Thanda Suraiah vs Thanda Sharada and Another

Radhakrishna Rao, J.—The case of the 1st respondent wife is that she married the petitioner and they lived together for three years happily and a child was born to them. The case of the petitioner-husband is that there was no marriage and he never contracted any marriage and that she is not entitled for any maintenance. The 1st Class Magistrate found that no case has been made out for maintenance.

The wife issued a notice before filing the maintenance case. No reply has been sent by the husband. The lower appellate court drew a presumption on the basis of the husband not giving any reply and allowed the appeal. u/s 50 of the Evidence Act the conduct of the parties can be taken into account to find out whether they are husband and wife. Section 125 Cr.P.C. contemplates only summary trial and the finding given in proceedings u/s 125 Cr.P.C. by itself is not binding on the Civil Court or any other competent court to arrive at a conclusion that there is a valid marriage as between the husband and the wife. The finding in proceedings u/s 125 Cr.P.C. that they are husband and wife is one of the circumstances that can be taken into account to arrive at a conclusion that there is a valid marriage. In case if the husband is aggrieved by the finding in a proceeding u/s 125 Cr.P.C. that there is husband and wife relationship, he can approach the civil court for a declaration. The presumption drawn by the lower appellate court appears to be correct.

The Learned Magistrate refused to award any amount on the ground that there is no relationship of husband and wife. The lower appellate court came to the conclusion that a presumption has to be drawn that there is husband and wife relationship.

In case of reversing a finding given by the Magistrate in proceedings u/s 125 Cr.P.C. it is not desirable for the lower appellate court to award maintenance from the date of filing of the petition. If the lower appellate court adopted the practice of granting maintenance from the date of filing of the petition, it will cause hardship to the husband. Under these circumstances, granting of past maintenance from the date of dismissal of the petition by the Magistrate of from the date of disposal of the appeal by the lower appellate court can be justified. Granting of past maintenance is purely the discretion of the court, but that discretion has to be exercised judiciously and it shall not cause any hardship to either of the parties. In this case as the lower appellate court drew the presumption that there is relationship of husband and wife and allowed the appeal, it ought to have granted the maintenance from the date of passing of the order, i.e. from 27th March, 1987. The petitioner is at liberty to file a suit for declaration, if he is so advised.

With this modification, the revision is dismissed.