LIVING AS WIFE AND HUSBAND MAINTENANCE UNDER SEC.125

THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR
Criminal Petition No.5218 of 2007
21-04-2010
Smt. Kummari Kamalamma
W/o K. Anjaneyulu
Aged about 30 years, Occ: Household
R/o Shakapur Village, Addakal Mandal,
Mahaboobnagar district.
Kummari Anjaneyulu
S/o K. Burranna
R/o. Vemula Village, Addakal Mandal,
Mahaboobnagar District and another
Counsel for petitioner: Mr. A. Narasimha Reddy
Counsel for second respondent: Public Prosecutor
:ORDER:
This Criminal Petition has been filed to quash the order, dated 22-02-2007 in R.P.No.61 of 2006 on the file of the
I Additional Sessions Judge at Mahaboobnagar.
2. The case of the petitioner herein is that she is the legally wedded wife of the first respondent herein and that she is entitled to claim maintenance. Her specific case is that her marriage was solemnized with the first respondent about 10 years back according Hindu Rights and Customs at Vemula of Addankal Mandal and an amount of Rs.75,000/- was presented to him towards dowry besides five tulas of gold and 70 grams of silver ornaments. It is also alleged that after sometime the first respondent started harassing her demanding dowry and that finally she was driven out of her house on 18-05-2005 when she could not meet his demand. It is also alleged that the first respondent threatened that he would marry another woman.
3. The first respondent filed counter and denied the relationship with the petitioner. However it is admitted that they had some acquaintance and loved each other and he intended to marry the petitioner, but on the advise of the elders and well wishers, he did not marry her.
4. On behalf of the petitioner PWs.1 to 3 were examined. On behalf of the first respondent, he himself was examined as RW-1 and also examined RW-2 in support of his case. The learned Judicial Magistrate, while appreciating the evidence, observed that according to PW-1, the marriage between the petitioner and the second respondent took place about eight years back and according to PW- 2 the petitioner and the first respondent lived happily about nine years back, and that the marriage took place about fifteen years back and according to PW-3, the petitioner and the first respondent lived happily for eight years and therefore, there are inconsistent versions. Thus the learned Magistrate held that the petitioner failed to prove her marriage with the first respondent. It is also averred that according to PWs.1 to 3 they came to know about the second marriage of the first respondent and therefore, they could not object for the same. Therefore, it appears that the first respondent had already married another lady. The evidence on behalf of the first respondent is consistent and convincing and appearing to be a reliable one. The petitioner did not establish her marriage with the first respondent and her evidence is inconsistent and not convincing and not appearing to be a reliable one.
5. When the matter was carried in Revision, the learned Sessions Judge came to the conclusion that the evidence of PWs.1 to 3 is not sufficient to prove the marriage in question and in view of the specific defence that the Revision Petitioner was married to another person of Kothakota, the petitioner ought to have lead cogent evidence to prove her marriage with the first respondent.
6. In view of the circumstances, the only point that arises for consideration is whether there was proper appreciation of evidence or not by the lower Court?
7. The learned counsel for the petitioner submits that the Courts below failed to appreciate the evidence in proper perspective and came to wrong conclusions, which resulted in manifest injustice to the petitioner.
8. It appears that the first respondent himself had made certain admissions that he had loved the petitioner and they lived together for sometime. When there is evidence to show that the petitioner and the first respondent lived together as wife and husband under one roof for a considerable period, and when the society recognized them as wife and husband, the minor contradictions in the evidence let in by the petitioner ought not have been given much importance. When the witnesses are giving evidence after a long period, there may be minor contradictions as to when the marriage had taken place between the petitioner and the first respondent whether 8 years back or 9 years back or 15 years back, but they need not be given much importance. In this case, most of the witnesses have come from village. They may be giving evidence in casual manner. If the evidence of those rustic witnesses, who are coming from villages, is appreciated without taking into consideration the factum of their rural background and their memory power, it may result in miscarriage of justice. While appreciating the evidence, the memory power, social background, intelligence and education etc., of the witnesses have to be taken into consideration. Merely on the ground that one witness has stated that the marriage took place about 8 years back and another witness stated that the marriage took place about 9 years back, it cannot be said that there are major contradictions and that their evidence proves that no marriage took place between the parties. It appears that the Court below have failed in appreciating the evidence in proper perspective, which resulted in miscarriage of justice. There is no sufficient evidence as to whether the petitioner was married earlier or not. Even for the proof of earlier marriage or subsistence of marriage, there should be proper appreciation of evidence. The pleadings of a party cannot be taken as proof. Merely because the first respondent has taken the plea that he was already married, it cannot be taken as a proved fact.
9. The learned counsel for the first respondent relied on SMT. YAMUNABAI ANANTRAO ADHAV v. ANANTRAO SHIVARAM ADHAV AND ANOTHER 1, in support of his contention that the wife means only a legally wedded wife and in this case, the petitioner had failed to prove her marriage with the first respondent.
10. In the above case the plea of the husband was that his marriage with the petitioner therein was void because he was already married and his marriage with his first wife was still subsisting. In the circumstances, it was held that the burden heavily lies on the husband to prove the said contention.
11. Anyhow, all the points raised by the petitioner in this petition have to be considered afresh by the learned Magistrate. In the circumstances, the impugned order is set aside and the matter is remanded to the learned Magistrate for considering the matter afresh. The learned Magistrate in his discretion may permit the parties to adduce further evidence.
12. Accordingly, the Criminal petition is allowed.
?1 AIR 1988 SC 644

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