Gauhati High Court
Crl.Rev.P./4/2012 on 26 March, 2025
GAHC010002392012
2025:GAU-AS:3723
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
1. CRL. REV. P. NO.4 OF 2012
Refill Star Pakyntein,
S/o- D. Early Peace,
R/o- Mawlai, Mudabaki,
P.O- Phudmuri,
District- East Khasi Hills,
Meghalaya.
.......Petitioner
-Versus-
Smti. Jaya Arora,
D/o- Darshan Lal Arora,
R/o- KKB Road, Chenikuthi,
Guwahati-3, House No.5,
P.S.- Chandmari, Ghy-3
District- Kamrup (M), Assam.
.......Respondent
2. CRL. REV. P. NO.138 OF 2020
Refill Star Pakyntein,
S/o- D. Early Peace,
R/o- Mawlai, Mudabaki,
P.O- Phudmuri,
District- East Khasi Hills,
Meghalaya.
.......Petitioner
Page 1 of 16
-Versus-
Smti. Jaya Arora,
D/o- Darshan Lal Arora,
R/o- House No.5, KKB Road,
Chenikuthi, Guwahati-3.
.......Respondent
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner : Ms. P. Chakraborty, Advocate.
For the Respondent : Ms. S. Parveen, Advocate.
Date of Hearing : 26.03.2025.
Date of Judgment : 26.03.2025.
JUDGMENT & ORDER (ORAL)
Heard Ms. P. Chakraborty, learned Counsel
appearing for the petitioner. Also heard Ms. S. Parveen,
learned Counsel appearing for the respondent.
2] By way of the instant two revision petitions i.e.
Crl. Rev. P. No. 4/2012 and Crl. Rev. P. No. 138/2020, the
petitioner is challenging the judgment & order dated
16.09.2011 passed by the learned Principal Judge, Family
Court, Kamrup, Guwahati in F.C.(Crl.) No.244/2009 under
Section 125 of Criminal Procedure Code, 1973 (hereinafter
referred to as "Cr.P.C.") allowing the maintenance of Rs.
3,000/- (rupees three thousand) per month to the
respondent and judgment & order dated 29.09.2018
passed by the learned Principal Judge, Family Court-II,
Guwahati in Misc. Case No.191/2018, whereby the
maintenance allowance of the petitioner is enhanced from
Rs. 3,000/- (rupees three thousand) per month to Rs.
8,000/- (rupees eight thousand) per month. Accordingly,
both the criminal revision petitions are taken up together
for disposal by this common judgment.
3] The brief facts of the case is that the respondent
filed an application under Section 125 of Cr.P.C. before the
jurisdictional Family Court alleging inter alia that she was
married to the petitioner on 29.02.2004 as per Hindu rites
and rituals at Kamakhya temple and thereafter, she was
physically and mentally tortured by the family members of
the petitioner as well as by the petitioner and that later the
petitioner refused to take her with him to his house and
also demanded a sum of Rs. 10,000/- from her father and
later on when she had gone to the house of the petitioner,
she was driven out by the family members of the
petitioner. Accordingly, she prayed for an amount of Rs.
40,000/- per month as maintenance from the petitioner.
Pursuant to the said petition, the petitioner filed objection
and thereafter, both parties adduced evidence. The family
Court after concluding the hearing was pleased to hold that
the petitioner and the respondent are legally married and
that the petitioner had neglected to maintain her and
accordingly, ordered payment of Rs. 3,000/- per month as
maintenance to the respondent. Thereafter, the
respondent filed an application for enhancement of the
maintenance allowance, which the Family Court after
hearing the parties was pleased to enhance the
maintenance allowance from Rs. 3,000/- to Rs. 8,000/- per
month. Against the aforesaid two orders, the present
criminal revision petitions have been filed.
