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2002 DIGILAW 394 (ORI)

RAHAS MOHAPATRA v. BALAKRUSHNA DASH

2002-07-03

P.K.TRIPATHY

body2002
JUDGMENT : P. K. Tripathy, J. - This revision is taken up for disposal at the stage of admission on consent of both the parties. The LCR being available and the present revision is against a case of refusal to grant maintenance in favour of the petitioner, therefore, parties wanted to address the Court in details both on facts and law as well as on the findings of the lower Court and therefore, while hearing argument in part yesterday order was passed to take up the further hearing today. Accordingly, both the parties having come ready, further argument in detail is heard from both the parties and the judgment is delivered in the following manner. 2. Petitioner filed Criminal Proceeding No. 383 of 1997 in the Court of Judge, Family Court, Cuttack, claiming for maintenance u/s 125, Cr.P.C. from the opposite party on the ground that she is the legally married wife of the opposite party. According to the case projected by her, she married to the opposite party on 21.4.1996 according to the social customs and Hindu rites at Puri and soon thereafter on the persuation of the opposite party she undertook a Hotel Management Course at Bhubaneswar for a period of two months and thereafter in the month of July, 1996 when she returned to her matrimonial home, opposite party did not accept her as his wife and forcibly drove her away by use of force and by throwing her by the side of the road at Baramunda (a locality in the city of Bhubaneswar) with the help of his subordinate staff and domestic servant. She further narrated that, besides lodging FIR vide Lingaraj P.S. Case No. 18 of 1997 u/s 498A, IPC which corresponds to G. R. Case No. 508 of 1997 of the Court of S.D.J.M., Bhubaneswar, petitioner sought for the redressal u/s 125, Cr.P.C. on the ground of her destitute condition. Upon notice, the opposite party entered appearance and filed show-cause (written statement) denying to the marital relationship with the petitioner. Upon notice, the opposite party entered appearance and filed show-cause (written statement) denying to the marital relationship with the petitioner. On the other hand he stated that the petitioner was under his temporary employment in a 50 beded Nursing Home which runs at Bhubaneswar, and during that period of employment petitioner's conduct was not found to be satisfactory and that, petitioner quietly walked away from that employment and after two months i.e. in the month of July, 1997, she appeared again and requested for re-employment but the opposite party refused and that was the starting point of dispute between the parties in which the petitioner has laid a false claim of marital relationship with him. 4. In view of the above dispute between the parties relating to marital relationship, Family Court recorded evidence produced by both the parties in support of their respective cases. Petitioner examined herself as P.W. No. 2 her brother Ranjan Kumar Mohapatra as P.W. No. 1 and four other persons as P.Ws. 3 to 6, namely Banabihari Dash (P.W. 3), Abhiram Barik (P.W. 4), Biranchi Narayan Sahoo (P.W. 5) and Bijay Kumar Das (P.W. 6). It be noted here that, when P.W. 6 could not be produced for cross-examination, his evidence was expunged. Opposite party examined himself as O.P.W. 3 and two persons working in the Nursing Home as O.P.Ws. 1 and 2, namely Santilata Sarangi (O.P.W. 1) and Laxmipriya Bitt (O.P.W. 2). Petitioner relied on Ext. 1 i.e., signature of the opposite party in a written submission to the Superintendent of Police, Bhubaneswar pleading about his innocency in connection with P.S. Case No. 18 of 1997. The opposite party relied on Exts. A and B series documents to show petitioner's employment under him and payment Of wages/salaries during the relevant period in the year 1996. 5. Before dealing with the findings recorded by the trial Court on the issues, it is appropriate to note certain happenings in the case during the pendency of the proceeding in the Family Court. On 9.2.1999 the Family Court passed an order to notice one Pitabas Panda to appear as a Court-Witness in the context of considering grant of interim maintenance. That order was challenged by the petitioner in this Court vide O.J.C. No. 3732 of 1999. On 9.2.1999 the Family Court passed an order to notice one Pitabas Panda to appear as a Court-Witness in the context of considering grant of interim maintenance. That order was challenged by the petitioner in this Court vide O.J.C. No. 3732 of 1999. On 26.4.1999 a Division Bench of this Court while declining to interfere with the said order, made an observation for early disposal of the proceeding in the Family Court. On 2.7.1999 the Family Court rejected the petition filed by the opposite party to recall P.W. No. 6 for further cross-examination and to allow the opposite party to examine further witnesses. The opposite party challenged that order in O.J.C. No. 7988 of 1999. On 19.7.1999 that O.J.C. was disposed of by a