Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 436 (CAL)

Ashim Dey v. Khuku Dey

2002-07-05

Malay Kumar Basu

body2002
JUDGMENT Malay Kumar Basu, J. This revisional application is directed against the judgment and order dated 31st January, 2001 passed by the learned Judicial Magistrate, 2nd Court at Suri in Misc. Case No. 155 of 1994. Under this order the learned Magistrate allowed a petition under section 125 of the Cr. P. C. and granted maintenance in favour of the petitioner wife at the rate of Rs. 600/- per month giving its effect from the date of filing of the petition. Being aggrieved by the judgement and order of the ld. Magistrate, the husband-opposite party has preferred the present revisional application challenging the said order as erroneous, illegal, unjustified and unsustainable. 2. The case of the petitioner-wife before the ld. Magistrate was that she had been married by the opposite party according to Hindu rites on 27/28th Agrahayan, 1400 B.S. Since thereafter, the opposite party-husband used to go to her father's house and used to live with her as husband and wife. But after about 10 months from the date of the marriage the opposite party-husband threatened the petitioner by saying that he would marry again. The petitioner protested and then the opposite party-husband stopped coming to the petitioner's father's house. Since then her father has been maintaining her and the opposite party-husband has never borne the expenses of her maintenance. She has no income of herself and under such circumstances she filed the petition for maintenance under section 125 of the Cr. P. C. 3. The alleged husband-opposite party contested the petition by filing a written objection denying all the material allegations of the petitioner including the allegation of marriage. It was his case that he never married the petitioner, far less accordingly to Hindu rites, and had absolutely no liability to provide maintenance for the petitioner. 4. After taking evidence and hearing the arguments of both sides, the learned Magistrate came to the finding that the alleged story of marriage had been proved from the materials on record and it had also been proved that the opposite party-husband had neglected to maintain the wife who had no independent source of income and, therefore, he found it justified to award a sum of Rs. 600/- per month as the amount of maintenance to be paid by the opposite party-husband in favour of the petitioner-wife. 5. Mr. 600/- per month as the amount of maintenance to be paid by the opposite party-husband in favour of the petitioner-wife. 5. Mr. Mukherjee, learned Advocate appearing on behalf of the revisional application, has drawn attention to the evidence which, according to him, utterly falls short of the required proof for establishing the story of marriage according to Hindu Shastras. He points out that not a single independent or disinterested person is coming to corroborate the testimony of the petitioner that the opposite party married her according to Hindu rites. Secondly, the petitioner herself also is not giving the essential ceremonies or the rituals which are required to be performed in case of a marriage according to Hindu rites in her evidence. Nor the other witnesses have made any attempt to support the story of the petitioner. They are the P.W.2 to P.W.4 They have not spoken a single word on the question as to what ceremonies or rituals were performed in such a marriage. On the other hand, they all have given only a single line in their depositions by stating that the marriage was performed before a Kali temple and it was conducted by the priest-by reading Mantras. Nobody says whether there was any ceremony like Saptapadi or Sindurdan or Sampradan, etc. 6. Mr. Mukherjee relies upon a Division Bench judgement of the Apex Court reported in AIR 1985 S.C. 765 . Therein Their Lordships have held that in order that there may be valid marriage according to Hindu law, certain religious rites have to be performed as invoking the fire and performing Saptapadi around the sacred fire are considered by the court the two basic requirements for a traditional Hindu marriage. According to Mr. Mukherjee, here the clear case of the petitioner is that the marriage took place according to Hindu Shastras (vide the testimony of the P.W.4, Renuka Kahar, who is the aunt of the petitioner, who says that the marriage took place in accordance with the rites as mentioned in the Hindu Shastras). Had it been the case of the petitioner that their marriage ceremonies are not governed by the Hindu Shastras but by some personal law or personal custom or usage, then it is expected that they would come out with such a case either in their petition or in their evidence. Had it been the case of the petitioner that their marriage ceremonies are not governed by the Hindu Shastras but by some personal law or personal custom or usage, then it is expected that they would come out with such a