KSHITISH CHANDRA MISHRA v. SARA SAHU — 1996 DIGILAW 62 (ORI)

P. K. MISRA, J. ( 1 ) THIS revision arises out of an order under Section 125 of the Code of Criminal Procedure granting maintenance of Rs. 250/- per montheach to present opposite parties 1 and 2. ( 2 ) SMT. Sara Sahu, the present opposite party No. 1 (hereinafter REFERRED TO as "opposite party No. l") claiming to be the, wife of Kshitish Chandra Mishra, the present petitioner (hereinafter REFERRED TO as the "petitioner") filed Criminal Misc. Case No. 337 of 1989 in the Court of the Sub-Divisional Judicial Magistrate, Koonjhar, claiming Maintenance for herself. Briefly stated, her case was as follows. The petitioner was working as a Pharmasist in Government Primary Health Center at Pandapada. The petitioner married opposite party No. 1 in the temple at Gonasika by exchange of garlands on 10-11-1986 and both of them lived in the official residence of the petitioner thereafter. Subsequently, while opposite party No. 1 was pregnant, the petitioner left opposite party No. 1 and married another lady named Lilabati. On these allegations the petition was filed on 20-10-1989 claiming maintenance. During the pendency of the proceeding, a daughter (hereinafter REFERRED TO as "opposite party No. 2") was born and the petition under Section 126 of the Code was permitted to be amended and maintenance was also claimed for and on behalf of the minor child. ( 3 ) THE petitioner in his objection denied to have married opposite party, No. 1. He also denied the paternity of opposite party No. 2 He has admitted that he has married one Lilabati, but claimed that since there was no marriage with opposite party No. 1, the question of payment of maintenance under Section 125 of the Code of Criminal Procedure, does not arise. ( 4 ) IN the proceedings under Section 125, opposite party No. 1 examined herself No. P. W. 1. She also examined 2 other witnesses and proved Ext. l, the birth certificate in respect of the child. The petitioner had examined 6 witnesses including himself as O. P. W. 4 in support of his plea. ( 5 ) THE trial Court came to the conclusion that opposite party No. 1 had married the petitioner by exchange of garlands in the temple and further found that opposite party No. 2 was born out of their wedlock. The petitioner had examined 6 witnesses including himself as O. P. W. 4 in support of his plea. ( 5 ) THE trial Court came to the conclusion that opposite party No. 1 had married the petitioner by exchange of garlands in the temple and further found that opposite party No. 2 was born out of their wedlock. On the aforesaid finding, the trial Court directed for payment of maintenance at the rate of Rs. 250/- each per month to opposite parties l and 2 (Rs. 500/- in all) from the date of application, i. e. 20-10-1989. The aforesaid order is under challenge this revision application. ( 6 ) WHILE admitting the matter on 24-3-1994, this Court had passed an order of stay subject to the condition that the petitioner was to deposit a sum of Rs. 300/- every month commencing from 10-4-1994 and it was further directed that opposite parties 1 and 2 be permitted to withdraw the monthly deposit. Subsequently by order dated 19-4-1994, time was extended till 30-4-1994 to comply with the earlier order. ( 7 ) OPPOSITE parties 1 and 2 have not entered appearance in spite of notice. ( 8 ) MR. U. C. Patnaik appearing on behalf of the petitioner in this revision has raised the following contentions :- (I) The finding of the Magistrate regarding marriage is not sustainable as the Magistrate has not considered the relevant materials on record and has based his finding on the uncorroborated testimony of P. W. 1 without considering the evidence adduced on behalf of the petitioner; (II) If it is held that marriage between the two has not been proved there is no acceptable evidence regarding the paternity of opposite party No. 2. In short, he submits that the entire judgement of the Magistrate is based on surmises and conjectures and is not sustainable. ( 9 ) IT is true that the scope of revisional jurisdiction is very limited and ordinarily the revisional Court should not interfere with the finding of fact arrived at by the Court below unless the judgement is visited by error of record, non-consideration of relevant materials on record and perversity or illegality in appreciation of evidence. ( 9 ) IT is true that the scope of revisional jurisdiction is very limited and ordinarily the revisional Court should not interfere with the finding of fact arrived at by the Court below unless the judgement is visited by error of record, non-consideration of relevant materials on record and perversity or illegality in appreciation of evidence. After carefully going through the judgement of the Court below as well as the evidence on record, I find that the Court below has jumped to the conclusion regarding marriage between the petitioner and opposite party No. 1 ignoring several relevant factors and without judicious application of mind. In the aforesaid back-ground, I have perused the evidence carefully to examine the sustainability of the impugned order of the Court below. ( 10 ) OPPOSITE