Division Bench of this Court with the following orders : "2. On hearing learned counsel for the parties, and on perusal of the order passed, we feel it proper to direct cross-examination of P.W. 6. Since this witness was produced by the opposite party, let the witness be made available for cross-examination on the 30th July, 1999. If a prayer for any further rebuttal evidence is made, the learned Judge, Family Court, shall consider its acceptability in the proper perspective. Let an effort be made to complete the proceeding by end of August, 1999." On 30.7.1999 the Family Court expunged the evidence of P.W. 6 by rejecting the application for time filed by the petitioner so also rejected the petition filed by the petitioner to recall P.W. 2 to prove some documents. Petitioner ventilated her grievance by filing O.J.C. No. 9636 of 1999, invoking the writ jurisdiction of this Court on the issue relating to non-following the provision of Sections 12, 14 and 15 of the Family Court's Act and Rules 12 & 13 of the Family Courts (Orissa) Rules, 1990 besides on the issue which was covered by the order dated 30.7.1999. On 22.12.1999 the Division Bench of this Court presided by Hon'ble the Chief Justice passed the following operative order: "In our view, the trial Court has not committed any error, much less, error of jurisdiction by passing the impugned order, Therefore, it is not possible to interfere with the impugned order in exercise of writ jurisdiction of this Court." 6. On 22.12.1999 the Division Bench of this Court presided by Hon'ble the Chief Justice passed the following operative order: "In our view, the trial Court has not committed any error, much less, error of jurisdiction by passing the impugned order, Therefore, it is not possible to interfere with the impugned order in exercise of writ jurisdiction of this Court." 6. On perusal of the impugned judgment, it appears that the Family Court was not at all impressed with the evidence adduced by the petitioner in proof of her status as the wife of the opposite party. In that respect the Family Court derived the conclusion from the evidence of record that: (i) petitioner was earlier married to one Sukanta Khandei which aspect was suppressed by her; (ii) she did not prove non-subsistence of that marriage by the date of alleged marriage with the opposite party; (iii) there has been admission by P.Ws. 1 and 2 regarding petitioner's working in the Nursing Home of the opposite party and leaving that job; and (iv) there is no corroboration to her evidence regarding proof of marriage at Puri by examining the relevant witnesses who, as claimed by her were present at the time of marriage, such as, the priest, father of the petitioner, owner and inmates of the house where the marriage was performed. Accordingly, the Family Court found the evidence from the side of the petitioner on the issue of marriage to be totally unreliable. On the other hand, the Family Court found the plea of the opposite party to have been substantially proved through the oral and documentary evidence not only adduced from his side but also from the admission made by the P.Ws. Accordingly, petitioner's claim for maintenance was rejected by dismissing the aforesaid criminal proceeding. 7. Mr. Nanda, learned counsel for the petitioner, in the process of advancing a strenuous argument points out that the findings recorded by the Family Court relating to certain admissions by P.Ws. 1 and 2, as has been noted in the impugned judgment for disbelieving the claim of marriage is not existing on record, i.e., in the evidence of P.Ws. 1 and 2 and, therefore, the findings is based on no evidence. Indeed, on perusal of paragraph-6 of the impugned judgment with due reference to the evidence of P.Ws. 1 and 2, as has been noted in the impugned judgment for disbelieving the claim of marriage is not existing on record, i.e., in the evidence of P.Ws. 1 and 2 and, therefore, the findings is based on no evidence. Indeed, on perusal of paragraph-6 of the impugned judgment with due reference to the evidence of P.Ws. 1 and 2, this Court finds that the Family Court has based its finding on certain evidence which is not on record. Mr. K. N. Jena, learned counsel for the opposite party, while agreeing to such a situation existing on record supports the argument of the petitioner for fresh appreciation of evidence on record to decide the dispute between the parties. Because of the perversity in recording the finding this Court would have remanded the case for fresh consideration on the basis of evidence on record. Both the parties are not agreeable for the same. On the ground that the application u/s 125 was filed in 1997 and long five years have elapsed in the meantime and an order of remand while contributing to further delay in disposal of the dispute, appreciation of evidence by this Court to adjudicate the issues shall be more a'cceptable to the parties. While exercising revisional jurisdiction u/s 401 read with Section 397, Cr.P.C. This Court has the jurisdiction to appreciate the evidence afresh if it finds the finding in the impugned judgment is based on no evidence or misreading of evidence or because of perversity in the findings recorded by the lower Court. The Family Court is presided by a senior and experienced judicial officer in the rank of District Judge in the selection grade. ' That Court is made to be presided by such a senior ranked officer because of the nature of the dispute which is to be understood and decided responsibly. Therefore, the perverse finding in the impugned judgment should have followed with an explanation being called from the concerned presiding officer if he would have been continuing in service. Since that particular officer has in the meantime already retired, therefore, such action is not pursued. 