindu

rituals in presence of a priest. The priest belonged to Kahibari and subsequently, he died. PW-

2 stated that she could not say who was the priest. Marriage was solemnized at Rajagaon

and it was held at night. According to the PW-3, who is the son of the informant, he was born

at his maternal uncle's house at Kumuraguri. He had not seen her grandmother, Senehi

Bordoloi, who died before his birth.

18. PW-4 is Haranath Patar, He stated that the petitioner Kanuram Bordoloi is the son of

Tulsi Bordoloi's first wife. The mother of the respondent passed away, while she was at the Page No.# 6/13

house of the petitioner. He had seen the marriage between the parties at Nowkota village. It

was a marriage after elopement.

19. The petitioner was examined as DW-1 before the learned trial Court. Though he denied

the marriage with the respondent in his evidence, but in his cross-examination, DW-1 replied

that he knew the respondent and Senehi Bordoloi. He did not know when Kareng Mahanta

and Senehi Bordoloi got married, That marriage took place when he was 5/6 years old.

Budeheswari Bordoloi, who is the respondent in this case, is the child of Kareng Mahanta and

Senehi Bordoloi. Buddheswari's father passed away when she was a child. Later on, Senehi

Bordoloi got married to Tulsi Bordoloi. After the death of his first wife, Mogori Bordoloi, Tulsi

Bordoloi got married to Senehi Mahanta Bordoloi.

20. Though DW-1 alleged that respondent is his sister, but from cross-examination of DW-

1, it reveals that respondent is the daughter of Kareng Mahanta and Senehi Bordoloi and the

petitioner is the son of Mogori Bordoloi and Tulsi Bordoloi. After the death of Kareng Mahanta,

the mother of the respondent, Senehi Bordoloi, got married to the father of the petitioner,

Tulsi Bordoloi.

21. Now, let us see the requirements of Sections 5 and 7 of the Hindu Marriage Act, 1955

which read as under:

"5. Conditions for a Hindu marriage.--A marriage may be solemnized between any two

Hindus, if the following conditions are fulfillled, namely-

(i) neither party has a spouse living at the time of marriage; (ii) at the time of marriage,

neither party,

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or Page No.# 7/13

(b) though capable of giving a valid consent, has been suffering from mental

disorder of such a kind or to such an extent as to be unfit for marriage and the

procreation of children; or

(c) has been subject to recurrent attacks of insanity;

(iii) the bridegroom has completed the age of 21 years and the bride, the age of 18 at the

time of marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or

usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of

them permits of a marriage between the two;

7. Ceremonies of a Hindu marriage.-

(1) A Hindu marriage may be solemnized in accordance with the customary rites and

ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps

by the bridegroom and the bride jointly before the sacred fire), the marriage becomes

complete and binding when the seventh step is taken."

22. The contention of the learned counsel for the petitioner is that according to the

petitioner, the marriage was held in presence of a priest, but the priest was not examined

before the trial Court and the other witnesses, PW-2 had stated that he did not notice any

priest in the marriage. According to the learned counsel for the petitioner, as there is a

contradiction in the statements of witnesses regarding marriage in presence of the priest, it Page No.# 8/13

can be presumed that there was no marriage between the parties.

23. In the case of Mousumi Chakraborty v. Subrata Guha Roy, II(1991) DMC 74 (DB),

a Division Bench of the Calcutta High Court observed as under:-

"12. The registration is not the sole proof of marriage in order to become a valid marriage.

Section 7 of the said Act provides that the validity of a marriage will depend on observance of

"customary rites and ceremonies". The expression "customary rites and ceremonies" means

such Shastric ceremonies, which the caste or community to which party belongs is

customarily following. Customary rites and ceremonies to be accepted must be shown to have

been followed definitely as an essence of marriage ceremony from ancient times and

recognized such ceremonies as obligatory. Two essential ceremonies to the validity of a

marriage are (a) Invocation before the sacred fire and (b) saptapadi. Absence of these

essential ceremonies invalidates the marriage. In our view; two ceremonies essential to the

validity of a marriage, as stated above, have to be proved and that where the factum of

marriage is disputed essential ceremonies constituting the marriage must have to be pleaded

and proved. Evidence regarding the performance of marriage according to Hindu rites must

be brought on record to show that there had been a valid marriage."