party No. 1 has examined herself as P. W. 1 in support of her plea of the alleged marriage. The 2 other witnesses examined by her do not speak anything regarding the alleged marriage. In her petition in the Court below, she had stated that marriage had taken place in the month of Kartika in 1986 on 10-11-1986 by exchange of garlands in the temple of Gonasika and thereafter both of them lived together in the Govt. quarters of the petitioner. In her deposition she has stated that she had married the petitioner on 10th day of Kartika at Gonasika temple by exchange of garlands, but she cannot state the actual date. In paragraph 11 of her cross-examination, she has stated that there was no Government quarters allotted to the petitioner. She has further stated that she knew the petitioner fifteen days prior to marriage at Pandapada. In paragraph - 12 she has stated that the petitioner met her for the first time in her house and her family members were present and 3 and 4 days thereafter she went to the residence of the petitioner and thereafter the marriage took place. She has further stated that her mother, grand-mother, Indu Parida and Kaina Sahu had gone to Gonasika Temple. She claimed that the priest was not there and further stated that the parties had taken Mali with them to the temple and both parties garlanded each other and all had taken 'prasad' of the Deity. She has further stated that her mother, grand-mother, Indu Parida and Kaina Sahu had gone to Gonasika Temple. She claimed that the priest was not there and further stated that the parties had taken Mali with them to the temple and both parties garlanded each other and all had taken 'prasad' of the Deity. From the aforesaid evidence it becomes clear that at the time of the alleged marriage, the mother, grand-mother as well as others, namely Indu Parida, Kama Sahu and the Mali were present. Surprisingly enough, opposite party No. 1 has not chosen to examine any other witness in support of the alleged marriage. If, as claimed in evidence, her mother and grand-mother had gone to Gonasika Temple for the marriage, there is no earthly reason as to why both of them, namely the mother and grand-mother of opposite-party No. 1 were withheld from the witness-box. Similarly, there is no explanation for non-examination of the other persons alleged to have gone to the temple at the time of marriage. On the other hand, the petitioner has examined Padna Charan Parida (Padu Parida) as OPW-1 who has denied to have accompanied the parties at the time of the alleged marriage. OPW-1 further denied about the alleged marriage between the petitioner and opposite party No. l. Nothing has been elicited from the evidence of OPW-1 to discard his evidence. The negative evidence of OPW-1 creates grave doubt regarding the so-called marriage. As already indicated, adverse inference is to be drawn for non-examination of the mother and grand-mother of present opposite party No. l as well as Kama Sahu and the Mali who had allegedly gone to the temple at the time of marriage. The mere Ipse Dixit of P. W. l (opposite party No. 1) regarding marriage cannot be accepted in the face of strong denial from, the, petitioner examined as OPW-4 and OPW-1. Besides, the petitioner has examined the priest of the temple as OPW-5 and the Tax Collector of the temple as OPW-6. These two witnesses have denied about any such marriage in the temple. Their evidence casts a long shadow on the veracity of the uncorroborated testimony of P. W. 1. Opposite party No. l in her petition had stated that after the marriage, she had stayed with her husband (the petitioner) in his Govt. quarters. These two witnesses have denied about any such marriage in the temple. Their evidence casts a long shadow on the veracity of the uncorroborated testimony of P. W. 1. Opposite party No. l in her petition had stated that after the marriage, she had stayed with her husband (the petitioner) in his Govt. quarters. She had given a go-by to such assertion in her deposition and has stated that both of them had stayed in the house of Saheswar, son of Udia. She has further stated that constable Mahant was staying in another room of Saheswar and the petitioner and constable Mahant were neighbours. Saheswar has been examined as OPW-2 and stated that the present petitioner as well as constable Daitari Mahant were tenants under him in his house at Pandapada where the petitioner was working as a Pharmacist. In his deposition he has stoutly denied about the petitioner and opposite party No. 1 staying together as husband and wife at any time. Similarly, the police constable Daitari Mahant examined as OPW-3 has stated that the petitioner and opposite party No. l did not stay together at any time in the rented house. Instead of giving due weight to such denial evidence, the trial Court surmised that the parties might have been staying in the house of the father of the wife. In the absence of any such case, it was not open to the Magistrate to jump to a conclusion that the parties might have been staying in another place contrary to the specific case of opposite party No. l. The Court below had relied upon several decisions of this