DUKHIA NAIK Vs. BASANTI DEI

JUDGEMENT

(1.) The question arising for consideration in this revision is entitlement of oppositte party No. 1 and her son opposite party No. 2 to maintenance from the petitioner claiming that she is the wife of the petitioner and opposite party No. 2 to have been born out of their wedlock. The submission urged by Mr. Das, learned counsel for the petitioner, is that even accepting the finding of the learned Magistrate that there was marriage by exchange of garlands between the parties, yet it does not become a valid marriage and as such opposite party No. 1 could never become the wife of the petitioner so as to be entitled to maintenance. The esential facts are that the father of opposite party No. 1 was a blind person and with his consent, as the evidence led by opposite party No. 1 shows, the parties exchanged garlands in a temple vowing to be married to each other and the temple priest performed some puja thereafter. They lived as husband and wife and out of their union opposite party No. 2 was born three years after. Besides the father of opposite party No. 1 was examined as P.W. l and opposite party No. 1 examined as PW 4, the fact of marriage was deposed to by PW 3 who also stated of the petitioner and opposite party No. 1 having lived together as husband and wife and the opposite party No. 2 to have been born to them. The evidence of PW 2 is also to the effect of the petitioner and opposite party No. 1 were living together as husband and wife. The petitioner examined three witnesses all of whom stated of there having been no marriage and the petitioner and opposite party No. 1 as having never lived together. The learned Magistrate analysing the evidence came to hold that there had been marriage of the petitioner and opposite party No. 1 at the temple by exchange of garlands after which some Pujas were performed, that they lived after the marriage together as husband and wife and opposite party No. 2 to have been born to them. As regards the evidence led by the petitioner it was his finding that such evidence did not displace the evidence of opposite party No. 1 of there having been a marriage by exchange of garlands.

(2.) There are successive decisions of this Court holding that where a marriage has been performed by exchange of gardlands accompanied by some ceremonial rites after which the parties had lived as husband and wife, the lady was entitled to claim maintenance in case of a casue of action arising for the same. Mr. Das however relies upon a decision of the Apex Court, AIR 1988 SC 644 (Yamunabai v. Anantrao) to contend that where the marriage was itself a void one and not recognised by law, the claim of maintenance is to be rejected since under Section 125, Cr. P.C. the onus is upon the wife to estgtablish a legal and valid marriage to have taken place, when the marriage itself is questioned.

(3.) Parties in this case are undoubtedly Hindus and are governed by the Hindu Marriage Act. Section 7 of the Act says that a Hindu Marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and where such rites and ceremonies include saptapadi, the marriage becomes complete and binding when the seventh step is taken. The first part of the section does not specify the customary rites and ceremonies but leaves those to the individual customs. Section 11 of the Act declares that marriage made in contravention of the provisions of Section 5(i)(iv) and (v), namely, where either party has a spouse living at the time of marriage; the parties are not within the degrees of prohibited relationship; and where the parties are not Sapindas of each other, as void with the exception that so far as the bar of prohibited relationship and marriage between Sapindas is concerned, the marriage is not void if the customary usage governing each of them permits such a marriage. We are not concerned here with voidable marriages as defined in Section 12 of the Act as Mr. Das fairly concedes that if the marriage is voidable the question of refusal of payment of maintenance does not arise.