Gujarat High Court
Sachiben Narendrabhai Jani ... vs Narendrabhai Jayubhai Jani on 24 June, 2025
NEUTRAL CITATION
R/SCR.A/1530/2013 ORDER DATED: 24/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1530 of 2013
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SACHIBEN NARENDRABHAI JANI D/ODIGAMBARNATH MISHRA & ANR.
Versus
NARENDRABHAI JAYUBHAI JANI & ANR.
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Appearance:
MR AR THACKER(888) with MR SHIVANG THACKER for the Petitioners
MR HITESH S PADHYA(3877) for the Respondent(s) No. 1
MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 24/06/2025
ORAL ORDER
1. By way of this petition under Articles 226 and 227 of the
Constitution of India, the petitioners have challenged the
judgment and order dated 28.2.2013 passed by the learned
Family Court, Junagadh in Criminal Misc. Application No.234
of 2011, whereby the learned Judge has dismissed the petition
filed by the petitioner u/s 125 of the Code of Criminal
Procedure, 1973 on the ground that the petitioner has failed
to establish that the marriage was solemnized between the
parties.
2. Brief facts of the case are as under:-
2.1 The petitioner no.1 and respondent no.1 married on
05.04.2011 in the present of the God at Junagadh in Gayatri
Temple. From that date the petitioner no.1 became wife of the
respondent no.1, she is legally the wife of the respondent
no.1, and she is entitled for maintenance. The petitioner no.l's
first marriage was in Jamnagar and this was her second
NEUTRAL CITATION
R/SCR.A/1530/2013 ORDER DATED: 24/06/2025
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marriage with the respondent no.1. The respondent no.1 was
also having his second marriage, he being widower. That out
of the first marriage of the petitioner no.1, the petitioner no.2
was borne and thereafter the said marriage was dissolved in
divorce and thereafter the petitioner no. I married with
respondent no.1 at Junagadh on 5.4.2011. That 3. after the
marriage of the petitioner no.1 with the respondent no.1 on
5.4.2011, she went to the house of the respondent no.1 at
Amreli and after two days, in the presence of the sister of the
respondent no.1 and brother, quarrel took place and the
petitioner no.1 was driven out by the respondent no.1. The
petitioners filed Application for Maintenance under Sec.125 of
The Code of Criminal Procedure against the respondent no.1
before the Family Court at Junagadh. The said application was
registered as Criminal Misc. Application No.234 of 2011. The
learned Family Court rejected said Criminal Misc. Application.
Hence, present petition.
3. Learned advocate Mr. Thacker for the petitioners
referring to various photographs placed on record from the
compilation of the petition, would submit that it is a second
marriage of both the parties, which is popularly known
"Ghargharau". He would further submit that there are
exchange of garlands and putting sindur on the forehead of
the petitioner by the respondent No.2, established that there
was a marriage between the petitioner and the respondent.
He would further submit that even the petitioner went to
matrimonial home and stayed there for three days and since
she was deserted thereafter, he came back to her parental
home and thereafter, filed the petition.
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R/SCR.A/1530/2013 ORDER DATED: 24/06/2025
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3.1 Referring to the judgment of Hon'ble Apex Court in case
of Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit and
another, (1999) 7 SCC 675, learned advocate Mr. Thacker
would submit that standard proof of marriage as is required in
a trial for offence of bigamy u/s 494 of the IPC is not required
to be established in a petition u/s 125 of the Code.
3.2 Upon such submission, learned advocate Mr. Thacker
prays to allow this petition.
4. Per contra, learned advocate Mr. Padhya for the
respondent No.1 referring to the evidence of Mr. Vala
examined at Exh.44 would submit that according to the
deposition of the witness, that no such marriage ever took
place in Gayatri Mandir, which has falsified the claim of the
petition that they have solemnized the marriage in Gayatri
Mandir and in view of that, the learned trial Court has rightly
declined to grant maintenance u/s 125 of the Code. Upon
such submission, he prays to dismiss the petition.
