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2003 DIGILAW 419 (CAL)

KALPANA BISWAS v. SUKAMAL BISWAS, KAMAL

2003-08-18

P.K.BISWAS

body2003
PRADIP KUMAR BISWAS, J. ( 1 ) THIS is an application under section 401 read with section 482 of the Code of Criminal Procedure filed by one Smt. Kalpana biswas, petitioner herein seeking to set aside the judgement and order dated 24-6-2002 passed by the Learned Sessions Judge, Nadia in Criminal Motion no. 24 of 2002 arising out of the judgement and order dated 5. 12. 2001 passed by the learned S. D. J. M. , Ranaghat, Nadia in Criminal Misc. Case N0. 177 of 2000 and thereby allowing the same in part by setting aside the maintenance in favour of the petitioner against the opposite party a sum of Rs. 800/- per month arid maintaining the order granting maintenance of Rs. 600/- per month for the minor son. ( 2 ) THE short facts leading to the filing of this revisional application are as under. ( 3 ) THE petitioner herein filed an application on 30. 12. 2000 under section 125 of the Code of Criminal Procedure before the learned Sub-Divisional judicial Magistrate, Ranaghat, Nadia praying for a maintenance allowance at the rate of Rs. 1500/- per month for herself and. Rs. 1000/-per month for her minor son and the said case was registered as Misc. Case No. 177 of 2000. ( 4 ) THE aforesaid Misc. Case was contested by the Opposite Party by filing written objection stating therein that he had never married the petitioner and he had no connection at all with her and the O. P. further stated that he never lived with the petitioner as husband and wife. ( 5 ) THE petitioner herein in her application under Section 125 of Cr. P. C. had stated in clear terms that she was given marriage with the Opposite Party in the month of November, 1983 as per Hindu rites and ceremonies and after her marriage she was residing with the O. P. as husband and wife and out of their wedlock, a male child was born in the month of November, 1986 and his name is Chandan Biswas and he is now aged about 15 years. It was further alleged by the petitioner in her application that after giving birth of the son she was subjected to torture, both physical and mental by the O. P. and rs. It was further alleged by the petitioner in her application that after giving birth of the son she was subjected to torture, both physical and mental by the O. P. and rs. 10,000/- was demanded from the mother of the petitioner and since the petitioner failed to meet up such demand for that she was subjected to such torture by the O. P. and thereafter in the month of October, 1986, she was driven out with her minor son from the house of the O. P and since then she has been residing in her mother's house and since she had no means to maintain herself and her minor son she was compelled to come up with the application under section 125 of Cr. P. C for the relief, as aforesaid. ( 6 ) THE Id. S. D. J. M. , Ranaghat, Nadia after conclusion of trial allowed the misc. Case under section 125 of Cr. P. C on 5. 12. 2001 by awarding maintenance to the extent of Rs. 800/- per month for herself and Rs. 600/- per month for the minor son of the petitioner. ( 7 ) BEING aggrieved by and dissatisfied with the grant of such maintenance, the O. P. preferred a Criminal Motion before the learned Sessions Judge, nadia which was registered as Criminal Motion No. 24 of 2002 and after contested hearing that was disposed of by the Ld. Sessions Judge, Nadia wherein the Ld. Sessions Judge allowed the Motion on 24. 6. 2002 in part by setting aside the maintenance order granted to the petitioner, but the maintenance order in respect of the minor son was, however, maintained. ( 8 ) BEING aggrieved by and dissatisfied with the aforesaid order, the petitioner herein has come up before this forum seeking for the relief, as aforesaid alleging that the Id. Sessions Judge failed to appreciate the whole position and failed to appreciate further that the O. P/husband was making false and incorrect statement before the Court with regard to the marriage which was solemnized as per Hindu rites and ceremonies in the year 1983 and without appreciating the evidence and materials on record the learned Court below in a cryptic and hasty manner decided the case in hand. Hence, she has come up for reliefs, as aforesaid. Hence, she has come up for reliefs, as aforesaid. ( 9 ) I have heard the parties before me at length and I have also perused the judgement passed by the Trial Judge as also passed by the Id. Sessions Judge in revisional application. ( 10 ) FROM the judgement of the Trial Judge, it appears that the Id. Magistrate has taken great pains to discuss the relevant and disputed issue relating to the disputes regarding marriage between the petitioner and opposite party and in doing so, he has made a correct approach to the issues itself holding that for the purpose of proceeding under section 125 of Cr. P. C. , the standard of proof of marriage is not as strict as is required in a trial for an offence under Section 494 of I. P. C. It is needless to say that it is almost the accepted position with regard to the degree of proof which is required to be adduced in a proceeding under section 125 of Cr. P. C in establishing the relationship of husband and wife between the contesting parties. ( 11 ) THE Id. Magistrate has also taken into consideration that if the petitioner succeeds in showing that she and the O. P. have lived together as husband and wife then certainly from such facts, the Court can draw a presumption that they are the legally wedded spouses and keeping in mind the aforesaid settled position of law, he proceeded to decide the case on its merit after sifting the evidence and other materials on record and ultimately, favoured the petitioner and her minor son with the award of maintenance, as indicated above. ( 12 ) FROM the judgement of the Id. Sessions Judge, it also appears that the ld. Sessions Judge, however, has also accepted the