Husband denies factum of marriage saying sapthapathi etc and religious observances were NOT completed, though they were living together
Court says strict proof NOT needed
Gujarat High Court
Shardaben Pankajkumar Vyas vs Pankajkumar Sureshchandra Vyas ... on 2 February, 1995
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Gujarat High Court
Shardaben Pankajkumar Vyas vs Pankajkumar Sureshchandra Vyas ... on 2 February, 1995
Equivalent citations: (1995) 2 GLR 1679
Author: J Bhatt
Bench: J Bhatt
JUDGMENT
J.N. Bhatt, J.
1. Main question in focus in this petition is whether the petitioner-original applicant is entitled to claim maintenance from opponent No. 1, as a wife under Section 125 of the Criminal Procedure Code ('Code' for short), as the claim of maintenance is rejected by the learned Judicial Magistrate, First Class at Surat, in Criminal Maintenance Application No. 12 of 1983, on 19-8-1987, holding that the petitioner-wife has failed to establish factum of marriage with respondent No. 1-husband.
2. Having examined the facts and circumstances and the evidence, on record, in light of the relevant propositions of law, impugned order of the trial Magistrate is found, with due respect, to be perverse, unjust and patently illegal. Therefore, this Court is inclined to interfere with the impugned judgment and order passed by the learned trial Magistrate for the reasons which this Court hastened to articulate appreciating well and keeping in mind the limited jurisdictional sweep and scope permissible and available in this revision petition under Sections 397 and 401 of the Code. Ordinarily, impugned order relating to factual aspect should not be disturbed in a revision like one on hand under the provisions of the Code, unless it is shown, successfully, that the impugned order is perverse, unjust and illegal indicating non-application of mind to the vital factual aspects of the case. This is a fit case for interference, wherein, the impugned order is found not only unjust and perverse but patently illegal.
3. The petitioner wife is the original applicant who filed an application under Section 125 of the Code for her maintenance at the rate of Rs. 500/- per month from respondent No. 1 husband-Pankajkumar Sureshchandra Vyas, inter alia, contending that she is a deserted wife and is unable to maintain herself. She is hereafter referred to as the 'original applicant' and respondent No. 1-Dr. Vyas as 'original opponent' for short.
4. In support of her claim for maintenance, she contended that she got married with the original opponent, on 17-11-1977, and since then, both of them were living together at the house of the original opponent-husband, at village Khatodra, as husband and wife. The original opponent-husband is alleged to have given ill-treatment and cruelty to the original applicant-wife, as the original opponent-husband was indulging in illicit relations with some woman. She was left and deserted by the original opponent-husband in helpless conditions at village Khatodra without making any arrangement for her maintenance on or around March, 1981. She also alleged that she refused to oblige original opponent-husband for giving consent to dissolve the marriage by an agreement of dissolution. It is further alleged that the original opponent-husband desired divorce as he wanted to marry with other woman.
5. The wife also pleaded that she is having no independent source of income of her own and she is unable to maintain herself. Whereas, the original opponent-husband is doing medical practice and running a dispensary and earning well out of good medical practice. According to the version of the applicant wife, her husband was earning Rs. 3,000/- to Rs. 4,000/- per month at the time of filing this petition for maintenance. Therefore, she claimed an amount of Rs. 500/- per month by way of her maintenance under Section 125 of the Code from her husband.
6. The opponent-husband resisted the claim of maintenance of the applicant on various grounds. He inter alia contended in his written statement at Ex. 11 that the applicant is not legally wedded wife and as there was no valid marriage between them. Thus, the factum of alleged marriage was countenanced. He denied other averments made in the application for maintenance including the allegation that he is earning Rs. 3,000/- to Rs. 4,000/- per month.
7. The applicant-wife Shardaben relied on her evidence, at Ex. 18, and also relied on the evidence of one Savitaben Punabhai, at Ex. 29. The opponent-husband Dr. P.S. Vyas relied on his evidence at Ex. 62 and on the evidence of the other witnesses, viz., (1). Rameshchandra Nathalal Pandya Ex. 85, (2) Kashmiraben Prafulchandra Desai Ex. 101 and (3) Kavindraray Gunvantray Bhatt Ex. 108.
