Sukhwant Kaur Wife Of Navtej Singh vs The State Of Jharkhand
2021 Latest Caselaw 4671 Jhar

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     Cr. Revision No. 16 of 2012
     Sukhwant Kaur wife of Navtej Singh, daughter of Kartar Singh,
     resident of 67, Punjabi Refugee Colony, near Gurudwara,
     Golmuri, P.O. & P.S.- Golmuri, Town Jamshedpur, District-
     Singhbhum East                           ...     ...     Petitioner
                                -Versus-
     1. The State of Jharkhand
     2. Sri Navtej Singh son of Jagat Singh Chhabra, resident of H.
        No. 3339, Section-22/D, P.O., P.S. and District-Chandigarh
                                              ...     ... Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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Through: Video Conferencing

27/08.12.2021

1. Heard Mr. Manoj Tandon, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. J. N. Upadhyay, learned counsel appearing on behalf of the Opposite Party No.2.

3. Heard Ms. Vandana Bharti, learned A.P.P. appearing on behalf of the Opposite Party-State.

4. The present criminal revision application is directed against the Judgment dated 23.08.2011 passed by the learned Principal Judge, Family Court, East Singhbhum at Jamshedpur in Miscellaneous Case No. 84/2007 whereby and whereunder the application filed by the petitioner for maintenance under Section 125 of Cr.P.C. has been rejected. The petitioner has claimed herself to be the legally wedded wife of the Opposite Party No.2.

Arguments on behalf of the petitioner

5. Learned counsel appearing on behalf of the petitioner submitted that the marriage of the petitioner with the Opposite Party No.2 was solemnized on 28.08.2005 according to Sikh Customs and Rites and she was thrown out of her matrimonial

home on 04.11.2005. Thereafter, the Opposite Party No.2 (husband) solemnized another marriage on 15.11.2006 and also filed a suit bearing Title Suit No. 120/2010 before the Munsif Court at Jamshedpur for a declaration that the petitioner was not his wife. He submitted that this fact regarding filing of suit was brought on record by the Opposite Party No.2 before the learned court below in his show cause reply. However, the said suit was dismissed vide order dated 03.11.2017 and this aspect of the matter has been brought on record by filing a supplementary affidavit before this Court. He further submitted that in spite of granting repeated opportunities to the Opposite Party No.2 to file a reply to the supplementary affidavit who joined the court proceedings during the virtual mode of hearing of this matter on various dates, no reply has been filed and thus, it is not in dispute that the order dated 03.11.2017 dismissing the Title Suit No. 120/2010 has attained finality. He submitted that as the Opposite Party No.2 has already lost the suit, there can no doubt that the marriage between the petitioner and Opposite Party No.2 is valid.

6. He also submitted that earlier, in the same proceedings, an order of maintenance was passed by the learned court below which was subject-matter of challenge in Cr. Revision No. 162/2009 preferred by the Opposite Party No.2, disposed of vide order dated 12.08.2010 and the matter was remanded back to the learned court below for fresh decision with a clear direction that during the pendency of the proceedings before the learned court below, the present Opposite Party No.2 shall go on depositing Rs.4,000/- before the learned court below on or by 10th of every succeeding month and the petitioner was at liberty to withdraw the said amount on furnishing security in any form to the satisfaction of the learned trial court. The learned counsel submitted that the order of interim maintenance dated 12.08.2010 passed by this Court while

disposing of Cr. Revision No. 162/2009, was never complied with by the present Opposite Party No.2 and the petitioner, being a lady, having no source of income, has faced huge financial difficulty on account of the acts and omissions of the Opposite Party No.2.

7. The learned counsel further submitted that the impugned order passed by the learned court below is ex-facie perverse, inasmuch as, the learned court below has passed the impugned judgment by holding that the petitioner has not been able to prove that she had taken divorce from her first husband in the year 1982 from Gurudwara at Delhi and the marriage certificate (Exhibit-1) filed from the side of the petitioner before the learned court below was held to be not genuine, although the witnesses of the marriage including Head Granthi of Gurudwara, have fully supported the fact that the marriage ceremony between the petitioner and the Opposite Party No.2 was solemnized by him. Learned counsel further submitted that the court at the stage of petition under Section 125 of Cr.P.C. is only required to prima facie record finding of marriage and is not conferred with the jurisdiction of finally taking a call about the legality or otherwise of the marriage. He submitted that there was enough material before the learned court below in the present case to come to a prima-facie finding of the marriage and relationship of husband and wife between the petitioner and the Opposite Party No.2.

8. He submitted that under the aforesaid circumstances and also in view of the fact that the suit filed by the Opposite Party No.2, seeking a declaration that the petitioner is not the wife of the present Opposite Party No.2, having been dismissed in the year 2017, the impugned judgment passed by the learned court below cannot be sustained in the eyes of law and calls for interference in revisional jurisdiction.

Arguments on behalf of the Opposite Party No.2

9. Learned counsel appearing on behalf of Opposite Party No.2 vehemently opposed the prayer of the petitioner and submitted that the petitioner was already married to another person and accordingly, even if it is assumed that the second marriage was solemnized, the same cannot be said to be valid in the eyes of law. He submitted that the petitioner has not been able to prove before the learned court below about the factum of her divorce from her first husband.

