Holding

In Section 125 proceedings the marriage need not be proved with the strict rigor required for a bigamy offence; the temple ceremony suffices to create a rebuttable presumption of marriage, and a husband who does not dispute paternity is barred from denying it, so the maintenance order stands.

Summary

The husband, D.P. Satpathy, claimed that his marriage to B.P. Dixit was performed under duress and therefore invalid, and also denied paternity of the child born shortly after the ceremony. The wife filed an application under Section 125 of the Criminal Procedure Code for maintenance for herself and the child, which was initially granted by the magistrate. The husband appealed, arguing that the marriage was not valid and that he should not be liable for maintenance or paternity. The Supreme Court held that the standard of proof for establishing a marriage in Section 125 proceedings is lower than that required in a criminal bigamy case, and that the temple ceremony was sufficient to presume a valid marriage unless convincingly rebutted. Since the husband had not disputed the paternity of the child, he was barred from refusing a DNA test, and the maintenance order for the child was upheld. Consequently, the Court dismissed the appeals, leaving the maintenance order in place.

Issues considered

Whether a marriage performed in a temple, without proof of all essential Hindu rites, is valid for the purpose of a Section 125 CrPC maintenance proceeding.
What standard of proof is required to establish a marriage in Section 125 proceedings compared to a criminal prosecution under Section 494 IPC.
Whether the husband can contest paternity of the child and refuse a DNA test in a Section 125 case.
Whether maintenance can be granted to the wife and child under Section 125 when the marriage is presumed valid.
Whether an order under Section 125 CrPC determines the final rights and obligations of the parties.

Legislation cited

Code of Criminal Procedure, 1973s. 125
Criminal Procedure Code, 1898s. 488
Hindu Marriage Acts. 11, s. 12, s. 5
Indian Evidence Act, 1872s. 102, s. 103, s. 112, s. 114, s. 50
Indian Penal Code, 1860s. 494

Subjects

Section 125 CrPCmaintenancemarriage validitypresumption of marriagestandard of proofpaternityDNA testsummary remedyHindu marriage rites

Judgment

A DWARIKA PRASAD SATPATHY
v.
BIDYUT PRA VA DIXIT AND ANR.

OCTOBER 14, 1999

B [K.T. THOMAS AND M.B. SHAH, JJ.]

Criminal Procedure Code, ·1973:

Section 125--Marriage--Proof-Standard of-Husband contended that
C the marriage was perfonned under duress at knifepoint and, therefore, it was
an invalid marriage-Held: The standard of proof of marriage in a proceed-
ing under S.125 is not as strict as is required in a trial for bigamy under S.494
!PC-Once it is admitted that the marriage procedure is fallowed it is not
necessary to establish that it is complete as per the relevant rites-Hence, High
Court rightly held that considering the standard of proof under S.125 the wife
D had proved the marriage-Evidence Act, 1872, Ss. 102 and 103-Penal Code,
1860, S.494. •
Section 125--Marriage-Presumption of-Rebuttable-Held: If the
claimant proves that she and her alleged husband lived together as husband
E and wife, court can presume that they are legally wedded-However, this
presumption is rebuttable--Evidence Act, 1872, Ss.50 and 114.

Section 125-Summary remedy-Held : Order under S.125 does not
finally detennine the rights and obligations of the parties-The Section only
provides for maintenance of destitute wife, children and parents-Parties may
F approach Civil court for declaration of status.

Section 125--Maintenance--Wife, children and parents-Rights
under-Husband did not dispute paternity of child and accepted fact of
marriage ceremony-Held : Under these circumstances, husband cannot con-
G tend in proceedings under S.125 that there is no valid marriage as essential
rites are not perfonned.

Section 125-Maintenance-Patemity-Denial of-Father denied pater-
nity of child-Also refused to undergo DNA test-Effect-Held : Father is <
disentitled to dispute paternity of child-Evidence Act, 1872, Ss.112 and 114
H III(g).
684
'> D.P. SATPATHYv. B.P. DIXIT 685

Respondent No. 1 married t.he appellant in a temple in presence of A
witnesses. After the marriage respondent No. 1. was persuaded to stay at
her paternal house on the ground. that the appellant's father might not
accept her as his daughter-in-law. At that time she was in an advanced
stage of pregnancy. Respondent No. 1 stayed at her parental house and
within 3 to 4 days she gave birth to a female child. However, the appellant
and respondent No. 1 continued to live separately.
B

Respondent No. 1 filed an application under Section 125 of the
Criminal Procedure Code, 1973 for maintenance for herself and her
daughter. The appellant contended before the Magistrate that he was
forced to undergo the marriage ceremony at knifepoint and, therefore, c
there was no valid marriage. The Magistrate allowed the application.
However, the Appellate Court set aside the maintenance granted to respon-
dent No. 1 but upheld that granted to the minor daughter.