case either in their petition or in their evidence. But here it is their definite case, both in the petition and in the evidence, that the marriage took place according to Hindu Shastras. So, if the marriage is according to Hindu rites, then these two ceremonies as afore-mentioned, namely, Saptapadi and Sampradan, are indispensible and in order to make the marriage a valid one, these ceremonies must have been observed. But as the evidence goes, there is no whisper that any such ceremonies or rituals were performed by them at the time of their alleged marriage. The only statement that has been made by all the witnesses touching the alleged marriage is that the marriage was performed in a Kali temple by the priest by reading out from the Hindu Shastras. But that can not have any relevance for the purpose of proving an alleged marriage as per Hindu Shastras. Even, in a proceeding under section 125 of the Cr. P. C. where the standard of proof required to be furnished for proving an alleged marriage is not so strict as it is to be observed in a suit under the Hindu Marriage Act or in a criminal case under section 494 IPC., some minimum evidence worth the name has to be adduced to prove it satisfactory. 7. Another special feature which characterises the case of the petitioner and also marks her evidence is that the petitioner never said that she was taken by the opposite party-husband to the latter's house after the alleged marriage was over. On the other hand, it is her positive case that even after such a marriage took place, she remained in her father's house and the opposite party-husband used to come there occasionally and live with her there. This gives rise to some suspicion in our minds as to the genuineness of such an allegation of marriage. It is the usual and customary practice that after marriage the married wife is taken by the husband to his house. This gives rise to some suspicion in our minds as to the genuineness of such an allegation of marriage. It is the usual and customary practice that after marriage the married wife is taken by the husband to his house. Here there has been no explanation given by the alleged wife, the O.P. of the present revisional application while making out such a story as to under what circumstances the alleged husband (the present petitioner) even after marrying her forced her to stay in her father's house and she also did not raise any protest against such an arrangement but rather accepted the same. Such incongruity and improbability underlying the alleged wife's case coupled with lack of evidence regarding proof of alleged marriage according to Hindu rites as have rendered her case unsubstantiated. May be, in a case for maintenance like this full-fledged proof of the alleged marriage is not required, but nobody can deny that the minimum proof must be furnished. Otherwise a dangerous situation may be given rise to. If mere claim is equated with proof of marriage, many designing members of the female folk may be encouraged to trap innocent people by instituting false cases for maintenance. It should not be forgotten that Hindu marriage or, so to say, marriage as per Hindu rites is a sacrament and is a social phenomenon in the sense that performance of various rites and rituals as per Shastric directives involves various members of the society from different walks of life, e.g., the priest, the barber and a definite number of invitees who witness the proceedings of the marriage. Such invitees may include relations as well as the neighbours. So whenever there is any allegation that a marriage as per Hindu rites has taken place, it is expected that the party who alleges such marriage will examine some of such people who either took part or witnessed the alleged marriage ceremony. When not a single such person is examined or, even though examined, does not at all testify to the observance of the abovementioned essential rites and rituals in the alleged marriage proceeding, then it cannot be said that minimum proof had been furnished in support of such alleged Hindu marriage. 8. If the alleged marriage is not established, even prima facie, the most important ingredient of the provisions of section 125, Cr. 8. If the alleged marriage is not established, even prima facie, the most important ingredient of the provisions of section 125, Cr. P. C. remains unfulfilled and, therefore, she cannot be entitled to get any maintenance. The ld. Magistrate failed to properly assess and appreciate the evidence and fell into error holding that the alleged marriage had been proved or that the petitioner before him was entitled to get maintenance. Therefore, the impugned order cannot be sustained and be set aide. The reivisional application be allowed in the result. 9. Let urgent xerox certified copy of this order, if applied for, be supplied to the learned advocate for the petitioner within seven days from the date of putting in the requisites. Revisional application allowed.