Minoti Mandal v. State Of Bihar — 1999 DIGILAW 856 (PAT)

Judgment G.S.Chaube, J. 1. Having failed before the Principal Judge of Family Court in her bid to secure an order for grant of maintenance to her in accordance with the provisions of Section 125 of the Code of Criminal Procedure, the petitioner has come to this Court by filing this application under sub-section (4) of Section 19 of the Family Courts Act, 1984 for the same relief. 2. The petitioner had presented before the Principal Judge of the Family Court at Dhanbad an application under Section 125 of the Code of Criminal Procedure seeking maintenance from opposite party No. 2 for self as well as a minor child on the ground that they were neglected by the said opposite party. Her application was registered as M.P. Case No. 314 of 1995. The case of the petitioner as made out in the said application is that she was married to opposite party No. 2 Patit Pawan Mondal on the 12th of February, 1981 at the temple of Goddess Kalyaneswari and in consequence of such marriage she had given birth to a male child on the 27th of September, 1983. However, soon after the birth of the child, opposite party No. 2 started subjecting her with cruelty and ultimately drove them out of the Matrimonial home. According to her, opposite party No. 2 is a health worker posted at Health Sub-Centre, Gopalpur under Primary Health Centre of Nirsa in the district of Dhanbad and failed to maintain her and the minor child for the last five years driving them to acute financial constraints. In the meantime, opposite party No. 2 had come in contact with another lady Smt. Shefali Bhowmik, a co-worker. Consequently, she had claimed a sum of Rs. 1,000/- per month by way of maintenance for herself and the minor child born through the wed-lock. 3. Notice of the application was served on opposite party No. 2 who appeared and filed his show cause on 24.4.1996. A supplementary show cause was also filed by him later on. In his show cause, opposite party No. 2 denied the allegations of the petitioner asserting that he had never married her nor any child was born out of the marriage as alleged by the petitioner. A supplementary show cause was also filed by him later on. In his show cause, opposite party No. 2 denied the allegations of the petitioner asserting that he had never married her nor any child was born out of the marriage as alleged by the petitioner. According to him, the real name of the petitioner is Monika Rani Pal who is daughter of the Radha Nath Pal of village Bhatudih in the district of Santhal Parganas (Dumka). She was married to one Sheonandan Pandit of village Mohlidih of the same district. As a matter of fact, she had filed a similar application before the Sub-divisional Judicial Magistrate of Dumka in 1981 which was registered as Crim. Misc. No. 10 of 1981. His further case is that he was married with one Smt. Champa Devi in June 1977 and had nothing to do with the present petitioner. According to him, the petitioner is a woman of bad character and had been filing applications against him in the Desertion Cell of Dhanbad seeking maintenance and after inquiry her allegations were found to be untrue. 4. In support of their respective contentions, the parties adduced oral evidence. Three sets of photographs were also produced before the Principal Judge of the Family Court of Dhanbad on behalf of the petitioner. On consideration of the evidence so adduced, the learned Principal Judge of the Family Court came to the conclusion that the petitioner is not a legally-wedded wife of opposite party No. 2 inasmuch as she had a spouse living at the time of her alleged marriage with opposite party No. 2 who was also having a legally-married wife. Therefore, she is not entitled to be maintained by opposite party No. 2 in accordance with the provision of Section 125 of the Code of Criminal Procedure. However, on the basis of her photographs with opposite party No. 2 and a child in lap, the learned Principal Judge of the Family Court came to the conclusion that opposite party No. 2 was having some relation with the petitioner, in consequence of which a child was born. Taking into consideration, the provisions of law that a father is liable to maintain even an illegitimate minor child incapable of maintaining himself and admitted take-home salary of Rs. 3,200/- per month of opposite party No. 2, he has been directed to pay a sum of Rs. Taking into consideration, the provisions of law that a father is liable to maintain even an illegitimate minor child incapable of maintaining himself and admitted take-home salary of Rs. 3,200/- per month of opposite party No. 2, he has been directed to pay a sum of Rs. 500/- per month to the minor child aged about 13 years until the child attains majority. Consequently, the learned Principal Judge of the Family Court has declined to grant the prayer of the petitioner for maintenance to herself. 5. Opposite party No. 2 who was the sole opposite party in the Court below has not challenged the impugned order dated 4.4.1998 directing him to pay a sum of Rs. 500/- per month to the minor (illegitimate) child during his minority. However, being aggrieved of the said order disallowing her claim for maintenance, the petitioner has knocked the door of this Court in exercise of revisional power. 6. The learned Counsel for the petitioner has assailed the order of the Principal Judge of the Family Court on the ground that in coming to his conclusion that the petitioner has failed to prove her marriage with opposite party No. 2, the learned Judge has failed to take into account the prevalent customary practice among the members of the community to which the parties before him belong. According to him, once it was found by the learned Principal Judge of the Family Court that the petitioner and opposite party No. 2 were living as husband and wife, so much so that a child was born to them during that period, he should have drawn a presumption that the petitioner is legally married wife of opposite party No. 2. On the other hand, learned Counsel for opposite party No. 2 has submitted that in order to succeed in securing an order directing opposite party No. 2 to pay maintenance to her, it was necessary for the petitioner to prove that she was married to opposite party No. 2 in accordance with the rituals or customs of her personal law. Since the parties are Mindus, the validity or otherwise of their marriage shall be determined in accordance with the provisions of the Hindu Marriage Act, 1955. 7. Since the parties are Mindus, the validity or otherwise of their marriage shall be determined in accordance with the provisions of the Hindu Marriage Act, 1955. 