I give 80 : 20 chance to this brief. [80 she will succeed and 20 you may]
May be worth a try with persuasive pleadings if it clicks you are saved if it does not then the law as it stands is detailed as below (I say this here, because neither your caste, clan nor hers is briefed out here however do self discovery now that you have been spoon fed position of Law);
? Remedy ?:
It is true, in a case under S. 125, Cr. P.C. dispute about the marriage need not be so meticulously proved as in a dispute about marriage thrashed in a Civil Court or in the criminal proceeding under Sections 494/495/496/497, I.P.C. But that does not mean that the Court must accept too much credulously and naively whatever the 1st. party asserts about her marriage.
The S. 125, Cr.P.C, no doubt, provides a swift and cheap remedy against any person who despite means neglects or refuses to maintain his wife etc. and the primary object of this Section is to prevent starvation and vagrancy and is a distinct and quite independent of the right which such wife etc. may or may not have under the personal law.
But the term "wife" as used in this provision of law undoubtedly means only legally wedded wife. Consequently the 1st. party claiming to be wife of the 2nd. party must prove that there was a lawfully recognized marriage is still my view inspite of ref. # 12 here for a simple reason in case law ref. # 12 Hon'ble SC didnot touch check and balance of unknown female clamining to be wife which may come into picture very soon as in soicety there are always two nature of peoples living and unless check and balanaces placed such questions cannot be decided by only this ref. # is my view.
Standard of proof need not be so high as under the personal Divorce Act or under relevant provisions of I.P.C. to warrant a conviction; but the Appellant (wife) undoubtedly has to prove with sufficient materials that there was a marriage between the 1st. party and the 2nd. party as recognized by rites, custom prevalent among their society or secular legal provisions.
A petition for maintenance U/s 125 CrPC cannot be just lightly allowed and in a slip-slod manner, without sufficient proof of solemnization of a marriage. In case of incident of long past sufficient evidence about living of the 1st. party in the house and keeping of the 2nd. party since long, recognition of the parties as spouses and of the children born out of such long standing living together which, may, by preponderance of probability, leads most often then not the Court to accept the plea that there was a lawful marriage. But under no circumstances, the 1st. party just by claiming marriage can be absolved of the responsibility to prove the fact of marriage satisfactorily and sufficiently by reasonable standard of proof acceptable to a man of ordinary prudence.
Without sufficient materials to establish the fact, the 2nd. party cannot be saddled with the responsibility of marriage and of maintaining the 1st. party is my view. Consequently, one must hold that the 1st. party claiming maintenance from the 2nd. party had her responsibility to prove that there was a marriage as per religious rites and custom or secular legal provisions with the 2nd. party and that she was the legally wedded wife of the 2nd. party.
Marriage, according to Hindu Law, may be either by the ceremonies prevalent in the society in question, as provided in Sections 5, 6 and 7, or, by registration as provided in S. 8 of Hindu Marriage Act.
S. 7 rules that a Hindu marriage that is, one made under the present Act must after commencement of the Act be solemnized in accordance with the customary rites and ceremonies at least of either of the parties to the marriage. In the society where such rites and ceremonies prevalent among the parties include "Saptapadi" that ceremony must be observed to make the rituals complete after the seventh step taken.
Therefore, the law recognized in Hindu Society does not make "Saptapadi" an indispensable custom in every incident of marriage. What is required is substantial compliance with only those rites and ceremonies, performance of which is, by the customary law of either party, peculiar to it and deemed as absolutely necessary, and, non-performance of which rites and ceremonies of prime necessity would be regarded as failure to solemnize the marriage and no valid Hindu marriage can result. This is because a marriage, not duly solemnized by performance of the essential ceremonies prevalent in the society which the parties or either of them, belong to, is no marriage at all. One particular custom observed in one group or clan is very often not recognized by the other and is often incompatible with the custom followed by any other group of clan or tribe.