aforesaid settled position of law as held by the Id. ( 12 ) FROM the judgement of the Id. Sessions Judge, it also appears that the ld. Sessions Judge, however, has also accepted the aforesaid settled position of law as held by the Id. Magistrate, but upon ultimate analysis, he proceeded to distinguish the case of the present petitioner holding that it was not the case of the petitioner that there was no solemnisation of the marriage between her and the O. P. and that they simply lived together for a pretty long time and were known in the eye of the neighbours as husband and wife and in that context, it was held by him that when the petitioner-wife has come with the specific plea that in observance of the ritualistic formalities she was given in marriage with the opposite party the alleged marriage has to be established by adducing evidence of legal character and only when this is so established maintenance can only be granted and it was further held by him that the petitioner cannot be allowed to jump to the presumption of marriage on the ground that she lived with the man for long time and at last it was held by him that although certain evidence was tendered by the petitioner in support of her marriage with the opposite party, the Id. S. D. J. M. could not come to a definite finding in support of that marriage, but from the other materials he has drawn the presumption that the opposite party resided with the petitioner as husband and wife. ( 13 ) IT was further held by the Id. Sessions Judge that although the wife/o. P. came out with a specific case that she married the present petitioner in november, 1983, but the School Register (Exhibit-A) had shown the date of birth of the child as on 03. 09. 1983 and ultimately upon further analysis of the materials he has come to a finding that it is difficult to believe that the marriage of the wife/o. P with the present petitioner has been proved and ultimately the id. 09. 1983 and ultimately upon further analysis of the materials he has come to a finding that it is difficult to believe that the marriage of the wife/o. P with the present petitioner has been proved and ultimately the id. Sessions Judge came to the finding that neither solemnization of the marriage nor presumption of marriage could be drawn on the ground that the parties living together as husband and wife in the eye of the local people for sometime past, but drawing a presumption from the entry in the School Register wherein the name of the O. P was shown as father of the child of the petitioner, the Id. Judge has accepted the paternity of the child as per the admission register and fixing thereby the O. P as a father of the said child and also ultimately accepted the evidence of the present petitioner wherein she claimed that O. P. is the father of the said child. ( 14 ) SO, reading the judgment impugned, I am to indicate that the Id. Sessions judge has fallen into error in connection with the present matter regarding the claim of marriage by the petitioner with the O. P. plainly for the reason that the application under section 125 of Cr. P. C. can neither be regarded as a pleadings nor the rules of pleading are applicable in connection with such application. So, the finding of the Id. Sessions Judge that the petitioner has sticked to the solemnization of the alleged marriage as per the observance of the rites and ceremonies of the marriage and since she has failed to establish the same by adducing cogent evidence, no presumption could be drawn on the basis of the evidence adduced by the witnesses regarding their living together as husband and wife for some time past, although the petitioner herself as PW. l has claimed that she resided with the O. P. as husband and wife in the house of the O. P. and gave birth of a male child out of their wedlock and other witnesses namely, PW. 2 (Smt. Suniti Mandal) and PW. 3 (Smt. Renu Mandal) have also corroborated about their staying together and giving birth of a male child, yet, the Id. 2 (Smt. Suniti Mandal) and PW. 3 (Smt. Renu Mandal) have also corroborated about their staying together and giving birth of a male child, yet, the Id. Sessions Judge was not justified in discarding those witnesses for the purpose of drawing a presumption of a valid marriage between the parties, since the degree of proof in a case of this nature is not so high and heavy as it is required in a proceeding under section 494 of I. P. C. or any other matrimonial proceeding. ( 15 ) SO, keeping in mind, the aforesaid settled position of law and looking into the evidence and materials on record, I am inclined to accept that the Id. Sessions Judge was not justified to hold that no presumption of valid marriage could be drawn under such circumstances, although he himself has accepted the entry in the School Register to draw a presumption with regard to the paternity of the child in question. ( 16 ) SO, upon total analysis of the materials available, I hold that the Id. Sessions Judge was not justified to discard the totality of the evidence regarding the marriage tie between the petitioner and opposite party and accordingly his findings that neither solemnization of marriage nor presumption of marriage between the parties could be drawn in this case cannot sustain and as such those are being set aside and at the same time, I am accepting the findings recorded by the Id. Trial Judge in this regard. ( 17 ) THAT being the position, the impugned order passed by the Id. Sessions judge stands set aside and at the same time the order passed by the Id. S. D. J. M. , ranaghat on 15. 12. 2001 is hereby restored. ( 18 ) WITH this, the revisional application stands disposed of accordingly. ( 19 ) URGENT Xerox certified copy, if applied for, be given to the parties expeditiously. Later: order has already been delivered today. Let it be sent down to the Court below for necessary information and compliance. Pradip Kumar Biswas, J. : revisional application stands disposed of.