JUDGMENT N.B. Asthema, J.
1. Smt. Gaura Devi, opposite party No. 8 filed an application under Section 123 Cr.P.C. before Judge, Family Court, Gorakhpur which was registered as case No. 98 of 1990 claiming herself of be the legally wedded wife of the revisionist and stating that he has deserted her after treating her cruely and praying for Rs. 500/- as maintenance allowance. The revisionist contested the application saying that Smt. Gaura Devi is not his legally wedded wife; that the application under Section 125 Cr P.C. has been filed with totally false allegation and in the alternative pleading that he has no sufficient means to pay maintenance allowance to her. Judge Family Court decided both the points in favour of Smt. Gaura Devi and granted her maintenance allowance at the rate of Rs. 250/- per month from the date of filing the application i.e. 4.4.1990. Aggrieved by it the revisionist has come to this Court.
2. Smt. Gaura Devi in support of her case examined P.W. 1 Narsing Pandey who acted an priest in the solemnization of the marriage of the parties. The second witness examined is Ram Net Pandey who is the neighbour of the parents of Smt. Gaura Devi. He had attended the marriage. He deposed about it. The third witness examined is Mohd. Haneef who is also a neighbour. He had supported the statement of Ram Net Pandey. The last witness examined is Smt. Gaura Devi herself. She corroborated the allegations of her application. The revisionist examined himself and Ram Daur who lives in his village and is a Harijan by caste. Both of them have denied the claim of Smt. Gaura Devi as the legally wedded wife of the revisionist.
3. Some documentary evidence in the form of voters list and extrects of Kutumb Registers were filed on behalf of the revisionist. In the voters list the name of the revisionist has also not been included. The Judge Family Court came to the conclusion that since the name of the revisionist also did not find place in these lists no inference could be drawn that Smt. Gaura Devi was not the wife of the revisionist. In the extract of Kutumb Register the absence of the name of the opposite party was explained by the Trial Court by saying that the opposite party remained for comparatively short period with the revisionist and therefore it is not surprising that her name was not entered in the Kutumb register. The opposite party no doubt filed the Kutumb Register of her father's place in which she has been stated to have been married to the revisionist. It was argued that this entry was a procured one and would not help the opposite party in any way. Even if this is assumed to be correct, it has to be seen from the oral evidence available on record as to whether she has proved herself to be the legally wedded wife of the revisionist. In the normal course no one would have stated herself to be the wife of another person unless she was married to him. There is nothing on the record to indicate that the opposite party was in any way connected with the revisionist so that she started saying that she was the legally wedded wife of the revisionist. The contention of the revisionist is that the father of the opposite party wanted her to marry with him and since he did not agree to it the application under Section 125 Cr.P.C has been filed with false allegations. The trial Judge noted that the opposite party had placed 'sindoor' after parting her, hairs and that an unmarried women would not have done so. It would not be out of place to point out here that it is not the allegations of the opposite party that she had married some one else and is now black-mailing her. The oral evidence has to be seen in the light of these circumstances,
4. Two rulings have been relied upon to show that the marriage has not been established. This question is essentially that of fact. However, I may discuss first the rulings relied upon by the revisionist and then would revert to the oral evidence. The first ruling relied upon is Bhan Rao Shanker Lokhande and Anr. v. State of Maharashtra and Anr., A.I.R. 1965 S.C. 1964 in which it was held that for application of Section 494 I.P.C marriage must be a solemnized marriage which means celebration of marriage with proper ceremonies and in due form. Mere going through certain ceremonies with the intention that the parties be taken to be married will not make the ceremonies prescribed by law or approved by any established custom This was a Ruling under Section 494 I.P.C. In criminal cases marriage has to be strictly proved. It is not the case in civil proceedings. The standard of proof required for proving the marriage in a criminal litigation is more rigorous than the burden of proof required for establishing marriage in a civil litigation. The other ruling relied upon in Phirari Singh v. State, 1989 A.L.J. 667. It was a case under Section 125 Cr.P.C. wherein it was held that where the applicant failed to prove that she was the legally wedded wife of the applicant she was not entitled to maintenance under Section 125 Cr P.C. Before claiming maintenance the factum of marriage must be proved. In that case it was further stated in para 16 that once the marriage was categorically denied the factum of marriage must be proved as a fact and a heavy burden lay upon the party pleading marriage to establish it. In that case on the basis of the evidence on record the Court come to the conclusion that the factum of marriage has not been established.
