JEMAMANI DAS v. UMESH CHANDRA — 1987 DIGILAW 282 (ORI)

K. P. MOHAPATRA, J. ( 1 ) THIS revision is directed against the reversing order passed by the learned Sessions Judge, Balasore, rejecting the petitioner's claim of maintenance under S. 125 of the Criminal P. C. ('code' for short ). ( 2 ) THE petitioner's case in brief is that she used to visit her uncle, a neighbour of the opposite party at village Rampur, in course of which both of them developed intimacy. Thereafter, the opposite party frequently; visited her house in village Kahanragohiri and became close to her family. He proposed marriage with the petitioner and so her mother negotiated with the parents of the opposite party for performance of the marriage, but they did not agree. When the opposite party insisted for the marriage on pain of committing suicide, the petitioner's mother agreed and the marriage between the parties was solemnised on 5-3-1976 according to Hindu rites and customs. After the marriage they lived together for a few months during which, the petitioner conceived. The opposite party, however, demanded a sum of Rs. 100/- per month from the petitioner's mother towards his study expenses and as she could not meet the demand, he dissociated himself from the company of the petitioner and subsequently contracted a second marriage. He neglected and refused to maintain the petitioner and so she filed a petition under S. 125 of the Code claiming monthly maintenance of Rs. 150/ -. ( 3 ) THE opposite party in his counter stated that the petitioner is older to him in age and had earlier been married to one Brundaban Panigrahi who had left her. Her brother was his class friend and had incurred a loan of Rs, 300/- from him. When he demanded the loan, a false case was started against him. As a matter of fact, on 5-3-1976 he was appearing in his I. A. Examination in Fakir Mohan College, Balasore and so it was unthinkable that he got married to the petitioner on that day. So, he was not liable to pay maintenance to her. ( 4 ) DURING hearing, both parties adduced evidence. The learned Judicial Magistrate on consideration thereof believed that the opposite party had legally married the petitioner on 5-3-1976 and both of them lived thereafter as husband and wife. Later, the opposite party withdrew himself from the company of the petitioner and neglected and refused to maintain her. ( 4 ) DURING hearing, both parties adduced evidence. The learned Judicial Magistrate on consideration thereof believed that the opposite party had legally married the petitioner on 5-3-1976 and both of them lived thereafter as husband and wife. Later, the opposite party withdrew himself from the company of the petitioner and neglected and refused to maintain her. Therefore, he granted maintenance in favour of the petitioner at the rate of Rs. 75/- per month. The opposite party preferred a revision before the learned Sessions Judge who made a fresh reappraisal of the evidence and disbelieved the factum of marriage for two reasons. First, there was discrepancy between the evidence of the petitioner (P. W. 1) and the evidence of the Purohit (P. W. 2) with regard to the duration for performance of the marriage ceremony and second, when the opposite party was appearing in the LA. Examination, it was improbable that he had contracted a marriage on 5-3-1976. Mainly for these two reasons the learned Sessions Judge disbelieved the marriage between the parties and set aside the order of maintenance, whereafter the petitioner has invoked the revisional jurisdiction of this Court. ( 5 ) MR. D. P. Dhal, learned counsel appearing for the petitioners, contended that the learned Sessions Judge while exercising his revisional jurisdiction went wrong and acted in excess of his jurisdiction by making a fresh reappraisal of the evidence adduced by the parties. In support of his contention he placed reliance on two unreported decisions of this Court in Criminal Revn. No. 81 of 1983, Mina Kumari Dei v. Sahadeb Mallik, (decided on 17-7-1987)and Criminal Revn. No. 29 of 1983, Samod Kharsol v. Kamala alias Painbudi Rout, (decided on 20-7-1987 ). In both the decisions it was held that the revisional power of the Sessions Judge enables him to call for the records of the inferior Court and to examine them for the purpose of satisfying himself as to the legality, correctness or propriety of the order or finding and as to the irregularity of the proceeding of the inferior Court. The power of revision is essentially supervisory in nature and to be exercised in order to set right a patent error or defect so as to prevent miscarriage of justice. The power of revision cannot ordinarily be exercised as a Court of Appeal so as to reappraise evidence and arrive at a different conclusion on facts. The power of revision is essentially supervisory in nature and to be exercised in order to set right a patent error or defect so as to prevent miscarriage of justice. The power of revision cannot ordinarily be exercised as a Court of Appeal so as to reappraise evidence and arrive at a different conclusion on facts. In this case the impugned order of the learned Sessions Judge will show that he made reappraisal of the evidence of the witnesses and on facts arrived at a different conclusion which, according to law, was not permissible. Therefore, it is patent that he acted in excess of the jurisdiction conferred on him particularly when ex facie the order of the