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2002 DIGILAW 951 (JHR)

Pradeep Kumar Gupta v. Kanti Devi

2002-08-30

HARI SHANKAR PRASAD

body2002
JUDGMENT Hari Shankar Prasad, J. 1. This revision application is directed against the judgment dated 29.5.2000 passed by Shri Ram Narain Singh, learned Additional Judicial Commissioner, Lohardaga in Cr. Revision No. 37/1998, 5/1998 where the learned Additional Judicial Commissioner allowed the revision application in part filed by the petitioner who is also O.P. In this revision application. 2. Case of the petitioner-O.P. of this revision application is that Smt. Kanti Devi filed a Cr Misc. Case under Section 125 of the Code of Criminal Procedure in the Court of learned Chief Judicial Magistrate, Lohardaga being Maintenance Case No. 15 of 1994 stating therein that she was married with the petitioner of this revision application at Jammu in a temple in the year 1984 and she lived with this petitioner at Jammu as wife and husband for one and a half year. Thereafter the petitioner of this revision application brought her to Lohardaga where she lived with this petitioner as wife and husband; two children were born out of this wedlock. But thereafter the petitioner started neglecting her and, therefore, she filed the Maintenance Case. 3. On notice, the petitioner of this application as O.P. appeared and filed show-cause denying the fact of the marriage with the petitioner of Maintenance Case No. 15 of 1994 asserting therein that he never went to Jammu and never married her. The petitioner of this revision application further stated in his show-cause that the so-called wife in order to dispute the salary lodged a false case against him and when the salary was paid as per her desire, she admitted before the learned Sessions Judge that she never went to Jammu with the petitioner. The petitioner of this revision application has further stated that he is unemployed and he is dependent upon his grand-father and O.P. of this revision application is the legally wedded wife of one Vijay Kumar and she is living with him along with her children and she is being maintained by Vijay Kumar. It is further alleged that the O.P. - petitioner herself lodged a case being Lohardaga P.S. Case No. 3 of 1985 on 10.1.1985 alleging therein that she was abducted by the petitioner on 19.1.1984 but no such FIR alleging abduction was lodged either by her or by her parents prior to 19.1.1985. It is further alleged that the O.P. - petitioner herself lodged a case being Lohardaga P.S. Case No. 3 of 1985 on 10.1.1985 alleging therein that she was abducted by the petitioner on 19.1.1984 but no such FIR alleging abduction was lodged either by her or by her parents prior to 19.1.1985. Hence, allegation that she was married with the petitioner in the year 1984 at Jammu and then lived for one and a half year as husband and wife a Lohardaga, is false. In fact, the first information was reported only to extract money from the petitioner and when the money was paid as per her desire, then she deposed before the learned Sessions Judge that she was never abducted by the petitioner neither she was married with him nor they lived as husband and wife. The case filed by her ended in acquittal. The learned Court below after taking evidence of both the sides - both- oral and documentary - rejected the claim of the petitioner -O.P. for claim of maintenance. Thereafter, the petitioner - O.P. being aggrieved by the judgment preferred criminal revision No. 37 of 1998 in the Court of learned Additional Judicial Commissioner, Lohardaga and learned Additional Judicial Commissioner allowed the revision application No. 37 of 1998 and set: aside the judgment dated 29.5.2000 and passed the order directing the learned Court below to award maintenance to the petitiorier-O.P. and two children said to have been born out of the wedlock between the parties. 4. The learned counsel appearing for the petitioner-O.P. submitted that the learned Revisional Court did not appreciate evidence correctly and came to a wrong finding. Revisional Court further failed to consider first information report lodged by so-called with of the petitioner-O.P. on 9.1.1985 and further failed to come to a finding that she was not married with the petitioner in the year 1984 at Jammu nor she lived as wife and husband for one and a half year and thereafter at Lohardaga for several years. It is unbelievable that the parents of the so-called with of the petitioner will not lodge any complaint when she was abducted. It was further pointed out that learned Revisional Court did not discuss any of the point on which, the decision was based by the learned trial Court and without discussing those points, the learned Revisional Court allowed the revision application. 5. It was further pointed out that learned Revisional Court did not discuss any of the point on which, the decision was based by the learned trial Court and without discussing those points, the learned Revisional Court allowed the revision application. 5. Judgment of the Revisional Court has further been challenged on the ground that the petitioner-O.P. of Maintenance Case No. 15 of 1994 actually failed to lead evidence on the point of marriage and the learned trial Court correctly appreciated the evidence and held that the petitioner of Maintenance Case No. 15 of 1994 has failed to prove the marriage, but learned Revisional Court reversed the findings, although there was no such material. 6. On the other hand, learned counsel appearing for the O.P. of this revision application has stated that evidence has been led to the effect that both of them lived as husband and wife and there will be presumption that both are legally married. The learned counsel further submitted that O.P. of Maintenance Case No. 15 of 1994 who is the petitioner in this Revision application asserted that one Vijay Kumar who is actually the husband of this O.P. but no step by the petitioner of this revision application in the trial Court was taken for production of Vijay Kumar for his evidence. Learned counsel further pointed out that in case of this nature, the marriage is not required to be proved in strict sense of Hindu Marriage Act and the O.P. has adduced required evidence in the trial Court below in Maintenance Case No. 15 of 1994 that she was married with the petitioner and she lived with petitioner as his wife. Further, petitioner is not having any spouse and this is enough to show that he has not married any other lady and, therefore, the question of his having not entered into marriage with the O.P. would not have arisen. But since there is truth in the case made out by the petitioner of Maintenance Case No. 15 of 1994 that he married her. She has brought this Maintenance Case No. 15 of 1994. Further, learned Counsel for the O.P. - petitioner referred to Section 50 of the Indian Evidence Act. 1872 and submitted that daughter of O.P. has been examined as (sic) and she has stated that she always received money from the petitioner of this revision application. She has brought this Maintenance Case No. 15 of 1994. Further, learned Counsel for the O.P. - petitioner referred to Section 50 of the Indian Evidence Act. 1872 and submitted that daughter of O.P. has been examined as (sic) and she has stated that she always received money from the petitioner of this revision application. Section 50 of the Indian Evidence Act reads as follows ; "50. Opinion or relationship, when relevant.--When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is relevant fact : Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecution under Sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860)". The learned counsel further submitted that the persons residing in and around area always formed an opinion that both of them are living as husband and wife and evidence to that effect has been led. 7. On consideration of judgment of Revisional Court, it appears that learned counsel for the petitioner has failed to point out any illegality or impropriety in the impugned order. The Revisional Court has got very limited jurisdiction and within that jurisdiction, the Revisional Court has only to see whether any illegality or impropriety has been committed or not. From the Judgment, it appears that learned Revisional Court within that framework and parameters, has discussed and appreciated the facts correctly and no irregularity, impropriety or illegality is found in the impugned judgment. 8. There is no merit in this Revision Application which is accordingly dismissed.