As 1 stated above the Hindus do not have any uniform custom, and, even in case of upper class Hindus the ceremonies like "Saptapadi" are observed only when the same are recognised by the custom of the particular community and the local area etc. and has no universal binding on every Hindu.
The 1st. party (wife) claims that the marriage was solemnized according to Hindu rites. It has to be established by reliable evidence by or on behalf of her the custom in vogue in their community, and, whether they adopted by custom the ceremonies like "Saptapadi", "Homa" etc., prevalent among some Hindus of Aryan origin.
Here in reference brief few witnesses to be called for and examined including first party (wife). She has to have idea about ceremonies of Hindus of Aryan origin. She ought to have details of ceremony of Hindu marriage while asked in her cross examination. Even the priest has to be examined is also my view.
Case law reference how they evolved as of date:-
1. Under the Hindu system of law clear proof of usage will outweigh the written text of law. ref.: Collector of Madurai Vs. Mootoo Ramalinga [(1868) 12 M.I.A. 397]
2. The Custom among Kammas of A.P that presents [pasupukumkuma] given to bridegroom by bride people shall be returned to them in the event of the bride dying issue less-intestate is established beyond doubt ref.: N. Venkata Subba Rao Vs. Tummala Bhujangayya [1960 (1) An.WR 215]
3. Essential ceremonies must be proved for allegation of second marriage ref.: Bhaurao Shankar Lokhande&Anr Vs. State of Maharashtra & Anr, [1965 AIR 1564, 1965 SCR (2) 837]
4. The taking of seven steps by the bride and the bride-groom together before the nuptial fire and the performance of 'nuptial homa' are the two essential ceremonies of a Hindu marriage. The ceremony known as 'Kushandika' is associated with 'nuptial homa' and the performance of a Sanskar. The evidence conclusively shows that at the time of performance of 'Kushandika' on the following morning both the ceremony of Saptapadi Gaman as well as the performance of homa had been done together and that the marriage became complete and binding between the parties ref.: Rabindra Nath Dutta Vs. The State, [AIR 1969 Cal 55, 1969 CriLJ 164]
5. A distinct community called Dudekulas consist of Mohammedans or Hindus, Governed by Hindu Law, Dudekulas belongs to Cuddapah district of A.P, who were originally Hindus but some generations ago began to adopt certain usages of Muslims so far as marriage and some social customs in general and they have been living as joint families following the incidents of Hindu families and customs ref.: Rosanna Vs. Subbanna, [ILR (1970) A.P. 1010]
6. Udiki Marriages for widows amongst Munnuru kapus community upheld. i.e. not to be proved ref.: Malakayya And Anr. Vs Avait Bhommayya And Anr., [AIR 1971 AP 270, 1971 1 Anwr 143];
7. The Custom wife to get back dowry from estranged husband is valid ref.: Venkateshwara Rao Vs. Ganga Bhavani [ILR 1976 AP 26]
8. Custom permit a sudra to become sanyasi ref.: Krishna Singh Vs. Mathura Ahir [1980 SC 707, 1980 AIILJ 299]
10. Serai Udiki marriage among Pancha- masal Lingayats proof unnecessary ref.: Shakuntala Bai & Anr.Vs. Kulkarni & Anr. [1989 AIR 1359, 989 SCR (2) 70, 1989 SCC (2) 526, JT 1989 (1) 607, 1989 SCALE (1) 737]
11. If essential ceremony like saptapadi is not performed such marriage is not legally accepted ref.: Shanti Dev Barma Vs. Kanchan Prawa [AIR 1991 SC 816]
12. Definition of wife defined: "Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under S. 125 Cr.P.C.? "We are of the opinion that a broad and expansive interpretation should be given to the term ‘wife’ to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under S. 125 of the Cr.P.C, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125." – Lordships G.S. Singhvi.J. & Ashok Kumar Ganguly in ref.: Chanmuniya vs. Virendra Kumar Singh Kushwaha [(2011) 1 SCC 141]