10. He also submitted that in fact the marriage of the petitioner with the Opposite Party No.2 was never solemnized and the impugned judgment is a well-reasoned order and does not call for any interference. The learned counsel also submitted that so far as the dismissal of the suit filed by the present Opposite Party No.2 is concerned, the same was not on merit, but was dismissed for default and accordingly, it has no bearing in the matter.

11. It is not in dispute that the repeated opportunities were granted to the Opposite Party No.2 to respond to the aforesaid fact regarding dismissal of Title Suit No. 120/2010 vide order dated 03.11.2017, but the Opposite Party No.2 did not choose to reply. It is also not in dispute that the Opposite Party No.2 has personally joined the proceedings online on various dates through his Mobile No. 7986656965.

Arguments on behalf of the Opposite Party-State

12. Learned counsel appearing on behalf of Opposite Party- State also opposed the prayer of the petitioner and supported the submissions advanced on behalf of Opposite Party No.2. She also submitted that so far as the quantum of maintenance is concerned, the same may not be decided by this Court and only the legality and validity of the impugned order may be taken into consideration.

Findings of this Court

13. The case of the applicant (petitioner herein) is that she is the legally wedded wife of the Opposite Party No.2 and their marriage was solemnized on 28.08.2005 according to Sikh Rites and Customs at the local Gurudwara, Jamshedpur. At the time of marriage, the father of the petitioner gave all the articles including ornaments which were lying in the house of the Opposite Party-husband. Further case of the petitioner is that after two months of marriage, the Opposite Party-husband and his family members started misbehaving and torturing with the petitioner and started demanding one bullet motorcycle worth Rs.60,000/- from the parents of the petitioner and on refusal, the Opposite Party-husband and his family members continued torturing the petitioner and threatened her for dire consequences. It was alleged that on 04.11.2005, Opposite Party- husband and his family members ousted the petitioner from her matrimonial house after torturing and misbehaving with her and thereafter, the petitioner came back to her parents' house and since then, she has been residing there. It was further alleged that Opposite Party-husband never gave any maintenance to the petitioner since 04.11.2005 and also never visited the petitioner. On 15.11.2006, the petitioner came to know that the Opposite Party No.2 has remarried with another lady namely, Ravinder Kaur and discontinued all types of relationship with the petitioner. It was also mentioned that the parents of the petitioner are poor persons and there was nobody to look after her and the petitioner could not maintain herself without maintenance allowance from the Opposite Party-husband. The petitioner clearly mentioned in her petition that the Opposite Party-husband is a man of means and he was getting salary of Rs. 16,000/- per month from his service as salary. The petitioner claimed Rs.8,000/- per month as maintenance.

14. Upon notice, the Opposite Party-husband appeared before the learned court below and filed his show cause stating that the case of the petitioner was based on completely false story and the Opposite Party-husband is the husband of Ravinder Kaur and had no connection with the applicant. It was alleged that the Opposite Party was a widower having two major sons namely, Amandeep Singh and Gagandeep Singh from his first wife namely, Late Narender Pal Kaur who died on 24.10.2004 due to burn injury and after the death of his first wife, the Opposite Party visited Jamshedpur sometime in the year 2005 with his parents with a view to perform marriage and after arrival at Jamshedpur, he met with the petitioner who agreed to marry with the Opposite Party and the discussion regarding marriage was going on and in the meantime, after ring ceremony, the Opposite Party No.2 came to know that the petitioner is a married lady and had not taken divorce from her first husband and consequently, the Opposite Party-husband and his family members returned back to Chandigarh after breaking down the engagement with the petitioner. It was further mentioned in the show cause that after breaking down of the engagement with the petitioner, the Opposite Party performed his second marriage with one Ravinder Kaur on 09.07.2006 according to Sikh Rites and Customs and started living with her as husband and wife. It was categorically alleged in the show cause that the petitioner was never married with the Opposite Party and only with intention to snatch huge amount from the Opposite Party, the petitioner has instituted the case and also another complaint case bearing C/1 Case No. 34/2008 against the Opposite Party and his family members at Jamshedpur. It was also mentioned that the Opposite Party No.2 had filed one suit for declaration vide Title Suit No. 120/2010 which was pending before the court of Munsif at Jamshedpur against the applicant. It is not in dispute that the

Opposite Party No.2 had filed a suit for the relief that a decree be passed that the principal defendant is not the spouse of the Opposite Party No.2. It was alleged that after institution of the aforesaid false cases, the petitioner threatened the Opposite Party and his family members to damage them socially, economically and mentally and with this background, a prayer was made to dismiss the case.

15. The facts apparent from the records of the case are as follows:-

(a) The petitioner had filed an application before the learned court below for maintenance under Section 125 of Cr.P.C. which was numbered as Miscellaneous Case No. 84/2007.

(b) Inspite of service of notice upon the Opposite Party No.2, he did not appear in Miscellaneous Case No. 84/2007 and the matter was set-exparte against him.

(c) Vide order dated 01.10.2008, the Opposite Party No.2 was directed to pay maintenance of Rs. 4,000/- per month out of his monthly salary of Rs. 16,000/- in terms of the order, failing which the applicant was given liberty to realize the same through the process of law.

(d) Vide order dated 03.12.2009, non bailable warrant of arrest was directed to be issued against the Opposite Party No.2 on account of non-payment of maintenance allowance, which was in arrear from October, 2008 to September, 2009 amounting to Rs.52,000/-.

