Jiban Dey Sarkar v. Golapi Dey Sarkar — 1984 DIGILAW 252 (CAL)

Judgment 1. THIS revisional application Is directed against the judgment and order dated 23. 4. 82 passed by the learned Sub-Divisional Judicial magistrate, Jalpaiguri in Misc. Case No. 136/79, directing, the present petitioner to pay maintenance of Rs. 100/- per mensem to his wife, who is opposite party no. 1 herein under section 125 Cr. P. C. 2. MR. Talukdar appearing for the present petitioner has urged that the learned Magistrate was wrong on the materials in holding that there was a marriage between the parties for the purposes of section 125 Cr. P. C. This is the only point which he has urged in this application. No one has appeared on behalf of the opposite party wife. Mr. Ghose appearing on behalf of the State has supported the judgment. The facts of the case very shortly are, that according to Smt. Golapi Dey Sarkar who claims to be the wife of the present petitioner, there was a marriage between the parties according to Hindu rites on 19.3.73 at Metteli Kalibari under Metteli P.S. District Jalpaiguri. This was a love marriage. But as the husband's parents had objection to the marriage, the husband did not take his wife to his house after the marriage, tout assured her that she would be taken there after sometime. In the meantime the husband had to undergo am operation and pursuant to medical advice had to live separately for six months. Ultimately, inspite of assurances the wife was never taken to her husband's house. But the husband used to come al times to the wife's brother's house, where she was residing and even he stayed there on occasions. In spite of squatting in front of the house of her husband for several days she was still not allowed to enter his house. She was paid nothing towards her maintenance and the husband refused and neglected to maintain her in spite of demands. 3. I have examined the materials on record for the purpose of satisfying myself as to whether there are materials from which the marriage for the purpose of section 125 Cr. P. C. can be held to have taken place between the parties. The learned Magistrate after examining the materials came to the conclusion that for the purpose of section 125 Cr. P. C. can be held to have taken place between the parties. The learned Magistrate after examining the materials came to the conclusion that for the purpose of section 125 Cr. P. C. the marriage has been established since the parties had undoubtedly gone through a form of marriage in the kalibari in presence of the Purohit (P. W. 1)and other witnesses (P. Ws. 2, 3 and 4. The wife deposed as PW 5 in the proceeding. The learned Magistrate has further noted that on the materials it appeared to him that the form of marriage effected between the parties somewhat amounted to the Asura or Gandharva form of marriage. From the preceding, attendant and subsequent conduct of the parties coupled with the form of marriage which was gone through, he was satisfied that for the limited purpose of section 125 Cr. P. C. the inference of marriage between the parties could be, drawn. 4. MR. TALUKDAR, learned advocate appearing on behalf of the petitioner, has drawn my attention to the case reported in AIR 1968 allahabad 412 (Nuarang Singh Chuni Singh Vs. Smt. Sapla Devi) which is a division Bench decision. In that case it was held that the marriage of a Hindu husband solemnised with the second wife during continuance of his marriage with his former wife is Void under the Hindu Marriage Act and accordingly the second wife was not entitled to claim maintenance from her husband under section 488 of the Code of criminal Procedure (old code) This was a case where in spite of proper solemnisation of the second marriage, due to the provisions of the Hindu marriage was void and is not a case on the question as to what' formalities were necessary to constitute a marriage for the purposes of Section 48'g Cr. P- C. (Old code. Mr. Talukdar has also very fairly placed before one the three decisions referred to in the judgment of the learned magistrate. These are discussed below. The decision reported in AIR 1975 SC 83 (Bhagwan Dutta Vs. Smt. Kamla Devi and anr.) relates to the question of determination of the quantum of maintenance and not to the question of proof of marriage, in 1962 (1) Criminal Law Journal 812 (Baidyanath Ghoshms. Sm. Sefali Ghosh and Ors.. JVmaresh Roy, J. of this Court herd that a proceeding under section 488 cr. Smt. Kamla Devi and anr.) relates to the question of determination of the quantum of maintenance and not to the question of proof of marriage, in 1962 (1) Criminal Law Journal 812 (Baidyanath Ghoshms. Sm. Sefali Ghosh and Ors.. JVmaresh Roy, J. of this Court herd that a proceeding under section 488 cr. P. C. (Old Code) was quasi civil in nature for certain purposes, although a judicial proceeding of a Criminal Court was governed by the Criminal Procedure Coda. Keeping that in view it was apparent that the question of legal validity of the marriage is not the primary issue in the proceeding, although the Magistrate must be satisfied about relationship of husband and wife for making an order under section 488 Cr. PC. To decide as to whether the relationship of husband and wife exists for the