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2002 DIGILAW 790 (JHR)

Mithila Manjhi v. State Of Bihar

2002-07-30

VISHNUDEO NARAYAN

body2002
JUDGMENT Vishnudeo Narayan, J. 1. This revision has been directed by the petitioner against the order dated 2nd June, 1998 passed under Section 125, Cr.P.C. in Maintenance Case No. 9 of 1997/T.R. 269 of 1998 by Sri Jagannath Rai, J.M. 1st Class, Khunti whereby and whereunder the claim of maintenance of the petitioner was dismissed. 2. The facts given rise to this revision are as follows. The petitioner claims herself to be the legally wedded wife of O.P. No. 2 Shanker Manjhi, their marriage having been solemnized in accordance with Hindu religion and rites on 29.5.1973 at Khuntitoli, P.S. Khunti, District Ranchi and the petitioner thereafter went to her matrimonial home in the company of O.P. No. 2 where she led her conjugal life. It is alleged that the O.P. No. 2 is in the service at Delhi where he lives and he used to come to his house whenever there is leave and he used to tell to the petitioner that he will take her to Delhi after making proper arrangement of abode there along with his mother. The mother of O.P. No. 2 has died and thereafter O.P No. 2 has left coming to his house and the petitioner could not be blessed with any issue and O.P. No. 2 has also neglected to maintain her. Finding no way out the petitioner returned to his parents house. The petitioner claims to have no source of livelihood whereas O.P. No. 2 is a senior scientist having a monthly income of Rs. 15,000/-. 3. O.P. No. 2 in his show cause has denied the factum of his marriage with the petitioner and claimed the petitioner to be a stranger and he had been at Delhi on 29.5.1973 and it is false to say that he has solemnized his marriage with the petitioner. His case further is that he has solemnized his marriage with Chaitali, in December, 1972 and he has two sons borne of his legally wedded wife Chaitali Manjhi. 4. The learned Court below in view of the evidence oral and documentary on the record has dismissed the claim of the petitioner for maintenance on the ground that the petitioner has failed to prove the fact of her marriage with O.P. No. 2 and as such she is not at all entitled to claim maintenance from him. 5. 4. The learned Court below in view of the evidence oral and documentary on the record has dismissed the claim of the petitioner for maintenance on the ground that the petitioner has failed to prove the fact of her marriage with O.P. No. 2 and as such she is not at all entitled to claim maintenance from him. 5. Assailing the impugned order of the learned Court below it has been submitted by the learned Counsel for the petitioner that the learned Court below did not meticulously consider the evidence of the petitioner (A.W. 5) read with the evidence of her uncle (A.W. 1), her brother (A.W. 4), her neighbour (A.W. 2) and the priest (A.W. 3) who had performed the marriage of the parties besides Ext. 2 series, the letters, admittedly, written by O.P. No. 2 to one Uma having reference therein regarding the petitioner and also containing a letter therein specifically addressed to the petitioner and also the voters list of the year 1998 in which the petitioner has been described as the wife of O.P. No. 2 which clearly prove the fact that marriage of the petitioner was solemnized with O.P. No. 2 and she is his lawfully wedded wife. It has also been submitted that the finding of the learned Court below in the impugned order that the petitioner is not the legally wedded wife of O.P. No. 2 is against the overwhelming evidence on the record establishing the fact that the petitioner is the lawfully wedded wife of O.P. No. 2. It has also been submitted that O.P. No. 2 has re-solemnized the marriage with Chaitali in the life-time of spouse living and has deserted and neglected his lawfully wedded wife and did not maintain her who has no means of any independent income for her maintenance. 6. It has been submitted for O.P. No. 2 that the petitioner is a stranger and petitioners marriage has never been solemnized with O.P. No. 2 and on the alleged date of marriage he was at Delhi and prior to that he stands married with Chaitali in the month of December, 1972 and in this view of the matter there is no illegality in the impugned order. 7. 7. It is settled principle of law that a lawfully wedded wife having no means to maintain herself and neglected by her husband having, sufficient means to maintain her is entitled to claim maintenance from her husband. A valid marriage is a conditional precedent for the claim of maintenance by the wife and marriage should be performed according to the Hindu rites and customs but for the purposes of Section 125, Cr.P.C. standard of proof of marriage is not as high as under the provisions of Hindu Marriage Act for divorce or as under Sections 494, 495, 497 and 498, I.P.C. When marriage is established, even prima facie, maintenance should be awarded under Section 125, Cr.P.C. and if the legal validity of the marriage is questioned it should be raised before a Civil Court of competent jurisdiction. In this case there is the evidence of five witnesses including the petitioner from which it is apparent that marriage of the petitioner stands solemnized with O.P. No. 2. Ext. 2 series are the letters admittedly written by O.P. No. 2 to Uma and one Puran who are his close agnating relations. In Ext. 2 it has been stated that perhaps Mithila is unwell and she should be provided with medicine and if there is no money you may take money from Mukund. It has also been stated therein that Mithila must not undergo hard labour in such illness and she should be told that she must engage labourers for converting paddy into rice. Ext. 2 further recites that if there is some differences between his mother and Mithila, in that case Mithila be sent to Khunti (that is her parents house) but without informing Mithila. This letter is dated 20.1.1976 written from New Delhi. Ext. 2/1 is the letter dated 4.8.1973 written from New Delhi to Uma aforesaid in which it has been stated that as earlier stated he will take Mithila along with his mother to Delhi. Ext. 2/2 is also a letter written by O.P. No. 2 addressed to Purno in which it has been stated that he has received a letter from Mithila. The said Ext. 2/2 also contains a letter therein addressed to Mithila which runs thus : "Dear Mithila, Asha hai kushal honge. Tumhari ek hi chhithi mili hai. Dusri table cloth standar size mein table ka banao. Purno ke madhyam se hi batt kahalwa dena. The said Ext. 2/2 also contains a letter therein addressed to Mithila which runs thus : "Dear Mithila, Asha hai kushal honge. Tumhari ek hi chhithi mili hai. Dusri table cloth standar size mein table ka banao. Purno ke madhyam se hi batt kahalwa dena. Chhithi gayub ho jate hai isilia mat likhna. Mai accha hun. Shanker" 8. It, therefore, appears from the contents of the Ext. 2 series that Mithila is not a stranger to the family rather the contents aforesaid establish the fact of Mithila being none else but his lawfully wedded wife. The voters list of the year 1988 of Khunti Constituency describes Mithila, the petitioner, as the wife of O.P. No. 2. The learned Court below in the impugned order has not given cogent grounds to discard and not to accept Ext. 2 series read with voters list aforesaid for disentitling the petitioner regarding her claim for maintenance for which inordinate delay in putting forward her claim or influx of time is no bar. There is no cogent evidence also on the record on behalf of O.P. No. 2 regarding his marriage with Chaitali in the month of December, 1972 as alleged. Therefore, the impugned order of the learned Court below suffers with illegality. 9. There is merit in the revision and it succeeds. The revision is hereby allowed. The impugned order of the learned Court below is hereby set aside. I consider it proper in the facts of this case to remit the matter to the learned Magistrate for a fresh inquiry. Apart from the evidence already on the record, both sides will be entitled to lead further evidence particularly in support of their respective stands regarding the matter in controversy. Accordingly, the case is remitted to the learned Court below to dispose of the proceedings in accordance with law within three months from the date of the receipt of the record. The learned Magistrate is further directed that, if necessary, he will post the case on day-to-day basis for the expeditious disposal of the proceedings.