8. Upon assessment of evidence and on appreciation of the facts and circumstances emerging from the record of the case, the learned trial Magistrate rejected the application for maintenance of the wife on 19th August 1987, holding that the applicant has failed to establish that she is a legally wedded wife of the opponent. Thus, the claim for maintenance came to be rejected on the ground of want of proof of factum of marriage. Being aggrieved by the said judgment and order recorded by the trial Magistrate against original applicant-alleged to be a wife, has now come up before this Court challenging its legality and validity by invoking the aids of provisions of Section 397 of the Code.
9. It is true that in order to succeed in an application for maintenance under Section 125 of the Code, it is incumbent upon the applicant to prove first of all that she is legally wedded wife. Unquestionably, it is the first statutory pre-requisite so as to succeed oneself as a wife to claim maintenance under Section 125 of the Code. Apart from plain reading of the provisions of Section 125 of the Code, it is very well settled that expression "wife" in Section 125 of the Code means legally wedded wife. Therefore, there is no dispute about the fact that in order to succeed in a claim for maintenance under Section 125 of the Code, it is obligatory and pre-requisite for the applicant who is claiming to be a wife to show that she is a legally wedded wife.
10. As there was controversy with regard to the factum of marriage, the learned Magistrate was required to go into that question. Therefore, the trial Court has rightly gone into the controversy as to whether the wife has, successfully, established, the factum of marriage. However, while doing so, unfortunately and with due respect, the trial Magistrate has failed to appreciate the extent and degree of proof required to show the factum of marriage for the purpose of claiming maintenance under Section 125 of the Code. When the question of validity of marriage is in issue, the Court is bound to address itself to the nature of proceedings in which the challenge is made, as the standard of proof of marriage and degree of evidence varies from forum to forum. The approach of the trial Magistrate in insisting upon strict proof of marriage and refusing to accept the evidence of the original applicant supported by documentary evidence in the nature of Marriage Registration Certificate placed on record in the trial Court by the concerned clerk of the office of the Registrar of Marriage, is totally perverse. Therefore, it must be stated unequivocally, that it is necessary for the Court concerned to address itself first that the standard of degree of proof of factum of marriage warranted in the circumstances of the case and the nature of dispute and type of forum before which it is agitated. The strict proof of marriage is required in order to find a person guilty for bigamy - Second marriage under Section 494 of the Indian Penal Code or to prove right emerging from sacred document like will. This, however, is not the standard and is not required to be insisted upon in a proceeding under Section 125 of the Code, wherein preponderance of probability emerging from the record can well be taken into account with regard to the dispute pertaining to legality and validity of the marriage between the parties. The reasons assigned for not accepting the evidence which is produced from the office of the Registrar of Marriage, are totally unsustainable. Even the evidence of wife while viewed in light of the written statement at Ex. 11, of the husband and his witnesses would constitute sufficient launching pad to raise presumption of factum of marriage between the parties. Whereas in the present case, wife has sought support from the documentary evidence in the nature of Marriage Registration Certificate. It may be noted that the factum of marriage with the required degree of proof for claiming maintenance under Section 125 of the Code could be established even in absence of such documentary evidence. However, in the present case, the evidence of applicant Shardaben at Ex. 18, receives material re-enforcement by documentary evidence produced, at Ex. 30, which is a certified copy of Marriage Registration between the parties. Unfortunately, the learned trial Magistrate has emphasized upon meticulous and detailed inquiry with regard to the status of the parties as if this is a case where strict proof of marriage under Section 494 of the Indian Penal Code is required, or in a case of claim arising out of testamentary document. It is a settled proposition of law that degree of proof or standard of evidence varies depending upon the dispute between the parties and even in respect of same dispute pending before the forum at which it is agitated and regarding provision of law under which the right is emerging.