Court, such as Smt. Ratna Pradhan v. Shri Pradhan, (1987) 63 Cut LT 628; Pankaj Naik alias Padmalochan Naik v. Mamata Naik, (1993) 8 OCH, 465 and Smt. Jagamani Das Panda v. Umesh Chandra Panda, (1988) 1 OCR 44 : ( 1988 0 Crlj 1041 ), to come to the conclusion that in a proceeding under Section 125 of the Code of criminal Procedure, the Magistrate is not expected to go into the question regarding the validity of the marriage and living as husband and wife and being treated by others as such is sufficient for awarding maintenance. It is true that in a proceeding under Section 125 of the Code of Criminal Procedure, the standard of proof regarding the marriage need not be as strict as in a case under Section 494, Indian Penal Code. The proceeding being summary in nature, ordinarily it is not expected of the Magistrate to insist upon strict proof of marriage as is done in a criminal case under Section 494, Indian Penal Code. That, however, does not mean that a Court while deciding about the rights and liabilities of the parties in a proceeding under Section 125 should turn a blind eye to every improbability and incongruity in the case of an alleged wife claiming maintenance. It is not the law that every uncorroborated statement of the alleged wife has to be accepted as the gospel merely because she is claiming maintenance. The inherent improbabilities in a given case should be judged depending upon facts and circumstances of each case. In the present case, in view of the various infirmities in the sole, uncorroborated testimony of PW. 1 and in view of the acceptable denial evidence adduced on behalf of the petitioner, it is indeed very difficult nay impossible to agree with the trial Court which had arrived at finding regarding marriage on the basis of surmises and conjectures without keeping in view all the relevant materials and circumstances. The finding regarding marriage between the present petitioner and opposite party No. 1 cannot be sustained and that part of the order is hereby set aside. ( 11 ) THE next question is as to whether opposite party No. 2 is entitled to get maintenance as the child of the petitioner. In this case the marriage has been disbelieved, but opposite party No. 2 can claim maintenance as illegitimate child if it is held that she was begotten through the petitioner. In this connection, Mr. U. C. Patnaik, the learned Advocate appearing for the petitioner submits that the mere statement of the mother (opposite party No. 1) that opposite party No. 2 was begotten through the petitioner has been negatived by the denial evidence of OPW-4. In this connection, Mr. U. C. Patnaik, the learned Advocate appearing for the petitioner submits that the mere statement of the mother (opposite party No. 1) that opposite party No. 2 was begotten through the petitioner has been negatived by the denial evidence of OPW-4. He has further contended that since marriage has not been proved there is no presumption regarding legitimacy of the child under Section 112 of the Evidence Act and there being evidence on oath against oath, it should be held that opposite party No. 2 was not the child of the petitioner. In this connection, he has placed strong reliance upon the decision reported in (1986) 62 Cut LT 552 (Sarada Ranjan Hota v. Sangitarani Kuna Singh ). As has been held in the above decision, in a given case, the mere statement of the mother which is denied by the alleged father, in the absence of any other corroborative circumstances, may not be sufficient to uphold the paternity, of a child. If the mere assertion of P. W. 1 (opposite party No. 1) and the denial of OPW-4 (the petitioner), would have been the only materials on record, I would have followed the aforesaid decision and accepted the submission of the learned counsel for the petitioner. However, in this case, I find some other materials/circumstances in favour of the paternity of present opposite party No. 2 Firstly, Ext. l is the Birth Certificate which indicates that the petitioner has been described in hospital papers as the farther of opposite party No. 2. It is true that the aforesaid document came into being only after the initiation of the proceeding under Section 125 of the Code of Criminal Procedure. Undisputedly, opposite party No. l was pregnant at the time of presentation of the petition under Section 125 and opposite party No. 2 was born a few months thereafter, Ordinarily, a document which comes into being during the pendency of a litigation is of very little value for, the party relying upon such document. However, in the present case apart from the above document, I find that the evidence of OPW-3 examined on behalf of the petitioner supports the case of opposite parties so far as paternity of opposite party No. 2 is concerned. OPW-3 who was admittedly the neighbour of the petitioner has stated thus in his cross-examination : -. . . However, in the present case apart from the above document, I find that the evidence of OPW-3 examined on behalf of the petitioner supports the case of opposite parties so far as paternity of opposite party No. 2 is concerned. OPW-3 who was admittedly the neighbour of the petitioner has stated