Damodar Prasad v. State Of Bihar — 1999 DIGILAW 258 (PAT)

Judgment A.K.Sinha, J. 1. This revision petition has been directed against the final order passed by Sri Hriday Narain Shukla, Judicial Magistrate, 1st Class, Ranchi, in Maintenance Case No. 55 of 1989, whereby he directed the petitioner to pay the maintenance allowed @ Rs. 350/- per month to the opposite party No. 2, namely, Asha Devi, from the date of application. The petitioner was also directed to pay the arrear amount from the date of application till the month of May 1998, in thirty equal instalments from the month of June 1998, along with the current allowance. 2. The case of the opposite party No. 2, Asha Devi, who was the petitioner in the aforesaid maintenance case was that she was married with the petitioner Damodar Prasad on 9.5.1971 at Hazaribagh, according to Hindu rites and after marriage she started living with him at Hazaribagh, as his wife and till the year 1976, she lived with the petitioner peacefully. During that period, she became pregnant and came to her brothers house at Kokar, Ranchi, where she gave birth to a male child on 14.7.1976. It has been stated that the petitioner who is the employee of the Forest Department was transferred to different places and after the year 1987, he neither took away the O.P. No. 2 nor paid anything for her maintenance or for the maintenance of her child, in spite of the fact that several requests were made to him. Therefore, on 12.7.1989, the O.P. No. 2 filed a maintenance case under Section 125, Cr PC against the petitioner claiming of Rs. 500/- per month for her maintenance. 3. The petitioner who was the opposite party in the maintenance case filed show cause wherein he emphatically denied that opposite party No. 2, who was the petitioner in the case was his wife and, according to him, she was a stranger and the O.P. petitioner claimed that he was married with one Rupa Devi @ Shobha Devi of village and P.S. Tisri in the district of Giridih on 10th June, 1970 and he has been blessed with one son and two daughters out of the wed-lock with Rupa Devi. It was denied that the O.P. No. 2 was his wife and a son was born to her through the petitioner and it was alleged that the O.P. No. 2 was not entitled to get any maintenance allowance from him because she is a stranger and not his wife. 4. The learned Court below formulated specific points as to whether the O.P. No. 2 was legally married wife of the petitioner or not and that whether she is entitled to get any maintenance allowance from the petitioner in the capacity of wife or not and he decided both the points in favour of the O.P. No. 2 by holding that she is a legally married wife of the petitioner and since the petitioner has neglected to maintain her, she is entitled to get maintenance from him and accordingly, passed the impugned order, whereby a sum of Rs. 350/- per month was awarded to the O.P. No. 2 as maintenance allowance from the date of application. 5. Being aggrieved with and dissatisfied by the order passed by the learned Court below the present revision has been filed assailing the findings of the learned Court below and it has been seriously challenged in the present petition that the learned Court below has committed grave error in coming to the conclusion that the O.P. No. 2 is the legally married wife of the petitioner, who is a stranger to the petitioner. As such, it has been stated that since the O.P. No. 2 is not the wife of the petitioner, she is not entitled to get any maintenance allowance from him. 6. The learned Counsel appearing for the petitioner strongly argued before me that the onus was upon the O.P. No. 2 to prove in strict legal sense that she was married to the petitioner (O.P. No. 2) according to Hindu rites to which the parties belong and the essential rites of a Hindu marriage had to be strictly proved by the O.P. No. 2 in the proceeding before the Court below which she misfeably failed to prove, therefore, the consequential order passed by the learned Court below allowing maintenance allowance to the O.P. No. 2 becomes automatically illegal. 7. 7. On the other hand, the learned Counsel for the O.P. No. 2 submitted before me that the learned Court below rightly held on consideration of the entire materials on record that the O.P. No. 2 was a legally married wife of the petitioner and as such, no interference is required by this Court as to the finding of fact on that point and since the learned Court below found the O.P. No. 2 to be the legally married wife of the petitioner it has rightly allowed the maintenance allowance to the O.P. No. 2. 8. The crucial question which has to be considered in the present revision petition is that whether the O.P. No. 2 is the legally married wife of the petitioner or not and in order to determine this question, I will advert myself to the evidence available on the record. 