8. Keeping in view the aforesaid facts and submissions as well as the dispute which is on record, this Court proposes to dispose of the issue by appreciation of evidence on record. Since that particular officer has in the meantime already retired, therefore, such action is not pursued. 8. Keeping in view the aforesaid facts and submissions as well as the dispute which is on record, this Court proposes to dispose of the issue by appreciation of evidence on record. Simultaneously, this Court shall deal with certain citations relied upon by both the parties as well as certain provisions of law from the Family Court Act and the Rules thereunder brought to the notice of this Court in the context. 9. It is not disputed at the Bar that to sustain a claim of maintenance u/s 125, Cr.P.C. the lady claiming maintenance has to prove her status as the wife of the person from whom she claims maintenance. It is also not disputed at the Bar that a technical approach should not be made to prove the rites and customs which are provided in the personal law of the parties while deciding the issue on marriage: In that context, learned counsel for the petitioner draws attention of this Court to the ratio in the case of Inderjit Kaur v. Union of India and Ors., 1990(1) Supreme Court Cases 344 1990(1) SCC (Cri) 132 Keeping in view the present dispute, this Court finds no relevancy of the said ratio to the facts and circumstances of the present case. Similarly, the case of Rajathi v. G. Ganesan 1999(3) Cri 189 (SC), which the petitioner relies, is found not applicable to facts and circumstances of the present case. He also draws the attention of the Court to the cases of Venna Devi v. Ashok Kumar Mandal 2001 (1) DMC, 177 Anupama Pradhan v. Sulthan Pradhan 1991 (II) OLR 297 Anupama Pradhan Vs. Sultan Pradhan, Dwarika Prasad Satpathy v. Bidyut Prava Dixit, 89 (2000) CLT 167 and Nrusingha Charan Sahoo v. Sukanti Sahoo 32 (1990) OJD 403 (Criminal). Rest of the decisions noted in the memo of citations (written note of submission) have not been placed before this Court on the ground that they are not relevant. Sultan Pradhan, Dwarika Prasad Satpathy v. Bidyut Prava Dixit, 89 (2000) CLT 167 and Nrusingha Charan Sahoo v. Sukanti Sahoo 32 (1990) OJD 403 (Criminal). Rest of the decisions noted in the memo of citations (written note of submission) have not been placed before this Court on the ground that they are not relevant. On a consistent reading of all the above referred decisions, it appears that the salient principle, which has been time and again enunciated by different High Courts and the Apex Court, is that a strict proof of marriage in accordance with the Hindu rites or the personal Law may not be insisted upon while dealing with a case u/s 125, Cr.P.C. The minimum proof which is required to prove the status if acceptable on record to believe the relationship, then the case should be adjudicated accordingly and even a case of non-proof of any rituals but long living as husband and wife and accepted as such in the society should be regarded as sufficient proof to consider the status of the lady as the wife of the opposite party for the purpose of consideration of the application u/s 125, Cr.P.C. 10. In that context, the opposite party has also relied on the case of Kshitish Chandra Mishra v. Smt. Sara Sahu and Anr. (1996) 10 OCR 360 where, expressing a similar view, as noted above, this Court has observed that : "it is not the law that every uncorroborated statement of the alleged wife is 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 circumstance of each case." 11. The provision in Section 125, Cr.P.C. provides to pass order for maintenance in favour of a dependent destitute who has no means to sustain the livelihood with the purpose to prevent vagrancy, and such order of maintenance should be passed against the person who is legally bound to maintain the destitute applicant. Persons who can claim such maintenance and persons who are bound to provide such maintenance, has been enumerated in Sub-section (1) of Section 125, Cr.P.C. It is therefore clear from the statutory provision that a person cannot claim maintenance from another unless both of them constitute a subsisting relationship, according to which the claimant is entitled for maintenance from the opponent. Hence, proof of inter se