4] Ms. P. Chakraborty, learned Counsel appearing for
the petitioner submits that the petitioner being a Christian,
the marriage between the petitioner and the respondent,
who is a Hindu is not valid and therefore, the order of the
Family Court directing maintenance allowance is totally
erroneous in law. She further submits that the respondent
has also filed a complaint case alleging bigamy before the
Court of learned Additional Chief Judicial Magistrate,
Kamrup (Metro) being C.R. Case No. 1276/2013, wherein
the learned Additional Chief Judicial Magistrate by
judgment & order dated 29.01.2021 having held that the
allegation of bigamy is not proved, was pleased to dismiss
the complaint. She further places reliance upon paragraph
23 of the said judgment which reads as hereunder:
"23) In view of the above discussion I find that the
complainant has failed to prove the ceremonies of
marriage between her and the accused. In order to
prove the charge u/s 494 the complainant has to
prove not only the second marriage but also that
the first marriage was a valid one with
performance of all its ceremonies. In the instant
case only evidence of first marriage adduced by
the complainant is the evidence of accused before
the family court in proceedings for annulment of
marriage as Ext. 12 wherein he stated that he is a
married man with three children. Now the question
to be determined is whether the said evidence of
accused admitting the 1 marriage in the proceeding
before family court can be considered as proof of
marriage. It is a settled position that proof of
marriage u/s 494 IPC is strict proof which is also
evident from the provisions of section 50 of the
evidence act which provides that opinions as to
marriage is not sufficient to prove marriage u/s
494 IPC. In proceedings u/s 494 IPC the
performance of ceremonies of marriage is very
essential in proof of the valid marriage and mere
admission of parties to have contacted the
marriage is not sufficient to prove the marriage in
connection with charge u/s 494 IPC. (AIR 1966 SC
614). As such the admission of first marriage
cannot be regarded as proof of valid first marriage
as required u/s 494 IPC."
5] Per contra, Ms. S. Parveen, learned Counsel
appearing for the respondent submits that the factum of
marriage between the respondent and the petitioner being
established on the basis of evidences adduced before the
Family Court and upon considering the evidences, the
Family Court came to the conclusion that the petitioner has
not maintained the respondent and awarded the
maintenance and therefore, there is no patent or palpable
manifest error whatsoever in the judgment & order of the
Family Court. She further submits that the decision of the
learned Additional Chief Judicial Magistrate, Kamrup
(Metro) in the complaint case relied by the learned Counsel
for the petitioner is of no relevance inasmuch as the
samebeinga criminal case, the standard of proof is not the
same as required under Section 125 of Cr.P.C. proceeding.
She further relies upon the decision of the Apex Court in
the case of Dwarika Prasad Satpathy Vs. Bidyut
Prava Dixit and Another, reported in (1999) 7 SCC 675
to buttress the aforesaid submissions.
6] I have considered the arguments advanced by the
learned Counsels of both the contending parties, and also
perused the material available on record. I have also
considered the decisions submitted at the bar.
7] It appears that for the alleged non maintenance
of the respondent by the petitioner, an application under
Section 125 of Cr.P.C. was filed before the Family Court. It
appears that evidences have been adduced by both the
sides in the said proceedings. It appears that the
respondent has adduced 5(five) witnesses whereas the
petitioner examined 3(three) witnesses including himself. It
appears that the respondent has also exhibited the
Marriage Register, photographs of the marriage ceremony,
invitation card of the marriage and the VCD of the
marriage ceremony in support of the alleged marriage. It
appears from the evidence of PW-1/respondent that the
marriage between her and the petitioner was solemnized
on 29.02.2004 at the Kamakhya temple and after the
marriage they lived together as husband and wife in
Shillong. It further appears that in support of the aforesaid
marriage the respondent adduced the Marriage Registrar of
the Kamakhya temple as Court witness i.e. CW-1, who
deposed that he is the Marriage Registrar of Kamakhya
temple since last 20 years and that he has brought the
relevant Marriage Register to prove the marriage between
the respondent and the petitioner. It appears that he has
proved the contents of the Marriage Register, which is
Exhibit-A and has deposed that the respondent and the
petitioner were present before him at the time of
registration of their marriage and that the signatures in the
registration form are that of them. It appears from the
aforesaid documents that the marriage was registered on
29.02.2004. The aforesaid evidence of the Registrar could
not be shaken by the petitioner. That apart, it appears that
the petitioner has admitted during cross-examination the
contents of the Marriage Register, the photographs of the
marriage, the invitation card of the marriage and has also
admitted his signature in the marriage registration form. It
further appears that the other defence witnesses have also
admitted the aforesaid exhibits. It appears that the trial
Court based on the aforesaid evidences held as hereunder:
"On perusal of evidence of opposite party (DWI) it is
found that though he has denied the solemnization
of marriage with the petitioner but he has admitted
the photographs to be the photographs of the
petitioner with him after the marriage. I have also
gone through marriage certificate i.e Exhibit No. A.
the marriage certificate was proved by the
Marriage Registrar who was examined as Court
Witness, The opposite party has admitted his
signature in Exhibit No. A, to be his signature and
the DW1 and DW2 and DW3 have also admitted
the signature of brother and mother of opposite
party in Exhibit No. A. There is no whisper in the
evidence of the opposite party (DW 1) that the
marriage was solemnised under duress.