11. It is true that there is no evidence on record to show that the marriage between the parties came to be solemnized as per religious rites and customary laws but that is not necessary in all cases for proving relationship or marital status between the parties. If it is shown, it is an additional evidence and acceptable evidence. The factum of marriage attracts presumption and it is in accordance with law, for the purpose of qualifying oneself and claiming maintenance under Section 125 of the Code, keeping in mind very purport and underlined design of provisions of Section 125 of the Code. A lady claiming to be a wife has to show that she is legally wedded wife and this factum of marriage can be established by various circumstances including long stay between the parties and marital enjoyment between them and parties are taken to have been living as such as spouses by the society. If this is established, it is sufficient to presume marital status between the parties for the limited purpose of qualifying oneself to claim maintenance under Section 125 of the Code. Applicant cannot be denied the claim for maintenance on the ground that marriage is strictly not established and as such, wife is not entitled to claim maintenance under Section 125 of the Code, if any legality and validity alleged against the factum of marriage is apparent and without any doubt. On the contrary, in a case on hand, factual scenario is otherwise.
12. It is settled principle of law which is unfortunately not appreciated by the trial Court that in proving a marriage in a proceeding under Section 125 of the Code which is in civil nature, the standard of proof need not be as high as required in a criminal prosecution, for bigamous marriage under Section 494 of the Indian Penal Code. In Section 494 of the Indian Penal Code, there is specific and special provisions. Before conviction could be recorded under Section 494, the following ingredients ought to be established beyond reasonable doubt as contemplated by Section 494 of the Indian Penal Code:
(1) That the complainant had been married to the accused;
(2) That the accused contracted second marriage where first marriage was still subsisting; and
(3) That both the marriages were valid and strictly according to law governing the parties.
13. Section 494 prohibits marrying again during life time of husband and wife. Breach of provisions of Section 494 is made punishable in criminal prosecution. Therefore, strict proof or degree of evidence for marriage is required and ought to be insisted upon, but the standard of proof required to be proved for the purpose of proving marriage under Section 494, is not the same to prove oneself qualified for maintenance under Section 125 of the Code. In other words, for the proof of marriage between the parties, degree or extent of proof should not be insisted upon in the proceedings claiming maintenance under Section 125 of the Code which is as high as required for proving an offence of bigamy under Section 494 of the Code. This aspect unfortunately, is not properly examined and appreciated by the learned trial Magistrate. The trial Court went on applying the law required for proving the offence, forgetting requirements to prove the marriage for a limited purpose for claiming maintenance under Section 125 of the Act which has clearly resulted into miscarriage of justice in rejecting the claim for maintenance under Section 125 of the Code.
14. It is, therefore, very clear that in the case for maintenance under Section 125 of the Code, it is not necessary that the marriage should be established beyond reasonable doubt as required under Section 494 of the Indian Penal Code. On the contrary, it will be enough for the trial Court that prima facie case is made out in order to afford immediate and speedy relief to the suffering party, while leaving open to the aggrieved party to agitate such a specious plea of invalidity of marriage before the competent civil Court. What is required to consider is the factum of marriage and not the detailed inquiry of legality of marriage. It is not disputed that the applicant was staying with the opponent. It is also very clear from the record that she stayed with the opponent-husband for a long period of 42 months and they were taken for granted to have been living as husband and wife. The trial Court has also committed serious error in rejecting the evidence of the wife while putting her to strict proof of marriage. It is also manifest from the written statement, Ex. 11, and the evidence of the opponent - Dr. Vyas, that both of them were living under one roof for a long period. What is alleged, on the contrary, by the opponent Dr. Vyas is that there was no solemnization of marriage as per religious rites and/or customary ceremony. However, it appears from the written statement and the evidence of the opponent that he wanted to marry with the applicant but on his finding that she is not a Brahmin, he was forced to change his mind. It is also clear from the record that the applicant came in contact of opponent as she was frequently taking medicines from the opponent-husband and was remaining under his medical treatment. So close intimacy, if at all, there was any, was because of practice as Medical Officer and he came in contact with the applicant-wife as patient and as the opponent is unmarried, he desired to marry applicant. It is also found that the applicant-wife allegedly gave understanding to the opponent that she is a Brahmin, and therefore, both the parties decided to marry. However, the defence of the opponent is that there was no actual ceremonious or solemnization of the marriage as alleged by the applicant. It is found from the statement of the applicant that she is not a Brahmin and since then, the opponent-Dr. Vyas changed his mind to marry her. Thus, what is denied is that there was no celebration or solemnization of marriage which is not condition precedent to claim maintenance under Section 125 of the Code. Section 125 applies to all parties irrespective of the religion or custom they enjoy. It applies to all the parties, whether the marriage is solemnized under particular provision of law or Hindu Law or under Customary rites or under general Law. This aspect is also not seriously considered by the trial Court as it was not properly placed in focus before the trial Court.
