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2001 DIGILAW 437 (CAL)

BHASKAR CHANDRA DAS v. CHAMPA RANI DAS

2001-07-23

AMIT TALUKDAR

body2001
AMIT TALUKDAR, J. ( 1 ) A Revisional Order of reversal of the learned Trial Court's order has formed the subject matter of consideration in this application styled under Article 227 of the Constitution of India with the auxiliary Section 482 of the Code of Criminal Procedure (for short the said Code ). ( 2 ) TO come to a finding it is necessary to trace the events back to 13. 6. 95 on which date the opposite party, Smt. Champa Rani Das took out a petition under Section 125 pf the said Code before the learned Sub-Divisional Judicial Magistrate, Contai with a prayer for Rs. 500/- per month as maintenance for herself. The said petition was registered as Misc. Case No. 194 of 1995 (T. R. 710 of 1999 ). ( 3 ) UPON transfer the case stood for disposal before the learned Trial Court-the learned Judicial Magistrate, 1st Court, Contai who upon considering the evidence and materials on record by his judgment and order dated 21. 2. 2000 dismissed the prayer for maintenance of the opposite party. ( 4 ) SHE thereafter preferred a revisional application before the learned Sessions Judge, Midnapore which was docketed as Criminal Revision No. 196 of 2000. The learned Additional Sessions Judge, 6th Court, Midnapore by his impugned judgment and order dated 05. 3. 2001 reversed the findings of the learned Trial Court. ( 5 ) THIS has led the petitioner to move this court who having earned an order in his favour it had been set aside at the instance of the opposite party before the learned Lower Revisional Court, ( 6 ) THE order of the learned Lower Revisional Court has been questioned on behalf of the petitioner on several grounds. The learned lawyer appearing for the petitioner submitted that there was some basic incongruities in the evidence which manifested the utter hollowness of the opposite party's claim as wife. He submitted that the essential elements of a marriage according to the Hindu Rites and Customs could not be proved by her by way of producing the best evidence. Reference was made to the deposition of PWs. He submitted that the essential elements of a marriage according to the Hindu Rites and Customs could not be proved by her by way of producing the best evidence. Reference was made to the deposition of PWs. 2 and 3 the anomaly and contradiction was pointed out by the learned lawyer for the petitioner who submitted that they could not name the father's place of the opposite party No. 1 as they have not visited the said village where the marriage perhaps taken place; although they were present in the said marriage. ( 7 ) HE has further submitted that the petitioner is an employee of the Government of West Bengal for the last 34 years and the allegation of desertion by PW. 1 about 22 years back which was not believable in the facts and circumstances of the instant case. The learned lawyer appearing for the petitioner further submitted that the learned Additional Sessions Judge re-appreciated the evidence which was correctly considered by the learned Magistrate who had arrived at his finding that the parties were not married to each other. He further submitted as the marriage could not be proved primarily and the learned Trial Court having rightly refused her prayer for maintenance; the learned Additional Sessions Judge should not have interfered with the said order. ( 8 ) AS a part of his submission the learned lawyer referred to the decision of Pathumma and Anr. v. Muhammad, that the Revisional Court was not justified in making a reassessment of the evidence and substituting it's own views on the question of fact. He also relied on the decision of Bakulabai and Anr. v. Gangaram and Anr. , He also relied on a decision of this court in the case of Shibsankar Samanta v. Sobhana Samanta, reported in 1992 Cri. L. J. (Cal) 2196. ( 9 ) HE has accordingly prayed for setting aside the order passed by the learned Additional Sessions Judge and retaining that of the learned Trial Court. He has also relied on a short notes of argument. L. J. (Cal) 2196. ( 9 ) HE has accordingly prayed for setting aside the order passed by the learned Additional Sessions Judge and retaining that of the learned Trial Court. He has also relied on a short notes of argument. The learned lawyer appearing for the opposite party has opposed the prayer of the petitioner and by referring to the order passed by the learned Additional Sessions Judge submitted that the learned Judge after properly considering the facts of the case and evidence found that the petitioner has married with the opposite party and she was deserted as a result of which she was entitled to a sum of Rs. 500/- as maintenance. The learned lawyer for the opposite party has further showed from the evidence of PW. 1 (the opposite party herein) and PW. 2 the maternal uncle of the petitioner and PW. 3 who had witnessed the marriage and submitted that in view of their evidence which was quite believable, the learned Magistrate's order of refusal of maintenance was correctly set aside by the learned Additional Sessions Judge. ( 10 ) LET me now consider the submission of the learned lawyer appearing for the parties in the light of the evidence and other materials on record. The learned Magistrate refused the prayer for maintenance mainly on the ground "the petitioner (opposite party hereinabove) has failed to establish her marriage with o. p. (the petitioner hereinabove) and as such all the points for decisions are disposed of against the petitioner. Accordingly, the petitioner is not entitled to get any maintenance. . . . . . . . . . . . . " ( 11 ) THE learned Magistrate, I find, has carefully considered each and every point, part of the evidence of PWs. 1, 2, and 3 and O. P. W. 1. He has disbelieved the case of the opposite party that the petitioner was missing for 20/21 years and she was living in her elder sister's house by begging and ultimately she has filed this case on 13. 6. 95 getting information from PW. 2, of the petitioner who is an employee of the Government of West Bengal. But it would be found that PW. 2 is totally silent on this point as to when he got the information. 6. 95 getting information from PW. 2, of the petitioner who is an employee of the Government of West Bengal. But it would be found that PW. 2 is totally silent on this point as to when he got the information. ( 12 ) THE son of the petitioner who was an adult, was not examined; neither her sisters or her husband were examined. The question of marriage also could not be proved properly by the opposite party although it is true that in a case under Section 125 of the said code stricts proof of marriage unlike one under Section 494 of the Indian Penal Code is not required but there has to be some prima facie case which I am of the view is hopelessly lacking in the instant case. As pointed out earlier the son of the petitioner was not examined; neither were the priest nor the barber, although they were alive and the learned Magistrate rightly found that they could have been examined through commission as they were found to be old. ( 13 ) IT also appears from the evidence of PWs. 2 and 3 the performance of the marriage ceremony could not be proved. ( 14 ) I have also carefully considered the evidence which has been attached with the Revisional Application and find that the view taken by the learned Magistrate was the only reasonable view and the learned Additional Sessions Judge had, in fact, went into a factual reprisal and passed the impugned order which was not compatible with the evidence on record. The learned Additional Sessions Judge made a fresh appreciation of the evidence and unsettled the decision of the learned Trial Court losing sight of the basic infirmities of the structure which demolishes the opposite party's claim. ( 15 ) I find that the decisions of Pathumma and Anr. v. Muhammad (supra), Bakulabai and Anr. v. Gangaram and Anr. (supra) and Shibsankar Samanta v. Sobhana Samanta (supra) are quite apposite in the fact situation of the instant case and accordingly the order dated 05. 3. 2001 passed in criminal revision No. 196 of 2000 by the learned Additional Sessions Judge is thus set aside. The Revisional Application is allowed. No order as to costs.