The appellant and respondent No. 1 filed revision applications
before the High Court, which dismissed the application of the appellant D
and allowed that of respondent No. 1. The High Court held that the
'"~ marriage was solemnized in the temple and negatived the contention of the
appellant that the marriage ceremony was forcibly held at knifepoint. The
High Court further held that the child was born out of the relationship
between the appellant and respondent No.1. E
In the appeal before this Court, the appellant contended that there
was no valid marriage between him and respondent No. 1; that he was not
the father of the child and that he was not willing to undergo the DNA test.

Dismissing the appeal, this Court F
HELD : 1. Validity of the marriage for the purpose of summary
proceedings under Section 125 of the Criminal Procedure Code, 1973 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 for an offence under Section 494 of. the Penal G
Code, 1860. 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. Undisputedly, the marriage procedure' was H
686 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R. <'I
A followed in the temple. The appellant contended before the Magistrate that 'I
the said marriage was performed under duress and at the point of knife,
he was required to exchange garlands. That contention is not proved by
leading evidence. Once it is admitted that the marriage procedure was
followed then it is not necessary to further probe into whether the said
B procedure was complete as per the Hindu rites in the proceedings under
Section 125 Cr.P.C. [689-G; H; 690-A; B; CJ

Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and
Anr., [1988] 2 SCR 809 and B.S. Lokhande and Anr. v. State of Maharashtra
& Anr., [1965) 2 SCR 837, relied on.
c
2.1. The order passed in an application under Section 125 Cr.P.C.
does not finally determine the rights and obligations of the parties and the
said Section is enacted with a view to providing summary remedy for
providing maintenance to a wife, children and parents. [691-F]

D
2.2. After not disputing the paternity of the child and after accepting
the fact that marriage ceremony was performed, though not legally perfect
as contended, it would hardly lie in the mouth of the appellant to contend
in proceedings under Section 125 Cr.P.C. that there was no valid marriage
as essential rites were not performed at the time of the said marriage. The
E provision under Section 125 is not to be utilized for defeating the rights
conferred by the Legislature to the destitute women, children or parents
who are victims of social environment. [692-B; CJ

S. Sethurathinam Pillai v. Barbara alias Dolly Sethurthinam, [1971) 3
p SCC 923; Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Anr., AIR
(1978) SC 1807 and Vimala (K) v. Veeraswamy (K), [1991] 2 SCC 375,
relied on.

3. Hence, from the evidence which is led if the Magistrate is prima
f acie satisfied with regard to the performance of marriage in a proceeding
G under Section 125 Cr.P.C. which is of a summary nature, strict proof of
performance of essential rites is not required. Either of the parties ag-
grieved by the order of maintenance under Section 125 Cr.P.C. can ap-
proach the civil court for declaration of status as the order passed under
Section 125 does not finally determine the rights and obligations of the
H parties. (693-D; E]
D.P. SATPATHYv. B.P. DIXIT \SHAH, J.]

4. The appellant contended that he is not the father of the child but A
at the same time he was not willing to undergo the DNA test. Therefore,
the appellant is disentitled to dispute the paternity of the child. (689-E]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1082-83 of 1999.
B
From the Judgment and Order dated 17.3.98 of the Orissa High
Court in C.R. No. 389 of 1994.

Vinoo Bhagat for the appellant.

Jana Kalyan Das for the Respondents. c
The Judgment of the Court was delivered by

SHAH, J. Leave granted.