15. The applicant Shardaben has, clearly, testified in her evidence, at Ex. 18, that the marriage was solemnized and photographs were taken, on 17-11-1977. Thus, celebration is also testified. However, the applicant has stated in her evidence further that the photographs were not in her possession because she was deserted by the opponent who was desirous to marry another woman with whom he had illicit relationship. It is very clear from the evidence of the applicant-wife that she and opponent both remained under one roof from 17-11-1977 to 7th March 1981, till the opponent deserted the applicant-wife. Thus, there was enjoyment of status of spouses between the parties for a long spell of almost 42 months under one roof. This part of evidence emerging from the record has remained unimpeachable. This aspect, ipso-facto, first raised the presumption of factum of marriage between the parties and required for the limited purpose for claiming maintenance under Section 125 of the Code.
16. Apart from that the evidence of the wife is supported by documentary evidence of Marriage Registration Certificate produced, at Ex. 30. In order to substantiate her version, the applicant Shardaben had relied on the evidence of one witness Savitaben, at Exh. 29, who was working in the office of Registrar of Marriage, as clerk, at the relevant time. According to the evidence of the said witness Savitaben and the documentary evidence produced by her from her custody, it becomes crystal clear that the applicant and opponent have filed application for registration of marriage stating the date of marriage as 28th October, 1978. This part of evidence is not relied by the trial Court on the ground that there is some difference in the dates in the evidence of wife and the documentary evidence, at Ex. 30. This is of course insignificant aspect. One may commit a mistake in mentioning the date of marriage and that cannot be taken to the stage of disbelieving entire evidence only on that ground. The date of marriage is shown in notice sent to the opponent by the applicant which is produced, at Ex.
21. It is 17-11-1977. Same date is shown in the application for maintenance and also in the evidence. However, the date is different in Ex. 30 which is explained but not relied on and this approach cannot be accepted or sustained for refusing to act on the documentary evidence produced from proper custody by authorised person from the Government office, on the summons being received from the Court. Having seen the documentary evidence, at Ex. 30, this Court has no hesitation in finding that rejection of evidence of the applicant-wife which is supported by documentary evidence at Ex. 30 is not only not proper but is manifestly perverse. With the result, this Court even while sitting in revision under Section 397 of the Code, is obliged to disturb the impugned finding and putting it in correct and proper legal shape.
17. Section 125 of the Code is not intended to provide full and final adjudication of status and personal rights of the parties. Conduct of the parties can be taken into consideration to find out factum of marriage or relationship as husband and wife under Section 50 of the Evidence Act. Section 50 of the Evidence Act provides as and when opinion on the point of relationship becomes relevant. Section 50 reads as under:
When the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869, or in prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code.