24. In the case of Sridhar Dey v. Kalpana Dey; AIR 1987 Cal 213, a Division Bench of

Calcutta High Court took the view that unless the legality of the marriage is disputed on the

specific ground of non-performance of essential ceremonies, a party proving the factum of

marriage need not specifically prove further that all the ceremonies necessary to validate the

marriage were also performed and in such a case, on the proof of the factum of marriage, a

Court shall presume performance of all essential ceremonies. It also took the view that a Page No.# 9/13

presumption of this sort in favour of marriage would only be negatived by disproving every

reasonable possibility.

25. As regards distinct and different standards of proof in Civil and Criminal matter, in

Sridhar Dey v. Kalpana Dey (supra), was a criminal matter, it was laid down that the

standards of proof in Civil and Criminal matter are materially different and while

preponderance of probability is good enough for a decision in civil jurisdiction, in a criminal

trial affecting liberties of the citizen, the offence charged must be proved beyond all

reasonable doubt. The Calcutta High Court relied upon the case of N.G. Dastane v. S.

Dastane, where it was ruled that 'the civil standard of proof of preponderance of

probabilities, and not the criminal standard of proof beyond reasonable doubt, applies to

matrimonial proceedings under the Hindu Marriage Act and that it would be wrong to import

criminal standard in trials of a purely civil nature'.

26. In Kanwal Ram v. Himachal Pradesh Administration , and Priya Bala v. Suresh

Chandra; AIR 1971 SC 1153, the distinction has been scrupulously maintained and in both

the cases even admission of marriage, which is sufficient to prove marriage for civil

matrimonial disputes had been ruled to be not sufficient to prove marriage in prosecutions for

bigamy or adultery. It was held in Sridhar Dey v. Kalpana Dey's case that the

requirements of criminal prosecution as to the positive proof of essential ceremonies as laid

down in Kanwal Ram and Priya Bala (supra), could not be imported in a civil proceeding

for restitution of conjugal rights unless the performance of those ceremonies is specifically

disputed. Ultimately it was observed in Sridhar Dey v. Kalpana Dey, that once the factum

of marriage is proved, everything necessary to validate such marriage, including the

observation of essential ceremonies, shall be presumed, particularly in a case like the one at Page No.# 10/13

hand where either in the pleadings or in the evidence on the ground of non-performance of

necessary ceremonies or otherwise for there was absolutely no cross-examination whatsoever

of any of the witnesses on the evidence on these points.

27. From the above conspectus of law few propositions arise. Firstly, that there are distinct

and different standards of proof for the civil and criminal matters and the standard of proof

beyond any reasonable shadow of doubt, would not apply in civil matters; and in civil matters

the preponderance of probability in favor of marriage would be sufficient to hold that all

ceremonies were performed. Secondly, in such a matter it is to be presumed that all essential

ceremonies have been performed unless and until the opposite party claims specifically that

particular ceremony was not performed while the factum of marriage and performance of

certain ceremonies are virtually evident in view of the statement of the petitioner and the

respondent recorded in Court.

28. There is another facet in this regard. Supposing, for the sake of arguments it is

accepted that the ceremonies have not been proved and there is a presumption in favor of

ceremonies having taken place, the question would always be: "What shall be the impact of

non-performance of ceremonies? Insofar as the criminal matters are concerned, it is essential

that all the ceremonies must be proved beyond any reasonable shadow of doubt while it is

not so in civil cases. But it is not so in civil matters.