9. In order to prove her case, the O.P. No. 2, who was the petitioner before the learned Court below, examined three witnesses including herself. AW 1 Maheshwar Cheudhary has been examined to say that Asha Devi was married to Damodar Prasad @ Lambodar Prasad in the year 1971 and he had participated in that marriage and the maternal uncle of Asha Devi, who is a lawyer of the Patna High Court at Ranchi Bench and the other who is the Sales Tax Lawyer were present at the time of marriage. This witness has not spoken a word regarding the essential rites performed at the time of marriage which allegedly took place between Asha Devi and Damodar Prasad. In cross-examination, this witness has stated that the aforesaid marriage took place in the month of May 1971. He, however, could not say the name of Pandit and admitted that he had not gone inside the house nor witnessed any rites of the marriage. He also could not say that who actually performed the rites of Samdhimilan. This witness could not say as to whether the petitioner was married from before nor not and it appears that he could not deny the suggestion that the petitioner was married much before. 10. AW 2 Chitranjan Prasad has also been examined to say that the marriage between the petitioner and O.P. took place on 9.5.1971 at Lohsinghna Road, Hazaribagh, and several persons had attended that marriage. 10. AW 2 Chitranjan Prasad has also been examined to say that the marriage between the petitioner and O.P. took place on 9.5.1971 at Lohsinghna Road, Hazaribagh, and several persons had attended that marriage. He has also been examined to say that the petitioner Damodar Prasad has deserted his wife some time back and the O.P. Asha Devi lives with her brother and she has got no source of livelihood. It would appear that AW 2 has also not whispered a word about the essential rites of the marriage which took place at the time of marriage between the parties. In cross-examination, however, he admitted that Asha Devi is her grand-daughter which shows his interestedness. He further admitted that Asha Devi is living at Ranchi since the year 1974 and he could not say that whether the petitioner was married with one Rupa Devi and has got three children through her. This witness had no courage to deny the fact of marriage between the petitioner and Rupa Devi and that is why, he showed his ignorance about the aforesaid marriage. Be that as it may, the fact remains that this witness has also not spoken a word regarding the performance of the essential rites of marriage which allegedly took place between the petitioner and the O.P. 11. The next important in this case is AW 3 Asha Devi, who has deposed in the very first line of the evidence that she was married with the petitioner on 9.6.1971. In para 28 of her evidence also, she has maintained to say that she was married with the petitioner on 9.6.1971 which is the correct date of her marriage with the petitioner. To my utter surprise, I find that in her petition filed under Section 125, Cr PC, the O.P. No. 2, who was the petitioner clearly stated that she was married with the petitioner on 9.5.1971. It appears that subsequently, an amendment petition was also filed on behalf of the O.P. No. 2 to amend the date of her marriage when the proceeding was pending before the learned Court below but her prayer to amend the date was rejected by the learned Court below and against that order of rejection, no revision was preferred. It appears that subsequently, an amendment petition was also filed on behalf of the O.P. No. 2 to amend the date of her marriage when the proceeding was pending before the learned Court below but her prayer to amend the date was rejected by the learned Court below and against that order of rejection, no revision was preferred. So, the date as mentioned in the original petition filed for the maintenance remained the same, i.e. 9.5.1971 and the O.P. No. 2 cannot travel beyond her pleadings. But, it appears that in the evidence she stated that she was married with the petitioner on 9.6.1971 which is against her pleadings and as a matter of fact, she should not have been allowed to lead evidence beyond her pleadings but it appears that the learned Court below recorded her evidence where she stated that she was married on 9.6.1971. In any view of the matter, it is transparently clear that there is contradiction between the pleadings and the statement which AW 3 made in the Court, inasmuch, as in her petition for maintenance, she clearly stated that she was married on 9.5.1971, whereas, in her evidence she contradicted her own pleadings by stating that she was married on 9.6.1971. 12. AW 3 has stated that her marriage was performed according to the Hindu rites and the Kanyadan ceremony was performed by Sri K.N. Prasad, Advocate, High Court, Ranchi Bench, and she also stated that the ceremony of Sindurdan was also performed at the time of marriage in which several persons took part and she has named a number of persons, who, according to her, came as Baratis. I find that none of those persons have come forward to support her version, although, Kanyadan ceremony was performed by her own maternal uncle, but he has also not been examined. Even the own brother of O.P. No. 2 has not been examined to support the factum of marriage and the performance of the essential rites at the time of the marriage between her and the petitioner. In order to corroborate the statement of AW 3, no other person has come forward to support her statement that essential rites of marriage were actually performed at the time of the marriage. Even AW 3 could not say the name of the Purohit, who had performed the marriage. In order to corroborate the statement of AW 3, no other person has come forward to support her statement that essential rites of marriage were actually performed at the time of the marriage. Even AW 3 could not say the name of the Purohit, who had performed the marriage. So, in absence of the corroboration from any witness, it is difficult to believe the statement of AW 3 that she was actually married with the petitioner and the essential ceremonies of the marriage were performed according to Hindu rites. 