Govindan Namboodiri v. Remadevi

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944 ``` ``` RPFC NO. 47 OF 2019 ``` ``` AGAINST THE ORDER IN M.C.NO.52/2016 OF FAMILY COURT, PALAKKAD ``` ## `- REVISION PETITIONER/RESPONDENT :` ``` GOVINDAN NAMBOODIRI, AGED 48 YEARS S/O VISHNU NAMBOODIRI, HARI MANDIRAM, KATTADI POST, KOLLAM-691537. ``` ``` BY ADVS. M.R.ARUNKUMAR SRI.P.SHAMMI NAVAS ``` ## `- RESPONDENT/PETITIONER :` ``` REMADEVI, AGED 43 YEARS W/O GOVINDAN NAMBOODIRI, KANNATH HOUSE, S.K. STREET, P.K. VILLAGE, KOLLENGODE POST, CHITTUR TALUK, PALAKKAD-678506. ``` ``` BY ADV SRI.L.RAJESH NARAYAN ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 05.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RPFC NO.47 of 2019 ``` ``` 2 ``` ## **ORDER** ## **Dated this the 05[th] day of August, 2022** This revision is filed challenging an order passed by Family Court, Palakkad (for short ‘the court below’) on 27.09.2018 in M.C.No.52/2016. The parties to this revision are hereinafter referred to as the respondent and petitioner in accordance with their status in the M.C. The revision petitioner is the husband and the respondent is the wife. The court below allowed the M.C and directed the respondent to pay monthly maintenance allowance at the rate of Rs.3,000/-, from the date of the petition, i.e. from 05.03.2016, within one month. The petitioner was also allowed to realise a sum of Rs.5,000/- as cost from the respondent and his assets. Aggrieved by the order, the revision on hand is filed. 2. It is contended by Sri.M.R.Arun Kumar, the learned counsel for the petitioner that the marriage alleged was not proved as solemnized in accordance with the customary rites. According ``` RPFC NO.47 of 2019 ``` ``` 3 ``` to him, the alleged marriage lasted only for a period of three months. A specific contention was taken that the petitioner was living with one Mr.A.A.Krishnamoorthy, who was examined as PW2 in the case on hand and left the company of the respondent without a sufficient reason. According to him, solemnization of the marriage was denied by him totally, but the petitioner failed to establish it. According to him, contentions of the above nature were raised before the court below, but, those were not considered while passing the impugned order. The learned counsel has also relied on _**Dwarika Prasad Satpathy v. Bidyut Prava Dixit and another**_ [(1999) 7 SCC 675], _**Chanmuniya v. Virendra Kumar Singh Kushwaha and another**_ [(2011) 1 SCC 141], _**Savitaben Somabhai Bhatiya v. State of Gujarat and others**_ [(2005) 3 SCC 636] to substantiate his contentions. 3. **Savitaben** supra has been relied on to establish the standard of proof required to establish the alleged marriage. ``` RPFC NO.47 of 2019 ``` ``` 4 ``` **Chanmuniya** supra has been relied on by the learned counsel to convince the court how the word ‘wife’ was interpreted in a petition seeking maintenance under Section 125 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’). Whether long cohabitation without a valid marriage will suffice to fit within the meaning of ‘wife’ for an application under Section 125 Cr.P.C to sustain was considered in the case. **Dwarika Prasad Satpathy** supra was relied on by the learned counsel to establish the standard of proof required to establish a marriage so as to maintain an application under Section 125 Cr.P.C. 4. The learned counsel for the respondent has contended on the contrary that the court below has passed the impugned order by appreciating the evidence on record. According to him, only a _prima facie_ proof that the parties are in the marital status alone is required for a consideration of an application seeking maintenance under Section 125 Cr.P.C. According to the learned counsel for the respondent, in the affidavit filed by the petitioner, ``` RPFC NO.47 of 2019 ``` ``` 5 ``` the manner in which the marriage with the respondent was solemnized is stated and it incorporates a statement that ‘Kanyadanam’ was performed by causing the petitioner sitting on the lap of her father. But, during cross examination, he has gone to the extent of stating that at the relevant time of the marriage ceremony, her father was no more. 5. The learned counsel has also pointed out that photographs and CD of marriage produced on the side of the respondent were marked in evidence without any objection being raised by the respondent. According to him, those materials are sufficient to establish the factum of marriage for the purpose of assessment of monthly allowance under Section 125 Cr.P.C. The learned counsel has also relied on _**Prasad v. Prema and another**_ [2018(2) KHC 832] and _**Sivadasan P.K v.Jainy and another**_ [2021(2)KHC 242) to substantiate his arguments. 6. It is pertinent to note that the parties to this petition had adduced evidence before the court below. Petitioner had ``` RPFC NO.47 of 2019 ``` ``` 6 ``` averred in the petition seeking maintenance allowance that she is the legally wedded wife of the respondent and being unable to maintain herself is entitled to get monthly maintenance allowance from the respondent under Section 125 Cr.P.C. It is further pleaded that she is devoid of any income and the respondent has sufficient income to maintain her. She mounted the witness box to depose as PW1. One Mr.A.A.Krishnamoorthy, the person allegedly living with the petitioner was examined as PW2. The former husband of the lady, was also examined as PW3. 7. On the petitioner’s side Exts.P1 to P11, were marked in evidence. Respondent examined himself as RW1. 