The Jharkhand High Court observed that the documentary evidence of marriage cannot be insisted particularly in a proceeding under Section 125 of the Criminal Procedure Code (CrPC). It further observed that a presumption of marriage can be drawn if the parties are living together as husband and wife.

The Court observed thus in a revision application filed for quashing the order of the Family Court by which the application for maintenance under Section 125 CrPC was allowed with a direction to the husband to pay Rs. 5,000/- per month to the wife.

A Single Bench of Justice Gautam Kumar Choudhary said, “On combined reading of the testimony of witnesses, it is apparent that witnesses on behalf of the applicant have consistently supported the testimony about the marriage, whereas the witnesses examined on behalf of the O.P. have denied the factum of marriage between the applicant and the opposite party. Some photographs have been adduced into evidence, which shows the photograph of the applicant with the petitioner, which has not been denied. Documentary evidence of marriage cannot be insisted in all cases, particularly in a proceeding under Section 125 Cr.P.C. If the parties live together as husband and wife, a presumption of marriage can be drawn.”

The Bench added that the presumption of marriage living together is a rebuttable presumption, but there should be some consistent material to rebut the said presumption.

Advocate Jasvindar Mazumdar appeared for the petitioner husband while APP Alpana Verma appeared for the State.

Brief Facts -

As per the case of applicant, she was married to the petitioner husband in 2013 in the temple of Bhadra Kali at Chatra. Initially, after marriage, there was normal conjugal relation between them, but thereafter, the relationship turned sour and due to the conduct of the husband, she suffered miscarriage twice. It was averred in the maintenance application that the husband was in the business of mobile repair and was also in the real estate business, from which he had monthly income of Rs. 25,000/-. Lately he got employment in Government service, on category reserved for handicapped and after that, he was getting proposals for marriage from different quarters and had deserted the wife and was not supporting her.

Consequently, the wife was not in a position to maintain herself. Four witnesses were examined on behalf of both sides each, and the Family Court recorded a finding that the applicant was the wife for the purpose of claim of maintenance under Section 125 CrPC, though not in strict legal sense under the Hindu Marriage Act, and ordered the maintenance of Rs. 5000/- per month. Being aggrieved by the order, instant revision application was preferred on the ground that the applicant was not legally married wife of the petitioner husband. As per the case of the applicant, the said marriage was solemnized in a temple, but no certificate was adduced into evidence to show that the marriage was indeed performed.

The High Court in view of the facts and circumstances of the case noted, “As per the oral evidence, marriage took place on 10.03.2013 in Bhadrakali temple. O.P.W. No.3 has admitted in a limited way that O.P. lived with the Applicant for some time during his treatment. … Opposite Party has taken shifting and conflicting stand regarding the marriage of the Applicant. Some of the witness say that she was married to one X, with regard to whom application for kanyadan was filled up the by the Applicant. Another witness says that she was married to Y, whereas other says that she was married to both Y and one Z.”

The Court further said that the main plank of defence is that the petitioner was not married to applicant as she was married since before the marriage and that there is no consistent case, far less any cogent evidence, regarding the previous marriage of the applicant. In view of the contradictory evidence, it observed that the presumption of marriage is not rebutted and the plea of earlier marriage of the applicant cannot be accepted.

“I do not see any reason to differ with the finding of fact recorded by the learned Trial Court, only on the basis of a document purported to be issued by the temple management, which has not even been proved properly, and has been marked as Exhibit-Z for identification. Plea that Applicant was not married to the Petitioner is therefore rejected which hinges merely on the finding recorded in investigation in a police case registered against the accused”, it added.

Accordingly, the High Court rejected the revision petition and directed the husband to pay a maintenance of Rs. 3,000/- per month to the wife.

Cause Title- ABC v. The State of Jharkhand & Anr.


Petitioner: Advocates Samir Kumar Lall and Manjula Kumari

Opposite Parties: Advocate Brij Bihari Sinha

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