thus in his cross-examination : -. . . Mishra Babu, the O. P. (present petitioner) was visiting the house of petitioner (present opposite party No. l) during evening, time and on the next morning of those evenings, I found Mishra Babu in his Room. It is a fact the Petitioner gave birth to a female child through the O. P. . . . . "it is submitted by the learned counsel for the petitioner that the aforesaid underlined portion of the evidence must have been a wrong recording and the word "not" must have been omitted while typing out the deposition, I am afraid, such a contention is not tenable at this stage. If there was any typographical mistake in the deposition, the same should have been pointed out in the trial Court itself by filing appropriate petition. I find that the trial Court had relied upon the aforesaid underlined statement in the deposition to come to a conclusion that a female child had been begotten through the petitioner. If, in fact there was wrong recording in the deposition, which had been relied upon by the Court below, the present petitioner should have specifically challenged the same in the revision petition filed in this Court. I find no such assertion has been made in the revision petition regarding the alleged mistaken recording of evidence. In such view of the matter, relying upon the evidence of OPW-1, OPW-3 and Ex. 1. , the Birth Certificate, I come, to the conclusion that though opposite party No. l has failed to prove that she was the wife of the petitioner it, can be held that opposite party No. 2 was begotten through the petitioner and as such she is entitled to receive maintenance from the petitioner. ( 12 ) SO far as the minor daughter (opposite party No. 2) is concerned, the trial Court had fixed maintenance at the rate of Rs. 250/- per month from the date of application, i. e. 20-10-1989. However, it is apparent that by that date opposite party No. 2 was not born. From Ext. ( 12 ) SO far as the minor daughter (opposite party No. 2) is concerned, the trial Court had fixed maintenance at the rate of Rs. 250/- per month from the date of application, i. e. 20-10-1989. However, it is apparent that by that date opposite party No. 2 was not born. From Ext. l and from other materials on records, it is apparent that opposite party No. 2 was born on 14-12-1989 and admittedly she has been staying with her mother from the time of birth. Therefore, she is entitled to maintenance from 14-12-1989 and not from 20-10-1989, as directed by the trial Court. The proceeding was initiated in the year 1989 and remained pending in the trial Court till 14-2-1994. Thereafter the matter came to this Court and this Court directed that the petitioner was to deposit a sum of Rs. 300/- every month with effect from 10-4-1994 as a condition precedent for stay. Keeping in view the rising prices, the changed circumstances and in exercise of suo motu revisional power, I deem it fit and proper in the interest of justice to modify the quantum of maintenance payable to opposite party No. 2 in the following manner. It is directed that the petitioner is liable to pay maintenance to opposite party No. 2 at the rate of Rs. 250/- per month from 14-12-1989 till end of March, 1994 and at the rate of Rs. 300/- per month thereafter starting from April, 1994. The arrears from 14-12-1989 till March, 1994, if not paid earlier before the Magistrate or during the pendency of the revision in this Court should be cleared within six months from today. The deposit at the rate of Rs. 300/- per month if made pursuant to the order of this Court dated 24-3-1994 as modified by order dated 19-4-1994 should be considered as payment from April, 1994, and be paid to opposite party No. 2 through opposite party No. 1 if not already paid in the meantime. Arrear, if any, calculated at the rate of Rs. 300/- from April, 1994, till end of February, 1996, should also be cleared within six months from the date of the judgement. The petitioner should also go on paying maintenance at the rate of Rs. 300/- on and from March, 1996, by 10th of every succeeding month. Arrear, if any, calculated at the rate of Rs. 300/- from April, 1994, till end of February, 1996, should also be cleared within six months from the date of the judgement. The petitioner should also go on paying maintenance at the rate of Rs. 300/- on and from March, 1996, by 10th of every succeeding month. Liberty is given to either party (petitioner or opposite party No. 2) to seek for alteration in quantum of maintenance before the concerned Magistrate in accordance with Section 127 of the Code of Criminal Procedure and if any such application is filed by either party, the same should be considered by the Magistrate concerned on its own merit in accordance with law. The amount payable to opposite party No. 2 can be paid to her mother (opposite party No. 1) or can be deposited in a suitable bank account to be opened in the name of opposite party No. 2 through her mother-guardian (opposite party No. l) ( 13 ) THIS Criminal Revision is accordingly allowed in part to the extent indicated above. The lower Court records to be sent back to the Court below immediately. Order accordingly.