13. The learned Counsel for the O.P. has laid great stress on certain documents in order to show that the O.P. No. 2 is a legally married wife of the petitioner and those documents are: (i) the certificate granted by the Dy. Supdt., Sadar Hospital, Ranchi (Exhibit-1) by which he has certified that Asha Devi w/o Damodar of Diptipara, Ranchi, was blessed with a son on 14.7.1976; (ii) the prescription (Exhibit-2) of Vikash, who has been described as son of Damodar of Ratu Road, by which the doctor prescribed certain medicines after his birth; (iii) a letter said to have been written by one Lalit (Exhibit-3), who is said to be the own nephew of the petitioner and in that letter he addressed the O.P. as aunt and wrote to her that she should not come to his house because people will not accept her and besides that there are four posts cards (Exhibits 3/1 to 3/4) written by the relatives of the O.P. No. 2. There is another certificate granted by the Principal, St. Teresa Little Flower School, Tathalkudwa, Ranchi (Exhibit-6), wherein Vikash has been shown to be the son of Damodar Prasad and Asha Devi reading in Class I in the year 1983. Prescriptions in the name of Vikash s/o Damodar (Exhibits-7 and 8). On the basis of the aforesaid documents, it has been tried to impress upon me that the O.P. No. 2 was actually married to the petitioner and a son was born to her through the petitioner. 14. Apart from that the applications filed by the petitioner before the Range Officer, Piri on 1.8.1970 (Exhibit-9), another application filed by the petitioner (Exhibit-9/1) and the two applications (Exhibits-9/2 to 9/3) have also -been filed on behalf of the applicant (O.P). 14. Apart from that the applications filed by the petitioner before the Range Officer, Piri on 1.8.1970 (Exhibit-9), another application filed by the petitioner (Exhibit-9/1) and the two applications (Exhibits-9/2 to 9/3) have also -been filed on behalf of the applicant (O.P). The contents of the first application (Exhibit-9) goes to show that the petitioner had prayed for leave from 1.8.1970 to 11.8.1970 on the ground of illness of his mother and in the subsequent application, he prayed for extending the leave from 12.8.1970 to 29.8.1970 on the ground that her mother had expired. The other two applications (Exhibits-9/2 and 9/3) go to show that the petitioner had prayed for granting E.L. to him from 31.5.1971 to 18.6.1971 and he again prayed for extension of his leave since his marriage took place on 10.6.1971 on account of which he was detained at his house. On the basis of the aforesaid documents, the learned Counsel for the O.P. No. 2 wanted to show that the petitioner was married to O.P. No. 2 and his claim is falsified that he could not have been married to O.P. No. 2 because in the year 1971 his mother had expired in or about the month of June so, the question of marriage with O.P. No. 2 could not arise. 15. In my humble view, the aforesaid documents (Exhibits-1 to 9) is hardly of any help to the O.P. No. 2 to prove the marriage between her and the petitioner in the strict legal terms which requires that the petitioner must prove beyond reasonaole doubt that she was married to the petitioner according to Hindu rites. In the decision reported in 1990 East Cr C page 306 Pat (Mohd. Belal v. Sogra Khatoon), His Lordship held that where the marriage itself is a disputed question from the very beginning to the end, the marriage is required to be proved satisfactorily beyond doubt so that a person can be saddled with the payment of maintenance. 16. In the decision reported in 1990 East Cr C page 306 Pat (Mohd. Belal v. Sogra Khatoon), His Lordship held that where the marriage itself is a disputed question from the very beginning to the end, the marriage is required to be proved satisfactorily beyond doubt so that a person can be saddled with the payment of maintenance. 16. In my humble view, the marriage between the petitioner and the O.P. No. 2 could have been proved in strict legal term only when the O.P. No. 2 could have proved the essential ceremonies of the marriage according to the Hindu rites and if the same has not been proved, it cannot be said that the marriage according to Hindu rites between the O.P. No. 2 and the petitioner has been proved as a matter of fact according to Section 3 of the Evidence Act. 17. In the instant case, what I find is that the O.P. No. 2 has miserably failed to prove the essential ceremonies of the valid marriage according to Hindu rites. Hence, in such view of the matter, I have no doubt to say that the O.P. No. 2 cannot be held to be the legally-wedded wife of the petitioner in the strict legal sense. 