THANDA SURAIAH Vs. THANDA SHARADA

JUDGEMENT

(1.) -The case of the 1st respondent-wife is that she married the petitioner and they lived together for three years happily and a child was born to them. The case of the petitioner-husband is that there was no marriage and he never contracted any marriage and that she is not entitled for any maintenance. The 1st Class Magistrate found that no case has been made out for maintenance.

(2.) The wife issued a notice before filing the maintenance case. No reply has been sent by the husband. The lower appellate court drew a presumption on the basis of the husband not giving any reply and allowed the appeal. Under section 50 of the Evidence Act the conduct of the parties can be taken into account to find out whether they are husband and wife. Section 125, Cr. P.C. contemplates only summary trial and the finding given in proceedings under section 125, Cr. P.C. by itself is not binding on the Civil Court or any other competent court to arrive at a conclusion that there is a valid marriage as between the husband and the wife. The finding in proceedings under section 125, Cr. P.C. that they are husband and wife is one of the circumstances that can be taken into account to arrive at a conclusion that there is a valid marriage. In case if the husband is aggrieved by the finding in a proceeding under section 125, Cr. P.C. that there is husband and wife relationship, he can approach the civil court for a declaration. The presumption drawn by the lower appellate court appears to be correct.

(3.) The learned Magistrate refused to award any amount on the ground that there is no relationship of husband and wife. The lower appellate court came to the conclusion that a presumption has to be drawn that there is husband and wife relationship.