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2002 DIGILAW 530 (CAL)

Animesh Mohanta v. Rakhi Mohanta alias Rakhi Das

2002-08-09

Malay Kumar Basu

body2002
JUDGMENT Malay Kumar Basu, J. This revisional application is directed against the judgment and order dated 12th September, 2001 passed by the learned Judicial Magistrate, 1st Class, Kalyani, Nadia in Misc. Case No. 25/95 which arose out of a petition under section 125 Cr.P.C. by Rakhi Mohanta praying for maintenance against Sri Animesh Mohanta stated to be her husband. The learned Magistrate after considering the evidence led by the parties and the arguments advanced by the learned Advocates for both sides came to the conclusion that the alleged marriage between the parties had been proved and the ingredients of section 125 Cr.P.C. had been satisfied and accordingly he allowed the petition awarding maintenance of Rs. 1000/- per month payable by the husband Animesh Mohanta to the petitioner wife, Rakhi Mohanta. He also imposed a cost of Rs. 10,000/- in favour of the petitioner wife to be paid by the husband. 2. Being aggrieved by this order the O.P., Animesh Mohanta, has preferred this present revisional application challenging the impugned order as erroneous, illegal, improper and liable to be set aside. 3. The case of the petitioner Animesh Mohanta is that the O.P. Rakhi Mohanta, was not legally married by him as alleged and prior to such alleged marriage he married Binita Mohanta according to Hindu rites in 1991 and has been residing with Binita who gave birth to a male child in 1996. According to him the alleged marriage having not been proved to be valid at all, the O.P. could not be entitled to get any maintenance from him as awarded by the learned Magistrate and on that score the impugned order being illegal is liable to be set aside. Mr. Basu, learned Advocate appearing on behalf of the petitioner Sri Animesh Mohanta, has drawn my attention to documentary evidence in particular. According to him the Exts. A, B & C are very important documents showing that he married the woman named, Binita Mohanta in the year 1991. Ext. A is the birth certificate of the son born to them on 12th November, 1996. This birth certificate is a public document and there cannot be any scope for its being manufactured for the purpose of the case. It bears the seal and signature of the sanitary inspector of the English Bazar Municipality, Malda. Ext. A is the birth certificate of the son born to them on 12th November, 1996. This birth certificate is a public document and there cannot be any scope for its being manufactured for the purpose of the case. It bears the seal and signature of the sanitary inspector of the English Bazar Municipality, Malda. Its genuineness also has not been put into questions in the cross-examination of the O.P.W. 1 who has produced this document and on the basis of whose testimony it has been admitted into evidence and marked Ext. A. In this birth certificate the name of the father of the child is given as Dr. Animesh Chandra Mohanta of Kaikhali Dighari Gopalnagar, under North 24-Parganas. This document have not been challenged, there cannot be any room for doubt that the said Animesh Chandra Mohanta, that is, the present petitioner is the father of this child was alleged in the written objection and also in the oral evidence of the O.P.W.1 and O.P.W.3. It is to be noted here that it is not the case of the O.P. alleged wife that the mother of the said child, Arghadip Mohanta, is any other person than the said Binita Mohanta. Secondly the Ext. B is another material piece of evidence to indicate that the petitioner Animesh married Binita and was residing as husband and wife with her. This is a Life Insurance Corporation Policy dated 15th February, 1992. In this policy the name of Smt. Binita Mohanta takes place as the wife of the policy holder Animesh Chandra Mohanta and has been mentioned as nominee in the proper column of this policy. The alleged marriage as per the allegation of the O.P., Rakhi Mohanta, took place in March, 1992 but this L.I.C. Policy is dated 15th February, 1992 and therefore it cannot be said that the name of Binita Mohanta was entered into the policy as nominee only for the purpose of this litigation in order to create an evidence against the claim of the said Rakhi Mohanta. 4. Mr. Das, learned Advocate appearing on behalf of the O.P. has failed to explain away the presumptive value of this piece of documentary evidence staring in the face of the O.P.’s case. 4. Mr. Das, learned Advocate appearing on behalf of the O.P. has failed to explain away the presumptive value of this piece of documentary evidence staring in the face of the O.P.’s case. This is also an official document like the first one and there is no room for doubting that this was created or manufactured by the petitioner with the ulterior motive of falsifying any claim of any person. The evidentiary value of this document is immense to show the case of the petitioner, that he married the lady, Binita Mohanta, on a date prior to the date of the O.P.'s alleged marriage as per the allegation of Rakhi Mohanta. The third document is a printed invitation card Ext. 