Documentary Evidence of Marriage Can’t Be Insisted In A Proceeding U/S 125 CrPC; Marriage Presumption Is Drawn When Parties Live Together As Husband And Wife: Jharkhand HC
Introduction: The Jharkhand High Court, in a recent and noteworthy judgment, addressed the necessity of documentary evidence in proceedings under Section 125 of the Criminal Procedure Code (CrPC). The court emphasized that living together can establish a presumption of marriage, challenging the insistence on documentary proof.
It would be of immense significance to note that the Jharkhand High Court in a most learned, laudable, landmark, logical and latest judgment titled ABC vs The State of Jharkhand & Anr in Cr. Revision No. 946 of 2022 that was pronounced as recently as on 12.01.2024 has observed very clearly that the documentary evidence of marriage cannot be insisted particularly in a proceeding under Section 125 of the Criminal Procedure (CrPC). It further maintained that a presumption of marriage can be drawn if the parties are living together as husband and wife. The Court observed so in a revision application that was filed for quashing the order of the Family Court by which the application for maintenance under Section 125 of CrPC was allowed with a clear direction to the husband to pay Rs 5,000/- per month to the wife.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Gautam Kumar Choudhary sets the ball in motion by first and foremost putting forth in para 1 that, “Instant revision application has been filed for quashing of the order dated 20.05.2022 passed in Original Maintenance Case No.352 of 2018 passed by learned Additional Principal Judge-II, Family Court, Ranchi whereby and whereunder the application for maintenance under Section 125 of the Cr.P.C. has been allowed with a direction to the petitioner to pay a sum of Rs.5000/- per month to the opposite party no.2.”
To put things in perspective, the Bench envisages in para 2 that, “As per the case of applicant, she was married to this petitioner on 10.03.2013 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 Petitioner, she suffered miscarriage twice.”
As things stand, the Bench enunciates in para 3 that, “It is averred in the maintenance application that the petitioner is in the business of mobile repair in the city of Hazaribag 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. After that, he was getting proposals for marriage from different quarters and had deserted the applicant and was not supporting her, consequently she was not in a position to maintain herself.”
As we see, the Bench then discloses in para 4 that, “Four witnesses have been examined on behalf of both sides each, and the learned Court below recorded a finding that the petitioner was the wife for the purpose for claim of maintenance under Section 125 of the Cr.P.C, though not in strict legal sense under the Hindu Marriage Act, and ordered the maintenance of Rs.5000/- per month.”
As it turned out, the Bench then pointed out in para 5 that, “Being aggrieved by the order, instant revision application has been preferred on the ground that the applicant was not legally married wife of the petitioner. As per the case of the applicant, the said marriage was solemnized in a temple, but no certificate has been adduced into evidence on behalf of the applicant to show that the marriage was indeed performed.”
Simply put, the Bench then states in para 6 that, “On the contrary, the defence has adduced into evidence the certificate issued by the Management of the Committee of the said Temple which has been marked as ‘Z’ for identification, in which it has been stated that no such marriage was performed. Furthermore, the applicant had lodged Hazaribag (Muffasil) P.S. Case No.201 of 2022 under Section 498A of the Indian Penal Code and other Sections. Final form has been submitted by recording a finding that the petitioner was not legally married wife of the complainant.”
Truth be told, the Bench then aptly observes in para 7 that, “It is argued that even if it is assumed that the petitioner was in live-in-relationship with the applicant/opposite party no.2, they cannot be treated as husband and wife, which is the basic ingredient for passing an order of maintenance under Section 125 of the Cr.P.C. The language of Section is crystal clear wherein a legally married wife is entitled to maintenance. There is no evidence of valid marriage. The applicant was earlier married to one Pappu Kumar and in support of it photo copy of the application for marriage under Kanyadan scheme to one Pappu Kumar has been filed.”
Further, the Bench mentions in para 8 that, “On the quantum of maintenance awarded, it is submitted that without any proof of income, maintenance amount has been saddled on the petitioner, on the ground that he was holding Diploma in Elementary Education and the said degree had prospect of getting job in future.”