(e) Against the aforesaid order of grant of maintenance dated 01.10.2008, the Opposite Party No.2 filed Criminal Revision No. 162/2009 before this court.

(f) A petition for issuance of notice to the employer of the Opposite Party No.2 was also filed before the learned court below. Accordingly, an order dated 15.02.2010 was passed directing the employer of the Opposite Party No.2 to deduct and remit the maintenance amount to the

learned court below. From the records of the case, it appears that a letter dated 22.02.2010 was issued to the employer of the Opposite Party No.2 namely, Finance & Account Section, Punjab Civil Secretariat, 9th Floor, Chandigarh directing to deduct a sum of Rs. 60,000/- towards arrear of maintenance amount from the salary of the Opposite Party No.2, an employee of Punjab Civil Secretariat, 9th Floor, Chandigarh, Home Department (Daftari) alongwith regular maintenance @ Rs. 4,000/- per month and remit the same in favour of the petitioner through D.D. or cheque to the learned court below.

(g) As recorded in the order dated 07.05.2010 passed by the learned court below the Opposite Party No.2 was compulsorily retired from his services on 11.02.2010 and accordingly, the department was not able to execute the order dated 22.02.2010 of the learned court below and the said letter was kept on record. Thereafter, a petition was filed for issuance of distress warrant against the Opposite Party No.2.

(h) Criminal Revision No. 162/2009 was disposed of vide order dated 12.08.2010 with the following direction: - "Learned counsel for the petitioner submitted that the marriage is in dispute and therefore, the Opposite Party No.2 is not entitled to any maintenance. Furthermore, the applicant-Opposite Party has neither examined any independent witness, nor produced any documentary evidence to prove her marriage. The contention of the petitioner is a disputed question of fact.

In this view of the matter, I remand back this matter to the trial court to decide the matter afresh. Both the parties will appear before the trial court on 6th September, 2010 and for that purpose, no fresh notice is required to be served on any of the parties. The trial court will decide the matter within a period of six months from the date of appearance of the parties.

During the pendency of the proceeding in the court below, the petitioner will go on depositing Rs. 4,000/- in the

trial court, as directed by it, on or by 10th of every succeeding month. The Opposite Party No.2 shall be at liberty to withdraw the said amount on furnishing security in any form to the satisfaction of the trial court.

With the aforesaid observation this application is disposed of."

(i) Pursuant to the order of remand dated 12.08.2010 passed by this court in Cr. Revision No. 162/2009, the Opposite Party No.2 appeared before the learned court below as apparent from the order dated 06.09.2010, but the Opposite Party No.2 neither filed the order of the High Court, nor appeared on call before the learned court below. From perusal of the order-sheet of the learned court below dated 04.02.2011, it appears that an application was filed from the side of the Opposite Party No.2 to recall all the witnesses who were examined / discharged, as the Opposite Party wanted to cross- examine them and the said application for recall of witnesses was allowed by the learned court below on 28.02.2011. Thereafter, the witnesses appeared before the learned court below and were cross-examined by the Opposite Party No.2 and two more witnesses were examined from the side of the petitioner. Ultimately, the impugned judgment dated 23.08.2011 was passed.

(j) The present criminal revision petition was admitted vide order dated 21.06.2017 and the learned counsel appearing on behalf of the Opposite Party No.2 admitted that the order passed in Cr. Rev. No. 162 of 2009, while remanding the matter to the learned court below regarding payment of interim maintenance during the pendency of the proceedings, was not complied with by the Opposite Party No.2 and accordingly, this Court, vide order dated 21.06.2017 itself passed following order:

"In view of the above admitted position that no payment was made in the court below after the order passed in Cr. Revision No. 162 of 2009, husband/O.P. No. 2 is directed to pay Rs. 2000/- (two thousand) to the petitioner by 10th of every succeeding month during the pendency of this revision."

(k) The order dated 21.06.2017 passed by this Court was also not complied with and when the matter was taken up on 16.03.2021, the counsel for the parties jointly sought adjournment to find out the present position of Title Suit No. 120 of 2010 which was filed by the Opposite Party No.2 and was said to be pending.

(l) Thereafter, the matter was taken up on 23.03.2021 and it came to light that Title Suit No. 120 of 2010 was dismissed and it was also brought to the notice of this Court that the order dated 21.06.2017 was not complied with by Opposite Party No.2. In such circumstances, the Opposite Party No.2 was directed to comply the order dated 21.06.2017 by depositing an amount of Rs. 90,000/- (for total 45 months), if not already deposited, in the following bank account:

Sukhwant Kaur S/B Account No. 475610510000457 Bank of India Branch: Tata Steel Campus Jamshedpur IFSC Code- BKID0004756 Mobile No.- 9608119803, 7739338241

It was also directed that the fact regarding deposit of the amount be brought on record by filing supplementary affidavit by the Opposite Party No.2.

(m) On 06.04.2021, the Opposite Party No.2, who was appearing in person through Video Conferencing, submitted that as the petitioner is not his wife, he is not ready and willing to comply the order dated 21.06.2017 /

23.03.2021 and the matter was adjourned at the request of the counsel for the parties seeking two weeks' time to bring on record the order dismissal of Title Suit No. 120 of 2010 and also file the plaint of the said title suit. Thereafter, the plaint as well as the order of dismissal of the title suit was filed before this Court by way of supplementary affidavit, but in spite of repeated opportunities granted to the Opposite Party No.2 to file reply to the supplementary-affidavit, the Opposite Party No.2 did not choose to respond to the same and the matter was finally argued on 16.11.2021.