29. In this connection, it is further notable that Sections 10 and 11 of the Hindu Marriage

Act lay down the provisions which provide ground for declaring a marriage null and void or

voidable. It is notable that marriage is required to be held void under Section 11 of the Act in

case (i) either of the parties had a spouse living at the time of marriage; or (ii) the parties are Page No.# 11/13

within the degrees of prohibited relationship; or (iii) if they are sapindas of each other, i.e. in

contravention of conditions specified in Clauses (i), (iv) and (v) of Section 5. A marriage could

be held voidable if there was consent given in contravention of condition specified in Clause

(ii) of Section 5.

30. As regards the alleged non-performance of any valid marriage, the petitioner did not

utter a single word that he has filed any case under Section 10 or 11 of Hindu Marriage Act,

with a prayer for nullity of the marriage between the petitioner and the respondent and non-

performance by itself would not be sufficient to declare marriage void or voidable.

31. In the case in hand, though the DW-1 denied the marriage with the respondent , but in

his cross-examination, he admitted that the respondent is the daughter of Kareng Mahanta

and Senehi Bordoloi. It transpires that the petitioner and the respondent are not brother and

sister as alleged in his petition. The learned Sessions Judge thoroughly discussed on the

matter of prohibited relationship and sapindas. I am in agreement with the decision of the

learned Sessions Judge on that count.

32. Regarding claiming of maintenance by the respondent, it is a settled position of law

that strict proof of marriage is not necessary for deciding an application under Section 125

CrPC.

33. In the case of Chanmuniya vs Virendra Kumar Singh Kushwaha & Anr.;

reported in 2010 AIR SCW 6497, it was held by the Hon'ble Apex Court that the

compensation can be awarded in case of live-in-relationships and the same also be allowed in

proceeding under Section 125 CrPC and that a broad and expansive interpretation should be

given to the term `wife' to include even those cases where a man and woman have been Page No.# 12/13

living together as husband and wife for a reasonably long period of time, and strict proof of

marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C, so

as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section

125 CrPC.

34. In the case of Dhannulal & Ors vs Ganeshram & Anr; reported in AIR 2015 SCC

2382, it was held as under:-

"It is well settled that the law presumes in favour of marriage and against concubinage, when

a man and woman have cohabited continuously for a long time. However, the presumption

can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party, who

seeks to deprive the relationship of legal origin. In the instant case, instead of adducing

unimpeachable evidence by the plaintiff, a plea was taken that the defendant has failed to

prove the fact that Phoolbasa Bai was the legally married wife of Chhatrapati. The High Court,

therefore, came to a correct conclusion by recording a finding that Phoolbasa Bai was the

legally married wife of Chhatrapati."

35. Reverting back to facts of the present case, the petitioner though denied the marriage

with the respondent but from his cross-examination, we can come to the conclusion that both

the petitioner and respondent are not brother and sister and there is no prohibited degree of

relationship between them and the witnesses of the respondent has proved that marriage

between the parties was held and they were living together as husband and wife in the

house of the present petitioner. As the learned trial Court has concluded that the respondent

wife is unable to maintain herself, the said finding is affirmed.

36. In the case of Dukhtar Jahan vs Mohammed Farooq; 1987 SCR (1)1086, it was Page No.# 13/13

held as under:-

"Proceedings under Section 125 of the Code of Criminal Procedure are of a summary nature

and are intended to enable destitute wives and children, the latter whether they are

legitimate or illegitimate, to get maintenance in a speedy manner."

37. In the case of K.Vimal vs K.Veeraswamy; 1991 SCC (2) 375, it has been further

opined as under:-

"Section 125 of the code of Criminal Procedure is meant to achieve a social purpose. The

object is to prevent vagrancy and destitution. it provides a speedy remedy for the supply of

food, clothing and shelter to the deserted wife."

38. Coming to the case in hand, it appears that the petitioner has sufficient landed

properties from which he is earning Rs. 25,000/- in a month, which he has not denied, either

in his written statement or in his evidence.

39. In view of the aforesaid analysis, the criminal petition is dismissed. The petitioner is

directed to pay monthly maintenance along with arrear amount to the respondent, as per

order of the learned trial Court.

JUDGE

Comparing Assistant