Respondent No.1 - wife filed application Cr!. Misc. Case No. 26 of D
1989 on 15.3.1989 under Section 125 Cr.P.C. before the Judicial Magistrate,
Nayagarh for her maintenance. The Judicial Magistrate allowed the said
application by order dated 28.6.1993 and granted monthly maintenance of
Rs. 400 to her and Rs. 200 to her daughter w.e.f. 15.3.1989. That order was
challenged by the husband (appellant herein) before the Sessions Court in E
Cr!. Revision No. 114/93. The Revision Application was heard by the 1st
Addi. Sessions Judge, Puri, who by his judgment and order dated 19.4.1994
partly allowed the revision .application of the appellant and set-aside the
maintenance granted to respondent No. 1. However, the order granting
maintenance of Rs. 200 per month to the minor daughter, till she attains
the majority subject to future enhancement, was maintained. F
Against that judgment and order, appellant filed Cr!. Misc. Case No.
1338 of 1994 before the High Court of Orissa at Cuttack. Respondent no.
1 - wife had also filed Cr!. Revision No. 389 of 1994. The High Court heard
both the revision applications together, dismissed the revision application
filed by the appellant and allowed the revision application filed by respon- G
dent no. 1 - wife. The High Court held that it is not disputed that the
parties are residents of village Kantilo and at the 'relevant time, the appel-
lant was bachelor and working as Junior Employment Officer at Nayagarh.
It was also accepted that he' was friend of elder brother of respondent no.
1 and was frequently visiting their house in connection with a social and H
q 688 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R. <~

A cultural organisation of the village. He fell in love with respondent no. 1
and developed an intimacy with her.. It has also come on record that the
appellant was proposing a pre-marital sexual relationship with respondent ,.
no. 1, which was persistently refused by her. Thereafter, the appellant took
a vow in the name of Lord Nilamadhab Bije to marry her and thereby won
the faith of respondent no. 1. Thereafter, because of the co-habitation
B respondent no. 1 conceived and hence respondent no. 1 insisted for arrang-
ing the marriage, which the appellant refused on one pretext or the other.
Respondent no. 1 took various actions of writing to the various authorities
including the Chief Minister of the State and ultimately, she launched
hunger strike in front of the office of the appellant. Thereafter, on the
c intervention of the Sub Divisional Officer and other persons, marriage was
arranged in the temple of Lord J agannath at Nayagarh, in presence of
witnesses. After marriage respondent no. 1 was being taken to the house
of appellant. On the way, she was persuaded to stay at the paternal house
on the ground that his father may not accept her as a bride. At that stage,
she was .in advanced stage of pregnancy. She stayed at her parental house
D
and within 3-4 days she gave birth to a female child, respondent no. 2. The
parties continued to live separately as before. -cf,

In the proceedings under Section 125 of Criminal Procedure Code,
the appellant denied pre-marital sexual relations with respondent no. 1. He
E asserted that he was forced to undergo some sort of marriage with respon-
dent no. l at the point of knife; that he had not given consent to the
marriage and that he was forced to exchange garlands with respondent no.
1. The learned Magistrate believed the case of respondent no. 1 in toto and
arrived at the conclusion that there had been a marriage between the
F appellant and respondent no. 1 in the temple of Lord J agannath and the
said marriage was valid and legal one. It was further held that child was ....
born out of this wedlock. In the revision, the Addi. Sessions Judge did not
accept the factum of marriage between the parties by holding that the
appellant was forced to exchange garlands at the point of knife and,
therefore, there was no valid marriage in the eyes of law. So, the claim of
G respondent no. 1 for maintenance was negatived. He, however, accepted
the plea of respondent no. 1 that child was born because of pre-marital
relations and confirmed the order granting maintenance to the child. The
High Court observed that considering standard of proof in a proceeding
under Section 125 Cr.P .C. it cannot be held that respondent no. 1 had not
H succeeded in establishing marriage. The court relied upon the evidence led
- D.P. SATPATHY v. B.P. DIXIT [SHAH, J.]

by respondent no. 1 for holding that in fact a marriage was solemnized in
the temple of Lord Jagannath and she was corroborated by the photog-
689

A

rapher who was present at the time of marriage. The evidence of the
brother of respondent no. 1 was also referred to for arriving at the said
conclusion. The High Court negatived the contention of the appellant that
the said ceremony was forcibly held at the point of knife and also held that
B
there was no reason for disbelieving respondent no. 1 that the appellant
and respondent no. 1 were having pre-marital sexual relations and that the
child was born out of this relationship. That order is challenged by filing
these appeals by special leave.