18. That apart, there are many inconsistencies, improbabilities and contradictions in the evidence of AW 3. First of all, it may be pointed out that the O.P. No. 2 has admitted in her evidence that she was deserted by the petitioner in the year 1976 but no step was taken by her to file the maintenance case till the year 1989 and no explanation, whatsoever, has been given for not filing any case for her maintenance or for the maintenance of her son. AW 3 could not say the correct name of her father-in-law nor could she say the name of mother-in-law and admitted in para 32 of her evidence that he wrongly described the name of his father- in-law as Mahendra Prasad. He also admitted that she has got no documentary evidence to prove that she is the wife of the petitioner and stated that she does not possess any letter written to her by the petitioner and so, she cannot produce the same. He also admitted that she has got no documentary evidence to prove that she is the wife of the petitioner and stated that she does not possess any letter written to her by the petitioner and so, she cannot produce the same. In para 49 of her evidence, AW 3 has admitted that the petitioner remained posted at Ranchi from the year 1980 to 1987 and she was also residing at Ranchi during that period but she could not say even the quarter number of the petitioner and admitted in clear words that she never went to live with the petitioner at the place of his posting at different places like Giridih, Jamui and other places. She also admitted that she has got no joint photograph with Damodar Prasad. So, these circumstances would go to show the improbability regarding her claim of marriage with the petitioner. 19. AW 3 was confronted with a letter written by her to the petitioner and when she was asked about the signature affixed on that letter, which has been marked-X for identification, she denied that the signature belongs to her. But, if her signature is verified from the signature which she has put on her petition, it would appear that both the signatures are written by one and the same person and it would, therefore, appear that she falsely stated that the letter (marked-X for identification) is not her signature. Although the letter has not been marked as Exhibit in the case but if the contents of the letter is gone through, it appears that after the filing the case, she was demanding a sum of Rs. 30,000/- (thirty thousand) and an intimation to that effect was given to the petitioner through the aforesaid letter (marked-X) by which the petitioner was asked to bring a sum of Rs. 30,000/- (thirty thousand) by giving certain threats to him. It appears that because of the objectionable contents of the letter, AW 3 deposed falsely that the letter does not bear her signature. 20. As against this, the petitioner (O.P.) have also examined five witnesses in the case, who are Ramanand Singh (O.P.W. 1), Shakti Singh (O.P.W. 2), the petitioner Damodar Prasad (O.P.W. 3), Pradeep Kumar Sinha (O.P.W. 4), Smt. Rupa Devi @ Shobha Devi (O.P.W. 5), who is the wife of the petitioner. 20. As against this, the petitioner (O.P.) have also examined five witnesses in the case, who are Ramanand Singh (O.P.W. 1), Shakti Singh (O.P.W. 2), the petitioner Damodar Prasad (O.P.W. 3), Pradeep Kumar Sinha (O.P.W. 4), Smt. Rupa Devi @ Shobha Devi (O.P.W. 5), who is the wife of the petitioner. Besides that, a Court witness, namely, Jairam, D.F.O., Hazaribagh was also examined who produced the applications which the petitioner filed in his department (referring to Exhibit-9 series.) 20-A. O.P.W. 1 Ramnand Singh is a resident of village Manikbad and is Sarpanch of the village. He is a man of different caste and an independent witness, who has testified to the effect that in the month of June in the year 1970, the petitioner was married to one Rupa Devi d/o Shakti Prasad and he had taken part in that marriage. 21. O.P.W. 2 Shaki Prasad is the father-in-law of the petitioner who has also testified that on 10.6.1970, he married his daughter Rupa Devi @ Shobha Devi with the petitioner according to Hindu religious rites and three children were born to his daughter through the petitioner. 22. O.P.W. 3 Damodar Prasad is the petitioner himself who has deposed on oath that he was married with Rupa Devi on 10.6.1970 according to Hindu rites. 23. O.P.W. 5 Rupa Devi, who is the petitioners wife has also testified to the same effect coupled with O.P.W. 4 Pradeep Kumar, who has deposed that the petitioner was married with Rupa Devi in the month of June 1970. It would, therefore, appears that the O.P. has led evidence to show that the petitioner was married with Rupa Devi according to Hindu religious rites and the petitioner admits his marriage with Rupa Devi, who does not dispute the same. 24. In view of my above discussions and the findings arrived at in the forgoing paragraphs, I have no doubt to say that since the O.P. No. 2/ petitioner failed to prove her marriage with the petitioner in strict legal terms and it cannot be said that she is the legally married wife of the petitioner and as such, she is not entitled to get any maintenance allowance from the petitioner. I am, therefore, of the view that the trial Court has not approached the matter from the right angle and the findings given by him is quite erroneous which cannot be sustained. 25. I am, therefore, of the view that the trial Court has not approached the matter from the right angle and the findings given by him is quite erroneous which cannot be sustained. 25. Accordingly, the impugned order passed by the learned Court below which is based on erroneous finding without proper appreciation of evidence on record and laws is hereby set aside and it is held that the O.P. No. 2 is not entitled to get any maintenance allowance from the petitioner. 26. In the result, this revision application is allowed.