(n) This Court finds that the Opposite Party No.2 has neither complied the order dated 12.08.2010 passed in Criminal Revision No. 162/2009 by which the matter was remanded to the learned court below for fresh consideration, nor complied the order dated 21.06.2017, nor complied the order dated 23.03.2021 and ultimately, when he had joined the proceedings online on 06.04.2021, he flatly refused to comply with the order dated 21.06.2017 / 23.03.2021. The conduct of the Opposite Party No.2 reflects that he has no regards to the orders passed by this Court and has been bluntly refusing to comply the order of interim maintenance passed by this Court from time to time.

(o) It is not in dispute that the Opposite Party No.2 neither complied the order dated 01.10.2008 passed by the learned court below; nor complied the order dated 12.08.2010 passed in Criminal Revision No. 162/2009; nor complied the order dated 21.06.2017 / 23.03.2021 passed by this court in this criminal revision, all with regard to payment of maintenance to the petitioner.

16. On perusal of the records of the case, it revealed that the petitioner examined altogether five witnesses in support of her case. A.W.-1 Gurusharan Kaur is the sister of the petitioner, A.W.-2 Sukhwant Kaur is the petitioner herself, A.W.-3 Kulvinder Singh is the brother of the petitioner and A.W.-4 Chint Singh and A.W.-5 Mohan Singh are the persons related to Gurudwara. The Opposite Party No.2 examined one witness namely, Devashis Roy who is an Advocate's Clerk and is a formal witness. He had typed the show cause filed by the Opposite Party No.2.

17. The following documents were exhibited from the side of the petitioner:

Exhibit-1 is the Xerox Copy of the marriage certificate, Exhibit-1/1 is the signature of Gurudwara Secretary on marriage certificate produced in original, Exhibit- 2 to 2/d are the photographs, Exhibit-3 is the Xerox copy of the application and Exhibit-4 is the certified copy of the order dated 24.10.2008, 06.11.2008, 25.11.2010 and 02.06.2011 of C/1 Case No. 34/2008.

18. The learned court below, at Paragraph-13 of its impugned judgment, framed the following issue for consideration:

"On the basis of aforesaid pleadings, it is to be considered that whether the applicant is a married lady and even not taken divorce from her first husband. She again solemnized another marriage on 28.08.2005 with the Opposite Party according to Sikh Rites and Custom?"

19. The learned court below after framing the aforesaid issue recorded that there is clear evidence that the applicant had performed marriage earlier which has been supported by A.Ws.-1, 2 and 3 by stating that the first marriage of the applicant was dissolved from Gurudwara at Delhi in the year 1982 and that the divorce has not been taken place from any court. The learned court below recorded that it is an admitted

position that the applicant was a married lady and as per the applicant herself, she has taken divorce from her first husband in the year 1982 from Delhi Gurudwara and re-married with the Opposite Party on 28.08.2005 at local Gurudwara, Jamshedpur. The learned court below further recorded that it was submitted on behalf of the Opposite Party-husband that the applicant has claimed that the marriage was duly solemnized and was dissolved by custom, but the provision of the custom has to be proved. The applicant has not pleaded existence of any customary dissolution of marriage in their community and accordingly, the plea of the applicant that she was divorced by her first husband should be rejected. It was further submitted that the applicant relying on custom must prove the custom prevalent in her community, but there is no evidence on record to show that customary divorce was prevalent in her community. In this background, the learned court below held that the applicant has not taken divorce from her first husband as alleged by her and therefore, at the time of the alleged marriage with the Opposite Party No.2 on 28.08.2005, she was a married lady.

20. Thereafter, the learned court below dealt with the marriage certificate (Exhibit-1) which was produced by the applicant and recorded that it was argued from the side of the Opposite Party No.2 that the said certificate was a forged and fabricated document on the ground that the marriage was solemnized on 28.08.2005, but the certificate was issued after more than one year i.e. on 16.11.2006 and there is no reference or certificate number upon Exhibit-1 and it was further submitted that the spelling of letter head and the rubber stamp over the marriage certificate was also different. It was also submitted that it is admitted case from the side of the applicant that the Gurudwara did not maintain any register of marriage. Thereafter, the learned court below recorded that it was

submitted on behalf of the applicant that from perusal of Exhibit-2 which are the photographs of marriage, it is clearly proved that the marriage was solemnized, whereas it was argued on behalf of the Opposite Party No.2 that the said photographs are related to the ring ceremony and not marriage ceremony and the photographs are not admissible in evidence as their negatives were not produced on the record and therefore, the marriage could not be said to be solemnized according to Sikh Rites and Customs. The learned court below after recording the aforesaid submissions in connection with the marriage and the marriage certificate recorded its finding at Paragraph-18 as follows: -

"18. In view of the aforesaid discussions as well as material available on the record, I am of the view that the applicant has not been able to prove that her marriage was duly solemnized with the Opposite Party on 28.08.2005 according to Sikh rites and custom at the local Gurudwara Shahid Baba Deep Singh, Sitaramdera, Jamshedpur. She has also not able to prove that she has taken divorce from her first husband in the year 1982 from Gurudwara at Delhi. The marriage certificate (Ext.1) filed on behalf of the applicant appears to be not genuine and the photographs of alleged marriage are also not admissible in evidence as their negatives were not produced on record. Therefore, I am of the considered view that the alleged marriage could not be said to be solemnized according to Sikh Customary rites. Therefore, under the facts and circumstances as stated above the applicant Sukhwant Kaur is not entitled to get any maintenance from Navtej Singh the Opposite Party."

