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2002 DIGILAW 572 (CAL)

KASHI NATH NASKAR v. APARUPA NASKAR

2002-08-28

MALAY KUMAR BASU

body2002
MALAY KUMAR BASU, J. ( 1 ) THIS revisional application is directed against the order passed by the learned Judicial Magistrate dated 18/12/2001 in Misc. Case No. 182/2001 under which he allowed the prayer of the petitioner wife and awarded a sum of Rs. 500/- as interim maintenance every month till the disposal of the petition under Section 125, Cr. P. C. payable by the husband to the wife with effect from December, 2001. ( 2 ) BEING aggrieved by that order the O. P. husband has preferred the present revisional application challenging the same as erroneous, improper and unsustainable. ( 3 ) MR. Pal, learned counsel for the petitioner-husband has submitted that the Court below passed the order without considering the value of the documents which were filed by the husband in support of his plea that the petitioner was not his married wife and he had married another female person named Rekha Naskar. According to Mr. Pal the learned Magistrate having passed the order in consideration of the documents filed by the petitioner-wife alone but in total disregard of all the documents filed by his client the order suffers from impropriety and illegality and cannot stand. The impugned order appears to be an order passed by way of providing interim relief while the main application under Section 125, Cr. P. C. is pending for disposal. At this stage what is required is that the Court granting such relief should only be governed by the question whether the petitioner has been able to prove her allegations prima facie and for that purpose he will rely on the documents filed by the parties prima facie. ( 4 ) THE documents which the petitioner filed before the Court below consisted of the ration cards, voters list, the electoral roll, photo identity card, the certificate of birth in respect of the children who were allegedly born out of this wedlock, copy of a registered sale deed dated 28/02/1992 wherein the name of the petitioner appears as a purchaser and she has been described as the married wife of Sri Kashi Nath Naskar, that is, the present petitioner. Besides these the petitioner filed another document which is an entry into the Hindu Marriage Register in its volumn No. 3 showing that Kashi Nath Naskar married Aparupa Naskar, that is, the present O. P. , according to the Hindu Rites and the volumn No. 4 of that Register shows that such marriage took place on the 15/05/1985 in the village Makardah, Howrah, Considering all these documents prima facie the learned Magistrate came to the finding that they prima facie established the allegations of the petitioner wife (present O. P.) made in her petition and in that view of the matter he granted the interim relief mentioned above during the pendency of the application. The criticism levelled by Mr. Pal against the impugned order is that the learned Magistrate while considering the documents filed by the wife did not consider his documents wherefrom it would have been found that the petitioner, Kashi Nath Naskar, married one Rekha Naskar according to Hindu Rites and the alleged marriage with the petitioner was a myth. Let us therefore now see the documents filed by the said Kashinath Naskar, the petitioner's alleged husband and consider their reliability. He has filed ration cards in the name of one Rekha Naskar whose age has been shown as 24 at the time when this card was registered. He has also filed certain certificates like School. Final Certificates and Higher Secondary Certificate, etc. , issued by the Board of Secondary Education in the names of Subrata Naskar, Mallika Naskar and Latika Naskar who are allegedly the children of Kashi Nath Naskar. Besides this, he has also filed the copy of voters' list of the year 2001 and a copy of a deed of gift standing in the name of Kashi Nath Naskar himself as the Donee which is dated 19/11/1996. It is not understood how this deed of gift is relevant in this proceeding where the only question is whether the petitioner has married the O. P. according to the Hindu Rites as alleged. This deed of gift which is executed by the mother of Kashi Nath Naskar in favour of Kashi Nath has nothing to do with the question which is to be determined in this proceeding. The voters' list in which the name of Kashi Nath as well as Rekha Naskar are printed is of the year 2001. This deed of gift which is executed by the mother of Kashi Nath Naskar in favour of Kashi Nath has nothing to do with the question which is to be determined in this proceeding. The voters' list in which the name of Kashi Nath as well as Rekha Naskar are printed is of the year 2001. Such a voters' list has also been produced from the side of the O. P. Aparupa Naskar, and this list similarly