18. It is very clear from the provision of Section 50 that it is open for the Court to form an opinion as to the relationship of one person to another. The opinion expressed by conduct with regard to the existence of such relationship of any person who as a member of family or otherwise, has special means of knowledge and such an opinion becomes relevant. No doubt, such an opinion will not be sufficient to prove the marriage in the proceedings under the Indian Divorce Act or the prosecution under Sees. 494, 495, 497 or 498 of the Indian Penal Code in deciding and determining the relationship between one person to another. In the present case, the principles annunciated in Section 50 of the Indian Evidence Act ought to be kept in mind. It appears that the provisions of Section 50 was not pointed out to the trial Court. Therefore, when oral evidence is led to establish such relationship, evidence must be of an opinion as expressed by the conduct regarding existence of such relationship. Such opinion may be given by any person who has any special knowledge on the subject either being member of the family or otherwise. However, such opinion must be expressed by conduct and such conduct could be proved under Section 50 of the Indian Evidence Act by a person who has actually seen. The opinion of a person having such special knowledge is very important circumstance to prove relationship like marital status or any other such disputed relationship between the parties. The opinion as contemplated in Section 50 means coming to a conscious judgment or conviction must emanate from the conduct exhibited showing that the person concerned has formed such a judgment or conviction to the persons like applicant and opponent in this case. Stay for long spell of 42 months together under one roof would obviously be a conduct upon which the opinion could be given and such an opinion based on such conduct or even the conduct of the party itself is sufficient to presume status and relationship between the parties as husband and wife for the limited purpose of determining claim of maintenance under Section 125 of the Code.
19. The conduct of the parties could be taken into consideration to ascertain and determine factum of relationship as husband and wife under Section 50 of the Indian Evidence Act. Such an opinion shall be sufficient factor in the maintenance proceedings. Application for maintenance came to be rejected by the trial Magistrate for want of proof of the fact that the applicant-wife is legally married wife. It becomes clear that the trial Magistrate failed to examine and appreciate that whether a man and woman - applicant and opponent herein lived and treated by the society as husband and wife in all respects vis-a-vis entitlement of maintenance. The trial Magistrate thought it fit not to rely on the evidence of applicant-wife and the Marriage Registration Certificate at Ex. 30 probably and presumably, he thought that degree of proof of factum of marriage should be very high. It must be noted that in the case of claiming maintenance under Section 125, it is not necessary that factum of marriage is established beyond reasonable doubt. It is enough for the trial Magistrate that prima facie case is made out or not so as to afford immediate and speedy relief to the suffering party by leaving open to the aggrieved party to agitate contention before the competent civil Court. In a proceeding under Section 125, opponent is not an accused and it is a settled proposition of law that the proceedings for maintenance under Section 125 of the Code, though, are provided in Criminal Procedure Code, but are in nature of civil proceedings. Therefore, yardstick for appreciation of evidence should be the same as that of applying in civil proceedings. The important presumption could be raised from the conduct of the parties about marital status for the purpose of claiming maintenance under Section 125 of the Code. The fact that the couple was living as husband-wife is also sufficient proof of marriage to grant maintenance under Section 125. Absence of evidence as regards solemnization and performance of religious rites and ceremony, the Court should consider the facts on record and could also raise presumption of marriage when parties concerned have lived together for some time and had been treated as husband and wife by family, friends and neighbours. This aspect ought to have been considered which is very relevant, but not considered. Strict proof of existence of relationship as husband-wife is not required to be insisted upon in a claim for maintenance under Section 125 of the Code. The object of provision of Section 125 is to provide speedy and effective relief to the deserted and discarded, dejected and desolute wife. Fundamental object of maintenance provision under Section 125 is to prevent vagrancy and starvation. Keeping in mind underlying purport and purpose, what is required to be considered for a limited purpose for determination of claim of maintenance under Section 125 of the Code is whether 'prima-facie' relationship between the parties is established or not. Factum of marriage could also be established by preponderance of probabilities. The conduct of a party is also very material. When a man and woman having lived together as husband and wife in our society and were treated as such, by the society, or friends, and closed relatives and members of the community or neighbours and again the opponent has also treated the applicant as his wife, are very material and relevant for the limited purpose to decide claim of maintenance under Section
