NARAYAN HADIPA Vs. JAYASUDHA NAGABANSHA

JUDGEMENT

(1.) AN order under Section 125, Criminal Procedure Code, 1973 (in short the 'Code') passed by the learned Judge, Family Court, Rourkela is under challenge in this appeal.

(2.) RESPONDENT Smt. Jayasudha Nagabansha alias Hadipa filed an application in the Court of the Judge, Family Court, Rourkela under Section 125 of the Code, alleging that the present appellant, who was her husband had neglected to maintain her, and she had no means of her own to maintain herself. The present appellant disputed the claim that he was the husband of the respondent Jayasudha. He went to the extent of taking the stand that there was no marriage as alleged, and he even did not know her. Four witnesses were examined by the respondent in support of her case and one witness was examined by the appellant to substantiate his case that there was no marriage between him and the respondent.

(3.) IN support of the appeal Mr. P.K. Nanda submitted that there was no valid marriage and, therefore, the conclusion of the learned Judge, Family Court, about marriage is based on assumption and surmises. Mr. B.P. Ray, learned Counsel for the respondent, with reference to the evidence supported the order passed by the learned Judge, Family Court. He submitted that the stand of the appellant that he did not know the respondent is false, because both belonged to Paralakhemundi and stayed at nearby quarters in the same colony. Referring to the evidence of P. Ws. 2,3 and 4 he further submitted that the marriage at Mangala Temple was clearly established. Where the factum of marriage is denied, it must be proved satisfactorily that it was a valid marriage, the onus being on the person claiming to be the wife, applying for an order under Section 125 of the Code. It has however to be kept in mind that in the proceeding, the Magistrate is not expected to go into the question relating to validity of the marriage. Living as husband and wife and being treated by other as such is quite sufficient for award of maintenance under the provision. In other words, strict proof of marriage is not necessary as is necessary in cases of proceeding under Section 494, Indian Penal Code, 1860 (in short T.P.C) or a proceeding for divorce. There can be marriage acceptable in law according to customs which do not insist on performance of rites like invoking the fire and performing the Saptapadi around the sacred fire. These may be requirements of traditional marriage. To decide whether a relationship of husband and wife exists for the purpose of the provision, it is not necessary to insist on the strict proof of all the particular forms of a legal marriage, as is necessary in civil proceedings where the question of the legality of marriage is the primary issue. Even where there is no strict proof of marriage, but the Magistrate finds that parties went through some form of marriage and lived as husband and wife, he can apply the factum valet principle and raise a presumption of valid marriage. Under Section 50 of the Indian Evidence Act, 1972 (in short the 'Evidence Act'), the conduct of parties can be taken into account to find out whether they are husband and wife. Learned Judge, Family Court took note of the fact that the respondent being a young girl could not have made false statements regarding marriage with the present appellant. He had occasion to notice the demeanour of the appellant and respondent as witnesses. The conclusions arrived at by the learned Judge, Family Court cannot be said to be baseless and therefore the submissions made by the learned Counsel for the appellant cannot be accepted.