Furthermore, the Bench then observes in para 9 that, “Learned counsel on behalf of opposite party no.2 has defended the impugned order. It is submitted that Exhibit F cannot be relied as that is not an evidence of marriage, it is only an application for marriage, but there is no other material to show that applicant was married to Pappu Kumar. It is further submitted that copy of certificate (Exihibit-2) issued by Block Development Officer will go to show that the applicant had not derived any benefit under the Kanyadan Yojana.”
Do note, the Bench notes in para 10 that, “A strict proof of marriage in a proceeding under Section 125 of the Cr.P.C, is not required, particularly when the evidence is on record that the Applicant was living with the opposite party as husband and wife. There is a presumption of marriage in such cases, which is however rebuttable. It has been held in Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188
10. Before we deal with the aforesaid submission, we would like to refer to two more judgments of this Court. The first case is known as Dwarika Prasad Satpathy v. Bidyut Prava Dixit [Dwarika Prasad Satpathy v. Bidyut Prava Dixit, (1999) 7 SCC 675 : 1999 SCC (Cri) 1345] . In this case it was held: (SCC pp. 679-80 & 682, paras 6 & 13)
“6. … the validity of the marriage for the purpose of summary proceedings under Section 125 CrPC is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence under Section 494 IPC. If the claimant in proceedings under Section 125 of the Code succeeds in showing that she and the respondent have lived together as husband and wife, the court can presume that they are legally wedded spouses, and in such a situation, the party who denies the marital status can rebut the presumption. … Once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the said procedure was complete as per the Hindu rites in the proceedings under Section 125 CrPC.
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13. … from the evidence which is led if the Magistrate is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125 CrPC which are of a summary nature, strict proof of performance of essential rites is not required.
It is further held: (Dwarika Prasad Satpathy case [Dwarika Prasad Satpathy v. Bidyut Prava Dixit, (1999) 7 SCC 675 : 1999 SCC (Cri) 1345] , SCC p. 681, para 9)
9. It is to be remembered that the order passed in an application under Section 125 CrPC does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents. For the purpose of getting his rights determined, the appellant has also filed a civil suit, which is pending before the trial court. In such a situation, this Court in S. Sethurathinam Pillai v. Barbara [(1971) 3 SCC 923 : 1972 SCC (Cri) 171] observed that maintenance under Section 488 CrPC, 1898 (similar to Section 125 CrPC) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties.”
No doubt, it is not a case of second marriage but deals with standard of proof under Section 125 CrPC by the applicant to prove her marriage with the respondent and was not a case of second marriage. However, at the same time, this reflects the approach which is to be adopted while considering the cases of maintenance under Section 125 CrPC which proceedings are in the nature of summary proceedings.”
Suffice to say, the Bench states in para 11 that, “In the present case as per the application for maintenance, Applicant was married to the petitioner, Ram Kumar Ravi on 10.03.2013. There is no documentary evidence in support of the said marriage. On the contrary in the case filed by Complainant against the petitioner, under different Sections of the Indian Penal Code, final form has been submitted by the investigating agency holding that there did not exist any marital relationship.”
Briefly stated, the Bench mentions in para 12 that, “Altogether 4 witnesses have been examined on behalf of the Applicant. A.W.01 is the mother of the Applicant. She states that Applicant was married to the Petitioner in the temple of Bhadrakali and more than six years have elapsed since the marriage. After the marriage, both were living together as husband and wife, and the Petitioner was paying the house rent. She has denied the suggestion that Applicant had married someone else before her marriage. A.W.-02 is the Applicant. In Para 18 of the cross-examination, she has deposed that she was married in the temple on 10.10.2013. From the temple they had received original copy of the marriage. She has denied the suggestion that she was married to Ashok Karmali. On the point of marriage, A.W.-3 has stated that the Applicant was married to the opposite party but she was unable to give the date of marriage of applicant Nayana Kumari. A.W.-4 has testified that Applicant was living in his neighbourhood with the opposite party as husband and wife.”