21. This Court finds that A.W.-1 is the sister of the petitioner. She stated that the marriage of the petitioner with the Opposite Party No.2 was solemnized on 28.08.2005 according to Sikh Rites and Customs and after the marriage, her in-laws demanded one Bullet motorcycle and Rs.20,000/- for the reception and on non-fulfilment of the demand, they tortured the petitioner and upon receiving phone call from the petitioner, she alongwith her brother A.W.-2 went to

Chandigarh and found the petitioner in a precarious condition and ultimately, they brought the petitioner back to Jamshedpur on 02.11.2005 and got her treated in M.G.M. Hospital. She further stated that the petitioner has no source of income, whereas the Opposite Party No.2 works as a Daftari in Punjab Civil Secretariat and was earns Rs.16,000/- per month. In her cross-examination, she admitted that the petitioner was a married lady earlier and was divorced from Gurudwara in the year 1982 and she has not taken divorce from any court. She denied the suggestion that the petitioner is not entitled to get maintenance by virtue of a ring ceremony only and that the Opposite Party has not solemnized marriage with her.

22. A.W.-2 is the petitioner herself and she stated that her marriage with the Opposite Party No.2 was solemnized on 28.08.2005 and after the marriage, she was tortured by the Opposite Party No.2 on account of non-fulfilment of the demand of one Bullet motorcycle and Rs.20,000/- and then, she called her brother A.W.-3 and her sister A.W.-1 and on 02.11.2005, they brought her back to Jamshedpur and she was treated at MGM, Jamshedpur and since then, she has been residing at Jamshedpur. She further stated that on 16.02.2006, the Opposite Party No.2 had come to take her back, but when the demand was not fulfilled, he refused to take her back to Chandigarh. She also stated that she has no source of income and the Opposite Party No.2 works as Daftari in Punjab Civil Secretariat and his salary is Rs.16,000/- per month. In her cross- examination, she admitted that she was married with another person and had taken divorce from him from Gurudwara and not from any court. She further stated that the marriage certificate with the Opposite Party has been filed by her which is the original one and not a photocopy and it contains the reference number and registration number and it contains the signatures of the authorities of the Gurudwara. She also stated

that she can file the negatives of the photographs. She admitted that though her marriage with the Opposite Party was solemnized in the year 2005, but the marriage certificate was issued from Gurudwara in November, 2006 and no reason was given for the delay.

23. A.W.-3 is the brother of the petitioner. He stated that the marriage of the petitioner with the Opposite Party No.2 was solemnized on 28.08.2005 according to Sikh Rites and Customs and after the marriage, the Opposite Party No.2 tortured the petitioner for demand of one Bullet motorcycle and Rs.20,000/-. On receiving call, he went to Chandigarh and brought the petitioner back to Jamshedpur on 12.11.2005. He came to know on 09.07.2006 that Opposite Party No.2 has performed second marriage with one Ravindra Kaur. He further stated that the Opposite Party No.2 works as a Daftari in Punjab Civil Secretariat and earns Rs.16,000/- per month as salary. He exhibited the marriage certificate as Exhibit-1 and five photographs of the marriage between the parties as Exhibits- 2 to 2/d. In his cross-examination, he admitted that the previous marriage of the petitioner was dissolved in Delhi at Gurudwara in 1982 and she has not taken divorce from any court. He also admitted that there is no reference number and registration number on the marriage certificate and the marriage certificate contains the signatures of three officials of the Gurudwara.

24. This Court further finds that after remand, two more witnesses were examined from the side of the petitioner i.e. A.W.-4 and A.W.-5.

25. A.W.-4 stated that he had issued the certificate of marriage on 16.11.2006 and at that point of time, he was the Head Granthi of the Gurudwara. He stated that the marriage certificate is in his writing and signature which has already been exhibited as Exhibit-1 and the photographs Exhibits- 2 to 2/d were taken at the time of the marriage. In his cross-

examination, he admitted that there is no register as such maintained regarding marriage in Gurudwara. He further admitted that the marriage was solemnized on 28.08.2005 and the certificate was issued on 16.11.2005 and the certificate does not contain any reference number.

26. A.W.-5 also stated that the marriage certificate was issued by him on 16.11.2006 which has already been marked as Exhibit-1 and he exhibited his signature on the marriage certificate as Exhibit-1/1. He also stated that the photographs Exhibits- 2 to 2/d were taken in his presence. He further stated that an application was filed for issuance the marriage certificate and he exhibited the photocopy of the application dated 28.08.2005 as Exhibit-3 (with objection).

27. After scrutiny of the evidences of the witnesses examined from the side of the petitioner, this Court finds that A.W.-2, the applicant-petitioner has fully supported her case regarding solemnization of her marriage with the Opposite Party No.2 on 28.08.2005. She has also supported the facts that due to non- fulfillment of the demand of one Bullet motorcycle and Rs.20,000/-, the Opposite Party No.2 and his family members always tortured her and due to which, she left her matrimonial house and came back from Chandigarh to Jamshedpur with her brother. She has stated that she has no source of income to maintain herself, whereas her husband is working in Civil Secretariat and was getting Rs. 16,000/- per month as his salary. She has been thoroughly cross-examined from the side of the Opposite party No.2. She was cross-examined on the point of her earlier marriage wherein she stated that the marriage certificate was original and it was not the photocopy and it contained the signature of the authorities of Gurudwara. She also stated that she can produce the negatives of the photographs. She denied the suggestion that only ring ceremony was performed and no marriage was performed.