c
-
Before issuing notice, this Court by order dated 12.10.1998 directed
the appellant to deposit rest of the total arrears of maintenance payable to
respondent no. 1 within six weeks. Thereafter, notice was issued to respon-
dent no. 1 and subsequently the matter was directed to be listed for final
disposal. On 16.7.1999, when the matter came up for hearing, the appellant
contended that he is not the father of the child. On behalf of respondent
D
no. 1, it was pointed out that respondent no. 1 was prepared to have a
DNA test for finding out fatherhood of the child. At that stage, the learned
:,.- counsel for the appellant sought time of four weeks to get instructions from
the appellant. Thereafter, when the matter was placed for hearing on
20.8.1999, the learned counsel for the appellant stated that he was not
willing to undergo DNA test and, therefore, this Court ordered that "this E
... means appellant is disentitled to dispute the paternity of the child. This is
recorded .. " On the next date of hearing, learned counsel for the parties
were heard at length and it was contended by the learned counsel for the
appellant that there was no valid marriage between the appellant and
respondent no. 1 and, therefore, the order passed by the High Court
F
•• awarding maintenance to respondent no. 1 is illegal and requires to be
set-aside.

Learned counsel for the appellant at the time of hearing had not
disputed the paternity of the child. Hence, the question is whether the
marriage between the appellant and respondent no. 1 was valid or invalid? G
In our view, validity of the marriage for the purpose of summary proceed-
ing under Section 125 Cr.P.C. is to be determined on the basis of the
evidence brought on record by the parties. The standard of proof of
-) marriage in such proceeding is not as strict as is required in a trial of
offence under section 494 of the I.P.C. If the claimant in proceedings under H
690 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A 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. Undisputedly, marriage
procedure was followed in the temple, that too, in the presence of idol of
Lord J agannath, which is worshipped by both the parties. Appellant con-
B
tended before the learned Magistrate that the said marriage was performed
under duress and at the point of knife, he was required to exchange
garlands. That contention is not proved by leading necessary evidence.
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
c as per the Hindu rites in the proceedings under Section 125 Cr.P.C.

Learned counsel for the appellant relied upon the decision of this
Court in Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and
Another, (1988] 2 S.C.R. 809 and submitted that even in a summary
D proceeding under Section 125 Cr.P.C., the Court is required to find out
whether applicant - wife was lawfully wedded wife or not. In the said case,
the Court considered the point whether a Hindu Woman who has married
after coming into force of the Hindu Marriage Act, 1955, with a man having --=::
a lawfully wedded wife, can maintain an application for maintenance under
Section 125 Cr.P.C. In that case, the Court confirmed the judgment of the
E High Court and arrived at the conclusion that the Legislature decided to
bestow the benefit of Section 125 Cr.P.C. even on an illegitimate child by
expressed words but none arc found to apply to a defacto wife where the
marriage is void ab initio. The marriage was null and void because Section
5 inter alia provides that a marriage may be solemnised between any two
F Hindus if the conditions mentioned therein are fulfilled. One of the con-
ditions is - neither party has a spouse living at the time of marriage. Under
Section 11, such marriage is null and void. The Court held that marriage
of a woman in accordance with Hindu rites with the man having a living
spouse is complete nullity in the eye of law and she is not entitled to the
benefit of Section 125 of the Code. In our view the said judgment has no
G bearing on the facts of the present case as it is not a case of de facto
marriage nor can it be held that the marriage between the appellant and
respondent no. 1 was void ab initio. It is a case where it is contended that
at the time of marriage essential ceremonies were not performed. Hence
in the present case, we are not required to discuss the issue that unless ~y
H declaratory decree of nullity of marriage on the ground of contravention
<~ D.P. SATPATHYv. B.P. DIXIT [SHAH, J.] 691

of any one of the conditions specified in clauses (i), (iv) and (v) of Section A
5 is obtained, it cannot be held in collateral proceedings that marriage was
null and void. Nor it is required to be discussed that Legislature has not
provided that if, some marriage ceremonies are not performed, marriage
is a 'nullity' under Section 11 or is 'voidable' under Section 12 of the Hindu
Marriage Act.
B
The learned counsel for the appellant next relied upon the case of
B.S. Lokhande & Another v. State of Maharashtra & Another, [1965] 2 S.C.R.
~·
837 and contended that two ceremonies are essential to the validity of a
Hindu marriage, i.e., invocation before the sacred fire and sapatapadi and
are required to be established before holding that the marriage performed c
,._, in the temple was valid one. In that case, the Court arrived at the
conclusion that the prosecution for the alleged offence under Section 494
I.P.C., had failed to establish that the marriage was performed in
accordance with the customary rites as required under Section 7 of the
Hindu Marriage Act; it was certainly not performed in accordance with D
the essential requirements for a valid marriage under Hindu law and,
therefore, accused cannot be convicted under Section 494, IPC. In our
view, in the said case the Court was considering the evidence which was
led before the trial court in a criminal trial for the offence punishable under
Section 494 IPC. In a prosecution for bigamy, the second marriage has to
E
be proved as a fact. The said decision would have no bearing in the
proceeding under Section 125 Cr.P.C., which is of summary nature.