5. PW 1 Narsingh Pandey in his statement gave out that Smt. Gaura Devi lived at the house of the revisionist for about 5 years and then the revisionist brought her to her father's place and left her. He stated that he got the marriage performed and that he was present at the time of marriage, Tilak and Bidai. In his cross-examination he stated that marriage took place about 14 years back and that the month was of March. He was unable to tell the date. It was argued that this witness did not say that the marriage was solemnized by him or that Saptpadi was performed at the time of the marriage took place. This argument in so far as it goes is correct but his statement that he got the marriage performed would tantamount to the statements that all the required formalities were performed. He was not asked anything in cross-examination nor even suggested that he was not present at the time of the marriage, Tilak or Bidai. The more fact that he did not say that Saptpadi was performed, would not go to show that marriage did not take place. Ram Net Pandey in his statement gave out that Smt. Gaura Devi and the revisionist were married and that after the marriage Smt. Gaura Devi went to reside at the house of the revisionist. He was present at the time of marriage. In cross-examination to gave out that the marriage was performed about 13 or 14 years ago, that 'Sindoor' was placed on her forehead and thereafter she went with her husband. He was also asked as to how the marriage was performed to which he replaced in the manner in which the marriage are performed. He was not asked specifically as to whether the ceremony of Saptpadi took place or not or what ceremonies were performed. Mohd. Haneef in his statement also gave out that at the time of marriage he was present and that after the marriage she went to live with the revisionist. Smt. Gaura Devi in her examination in chief supported the allegations made in her application. In view of the above statements the trial Judge came to the conclusion that marriage has been established, I do not think that the Trial Court committed any error in drawing the inference of marriage on the basis of the above evidence. If the case of the revisionist had been that the marriage was not performed in accordance with law and as such it was an invalid marriage then it was necessary for the opposite party to prove that all the formalities required for the marriage including Saptpadi had taken place. Since the factum of marriage itself was denied the burden lay upon the opposite party to prove that the marriage had in fact taken place. In view of the evidence produced by her the factum of marriage had been established, In view of the pleadings of the parties, the opposite party was not required to prove the ceremonies which took place at the time of marriage. In the circumstances the statement that the marriage had taken place would imply that the marriage took place observing all the due ceremonies as required. Both the parties are grown up. It appears rather improbable that without any reason they would have remained unmarried so far. The opposite party was asked in cross-examination as to whether she can tell any special marks upon the body of the revisionist. She replied that her husband was reading at Gorakhpur. He used to come for one or two days to his father's place and for that reason she cannot tell any specific mark on his body. There is no reason to disbelieve this statement. The revisionist is an interested witness. We wanted to avoid payment of maintenance allowance and for that reason he could have disowned the opposite party as his wife. His witness was disbelieved by the Trial Court. He was a Harijan and had no affinity with the family of the revisionist who was barber by caste. Neither he is the neighbour of the revisionist. The revisionist and his witness were rightly disbelieved.
6. In view of the discussion above it cannot be said that the trial Judge committed any glaring mistake in assessing the evidence adduced in the case so as to call for interference in the revision. It must therefore be held that the trial Judge rightly came to the conclusion that the opposite party is the legally wedded wife of the revisionist.
7. It was next urged that the revisionist is an employed youth and is, therefore, not in a position to maintain her. Reliance in this connection has been placed upon Smt. Preeti Archana Sharma v. Ravind Kumar Sharma AIR 1979 Allahabad 29 in which it was held that it is necessary for the Court to find out the respective income of the parties and the means which they have. If a party has sufficient means the Court may not allow her litigation expenses. However this is a ruling under Section 24 of Hindu Marriage Act and not under Section 125 Cr.P.C. The revisionist is an able-bodied young man of 30 years of age. He can do annual labour and if he sticks to the profession of the community to which he belongs he can earn sufficiently to maintain himself and his wife. Whether he is in a position to pay the maintenance allowance would depend upon his capacity to earn and not upon the fact as to whether he is possessed of sufficient means to pay maintenance allowance. The sum of Rs. 250/- awarded cannot be said to be excessive. No other point has been urged. The revision fails and is dismissed. The stay order granted on 11.8.93 is vacated.