JALANDAR GORAKH KIRTIKAR Vs. SHOBHA J. KIRTIKAR
HIGH COURT OF BOMBAY
Jalandar Gorakh Kirtikar
Shobha J. Kirtikar
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(1.) THE petitioner is the husband of respondent No. 1 who had filed an application for maintenance on the ground of ill -treatment, assault and desertion. The petitioner contested the claim by his wife stating that she is not his legally wedded wife and that, therefore, she is not entitled to maintenance. The respondent -wife had also claimed maintenance for the two children. The learned Presidency Magistrate, Dadar before whom the case was tried considered the question of legality of marriage and found that respondent No. 1 had established that she is the legally wedded wife of the petitioner. After considering the version as regards the income of the petitioner the learned Magistrate came to the conclusion that he would be able to pay to the respondent Rs. 60 per month as maintenance and Rs. 30 per month to each of the two sons who are now with the respondent. This order is challenged here by the petitioner. The point, therefore, that arises here for consideration is whether the order passed by the learned Presidency Magistrate is legal and proper.
(2.) AT the outset Mr. Kadam, the learned advocate for the petitioner, requested that he wants to file as additional evidence a letter written by the respondent to the petitioner after the present petition was filed in this Court. According to him in that letter the respondent admits that she was not married to the petitioner. There is another document which he wants to file and that is an affidavit sworn by the respondent calling herself by the name of her father and not that of her husband. He has also filed an application. It would be difficult for me to accept these documents firstly because the affidavit sworn by the respondent was in the possession of the petitioner and it was possible for him to file the same during the course of the maintenance proceedings. Calling oneself by maiden name is also quite usual when one goes to school. The letter which is said to have been written by the respondent is vague. It is neither addressed to any person in particular nor is signed. The contents also do not in terms show that the respondent had admitted that she was not married to the petitioner. I cannot, therefore, allow Mr. Kadam to have the additional evidence. I have, therefore, rejected his application.
Mr. Kadam has vehemently argued that the respondent has not been able to establish valid marriage between her and her husband. She is a Nav Buddha. Her claim is that her marriage with her husband was performed according to Buddhist rites. She has also recited during the course of her evidence what exactly had taken place. According to her two Bhikkus who had come there had performed the marriage. The custom is that Panchsheel is recited and the husband and wife garland each other in the presence of the Bhikkus who gather there and the Bhikkus perform the marriage. The petitioner also has admitted during the course of the evidence that he had attended other marriages of Buddhists and the marriages take place as recited by the respondent. It is true that the respondent has neither examined any of the Buddhists nor any of the persons who had attended the marriage. It is, therefore, contended by Mr. Kadam that the respondent had not established that there was a valid marriage between the two. This would be specially so, according to Mr. Kadam, because the petitioner says that he is a Hindu and not a Buddhist. Mr. Kadam contends that even if it is true that the marriage was performed as was stated by the respondent, such a marriage would not be a valid marriage when the petitioner is a Hindu. It is, however, significant to remember that the petitioner had not suggested in the cross -examination of the respondent that he is a Hindu and not a Buddhist. For the first time he has stated during the course of his evidence in these proceedings that he is a Hindu. Evidently, therefore this statement appears to be an afterthought. Besides the evidence of the respondent on the factum of the rites that took place at the time of the wedding, there are also other circumstances which establish that there must have been a marriage between the two.
(3.) IT is admitted that the parents of the respondent as well as the parents of the petitioner live in the same chawl. The petitioner was a teacher and the respondent was a student in the same school. Because of this contact both appear to have fallen in love with each other. The parents of the girl, however, were not happy about this. In the beginning they were against the marriage between the two but later they were reconciled and even attended the marriage of the couple. The important circumstance, however, is that after the wedding the respondent stayed with the parents of the petitioner in the same chawl. In the ordinary course if there was no wedding between the couple the parents of the girl would not have allowed her to stay in the same chawl with another person. The fact, therefore, that they allowed her to stay in the petitioner's house shows that there must have been a marriage between the two.;
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