relationship within the category of person as provided in Sub-section (1) of Section 125, Cr.P.C. is the sine qua non for demanding maintenance. Thus, keeping in view the provision of law and the standard of proof of relationship as per the above noted principle if the evidence on record shall be pursued, then it appears that the petitioner has not disputed that she had married to one Sukanta Khandei. In her evidence she has claimed that said Sukanta Khandei is dead. Her earlier marriage with Sukanta Khandei or the date of death of said Sukanta Khandei has neither been stated in her application not in her evidence while claiming her marriage with opposite party on 21.4.1996 save and except stating in her evidence as P.W. No. 2 that by the date of marriage with opposite party she was already a widow. There is no convincing evidence to that effect save and except the oral assertion only by her, which is even not supported by her own brother inasmuch as P.W. No. 1 (brother of the petitioner) has not stated anything about petitioner's earlier marriage with said Sukanta Khandei. Once the matter stands thus, a further scrutiny of the evidence relating to the contradictions regarding date of marriage, the rites and rituals followed at Puri, non-examination of persons who were present at the time of marriage ceremony are found not necessary to be examined. The simple reason for the aforesaid conclusion is based on the provision in Section 5(i) of the Hindu Marriage Act, 1955, which provides that neither party has a spouse living at the time of marriage. Provision in Section 11 of that law declares a marriage to be void of Section 5(i) of the Hindu Marriage Act is contravened. Petitioner has not stated anything either in her application or before any authority while undertaking any job or undertaking the training, about her marriage with Sukanta Khandei or her status as a married woman or widow. Opposite party has claimed that petitioner having married to Sukanta Khandei, her claim for marriage with him is legally not sustainable. Since on this issue the petitioner has not been able to convince the Court that she could have married for the second time without proving her widowhood, she is not entitled to claim maintenance from the opposite party. Opposite party has claimed that petitioner having married to Sukanta Khandei, her claim for marriage with him is legally not sustainable. Since on this issue the petitioner has not been able to convince the Court that she could have married for the second time without proving her widowhood, she is not entitled to claim maintenance from the opposite party. In that context this Court follows the following ratio quoted from the case of Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. AIR 1988 SC 44 "6. The attempt to exclude altogether the personal law applicable to the parties from consideration also has to be repelled. The Section has been enacted in the interest of a wife, and one who intends to take benefit under Sub-section (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes her status on (or) relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the Section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. The issue whether the Section is attracted or not cannot be answered except by the reference to the appropriate law governing the parties. In our view the judgment in Shah Bano's case AIR 1985 SC 945 does not help the appellant. It may be observed that for the purpose of extending the benefit of the Section to a divorced woman and an illegitimate child the parliament considered it necessary to include in the Section specific provisions to that effect, but has not done so with respect to women not lawfully married." 12. Findings recorded in a proceeding u/s 125, Cr.P.C. is not conclusive relating to the marital status. As it need not be conclusive regarding proof of marriage, similarly it is also not conclusive regarding non-establishment of status. Therefore, the parties, if so advised, may seek their legal rights and remedies available under law in appropriate legal forum notwithstanding this judgment. 13. Findings recorded in a proceeding u/s 125, Cr.P.C. is not conclusive relating to the marital status. As it need not be conclusive regarding proof of marriage, similarly it is also not conclusive regarding non-establishment of status. Therefore, the parties, if so advised, may seek their legal rights and remedies available under law in appropriate legal forum notwithstanding this judgment. 13. On an assessment of the evidence and in view of the "aforesaid findings that the petitioner having not proved on record that she was a widow by the date of alleged marriage with the opposite party, her claim for maintenance u/s 125, Cr.P.C. is not entertainable. Therefore, though this Court does not agree with the findings recorded by the Family Court for the reasons already indicated, yet on assessment of evidence on record and the provision of law this Court rejects petitioner's application u/s 125, Cr.P.C. The Criminal Revision is disposed of accordingly.