PACHIGOLLA SRINIVASARAO Vs. PACHIGOLLA SAMUDRAM

JUDGEMENT

(1.) This is a reference made by the First Additional Sessions Judge, Visakhapatnam, in a matter arising under section 488, Criminal Procedure Code, to set aside the order of the Magistrate granting maintenance to the 1st respondent. Respondents 2 and 3 are minor children of 1st respondent. Now, the finding of both the Courts is that respondents 2 and 3 were born to the 1st respondent through the petitioner. The respondents filed the maintenance application against the petitioner alleging that about ten years ago, the petitioner married the 1st respondent at Visakhapatnam, and they were living together till 5 months prior to the filing of the application. Respondents 2 and 3 were born to them. Thereafter, the petitioner married another woman and started living with her and thereafter he has completely neglected to maintain the respondents. The petitioner denied that there was a marriage between him and the 1st respondent and respondents 2 and 3 were born to him. Respondent 3 was born at the Gosha Hospital, Visakhapatnam, on 2ist January, 1965. Exhibit P-i is the birth register extract relating to his birth. It shows that the petitioner's name was given as the father of the child. The 2nd respondent, who is a c;irl, was admitted in Visakha Tutorial College, Visakhapatnam. Exhibit P-2, letter from the Principal, shows that the name of the petitioner was given as the father of the girl while admitting her in the said college. The 3rd respondent was admitted in the Atchutarama Municipal Basic Patasala, Visakhapatnam. Exhibit P-3, letter from the Headma ter of that School, shows that the name of the petitioner was given as the father of the 3rd respondent while admitting the 3rd respondent in the school. Apart from the oral evidence, on the basis of this documentary evidence, both the Cour s concurrently found that respondents 2 and 3 were born to the petitioner and the 1st respondent. The other relevant question to be found was whether there was a marriage between the petitioner and the 1st respondent, which fact was denied by the petitioner. The 1st respondent was examined as P. W. 1 Besides herself two more witnesses, P.Ws. 2 and 6 spoke about the marriage having taken place between the petitioner and the 1st respondent. It appears, the petitioner, is a Vaisya and the 1st respondent is a Sali by caste. It is in the evidence of P. W. 1 that no Brahmin officiated at the wedding. The ceremony known as " Saptapadi " was not performed. P. W. 6 has also said that he does not remember if any Brahmin performed the marriage. But, however, he has stated that at the marriage function, there was a pandal erected and there was music also, and he had seen the tying of Mangala Sutram. On the ground that it has been admitted by the witnesses that no Brahmin performed the marriage and the ceremony of "Saptapadi" was not performed, the learned Sessions Judge came to the conclusion that it cannot be said that there was marriage between the petitioner and the 1st respondent according to personal law of the parties, viz., Hindu law. He did not give any finding that as a matter of fact there was no function of marriage at all which had taken place between the petitioner and the 1st respondent. On the ground that the factum of marriage was not established, meaning thereby the factum of legal marriage, between the petitioner and the 1st respondent as alleged by her, the learned Sessions Judge thought that the 1st respondent was not entitled to maintenance though respondents a and 3 were entitled to it, even though they can be said to be only illegitimate children, as under section 488, Criminal Procedure Code, illegitimate children, also are entitled to be maintained though not wife not legally wedded. Accordingly the learned Additional Sessions Judge made a reference to this Court to set aside the order of the Magistrate so far as relates to granting of maintenance to the 1st respondent.

(2.) The learned Magistrate gave a categorical finding that the 1st respondent is the legally wedded wi e of the petitioner, accepting the evidence adduced on behalf of the respondents. The learned Additional Sessions Judge did not come to the conclusion that no form of marriage had taken place between the petitioner and the 1st respondent. According to the respondents, the petitioner and 1st respondent were married according to Hindu law. On the ground that ceremonies as required by Hindu law to constitute a legal marriage have not been proved to have taken place, the learned Additional Sessions Judge came to the conclusion that no valid legal marriage between the petitioner and the 1st respondent has been made out. But the question for consideration is what is the nature of proof that is required for the purpose of section 488, Criminal Procedure Code, with regard to a marriage.

(3.) The Courts have always held that to decide about the relationship of husband and wife for the purpose of section 488, Criminal Procedure Code, it is not necessary to insist on the strict proof of all the formalities of a particular form of legal marriage as is necessary in civil proceedings where the question of legality of marriage is in issue. It is so held in Baidhyanath v. S. M. Shefali, K. J. B.David v. Nilomoni Devi, and Satish Chandra v. Cham Balu.