125. It can very well be inferred that there was a marriage. When there is evidence from the member of the society for recognition of conjugated existence of parties is absent but there is ponderance of evidence suggesting that the parties have lived together in conjugal home for long spell and husband himself recognises applicant as his wife, even presumption of legitimacy can be drawn for the purpose of marriage between the parties. Apart from the evidence of original applicant-wife, there is documentary evidence in nature of certificate of Registration of Marriage and that evidence should not have been discarded by the learned trial Magistrate. In an application for maintenance when the claim is sought to be denied by the opponent-husband on the basis of want of relationship as husband and wife, documentary evidence of Certificate of Registration of their Marriage becomes very important and that too after relying on the evidence of independent Govt, officer, witness Savitaben, at Ex. 29. This witness was working as clerk in the office of Registrar of Marriage. In course of her evidence, she has ' produced Certificate of Registration of Marriage between parties which is at Ex. 30. In the proceedings under Section 125 before the trial Magistrate, it is not necessary to strictly establish relationship beyond reasonable doubt. Therefore, Certificate of Registration of Marriage supporting contention of the wife is wrongly discarded by the trial Magistrate. Ex. 30-Certificate of Registration of Marriage between parties is sufficient proof showing that the parties were married. Merely because there was some difference in mentioning dates of marriage in application and in statement before the Sub-Registrar of Marriage is not enough to, totally, discard such reliable documentary evidence produced from proper custody by proper person concerned. The Court of learned Magistrate in such a case is not full-fledged civil Court requiring to go into validity of marriage and it is sufficient that marriage is admitted by the opponent-husband in a statement before the Sub-Registrar of Marriage. In not placing reliance on such documentary evidence even for raising presumption of factum of marriage between the parties is an approach running diametrically opposite to the spirit of provision of Section 125 of the Code. Note only that the wife also relied on documentary evidence of Ration Card produced at Ex. 54. Names of parties are shown in the said Ration Card indicating one unit of family. Thus, there is also documentary evidence supporting version of the applicant-wife that she is a wife of the opponent-husband. It is not in dispute that the opponent was unmarried at the time when the statement was made before the Sub-Registrar of Marriages. This is not a case where alleged second wife has sought relief or rescue from the provisions of Section 125 against the opponent for her maintenance. Respondent-husband was admittedly unmarried. The factum of marriage is proved. Evidence of wife is supported by two reliable documents, viz., Certificate of Registration of their Marriage at Ex. 20 and Ration Card showing relationship between the parties at Ex. 54. There was no any reason for the trial Court to at least raise presumption of marriage which includes presumption about validity of marriage for determining the claim of maintenance. In fact, there is sufficient evidence on record to straightway and safely conclude that there was a marriage between the parties and both of them lived as husband and wife and the society has also exhibited and recognised their relationship as husband and wife. It may also be mentioned that even the reply to notice at Ex. 22 given by the opponent-husband does not go to show that factum of marriage was questionable.
20. Having regard to the aforesaid facts and circumstances of the case, the trial Court has committed serious error in rejecting the contention of the wife and in discarding reliable documentary evidence supporting version of the wife. Therefore, this Court cannot sit silent as a helpless spectator to any attempt by a party to avoid statutory liability of maintenance, even though this Court is sitting in revision wherein the scope is circumscribed. As the ultimate object is to do justice between the parties which could not be done on account of not only an erroneous approach but also on account of perverse and illegal approach, unfortunately, taken by the learned trial Magistrate, with due respect.