Interestingly enough, the Bench discloses in para 13 that, “Petitioner has been examined as O.P. No.1. He has denied that he was married to the Applicant. It is deposed by him that the Applicant had proposed to marry with him, but he had denied the proposal because she was married to Ashok Karmali. He claims that Applicant Nayana Kumari and Lalita Kumari were one and the same person. He has admitted one photograph with the Applicant which has been marked as Ext-1. O.P.W.-02 is the father of the opposite party and has denied the marriage of his son to the applicant. It is deposed that she was earlier married to one Ashok Karmali. In para 19, he deposes that he had met Pappu Kumar, but could not give any detail regarding his parental home. After Pappu Kumar she was married to Ashok Karmali. O.P.W.-03 is co-villager of the petitioner. In para 4, he has deposed that during the course of treatment Ram Kumar Ravi (O.P.) had stayed in the house of the Applicant. In para-6, he has deposed that Applicant was married to one Saroj Kumar. O.P. No.3 has further deposed that Applicant was not married to Saroj Ram, but she had illicit relationship with him. O.P.W.-4 has also denied the marriage of the Applicant with Opposite Party. In para-15, has deposed that he cannot say in which year Saroj Kumar who was his co-villager, had married the Applicant. He had heard about the marriage of the Applicant to Saroj Kumar, but cannot give the year of marriage.”
Quite significantly, the Bench holds in para 14 that, “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. 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.”
Most significantly, the Bench then holds in para 15 that, “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 Pappu, with regard to whom application for kanyadan was filled up the by the Applicant. Another witness says that she was married to Ashok Karmali, whereas other says that she was married to both Ashok Karmali and one Saroj Kumar. As discussed above, presumption of marriage living together is a rebuttable presumption, but there should be some consistent material to rebut the said presumption. Main plank of defence is that Petitioner was not married to applicant as she was married since before the marriage. There is no consistent case, far less any cogent evidence, regarding the previous marriage of the applicant. In view of the contradictory evidence, 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.”
Finally and far most significantly, the Bench concludes by holding in para 16 that, “On the quantum of maintenance, Applicant is admittedly a handicapped person and as per the application for maintenance he was having a mobile repair business and was also having earning from real estate business from which he had a monthly income of Rs 25,000/- per month. No further detail of the business, regarding the place of the mobile repairing business, land transaction if any from which he had monthly income, has been furnished. It has been further averred that the Petitioner has secured Government job, but here too, further details are completely absent. Even the witnesses have not deposed about the department or post on which the Petitioner is working. Under the circumstance, income of the Petitioner can be estimated only on a fair assessment of his station of life. Going by that income assessment of Rs 20,000/- appears to be on the higher side. Income of Rs 10,000-12000 shall be a fair estimate. A maintenance of Rs.3000/- per month to be paid by the Petitioner to the Applicant shall be just and fair. Under the circumstance, for the reasons discussed above, Revision petition stands rejected, with modification in the maintenance ordered.”
All told, we thus see that the Jharkhand High Court has made it indubitably clear that the documentary evidence of marriage can’t be insisted in a proceeding under Section 125 of CrPC. It was also made clear by the Court that marriage presumption is drawn when parties live together as husband and life. Very rightly so!
Conclusion: Ultimately, the Jharkhand High Court rejected the revision petition, upholding the Family Court’s order with modifications to the maintenance amount. The court reinforced that in Section 125 CrPC cases, strict proof of marriage is not required, and a presumption of marriage can be drawn from the evidence of parties living together. This judgment serves as a precedent, clarifying the approach to be adopted in maintenance proceedings under Section 125 CrPC, emphasizing the importance of consistent material in rebutting the presumption of marriage.
This ruling carries significant implications, shedding light on the evolving jurisprudence surrounding marriage-related claims under Section 125 CrPC. Courts are recognizing the need for a nuanced approach, considering the realities of relationships and relying less on formal documentation.
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