'C'. It shows that Animesh Ch. Mohanta married Smt. Binita Das, daughter of Benoy Kumar Das, on 12th December, 1991 at English Bazar, Malda. The father of Animesh Ch. Mohanta, namely, Sri Narayan Chandra Mohanta was inviting the relatives or acquaintances by sending this invitation card to their addresses requesting them to attend the marriage ceremony of the said couple. This invitation card has been proved by an employee of the printing press (O.P.W. 2). He has been cross-examined and a number of questions has been put to him in the cross-examination, but not a single of them appears to have put into the question the trustworthiness of this witness when he says that such cards printed at his printing press and he printed them when the order was placed with his press. In his cross-examination it has been taken that this card was printed ten years back and his answer to a question as to whether such a card remains in such a new condition even after the lapse of ten years has not been put to further cross-examination. His failure to show any counter part of this card or the order book appears to be inconsequential, because it is not possible, for the ordinary printing press like this one to retain such old papers intact for such long years. The O.P.W. 1 has in his evidence also mentioned about this card, but nowhere within the four corners of his evidence there has been any suggestion given from the side of the alleged wife Rakhi that it is manufactured for the purpose of this case. The O.P.W. 1 has in his evidence also mentioned about this card, but nowhere within the four corners of his evidence there has been any suggestion given from the side of the alleged wife Rakhi that it is manufactured for the purpose of this case. So this invitation card being found to be genuine, it becomes another strong piece of documentary evidence strengthening the other materials which have been filed in support of the petitioner's allegation that he married Binita Das in November, 1991. This documentary evidence has been coupled with the oral evidence adduced by the petitioner in order to discharge his onus of proof. As many as three witnesses have been examined by him O.P.W.1 is the O.P. himself. He has narrated how his marriage took place with Binita. He has also stated that out of that wedlock a male child was born on 12th November, 1996 in respect of whom a birth certificate has been produced by him and that has already been discussed above. He has given the names of the priest and barbar as Kanai Lal Chakraborty and Lakshmi Kanta Pramanik respectively. He has been stated that in 1993 on 27th November when he had been to a place at Joydebbati, he found the O.P. Rakhi Das along with two male persons who took him to a place named Belebazar under Bongaon and therefrom he was taken to the house of Rakhi Das and the people present there told him to marry Rakhi Das giving him threat on the point of pistol and thereafter they forcibly made him wear a dhoti and to sit with Rakhi on a platform and they also took a photograph of them in that condition and in this way a forcible, fictitious and fake marriage was thrusted upon him. In his cross-examination however he has admitted that he did not lodge any diary with the police regarding such alleged forcible marriage, nor he lodged any complaint with the local Panchayat. He has also admitted in his cross-examination that he filed a suit before the Civil Court praying for a declaration that Rakhi Mohanta was not his married wife but that civil suit having been dismissed for default he did not take any step for its restoration. He has also admitted in his cross-examination that he filed a suit before the Civil Court praying for a declaration that Rakhi Mohanta was not his married wife but that civil suit having been dismissed for default he did not take any step for its restoration. Considering such conduct of the petitioner-husband the learned Magistrate has been doubtful about the genuineness of his alleged previous marriage and on the reasoning that he has been defeated in the cross-examination, the ld. Magistrate has drawn the conclusion that the story of the alleged marriage with Rakhi has been established and therefore the latter is entitled to claim maintenance from him and accordingly he has awarded the sum mentioned above as monthly maintenance in her favour. 5. Whatever may appear from such evidence, it goes without saying that the materials which I have already discussed above, namely, the documentary evidence adduced by the petitioner, Animesh, coupled with oral evidence adduced on his behalf unerringly shows that he married Binita according to the Hindu rites on a previous occasion. In the face of such a lawful marriage having already taken place between these two the subsequent marriage, if any, will have no legal consequence and in such an event the first marriage being found to have been held according to the requirements of law should prevail. The learned Magistrate misdirected himself by taking the alleged marriage between Animesh and Rakhi as the first marriage. He ignored and could not properly evaluate the evidences indicating that the marriage between Animesh and Binita was established. It has been rightly argued by Mr. Basu that the documentary evidences which have been discussed above, adduced on behalf of the petitioner Animesh, has raised a strong presumption supporting the alleged marriage between Animesh and Binita and the O.P. has miserably failed to rebut such presumption. The learned Magistrate failed to take into consideration the reliability of such documents and fell into error by not taking them in their proper perspective. 6. The learned Magistrate failed to take into consideration the reliability of such documents and fell into error by not taking them in their proper perspective. 6. In view of these reasons, the O.P. Rakhi Mohanta who is the petitioner before the Court below cannot claim to have a valid marriage with Animesh Chandra Mohanta and in the result she not being found to be the legally married wife of the petitioner, Animesh, cannot be entitled to get any maintenance under section 125 Cr.P.C. the impugned order of the learned Magistrate being found to be erroneous be set aside. The petition under section 125 Cr. P. C. filed by Rakhi Mohanta, the O.P. of this case, stands dismissed. 7. The revisional application be hereby allowed. 8. Let xerox certified copy of this order, if applied for, may be supplied as early as possible. Revisional application allowed.