8. The marriage was stoutly denied by the respondent. According to him, the petitioner is staying with one Mr.A.A.Krishnamoorthy. But, photographs and CD produced by the petitioner to establish the marriage were marked in evidence without any objection raised by the respondent. This Court is convinced on a glance at the photographs that those are genuine ``` RPFC NO.47 of 2019 ``` ``` 7 ``` ones. The contention that the photographs and CDs were forged and fabricated ones is not established. 9. PW1 has stoutly denied respondent’s allegation of her relationship with Mr.Krishnamoorthy. Mr.Krishnamoorthy was examined as PW2 and his version corroborates with the one tendered by PW1. According to PW3, petitioner was his former wife and their marriage was held on 04.06.2012. According to him the marriage of the petitioner with him was dissolved by order passed in O.P.No.187/2014. 10. While being examined as PW1, petitioner has stated that the respondent is her legal husband. According to her, the marriage with the respondent was solemnized at the Brahmana Samooha Madam at Haripad. It was sworn to in the affidavit that at the time of solemnization of the marriage she was made to sat on the lap of her father as part of a ceremony mandated by the custom prevalent in their community. But, during cross examination she denied the factum that her father was alive at the ``` RPFC NO.47 of 2019 ``` ``` 8 ``` time of marriage. According to the learned counsel for the respondent, since a factum sworn by the petitioner in the affidavit itself is denied by her, the affidavit lost it’s reliability and is liable only to be discarded. According to her, in the said context the marriage cannot be taken to have been validly solemnised. On the basis of the rules of marriage, it was contended that registration is a mandatory requirement for a marriage to be treated as valid or legal. According to him, no evidence has been adduced by the petitioner to establish that her marriage with the respondent stands registered as contemplated by the rules. 11. The proceedings on hand is one under Section 125 Cr.P.C where monthly maintenance allowance was sought. In an application under 125 Cr.P.C _prima facie_ proof of marriage is required. In the case on hand, PW1 has deposed before the court that a marriage was solemnized in accordance with the custom. Her version that her father was not alive at the time of marriage will have the impact of withdrawing from her earlier version that ``` RPFC NO.47 of 2019 ``` ``` 9 ``` ceremony as per custom was performed during marriage. The photographs and CD marked in evidence unopposed would indicate that the marriage had taken place. 12. In **Dwarika Prasad Satpathy** supra relied on by the learned counsel for the respondent, the Apex Court has held that the Magistrate is only required to have a _prima facie_ satisfaction about the performance of marriage when a proceedings under Section 125 Cr.P.C is considered. The proceedings being summary in nature, strict proof of performance of essential rites is not required. Either of the parties aggrieved by an order passed in an application seeking maintenance under Section 125 Cr.P.C can approach the civil court for a declaration of status and an order passed under Section 125 Cr.P.C will not finally determine the rights and obligations of the parties. 13. In _**Chanmuniya**_ supra the Apex Court has referred certain questions for consideration of the larger Bench, and those are extracted hereunder :- ``` RPFC NO.47 of 2019 ``` ``` 10 ``` “1. Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C? 2. Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr.P.C. having regard to the provisions of the Domestic Violence Act, 2005? 3. Whether a marriage performed according to the customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.?” 14. The above referred question have not been answered yet. The reference was in the year 2011, since the reference is still pending the view of Apex Court in **Dwarika Prasad Satpathy** supra will hold the field. 15. In **Dwarika Prasad Satpathy** supra relied on by the learned counsel for the petitioner, it was held that when the husband fails to adduce evidence to substantiate his contention on ``` RPFC NO.47 of 2019 ``` ``` 11 ``` non-solemnisation of marriage, he cannot simply contended that the marriage was not legal and valid. 16. In **Sivadasan P K** supra relied on by the learned counsel for the petitioner, it was held by this Court that Family Court cannot on its own adjudicate the question of validity of marriage in a petition seeking monthly maintenance allowance under Section 125 Cr.P.C. It is further held that if a presumption could possibly be drawn by a court from the available evidence that a marriage is subsisting that would suffice for a consideration of the entitlement of a petitioner for monthly maintenance allowance under Section 125 Cr.P.C. Therefore, this Court as well as the Apex Court has laid the dictum that elaborate proof to establish marriage is not required for a consideration of an application under Section 125 Cr.P.C but, only _prima facie_ proof and if that is there, the Family Court is empowered to allow the application filed by the wife of the respondent, seeking monthly maintenance allowance and to grant the same in her favour. ``` RPFC NO.47 of 2019 ``` ``` 12 ``` In the case on hand, from the evidence adduced by the petitioner the Family Court has arrived at a satisfaction about the conduct of marriage among the parties. Accordingly it observed that the petitioner is the legally wedded wife of the respondent and allowed the application seeking monthly maintenance allowance. Rs.3,000/- only was ordered as monthly maintenance allowance and it is just and reasonable. In the above circumstances, any reason having not been found to interfere, the impugned order is maintained. ## R.P.(F.C) fails and is dismissed. Sd/- **MARY JOSEPH JUDGE** **SMA**