21. Therefore, considering the facts and circumstances emerging from the record of the present case and the relevant settled legal proposition of law, this Court has no hesitation in finding that the ultimate conclusion of the trial Magistrate is not only unjust, unreasonable but perverse and illegal. Therefore, the finding of the learned trial Magistrate that there is no proof of factum of marriage between the parties, cannot be sustained. On the contrary, there is sufficient evidence on the record to not only raise the presumption but substantive evidence showing the factum of marriage between the parties. The following aspects have become uncontrovertable which clearly go to show that parties were married and lived as such as husband and wife and even the husband has recognised the applicant as his wife:
(i) Long stay between the parties under one roof for a period of more than 42 months. It was uninterrupted cohabitation between two spouses;
(ii) Parties themselves accepted each other as husband and wife for long period and denial came for the first time in written statement at Ex. 11 filed by opponent before the trial Magistrate;
(iii) Version of the applicant that she is a wife of the opponent in her evidence at Ex. 18 is reinforced by documentary evidence of Certificate of Registration of Marriage made as early as in the year 1977; and
(iv) Factum of marriage is also supported by second documentary evidence and relied upon by the wife in the nature of Ration Card which is produced, at Ex. 54.
There is no reason to discard those dependable and trust-worthy documentary evidence such as Ration Card and Certificate of Registration of Marriage. The Ration Card shows the relationship of husband and wife enjoyed by the parties. Ordinarily, name of a lady would not be included in Ration Card as a unit of family of the opponent-husband, had she been taken and treated as only patient of a Doctor, as contended by the opponent-husband, who is a Medical Practitioner. The conclusion of the trial Magistrate that the wife is not entitled to get maintenance under Section 125 on the ground of want of proof of marriage, is totally wrong and perverse and therefore, it is quashed.
22. Obviously, next question would arise, now, with regard to as to the entitlement of the wife to claim maintenance under Section 125 of the Code from the opponent-husband. There is no dispute about fact that if wife proves her inability to maintain herself and if she has no independent source of livelihood and maintenance, she is entitled to claim maintenance from the opponent-husband. Then third question would arise as to what should be the just and reasonable amount of maintenance towards monthly allowance for maintenance of the wife. It appears from the impungned judgment of the trial Magistrate that the attention of parties was not focused with regard to quantum of maintenance in view of the denial of marriage and its validity. Presumably and probably, for the reasons stated hereinabove, the Magistrate has not alternatively considered entitlement of the wife and extent and quantum of maintenance. Therefore, it would be quite appropriate to direct the learned trial Magistrate to decide the following two points after hearing the parties and giving them further opportunity of leading evidence on those points and hearing as expeditiously as possible. In view of the facts of the present case, it would not be just and proper for this Court to fix up the quantum of maintenance holding that wife is entitled to maintenance only on the ground of she being the legally married wife of the opponent. It is incumbent upon the married wife to plead and prove inability to maintain herself, as decided by catena of judicial pronouncements. Secondly, quantum of maintenance is also required to be determined in light of the record which is not very clear.
23. Having regard to the facts and circumstances emerging from the record of the present case, this Court has no hesitation in finding that original applicant-wife petitioner is a legally wedded wife of the opponent as required under Section 125 of the Code and therefore, rejection or denial of her right to claim maintenance on the ground that she is not a wife, is not only unjust, unreasonable but perverse and illegal, and therefore, such conclusion arrived at by the trial Court is set aside, and matter is sent back to the trial Court for determination and decision on merits on following two points:
(1) Whether original applicant-wife proves her inability to maintain herself? If yes.
(2) What quantum of maintenance and from which date, the wife is entitled to claim maintenance?
24. Since the dispute between the parties is old, trial Court is also directed to decide the matter on the aforesaid two points under Section 125 of the Code as expeditiously as possible, after giving an opportunity of hearing to the parties, on the aforesaid two points on merits in accordance with law.
It is submitted that it should be further clarified that since the question of/fact of marriage between the parties is held in favour of the original applicant-wife, obviously opponent-husband would not be entitled to re-agitate said point before the trial Court. Surely not as the same point is concluded in this revision and matter is remanded only on aforesaid two points.
25. Accordingly this revision is partly allowed. The order dismissing Criminal Maintenance Application No. 12 of 1983 by Judicial Magistrate, First Class, at Surat, is set aside. The matter is sent back to the trial Court for expeditious disposal on the aforesaid two points, only, as formulated by this Court. Rule is made absolute accordingly.
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