However, on the point of the photographs of marriage which have been exhibited, there has been no cross-examination or even suggestion that the said photographs were of ring ceremony and not of marriage.

28. This Court further finds that A.W.-1 has fully supported the case of the petitioner regarding solemnization of the marriage of the petitioner with the Opposite Party No.2 on 28.08.2005 according to Sikh Rites and Customs and torturing the petitioner by the Opposite Party No.2 and his family members due to non-fulfillment of the demand of one Bullet motorcycle and Rs.20,000/- and bringing the petitioner from Chandigarh to Jamshedpur on 02.11.2005. She has also supported the facts that the petitioner had no source of income, whereas the Opposite Party No.2 was working as a Daftari in the Civil Secretariat and was getting Rs. 16,000/- per month as his salary.

29. A.W.-3 has also fully supported the case of the petitioner regarding the date of marriage with the Opposite Party No.2, the demand of one Bullet motor cycle and Rs.20,000/- from the side of the Opposite Party No.2 and assaulting the petitioner on non-fulfillment of the demand. He further stated that upon receiving a phone call, he had gone to Chandigarh and had found her sister in a precarious condition and had brought her back to Jamshedpur on 02.11.2005 and on 09.07.2006, he came to know that the Opposite Party No.2 has performed second marriage with one Ravinder Kaur. He also stated that Opposite Party No.2 is working in Civil Secretariat.

30. A.W.-4 is the Head Granthi of the Gurudwara at the relevant time of the alleged marriage solemnized between the petitioner and the Opposite Party No.2 and he had issued the marriage certificate (Exhibit-1) on 16.11.2006 in which he had signed. He identified the photographs of marriage ceremony (Exhibits-2 to 2/d). He has been also fully cross-examined

wherein he has admitted that there is no register in the Gurudwara about the marriage. He has stated that the marriage was solemnized on 28.08.2005 and the certificate of marriage was issued on 16.11.2006 and on the marriage certificate, there is no reference number and there is no signature upon the designation mentioned in the certificate. A.W.-4 has been cross- examined on the point of delay in issuance of marriage certificate as the marriage was said to have been performed on 28.08.2005 and the certificate was issued on 16.11.2005. But this witness has not been cross-examined on the point of the photographs which have been exhibited as Exhibits-2 to 2/d and have been claimed to be the photographs of marriage.

31. A.W.-5 was the President of Gurudwara. He has stated that on 16.11.2006, the certificate of marriage was issued and he also identified the said marriage certificate which was already exhibited as Exhibit-1 and he exhibited his signature upon the marriage certificate as Exhibit-1/1. He also identified the photographs which were earlier marked as Exhibits- 2 to 2/d. He also exhibited the application for issuance of marriage certificate as Exhibit-3. He has also been thoroughly cross- examined wherein he stated that there was no marriage register and upon the certificate, no registration number is mentioned and he had issued the marriage certificate when it was necessary. He has also stated that there are differences in the spelling of letter head and rubber stamp of the marriage certificate (Exhibit-1). He has been cross-examined on the point of issuance of marriage certificate and there was difference in the letter head and rubber stamp. However, even in his cross- examination, he has fully supported the marriage as well as issuance of the marriage certificate. But he has also not been cross-examined on the point of the photographs of marriage.

32. This Court further finds that the marriage certificate as well as the photographs of marriage i.e. Exhibits- 2 to 2/d have

been marked as exhibits without any objection. The photographs of marriage have been exhibited by A.W.-3 and there is no cross-examination of A.W.-3 on the point of these exhibited photographs. So far as previous marriage of the petitioner is concerned, A.W.-3 has been cross-examined on this point and he has stated that the earlier marriage of his sister had ended into a divorce in the year 1982 through Gurudwara Committee, Delhi. During cross-examination on the point of the certificate of marriage, he stated that the certificate number and reference number is not mentioned in the certificate of marriage and that the photocopy has been produced. He has stated that the original marriage certificate is lying with the Gurudwara.

33. In the judgment passed by the Hon'ble Supreme Court in the case of Santosh (SMT) vs. Naresh Pal reported in (1998) 8 SCC 447, the contention was that the wife had not proved that she was a legally married wife because her first husband was living and there was no dissolution of marriage. In the said case, the learned Judicial Magistrate had come to the conclusion that the respondent of the case was already divorced from his first wife and thereafter, he had entered into a second marriage with the appellant who was also a divorcee. However, the High Court took a contrary view and observed that the wife had not proved that she was the married wife of the respondent and that she had her first husband and there was no dissolution of marriage with him. In the aforesaid background, the Hon'ble Supreme Court held as under: -

"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. Consequently, in our view the High Court was not justified in interfering with the pure finding of fact reached by

learned Judicial Magistrate in a proceeding under Section 125 CrPC and therefore only on this short ground and without expressing any opinion on the marital rights of the parties which may have to be adjudicated in civil proceedings, the order of the learned Magistrate passed under Section 125 CrPC will have to be affirmed and the judgment and order of the High Court is set aside. The appeal is allowed. No costs."