5. Learned APP in a private dispute requests to pass
necessary orders.
6. At the outset, let refer findings of the learned trial Court
for rejecting maintenance application u/s 125 of the Code,
which reads as under:-
"Thus, based on the discussion above and the
principles laid down in the judgments of the Hon'ble
Courts, the rituals prescribed by Hindu scriptures
include recitation of mantra, presence of fire altar
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R/SCR.A/1530/2013 ORDER DATED: 24/06/2025
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(havan kund), fire god as witness (agni ki sakshi),
seven sacred steps around the fire altar (saptapadi),
giving away of the bride (kanyadan), tying of
auspicious string (mangal-sutra), etc. In the present
case, the applicant has at some places stated that the
wedding was solemnized according to Hindu rituals,
while at other points stated that since it was a
remarriage for both parties, the wedding was
solemnized in a low-profile ceremony (ghargharnu).
Thus, as discussed above, if the wedding between the
parties was solemnized according to Hindu rituals, it
said to be solemnized as per the Hindu rituals only if
it is performed according to the rituals stated above.
However, the applicant has not proved any such fact.
Further, if the wedding is performed in a low-profile
ceremony, as per the community tradition, the
applicant has not invited any of the community
leaders. Moreover, they are also not examined. The
mere performance of sindoor ritual, exchange of
garlands, and chanting of mantras by a priest do not
suffice to establish that it was a low-profile wedding
ceremony (ghargharnu). However, the onus lies on
the applicant to prove that performing a wedding in
such a manner is a tradition within his community.
Therefore, as discussed above in this case, since the
Applicant No. 1 has failed to prove that a marriage
took place between him and the respondent, Point
No. 1 is answered in the negative."
7. While rejecting the petition for maintenance, the learned
trial Court believed that it appears on record that second
marriage between the parties are performed and which is
called as "Ghargharau". However, since the petitioner has
failed to establish that the marriage is solemnized as per
Hindu rites and rituals, the petitioner is not entitled to get
maintenance u/s 125 of the Code. In Dwarika Prasad
Satpathy (supra), the Hon'ble Apex Court in para 9 held as
under:-
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"It is to be remembered that the order passed in an
application under b 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. Barbara³ observed that maintenance under Section
с 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."
8. Learned advocate Mr. Padhya for the respondent No.1 at
this juncture, argued that the photographs, which are
tendered during the proceedings of the Criminal Misc.
Application, indicates that there were engagement between
the parties and not the second marriage. The submission of
learned advocate Mr. Padhya is falsified on the ground that
Hindu rites and rituals does not expect to put vermilion
(Sindur) on the forehead of bride during engagement. Putting
up of vermilion (Sindur) on the forehead of bride and
exchanging garlands is prima facie proved of conducting
second marriage i.e. "Ghargharau". The learned trial Court,
as observed herein above, failed to visualize the aspect that
this is second marriage between the parties, which does not
require rites and rituals as first marriage took place between
the parties. The rites and rituals of second marriage i.e.
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R/SCR.A/1530/2013 ORDER DATED: 24/06/2025
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"Ghargharau" is different than the rites and rituals to be
performed in first marriage. There appears that insufficient
evidence has been led by both the parties and therefore,
according to this Court, the justice would be subserved, if the
matter is remanded back to the learned trial Court for fresh
consideration.
9. In view of above, without entering into further merits of
the case, I am inclined to remand the matter for fresh
decisions.
10. For the reasons stated above, present petition is allowed
and impugned judgment and order dated 28.2.2013 passed by
the learned Family Court, Junagadh in Criminal Misc.
Application No.234 of 2011 is hereby quashed and set aside.
10.1 Criminal Misc. Application No.234 of 2011 is restored to
the file of learned Family Court, Junagadh.
10.2 Both the parties are permitted to lead necessary
evidence, if they are so desired.
10.3 Since the matter is of the year 2011, the learned trial
Court shall make endevour to decide the same as early as
possibly, preferably within three months from the date of
receipt of this order, without being influenced by earlier order
so also present order.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