During trial the petitioner has submitted the VCD of
their marriage and the said VCD was shown to the
Opposite party. A question was put by the
petitioner as regards to VCD but in reply he has
admitted that those are the photographs with
petitioner Joya Arora.
At this stage, I would like to reproduce the exact
reply of the opposite party which is as follows:-
„Yes, it is my photographs with
petitioner Smti Joya Arora as I
was called to the party arranged
by her. I sit with her as
bridegroom.'
The above statement of the opposite party has
clearly established that the marriage was
performed between the parties.
According to Section 7 of the Hindu Marriage Act
1955, a Hindu marriage may be solemnized with
the customary rights and ceremonies of either
party thereto.
The evidence on record clearly shows that the
essential of the Hindu marriage was observed in
the present case by the parties. Apart from that
after the marriage they lived together as husband
and wife at the matrimonial home. They are known
as husband and wife by their relatives. They
received the status of husband and wife which is
found in the evidence of PW 2. PW 3, PW 4 and PW
5. Though the parties follow different religion but it
is not necessarily mean that there could be no
marriage between them and the petitioner will get
the status of wife after the marriage. Strict proof of
marriage under section 125 Cr. P.C. is not required
but the petitioner has succeeded to prove that a
valid marriage was solemnized with the opposite
party according to Hindu rites and customs and it
is established that the petitioner is the legally
married wife of the opposite party.
Therefore, point no 1 is decided in favour of the
petitioner.
Point No.2: The petitioner in her deposition stated
that after the sharadha ceremony of her father
when she went to the matrimonial home in Shillong
the opposite party and his family member turned
her out from her matrimonial home and assaulted
her. Having no alternative she takes shelter in her
parental home. Since then she has been staying
with her mother who is poor. The opposite party
has not provided any sort of maintenance to her
and the opposite party has neglected her and
refused to maintain her. PW2, PW 3, PW 4 and PW
5 have supported the evidence of the petitioner, so
far refusal and neglect on the part of the opposite
party is concerned. Though the opposite party and
his witnesses have denied the physical torture on
the petitioner but there is no evidence on record to
show that opposite party has provided any sort of
maintenance to the petitioner.
Therefore, point no 2 is also decided in
favour of the petitioner.
Point No. 3: In view of my discussion made in
point no.1 and point no. 2, 1 hold that the petitioner
is the legally married wife of the opposite party
and the opposite party has neglected the petitioner
and refused to maintain her. Therefore the
petitioner is entitled to get maintenance from the
opposite party.
Therefore this point is also decided in
favour of the petitioner.
As regards quantum of maintenance, it is
found in the evidence of record that the opposite
party is an Engineer by profession and he draws
Rs. 20,000/- per month as salary. The opposite
party has also admitted that he is an Engineer by
profession.
Considering the status, social background.
Cost of living and high index of essential
commodities and capabilities of the Opposite party
it is considered that the petitioner is entitled to get
a sum of Rs. 3,000/- (Rupees there thousand) per
months as maintenance from the opposite party."
8] Apt at this stage to refer to Section 125 of the
Cr.P.C. which is reproduced hereunder for ready reference:
"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:
[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 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 month's [allowance for the 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
wife's 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 is 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."
9] Reading of the aforesaid provision, it appears that
while passing order under Section 125 of the Cr.P.C, the
Family Court is not determining 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 wives, children and parents. In other words, the validity
of the marriage for the purpose of summary proceedings
under Section 125 of Cr.P.C. is to be determined on the
basis of evidence brought on record by the parties.
Therefore, the standard of proof of marriage in such
proceeding is not as strict as is required in a trial of offence
under Section 494 of Indian Penal Code (hereinafter to be
referred as "IPC"). Thus, what is required to be established
in proceedings under Section 125 of Cr.P.C. in order to get
maintenance is that the parties have lived together as
husband and wife. If the aforesaid requirement is proved,
the court is entitled to presume that they are legally
wedded spouses and in such a situation the party who
denies the marital status can rebut the presumption.