34. The Hon'ble Supreme Court in the case of Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and another reported in (1999) 7 SCC 675 also considered the aforesaid judgment passed in the case of Santosh vs. Naresh Pal (supra) and held at Para-9 that the order passed in an application under Section 125 of the Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide a summary remedy for providing maintenance to the wife, children and parents. It was found that for the purpose of getting his rights determined, the appellant of the said case had also filed a civil suit, which was pending before the trial court. The Hon'ble Supreme Court referred to the earlier judgment passed by the Hon'ble Supreme Court reported in (1971) 3 SCC 923 wherein it was observed that the maintenance under Section 488 of Cr.P.C., 1898 (similar to Section 125 of Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 of Cr.P.C., 1898 (similar to Section 125 of Cr.P.C.) is a summary order which does not finally determine the rights and obligations of the parties and 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.

35. In the aforesaid case of Dwarika Prasad Satpathy (supra), the Hon'ble Supreme Court ultimately held that if the Magistrate is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125 of

Cr.P.C. which are of a summary nature, strict proof of performance of essential rites is not required. Either of the parties aggrieved by the order of the maintenance under Section 125 of Cr.P.C. can approach the civil court for declaration of status as the order passed under Section 125 of Cr.P.C. does not determine the rights and obligations of the parties.

36. The Hon'ble Supreme Court again followed the judgment passed in the case of Dwarika Prasad Satpathy (supra) in another judgment reported in (2005) 3 SCC 636 (Savitaben Somabhai Bhatiya vs. State of Gujarat and Others) wherein it has been observed that if the claimant in a proceeding under Section 125 of Cr.P.C. succeeds in showing that she and the respondent have lived together as husband and wife, the court has to presume that they are legally wedded spouses and in such a situation, one who denies the marital status can rebut the presumption. It was held that once it is admitted that the marriage procedure was followed, then it is not necessary to further prove as to whether the said procedure was complete as per Hindu Rites, in the proceedings under Section 125 of the Code. In the said judgment, it was also held that the marriage of a woman in accordance with Hindu Rites with a man having a living spouse is a complete nullity in the eyes of law and she is not therefore entitled to benefit of Section 125 of Cr.P.C. or Hindu Marriage Act and the marriage is null and void and not voidable.

37. In the present case, there is a serious dispute based on fact and law as to whether the petitioner had given divorce to her earlier husband and whether she was married to the Opposite Party No.2 as claimed by her. Another aspect of the matter is that the Opposite Party No.2 has performed marriage with another lady and claimed that he did not perform marriage (though performed ring ceremony) with the petitioner, once he

came to know that she had not taken divorce from her first husband. Accordingly, the Opposite Party No.2 had filed a suit for the purposes of declaration of his marital status with respect to the present petitioner, which was pointed out in the show cause filed by him before the learned court below and this aspect of the matter is not in dispute. The said suit was pending on the date of disposal of the petition under Section 125 of Cr.P.C. and admittedly, now the suit has been dismissed. While holding that the petitioner was having another living spouse from whom she was not divorced and that no marriage was performed between the petitioner and the Opposite Party No.2, the fact that the present Opposite Party No.2 had filed a suit for declaration of marital status between the parties has not at all been considered by the learned court below in the summary proceeding under Section 125 of Cr.P.C..

38. Upon perusal of the evidences on record, this Court finds that the marriage certificate has been exhibited without objection and has been supported by all the witnesses from the side of the petitioner and the photographs Exhibit-2 to 2/d have also been exhibited without any objection. There has been no cross-examination on the point of the five photographs from the side of the Opposite Party No.2, although the witnesses have referred to the photographs being the photographs of marriage. This Court further finds that A.W.-2 (applicant-petitioner) in her cross-examination has stated that she can produce the negative of the photographs as well. There is also consistent evidence on record that the petitioner was brought back to Jamshedpur by the witnesses from her matrimonial home at Chandigarh where she lived with the Opposite Party No.2 as his wife, but there is no cross examination on this point from the side of the Opposite Party No.2.

On the point of divorce of the petitioner from her first husband

39. This Court finds that the learned court below, while rejecting the application filed under Section 125 of Cr.P.C, has recorded that although it is admitted on record that the petitioner was earlier married and she claimed that she had taken divorce from her previous husband at Delhi Gurudwara according to Sikh customs and rights, but she has not proved the existence of such customary dissolution of marriage and has held that the petitioner had not taken divorce from her first husband as alleged by her and accordingly, held that at the time of alleged marriage with the Opposite Party No.2 on 20.08.2005, she was a married lady.

40. This Court is of the considered view that the learned court below, while holding that the petitioner has not proved the dissolution of her first marriage, has failed to consider three aspects of the matter. Firstly, the suit for declaration of marital status between the parties was pending; secondly, all the witnesses have consistently deposed regarding dissolution of the first marriage of the petitioner at Delhi Gurudwara according to Sikh Rites and Customs and the existence of such custom was essentially a matter of evidence to be proved in the suit pending between the parties, inter-alia, on the same point; and thirdly, there is consistent evidence on record that the petitioner was brought back to Jamshedpur by the witnesses from her matrimonial home at Chandigarh where she had lived with the Opposite Party No.2 as his wife.

On the point of performance of marriage between the parties.