learned Judicial Magistrate was neither incorrect, illegal or improper. ( 1987) 64 Cut LT 380 (1988) 1 Orissa LR 197 ( 6 ) THE next contention of Mr. Dhal was that the petitioner having succeeded in proving the performance of marriage by her own evidence, as well as, the evidence of the Purohit and barber, there was no occasion for disbelieving the same for unsustainable reasons, such as, minor discrepancies and probability. Mr. Jena, learned counsel appearing for the opposite party, strenuously urged that the evidence did not warrant conclusion as to the performance of a legally valid marriage according to Hindu rites and cutsoms. In order to examine the rival contentions, it is necessary to refer to a few decisions cited at the bar. The decisions are reported in (1982) 53 Cut LT 93, Saudamani Dei v. Bhagirathi Raj, (1982) 54 Cut LT 36, Srimati Chati Dei v. Hemanta Kumar Sahu, (1987) 63 Cut LT 628, Smt. Ratna Pradhan v. Abhi Pradhan and AIR 1985 SC 765 , Sumitra Devi v. Bhikan Choudhury. In the Orissa decisions it was held that in the scheme of Chapter IX of the Code, S. 125 provides a swift and summary remedy for providing maintenance to neglected wives, parents and children by compelling the man to perform his moral obligation. In such a summary proceeding, it is not necessary to go into intricacies of law. The primary object" of this section is to prevent destitution,, starvation and vagrancy. The procedure is simple and the findings are not final and the parties can agitate their rights in a Civil Court. In such a summary proceeding, it is not necessary to go into intricacies of law. The primary object" of this section is to prevent destitution,, starvation and vagrancy. The procedure is simple and the findings are not final and the parties can agitate their rights in a Civil Court. Strict proof of marriage is not necessary and the standard of proof is not as high as in a proceeding under S. 494 I. P. C. or a proceeding for divorce. In the case of Sumitra Devi (supra) it was held by the Supreme Court that there is no doubt that in order that there was a valid marriage according to Hindu law, certain religious rites should be performed. Invoking the fire and performing Saptapadi around the sacred fire have been considered to be the two of the basic requirements of a traditional marriage. It is equally true that there can be marriage acceptable in law according to customs which does not insist on performance of such rites as referred to above and marriage of this type gives rise to legal relationship which law accepts. ( 7 ) NOW glancing at the evidence, the petitioner (P. W. 1) stated that the marriage was performed according to Hindu rites, such as, Hastabandhan and going round the sacred fire. The Purohit (P. W. 2) similarly stated that during the marriage, the ceremonies of Hastabandhan and Saptapadi were performed. The barber (P. W. 3) stated that he was present when the marriage was performed. On the side of the opposite party, evidence was adduced denying the marriage. Discrepancy with regard to the duration of the marriage ceremony cannot be a factor to disbelieve it altogether, because it is well known that apart from the rites which take place in the presence of the Purohit on the Bedi, other connected and ancillary ceremonies are also performed thereafter inside the house by the ladies. So, even if the rites on the Bedi might have taken a couple of hours, the other ceremonies inside the house might have taken a longer time. This explains the slight discrepancy between the evidence of P. Ws. 1 and 2 which attracted the attention of the learned Sessions Judge, Further it may be true that the opposite party was appearing in the I. A. Examination during day time, but there was no bar for the marriage during night. This explains the slight discrepancy between the evidence of P. Ws. 1 and 2 which attracted the attention of the learned Sessions Judge, Further it may be true that the opposite party was appearing in the I. A. Examination during day time, but there was no bar for the marriage during night. Such instances may not be rare. After all, it was not an usual type of marriage with the consent and participation of the parents of the bridegroom. The marriage seems to have been solemnised on the insistence of the opposite party. Therefore, in such circumstances it cannot be said that because of the examination, marriage was improbable. These circumstances were not taken into consideration by the learned Sessions Judge. An important factor which he lost sight of was that the opposite party was not a total stranger to the family of the petitioner. On his own admission, he was a friend of the petitioner's brother and in all probabilities on account of the association, the parties developed intimacy and love and plunged into the marriage. ( 8 ) TAKING into consideration the judicial precedents and an overall picture of the evidence, I am in agreement with the learned Judicial Magistrate and hold that for the purpose of a petition under S. 125 of the Code marriage between the parties has been proved. The conduct of the opposite party shows that he has neglected and refused to maintain the petitioner. The quantum of maintenance at the rate of Rs. 75/- per month is not high. ( 9 ) FOR the aforesaid reasons, I allow the revision, set aside the order of the learned Sessions Judge and restore that of the learned Judicial Magistrate. Revision allowed. .