enters the name of Kashi Nath Naskar and Aparupa Naskar, the latter being shown as the wife of the former. This voters' list appears to be relating to an earlier year namely 1998. The electoral roll and the ration cards have also been filed by the husband to show that in the name of Rekha Naskar one of the ration cards stands and there Rekha Naskar has been shown as the wife of Kashi Nath Naskar, but similarly the O. P. Aparupa has also filed such ration cards which are in the names of Kashi Nath Naskar and his family members including that of Aparupa Naskar being shown as the wife of Kashi Nath Naskar. It is contended by Mr. Pal that the certificates filed by the O. P. to show that on the body of such certificates the names of the children have been given as voters being shown as fathered by Kashi Nath Naskar and from this he wants this Court to infer that if these children being of such age were the children of Kashi Nath Naskar and Rekha Naskar, then it is anybody's guess how long back the two were married with each other. ( 5 ) BUT, conspicuously enough, the husband has not in his written objection filed before the Court below while claiming that he had married Rekha Naskar and had not married Aparupa Naskar has not given any date or year of such alleged marriage. When a party is claiming that he has married a particular woman while opposing the case of another female person alleging that she had been married by the former on a particular date, such omission in respect of such a vital point becomes extremely significant and assumes a great dimension. When a party is claiming that he has married a particular woman while opposing the case of another female person alleging that she had been married by the former on a particular date, such omission in respect of such a vital point becomes extremely significant and assumes a great dimension. Such omission is juxtaposed with the case of the O. P. (Aparupa) and the document she produced and the obvious consequence is that the Court will place reliance on the documents produced by the latter while considering the question of the advisability of extension of interim relief prima facie. It is at the stage of trial only that the Court will enter into such subtleties of the respective cases of the parties and will decide the question after taking into consideration the evidence adduced by both the sides. But at this stage when the Court is arriving at a decision on the basis of affidavits or counter-affidavits and the documents filed by both the sides, the Court will definitely place prima facie reliance on the documents filed by the petitioner for reasons discussed above. The entries of the Hindu marriage register which I have mentioned above filed by the wife makes a distinction and enables the Court to given an edge to the case of the wife, because this document is coming out from the official records maintained by a particular department of the Govt. and there is hardly any scope for alleging that it is manufactured for the purpose of the present proceeding. This document prima facie shows that the petitioner Kashi Nath Naskar married the O. P. Aparupa Naskar on 15/05/1985 according to Hindu Rites and there is nothing on record at this stage to prima facie counter the presumption that is attachable to such entries of an official document. ( 6 ) THEREFORE, in view of the documents which prima facie furnish proof in support of the allegation of the O. P. Aparupa that she was married by the husband, Kashi Nath Naskar according to Hindu Rites as far back as in 1985 and such allegations having been prima facie made out from the documents which have been filed and discussed above and they have definitely an edge over the documents filed by the present petitioner, Kashi Nath Naskar, in support of his allegation. For determining the question whether the petitioner has been able to prima facie show the genuineness of her allegation for the purpose of getting maintenance I am of the opinion that those documents are sufficient. In view of these reasons I am of the considered view that the learned Magistrate has quite justifiably awarded the interim maintenance of Rs. 500/- in favour of the wife-petitioner during the pendency of the main application under S. 125, Cr. P. C. and I do not find any reason to interfere with that order. However it is desirable that the main application should be disposed of as expeditiously as possible preferably within a period of three months from the date of communication of this order. ( 7 ) THE revisional application is thus dismissed and the impugned order is affirmed. ( 8 ) LET the LCR be sent down to the Court below forthwith. ( 9 ) OFFICE is directed to submit a report of compliance by 10th October, 2002. ( 10 ) LET xerox certified copy of this order, if applied for, be supplied. Application dismissed.