41. This Court finds that the learned court below while considering the marriage certificate (Exhibit-1) has held the same to be a forged and fabricated document on the ground that the marriage was solemnized on 28.08.2005, but marriage certificate (Exhibit 1) was issued after more than one year i.e. on 16.11.2006 and that the marriage certificate does not have any

reference or certificate number and that the spelling of the letter head and rubber stamp over the marriage certificate are different. The learned court below also found that the Head Granthi of Gurudwara at Jamshedpur (where the marriage ceremony between the parties was claimed to have been performed) has admitted in his deposition that there is no register in Gurudwara about the marriage. The learned court below, while considering the photographs exhibited by the petitioner as evidence of marriage between the parties, considered the argument advanced on behalf of the Opposite Party No.2 that they are related to ring ceremony and are not relating to the marriage and held that the photographs are not admissible in evidence as their negatives were not produced on the record. Thus, the learned court below held that the marriage certificate (Exhibit-1) does not appear to be genuine and the photographs of marriage are not admissible in evidence as their negatives were not produced.

42. This Court finds that the learned court below, while holding that the alleged photographs of marriage are not admissible in evidence as their negatives were not produced in court, has failed to consider that the photographs have been admitted in evidence without any objection from the side of the Opposite Party No.2 and also failed to consider that there has been no cross-examination whatsoever in connection with the photographs of the marriage which have been exhibited as Exhibits- 2 to 2/d. During arguments, it was contended from the side of the Opposite Party No.2 that the marriage photographs were not genuine and they were not the photographs of marriage and that the photographs were of ring ceremony and not of marriage. Thus, the learned court below failed to consider that the photographs were not in dispute, but the dispute was as to whether they were of ring ceremony or of marriage. It is also important to note that performance of ring

ceremony between the parties is an admitted fact and what is in dispute is the performance of marriage ceremony. This Court finds that there is consistent oral evidence on record including that of Granthi of Gurudwara regarding performance of marriage between the parties at Gurudwara coupled with the aforesaid photographs (which were claimed to be of ring ceremony by the Opposite Party No.2 during the course of arguments before the learned court below) and the marriage certificate (which has been held to be not genuine) and there is also consistent evidence on record that the petitioner was brought back to Jamshedpur by the witnesses from her matrimonial home at Chandigarh where she had lived with the Opposite Party No.2 as his wife. This Court also finds that that the learned court below has totally ignored the evidence on record that the petitioner was brought back to Jamshedpur by the witnesses from her matrimonial home at Chandigarh where she had lived with the Opposite Party No.2 as his wife. This aspect of the matter prima facie falsifies the stand of the Opposite Party No.2 that after performance of the ring ceremony, he did not perform the marriage as he discovered that the petitioner was already married and had a living spouse.

43. Considering the totality of the materials on record, this Court is of the considered view that the petitioner has been able to prima facie prove the performance of a valid marriage between the petitioner and the Opposite Party No.2 and she has also been able to prove that she had gone to her matrimonial house and had stayed there for a few months and ultimately, on account of torture, she had no option, but to come back to Jamshedpur and live with her brother A.W.-3 and she had come back from her matrimonial house alongwith A.W.-1 and A.W.-

3. This Court finds that there is no cross-examination of the witnesses from the side of the Opposite Party No.2 on the point

that A.W.-1 and A.W.-3 had gone to the matrimonial house of the petitioner and had brought her back to Jamshedpur.

44. As a cumulative effect of the aforesaid findings, the impugned judgment refusing to grant maintenance to the petitioner is perverse and it cannot be sustained in the eyes of law. Accordingly, the Judgment dated 23.08.2011 passed by the learned Principal Judge, Family Court, East Singhbhum at Jamshedpur in Miscellaneous Case No. 84/2007 is set-aside.

45. So far as quantum of maintenance is concerned, it is not in dispute that the Opposite Party No.2 was having monthly income of Rs.16,000/- and out of which, Rs.4000/- only was directed to be paid to the petitioner through various interim orders which the Opposite Party No.2 did not comply with. Accordingly, the petitioner is entitled to get maintenance of Rs.4000/- per month right from the month of August, 2010 and onwards when the order of grant of interim maintenance was passed by this Court vide order dated 12.08.2010 in Criminal Revision No. 162/2009 and the matter was remanded to the learned court below for fresh consideration.

46. Consequently, the Opposite Party No.2 is directed to pay the entire arrears of maintenance till December, 2021 to the petitioner latest by 31.03.2022 by crediting the amount in the bank account of the petitioner details of which have already been mentioned above and the Opposite Party No.2 is further directed to pay the current monthly maintenance amount of Rs.4000/- to the petitioner from January, 2022 by crediting the same in the bank account of the petitioner on or before 10th day of every month.

47. Accordingly, with the aforesaid findings and directions, the present criminal revision application is hereby allowed.

48. Interim order, if any, stands vacated.

49. Pending interlocutory application, if any, is dismissed as not pressed.

50. Let the lower court records be sent back immediately to the court concerned.

51. Let a copy of this order be communicated to the learned court below through "FAX/Email".

52. Let a copy of this order be also communicated to the Opposite Party No.2 through speed post as well as through WhatsApp on his Mobile No. 7986656965 which has been used by him to join the court proceedings virtually.

53. The office is directed to keep a copy of the track report of the speed post-delivery and also to send a copy of the track report to the learned court below for future reference, if required.

(Anubha Rawat Choudhary, J.) Mukul/Saurav