Regarding sec.125 of cr.p.c.
Adv.Vishal Anil Vyavahare
(Querist) 22 February 2012
This query is : Resolved
Hallo sir,
I am practicing advocate from Nashik dist.I have recently filed a VP in a matter which has been filed by applicant who is second wife of non applicant.Matter was decided ex parte due to non appearance of Non applicant.thereafter applicant filed recovery application, on service of notice non applicant appeared in the court and Restored the main application u/s. 125/1 of Cr.P.C. Now matter is kept for hearing.Documents which filed by applicant has been already withdrawn after Ex parte order/judgement.So its my first query that whether applicant need to file those documents again at the time of hearing ?
I have one Most important query that applicant does not have any conclusive proof of marriage excluding the xerox copy of agreement of restitution which was drafted on 20 rs. bond having signature of both parties, but it is not registered or notarised.
Second document which applicant relied on is Adoption Deed/Consent Deed of Son of Applicant from her first marriage.Adopted by Non applicant by way of that Adoption Deed/Consent Deed which has been Notarised and contained the signature of applicant,non applicant and son of applicant, but applicant does not having its original Copy.
Third documenton which applicnt relied is Gazzate of Govt. Of Maharashtra regarding advertise of Change of Name, age and Religion which has been published on 29 th Nov. 2007. In that Gazzate Name of non applicant has been mentioned as a Father of applicants Son.
So that all documents which are xerox copies can read as an evidence of applicant which can show that both were living together as husband and wife.
If yes or no please provide me some effective provisions with case laws.
Thanks,
Vishal A. Vyavahare
Advocate
Raj Kumar Makkad
(Expert) 22 February 2012
In response to your first query I am of the firm view that you should file those documents while in your evidence.
The documents mentioned by you are though photocopies but are sufficient to establish the relationship of husband and wife.
Original documents can be sought from the non-applicant and if those are denied then obtain the permission to file secondary evidence under section 65 & 66 of Evidence Act thus the entire evidence shall be duly admissible.
Adv.R.P.Chugh
(Expert) 22 February 2012
Brother,
Agreeing with Ld.Makkad Sir, I would like to say that SC has end number of times ruled that in 125 proceedings - strict proof of marriage is not required. 125 proceeds on the basis of de facto marriage. Though you may face an adverse interim order or two. You can still file a civil suit for declaration of non marriage, and once you get that - the word 'wife' in S.125 would be interpreted strictly and certainly not include a 2nd wife.
Adv.Vishal Anil Vyavahare
(Querist) 24 February 2012
Thank You Sir for your kind and precious advice, it will definetly increase my confidence before Court.And its so nice feeling that I am going through the great learning process under guidence of Learned and knoligible Persons like you.
Thanks once again....
Adv. Vishal A.Vyavhare.