7. In the present case, the Court below has given a finding based on evidence that opposite party No. 2 was having some sort of relationship with the petitioner, they were living as spouses and a child was born to them. The photographs produced on behalf of the petitioner in course of trial showing her with opposite party No. 2, as admitted by O.P.W. 3 Haru Tiwari, are eloquent proof in support of the finding of the learned Principal Judge of the Family Court, apart from the evidence of the petitioner/ applicant and her witnesses who have stated on oath that they has seen the parties living together as husband and wife even though they had not themselves witnessed their marriage being solemnised. The finding has not been challenged by and on behalf of the opposite party No. 2. There is also a finding based on the admission of opposite party No. 2 himself that he gets take-home salary of Rs. 3,200/- per month. Admittedly, he is not maintaining the petitioner either because she is not his legally wedded wife or otherwise and there is no cogent evidence that the petitioner is capable of maintaining herself. 8. Therefore, the only point for consideration in the present case is whether the petitioner is legally married wife of opposite party No. 2 so as to be entitled to receive maintenance in accordance with the provision of Section 125 of the Code of Criminal Procedure in view of the above-established facts? 9. In the case of Sumitra Devi V/s. Bhikhan Chaudhary, AIR 1985 SC 765 , corresponding to 1985 Cr LJ 528, it has been held by the Apex Court that in order that there may be a valid marriage according to the Hindu law, certain religious rites have to be performed. Invoking the fire and performing Saptapadi round the sacred fire have been considered to be two of the basic requirements for a traditional marriage. However, the Apex Court has also held that there can be a marriage acceptable in law according to the customs which do not insist on performance of such rites as referred to above and marriages of this type give rise to legal relationship which law accepts. However, the Apex Court has also held that there can be a marriage acceptable in law according to the customs which do not insist on performance of such rites as referred to above and marriages of this type give rise to legal relationship which law accepts. In the case of Ziauddin Khubabux V/s. Kulhan Bibi, 1992 East Cr C 577, a Single Judge of Calcutta High Court has held that if there is evidence on record which brings out sufficient facts and circumstances to support the claim of the opposite party (wife) that she is the wife of the petitioner (husband), her claim cannot be negatived. In other words, if there is evidence to show that the applicant seeking maintenance and opposite party from whom maintenance is claimed were living as husband and wife for a considerable period, the latter cannot be permitted to say that the former is not his wife. 10. As held by the Apex Court in the case of Pathomma and another V/s. Muhammad, 1986 East Cr C 504 (SC), the scope of interfering with the finding made under Section 125 of the Code of Criminal Procedure is very limited in exercise of revisional jurisdiction. Acting as a Court of revision, this Court has no jurisdiction to reassess or reappraise evidence and substitute its own conclusion in place of the conclusion arrived at by the trial Court on the basis of evidence adduced before it. On evidence, the learned Principal Judge of the Family Court has held that the petitioner is not legally married wife of opposite party No. 2. The ground for arriving at such conclusion is not that she has failed to prove performance of rituals like saptapadi, etc. but primarily on the ground that when she is alleged to have married opposite party No. 2, her spouse Sheo Nandan Pandit with whom she was married earlier was still alive. This fact was admitted by none else than the one of the witnesses examined by her in support of the claim. In course of his cross- examination, AW 2 Prahlad Chaudhary admitted that the petitioner was married to Sheo Nandan Pandit and that the name of the petitioner is Menka Rani Pal who belonged to village Bhatudih within Kundhit police station in the district of Dumka. The witness was also a resident of the same village. In course of his cross- examination, AW 2 Prahlad Chaudhary admitted that the petitioner was married to Sheo Nandan Pandit and that the name of the petitioner is Menka Rani Pal who belonged to village Bhatudih within Kundhit police station in the district of Dumka. The witness was also a resident of the same village. Even though he could not say whether the said Sheo Nandan Pandit was alive or dead, in course of his evidence O.P.W. 3 stated on oath that the said Sheo Nandan Pandit is still alive. No cross-examination was directed on this point and only suggestion given to O.P.W. 3 on behalf of the petitioner was that she was not married to the said Sheo Nandan Pandit. The witnesses examined on behalf of opposite party No. 2 in the Court below also stated that the opposite party No. 2 was married with one Champa Devi. However, she was reported to be dead. It is not known whether she had died prior to 1981 when the petitioner claims to have married opposite party No. 2 or thereafter. 11. According to Section 5 of the Hindu Marriage Act for a lawful marriage, one of the necessary conditions is that neither party should have a spouse living at the time of the marriage. Section 11 of the said Act lays down that any marriage solemnised after the commencement of the said Act shall be null and void if it is found to have contravened any of the conditions specified in clauses (i), (iv) and (v) of Section 5. In the case of Smt. Jamuna Bai Anant Rao Adhav V/s. Anant Rao Sheo Ram Adhav and another, AIR 1988 SC 664, it has been held by the Apex Court that marriage of a woman in accordance with Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is riot entitled to the benefit of Section 125 of the Code of Criminal Procedure. Applying the same ratio, as Sheo Nandan Pandit to whom the petitioner is proved to have been married earlier was still alive on the day she claims to have solemnised marriage with opposite party No. 2 at Kalyaneswari temple, their said marriage cannot be treated as a legal marriage. Consequently, the petitioner is not a legally-married wife of opposite party No. 2. Consequently, the petitioner is not a legally-married wife of opposite party No. 2. Hence, she is not entitled to receive maintenance from opposite party No. 2 in accordance with the provision of Section 125 of the Code of Criminal Procedure. 12. Thus found, I see no reason to interfere with the order of the learned Principal Judge of the Family Court made in M.P.Case No. 314/95 declining her prayer for maintenance. Therefore, this application stands dismissed. In the circumstance of the case, there is no order as to costs.