Paragraphs 6, 9 and 10 of the decision of the Apex Court in
the case of Dwarika Prasad Satpathy (Supra) are
reproduced hereunder for ready reference:
"9. It is to be remembered that the order passed in
an application under Section 125 CrPC 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. 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
observed that maintenance under Section 488
CrPC 1898 (similar to Section 125 CrPC) 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.
10. After not disputing the paternity of the child
and after accepting the fact that the marriage
ceremony was performed, though not legally
perfect as contended, it would hardly lie in the
mouth of the appellant to contend in a proceeding
under Section 125 CrPC that there was no valid
marriage as essential rites were not performed at
the time of the said marriage. The provision under
Section 125 is not to be utilised for defeating the
rights conferred by the legislature on the destitute
women, children or parents who are victims of the
social environment. In Ramesh Chander Kaushal v.
Veena Kaushal Krishna lyer, J. dealing with the
interpretation of Section 125 CrPC observed (at
para 9) thus: (SCC p. 74)
„9. 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 advance the cause -
the cause of the derelicts‟."
10] It appears that in the present case the
respondent has been able to prove that the marriage was
solemnized between her and the petitioner at the
Kamakhya temple as per Hindu rites and rituals and
thereafterthey had lived together as husband and wife.
This is sufficient for the purpose of granting maintenance
under Section 125 of Cr.P.C. The subsequent decision of
the learned Additional Chief Judicial Magistrate Kamrup
(Metro) which was brought to the notice of this Court,
whereby the marriage of the petitioner with the respondent
is held to be not valid for constituting offence under
Section 494/496 of IPC is of no relevance in the said
proceedings as the standard of proof required for the two
proceedings are different. Further, it is submitted at the
bar that an appeal has been filed by the respondent
against the aforesaid judgment & order dated 29.01.2021
which is registered as Criminal Appeal No. 190/2021 which
is still pending before this Court.
11] Be that as it may, it is apparent that the Family
Court has committed no manifest or palpable error on the
face of the record and hence, this Court is of the
unhesitant view that the order of the Family Court granting
maintenance warrants no interference from this Court.
Further, there is no error whatsoever, pointed out in the
order of the Family Court enhancing the maintenance
amount from Rs. 3,000/- (rupees three thousand) to Rs.
8,000/- (rupees eight thousand) per month and hence, the
same is also not interfered.
12] Before parting with the judgment, it is worthwhile
to mention that in the context of today's society, Courts
have accorded sanction to live-in relationship to the extent
that a lady may claim maintenance from the person
provided they both are of legal age to marry and otherwise
qualified to enter into a legal marriage and they have
voluntarily cohabited and held themselves out to the world
as husband and wife for quite long period of time.
Reference is made to the decision of the Apex Court in the
case of D. Velusamy Vs. D. Patchaiammal reported
in (2010) 10 SCC 469. Paragraph 31 and 32 of the said
judgment is reproduced hereunder for ready reference:
"31. In our opinion a 'relationship in the nature of
marriage' is akin to a common law marriage. Common
law marriages require that although not being
formally married:-
(a) The couple must hold themselves out to society as
being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a
legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held
themselves out to the world as being akin to spouses
for a significant period of time.
(see 'Common Law Marriage' in Wikipedia on Google)
In our opinion a 'relationship in the nature of
marriage' under the 2005 Act must also fulfill the
above requirements, and in addition the parties must
have lived together in a 'shared household' as defined
in Section 2(s) of the Act. Merely spending weekends
together or a one night stand would not make it a
'domestic relationship‟.
32. In our opinion not all live in relationships will
amount to a relationship in the nature of marriage to
get the benefit of the Act of 2005. To get such benefit
the conditions mentioned by us above must be
satisfied, and this has to be proved by evidence. If a
man has a 'keep' whom he maintains financially and
uses mainly for sexual purpose and/or as a servant it
would not, in our opinion, be a relationship in the
nature of marriage."
13] In view of the above analogy also, it can be safely
concluded that the findings recorded by the Family Court is
absolutely justified.
14] Resultantly, both the revision petitions stand
dismissed and are accordingly disposed of.
15] Return the case records.
JUDGE
Comparing Assistant
