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2001 DIGILAW 396 (CAL)

Sachinandan Pal v. Kalyani Pal

2001-07-05

ARUNAVA BARUA

body2001
JUDGMENT 1. The learned Advocate for the petitioner/husband is present None appears for the opposite party. None appears for State either. 2. This revisional application is directed against the judgment and order dated 25.11.1999 passed by the Additional Sessions Judge, 6th Court, Midnapur, dismissing the Criminal Revision Case No. 225 of 1997 whereby he affirmed the judgment and order dated 29.7.1997 passed by the learned Magistrate in Misc. Case No. 33 of 1995. 3. This was a case under Section 125 Cr. P. C. for maintenance to the wife. 4. On the petition of the wife before the learned Judicial Magistrate, 2nd Court, Tamluk under Section 125 Cr.P.C. in Misc. Case No. 33 of 1995, the petitioner-wife got an award of maintenance to the tune of Rs.400/- per month for herself and Rs. 200/- per month for her minor son from the date of the order of the learned Magistrate dated 29.7.1997. 5. The opposite party-husband went in revision against the order of the learned Magistrate and the learned Additional Sessions Judge, 6th Court, Midnapur who had heard the revisional application dismissed the same and affirmed the judgment and order passed by the learned Magistrate in the said Misc. Case No. 33 of 1995. 6. The impugned judgment and order of the learned Additional Sessions Judge as well as the learned Judicial Magistrate are assailed in this revision. 7. The main stay of the allegations detailed by the applicant/husband is that there was never a marriage between him and the opposite party, that the opposite party is not his legally married wife and that the child allegedly be gotten by them is not his child or in other words, he has sought to bear upon himself the question of paternity of the child. 8. The point regarding parentage of the child factor has sought to brought home by the learned Counsel for the petitioner for the first time in this revisional application relying upon the decision of the Apex Court in (1) 1999 (7) SCC 675 . 9. In the conspectus of the facts and circumstances, the case has laid bare. I believe, the only question for determination is whether both the learned Courts below were justified in sustaining the claim of the wife in granting maintenance they thought she deserved. 10. 9. In the conspectus of the facts and circumstances, the case has laid bare. I believe, the only question for determination is whether both the learned Courts below were justified in sustaining the claim of the wife in granting maintenance they thought she deserved. 10. In the first place, I might straightway make it clear that invoking inherent power in revisional jurisdiction by the High Court is resorted to only in exceptional cases where there is gross miscarriage of Justice or some patent illegality in the decisions of the learned Courts below or when there has been any abuse in the exercise of the powers of the Court. 11. Having carefully gone through the judgment and order of the learned Courts below, I find none of these factors present here to warrant an interference in revision by this Court. 12. Another important point need not be missed. When on questions of fact, particularly in a case under Section 125 Cr. P.C., maintenance has been awarded to the wife on due consideration of the facts, circumstances and evidence on record by concurrent findings of both the Courts below, no interference by the High Court in revision is generally called for. 13. Having carefully gone through the judgment and order of the learned Additional District and Sessions Judge, I find his is a very well reasoned judgment, The learned District and Sessions Judge dwelt upon the disputed question of marriage between the parties, He found on evidence that all the formalities of marriage had been observed as repeatedly and firmly testified to by the witnesses for the wife including totally independent witnesses. On facts, there was no manner of doubt in the minds of the learned Courts below that the parties were husband and wife by virtue of a legal marriage and further that a child was born as an outcome of their marriage and cohabitation between the parties. On facts, there was no manner of doubt in the minds of the learned Courts below that the parties were husband and wife by virtue of a legal marriage and further that a child was born as an outcome of their marriage and cohabitation between the parties. The learned Additional District and Sessions Judge while himself examining the witnesses one by one also endorsed the views of the learned Magistrate and stated that the learned Magistrate also nicely assessed and evaluated the evidence on record in coming to the conclusion he did that the parties were legally married husband and wife and that the O.P. (petitioner here) was the father of the son and on the basis of his findings maintenance was awarded in favour of the wife and it was also found that the quantum of maintenance was reasonable and thoroughly justified. 14. It is well-settled by now that in a proceeding under Section 125 Cr.P.C. standard of proof in respect of marriage is not as strict as is required in a trial for offence of bigami under Section 494 of I.P.C. That is what is mandated by the Apex Court's decision in 1999 (7) SCC 675 . The Supreme Court had further held that once it is admitted that a marriage procedure was followed it is not necessary to prove that procedure was complete as per relevant rites. 15. More importantly, it was held in the case by the Supreme Court that Section 125 Cr. P. C. is a summary remedy, that order under Section 125 does not finally determined the status, rights and obligations of the parties that the section only provides for maintenance of an indigent wife, child and parents, that provisions of Section 125 cannot be used to defeat the rights of destitute women and children. 16. However, the learned Lawyer for the petitioner has drawn my attention to note (e) and para 5 of the said Supreme Court decision. 16. However, the learned Lawyer for the petitioner has drawn my attention to note (e) and para 5 of the said Supreme Court decision. He submits that when the paternity of the child is denied or in other words, where purported father denies fatherhood of the child but refused to undergo DNA test, it was held that such a person was disentitled from disputing paternity; but, according to the learned Advocate for the petitioner, the husband here does not refuse to undergo the DNA test; on the contrary, he is agreed to undergo the DNA test and, therefore, unless that is done the question of granting maintenance will not arise in view of the said decision of the Supreme Court. 17. I am afraid, this argument by the learned Advocate for the Petitioner is an exercise in futility. The question of DNA test, the alleged eagerness or submission of the petitioner to undergo such a test was never brought before the learned Courts below even for a semblance of consideration and so raising such a point at this stage after passing of the judgment of the learned Courts below granting maintenance in favour of the destitute wife on adequate consideration of the evidence on record would only frustrate the very purpose of Section 125 Cr. P. C. which is what is thoroughly unwarranted at this stage and in the facts and circumstances stated above. 18. In this view of the matter, I find no reason to interfere with the impugned judgment and orders passed be the learned Courts below. 19. This revisional application has no merits and in the result, it fails. Accordingly, this revisional application is dismissed. There will be no order as to costs. Let a copy of this order be sent down to the Court below forthwith.