It is to be remembered that the order passed in an application under
Section 125 Cr.P.C. does not finally determine the rights and obligations
of the parties and the said section is enacted with· a view to provide F
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 alias Dolly
.. Sethurthinam, [1971] 3 SCC 923 observed that maintenance under Section
488 Cr.P.C., 1898 (Similar to Section 125 Cr.P.C.) cannot be denied where
G

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 H
692 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A marriage between the parties will not operate as decisive in any civil
proceeding between the parties.

After not disputing the paternity of the child and after accepting the
fact that marriage ceremony was performed, though not legally perfect as
c_ontended, it would hardly lie in the mouth of the appellant to contend in
B a proceeding under Section 125 Cr.P.C. that there was no valid marriage
as essential rites were not performed at the time of said marriage. The
provision under Section 125 is not to be utilized for defeating the rights
conferred by the Legislature to the destitute women, children or parents
who are victims of social environment. In Ramesh Chander Kaushal v. Mrs.
C Veena Kaushal and Others, AIR (1978) SC 1807 Krishna Iyer, J. dealing
with interpretation of Section 125 Cr.P.C. observed (at Para 9) thus :

"This provision is a measure of social justice and specially enacted
to protect women and children and falls within the constitutional
sweep of Article 15 (3) reinforced by Article ~9. We have no doubt
D that sections of statutes calling for construction by courts are not
petrified print but vibrant words with social functions to fulfil. The
brooding presence of the constitutional empathy for the weaker
sections like women and children must inform interpretation if it
has to have social relevance. So viewed, it is possible to be selective

-
E in picking out that interpretation out of two alternatives which
advances the cause--- the cause of the derelicts."

In Vimala (K) v. Veeraswamy (K.), [1991) 2 SCC 375, dealing with
the contention of husband that the second marriage with the applicant -
wife was void on the ground that her first marriage was subsisting, this
F Court held that Section 125 Cr.P.C. is meant to achieve a social purpose
and, therefore, the law which disentitles the' second wife from receiving
maintenance from her husband for the sole reason that the marriage
ceu,:mony though performed in the customary form lacks legal sanctity can
be applied only when the husband satisfactorily proves the subsistence of
G a legal and valid marriage particularly when the provision in the Code is a
measure of social justice intended to protect women and children; the
.
,

object to prevent vagrancy and destitution; it provides a speedy remedy for
the supply of food, clothing and shelter to the deserted-wife and observed
thus:

H "When an attempt is made by the husband to negative the claim
D.P. SATPATHYv. B.P. DIXIT [SHAH, J.] 693
of the neglected wife depicting her as a kept-mistress on the A
specious plea that he was already married, the court would insist
on strict proof of the earlier marriage."

Similarly, in Santosh (Smt.) v. Naresh Pal, [1998] 8 SCC 447 dealing
with the contention that wife had not proved that she was legally married
wife because her first husband was living and there was no dissolution of B
her marriage, this Court held thus :

"In a proceeding for maintenance under Section 125 Cr.P.C.
the learned Magistrate was expected to pass appropriate orders
after beingprima facie satisfied about the marital status of parties.
It is obvious that the said decision will be tentative decision subject c
to final order in any civil proceedings, if the parties are so advised
to adopt."

Hence, in our view from the evidence which is led if the Magistrate
is prim a f acie satisfied with regard to the performance of marriage in
D
proceedings under Section 125 Cr.P.C. which are of summary nature, strict
proof of performance of essential rites is not required. Either of the parties
aggrieved by the order of maintenance under Section 125, Cr.P.C. can
approach the civil court for declaration of status as the order passed under
Section 125 does not finally determine the rights and obligations of the
parties. E
In the result, the appeals are dismissed with costs quantified at Rs.
5,000.

v.s.s. Appeals dismissed.