purposes of section 488 Cr. P. C. it is not necessary to insist on strict proof of all the formalities of a particular form of legal marriage as is necessary in civil proceedings where the question of the legality of marriage is a primary issue. Reference has been made by the learned Judge to the terms of section 50 of Indian Evidence Act. That section clearly recognises the difference in the standard of proof proviso therein, the proceedings where a strict standard necessary have been mentioned. It is significant that (section 488 Cr, P. C. (QW code), which corresponds to section 125 of the new Code-has not been mentioned in the said proviso. The case reported in 1982, Criminal law Journal 539 (Saudamini Dey Vs bhagirathi Rai) which is a single Bench decision of the Orissa High Court, it was held that section 125 Cr. P. C, provides a swift and summary remedy for providing maintenance to neglected wives, parents and children by compelling a man to perform his moral obligation. In such a summary proceeding it is not necessary to go into the intricacies of law in determining the question of marriage between the parties. In that case the facts and circumstances indicated that the man and the woman lived together as husband and wife and were treated as such by the community, and the maltreated the woman as his wife. The said decision has relied upon the decision of this Court referred to above (1962 (1) Cr. L. J. 812. 5. In that case the facts and circumstances indicated that the man and the woman lived together as husband and wife and were treated as such by the community, and the maltreated the woman as his wife. The said decision has relied upon the decision of this Court referred to above (1962 (1) Cr. L. J. 812. 5. AFTER placing the said three decisions referred to in the judgment of the learned magistrate, Mr. Talukdar has also placed before me the decision reported in 1977 criminal Law Journal (Notes) 9 (Tirtha kumar Hazra Vs. Diparani Hazra), which is a decision of A. N. Banerjee, J. of this court. In that case is has been held that in a proceeding under section 125 Cr. P. C. there can be no question of maintenance unless the relationship of husband and wife exists between the parties. What would be the standard of proof to establish such relationship must depend on the facts and circumstances of each case and no hard and fast rule can be laid down about it. 6. SITTING in revision and not on appeal, I have examined the materials to see whether from the materials it can be inferred that a marriage for the purpose of section 125 Cr. P. C. took place between the parties, since Mr. Talukdar has contended that no such material exist. The oral and documentary evidence, to my mind, on the facts and circumstances of this case establish a marriage for the limited purpose of section 125 Cr. P. C. This proof must depend on the facts and circumstances of each case and no hard and fast rule can be laid down. The declaration of both the parties before PW 1, Purohit, that they intended to marry each other there and then, exchange of garlands, putting of vermilion on the forehead of the wife by the present petitioner, mantras and blessings conferred on the parties by PW 1 and the photograph (Ext. The declaration of both the parties before PW 1, Purohit, that they intended to marry each other there and then, exchange of garlands, putting of vermilion on the forehead of the wife by the present petitioner, mantras and blessings conferred on the parties by PW 1 and the photograph (Ext. 1), which clearly shows the petitioner putting vermilion mark on the forehead of the wife, distribution of SWEETS to all present immediately after the ceremony, subsequent conduct of the husband in visiting his wife and even staying with her on occasions, the conduct of the wife in squatting outside her husband's house for days in the hope of her being taken in, demands and refusal for the payment of maintenance-all clearly indicate that for the purposes of section 125 Cr. P. Q, there was a marriage between the parties. I respectfully rely upon and follow the decisions referred to above. The fact that, the elder brother of the petitioner and the mother of the wife have not been called to depose, although there is evidence that they wore both present at the time of the ceremony at the Kalibari, cannot affect the positive evidence, which is on record. In my view, the learned Magistrate was justified in relying on the evidence if coming to his conclusions, the quantum of maintenance awarded appears to me, to be reasonable and fair as it was unchallenged that the husband at the time of the judgment was earning Rs. 650/- per month while the wife was unable to maintain herself and her earning was Rs. 50/- only. Her original sprayer was for Rs. 150/- per month as maintenance, but the learned Magistrate awarded Rs. 100/- per month to her as maintenance from the month of April, 1982. In the result, the judgment and order impugned are upheld and this application fails. The Rule is discharged. The ad-interim stay is vacated. 7. AFTER delivery of the judgment Mr. Talukdar prays orally for a certificate for leave to appeal to the Supreme Court. The prayer is considered and leave is refused. Let the records be sent down forthwith.