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2003 DIGILAW 589 (GAU)

Sankar Ghosh v. Sanju Ghosh

2003-12-16

TINLIANTHANG VAIPHEI

body2003
JUDGMENT T. Vaiphei, J. 1. By this revision petition Under Section 401 read with Section 397 of the Code of Criminal Procedure, 1973, the judgment dated 30.6.2003, passed by the learned Additional Sessions Judge, Court No. 3, West Tripura, Agartala in Criminal Revision No. 8(1) of 2003 is assailed by the petitioner. 2. The facts and circumstances leading to the filing of this revision petition may be briefly stated :- The respondent herein filed an application Under Section 125 of the Code of Criminal Procedure before the learned Judicial Magistrate, 1st Class, Agartala, West Tripura in Case No. Misc. 190/2000 against her husband, Shri Sankar Ghosh, i.e. the petitioner herein for granting maintenance of Rs. 5,000/- per month for maintaining herself and the petitioner Nos. 2 to 6 therein, who are the minor sons and daughters of the revision petitioner. The case of the respondent herein is that she is the wife of the revision petitioner and that their marriage was solemnised on 4th March, 2000, which corresponds to 19th Falguna, 1406 B.S. as per the Hindu customary rites and ceremonies. After the marriage, the revision petitioner and the respondent lived together as husband and wife at the residence of the revision petitioner along with his minor sons and daughters, i.e., the petitioner Nos. 2 to 6 therein. The revision petitioner had married one Subhra Ghosh and five children were born from their wedlock. It is the case of the respondent herein that after the death of the said Subhra Ghosh, the revision petitioner married her, but after few days of the marriage, the revision petitioner started ill treating her and the revision petitioner used to return home in a drunken condition. Ultimately, the revision petitioner drove the respondent out from his house on 30.4.2000 along with his minor children. Thereafter, the respondent took shelter at her parental house with the minor children of the revision petitioner. In the meantime, the revision petitioner married another woman, namely, Smti Namita Ghosh and is living with her at Alanganagar. The revision petitioner is working as a Pump Operator under the Department of Public Health Engineering, Govt of Tripura and is drawing a salary of Rs. 7,500/- per month. The respondent claimed that she has no income to maintain herself and therefore, prayed that a maintenance allowance of Rs. 5,000 per month be granted to her. The revision petitioner is working as a Pump Operator under the Department of Public Health Engineering, Govt of Tripura and is drawing a salary of Rs. 7,500/- per month. The respondent claimed that she has no income to maintain herself and therefore, prayed that a maintenance allowance of Rs. 5,000 per month be granted to her. The revision petitioner contested the case and also filed written statement denying that the respondent is his wife. He admits that the petitioner Nos. 2 to 6 therein are his sons and daughters, born from his marriage with the said Sdubhra Ghosh and that after the death of the said Subhra Ghosh, he married one Namita Ghosh on 26.2.2000 and that since then he has been living with the said Namita Ghosh along with his children in his house. He also claimed that he has been drawing a salary of Rs. 3,000/- per month. 3. Heard Mr. P. Roy Barman and Mr. B. Saha, learned counsel for the revision petitioner. Also heard Mr. U.B. Saha, learned senior counsel, assisted by Mr. J. Majumder, learned counsel for the respondent. 4. On the basis of the pleadings of the parties, the learned Judicial Magistrate Ist Class formulated two points for decision, namely :- "1. Whether the petitioner is the legally married wife of the O.P.? 2. Whether the petitioners Nos. 2 to 6 children of the O.P. are living with the petitioner or are living with the O.P.?" 5. The respondent herein examined three witnesses including herself in support of her claim. The revision petitioner examined as many as two witnesses including himself. After hearing the parties, the learned Judicial Magistrate 1st Class rejected the application for maintenance by the Order dated 13.3.2002 holding that the respondent herein is not the wife of the revision petitioner. The learned Magistrate also held that the petitioner Nos. 2 to 6 therein are residing with the revision petitioner and as such they are not entitled to get maintenance from the revision petitioner. 6. Aggrieved by the aforesaid order, the respondent herein filed a revision petition before the court of learned Additional Sessions Judge, Court No. 3, West Tripura, Agartala in Crl. Revision No. 8(1)/03. By the impugned Judgment dated 30.6.2003, the learned Addl. Sessions Judge reversed the Judgment and Order of the learned Judicial Magistrate 1st Class in Case No. Misc. 6. Aggrieved by the aforesaid order, the respondent herein filed a revision petition before the court of learned Additional Sessions Judge, Court No. 3, West Tripura, Agartala in Crl. Revision No. 8(1)/03. By the impugned Judgment dated 30.6.2003, the learned Addl. Sessions Judge reversed the Judgment and Order of the learned Judicial Magistrate 1st Class in Case No. Misc. 190/2000 and directed the revision petitioner to pay maintenance allowance at the rate of Rs. 7000/- per month to the respondent for her maintenance w.e.f. the date of the application within the first week of every month and also to pay the arrear amount at an instalment of Rs. 500/- per month until the entire amount is paid. 7. Aggrieved by the aforesaid judgment, the revision petitioner has now approached this court by way of revision petition. 8. It is contended by Mr. P. Roy Barman, learned counsel for the revision petitioner that the learned Addl. Sessions has misdirected himself by not taking into account the evidence of D.W. 2, namely, Shri Madhav Ghosh, who is the brother-in-law of the respondent, who categorically deposed before the learned trial court that his elder brother Shri Dilip Ghosh alias Dipak Ghosh had married the respondent, which was solemnised as per the Hindu rites and customs. According to the learned counsel for the revision petitioner, by ignoring this vital evidence, the learned Addl. Sessions Judge has committed illegality, impropriety and irregularity. It is also contended by the learned counsel for the revision petitioner that the learned Addl. Sessions Judge committed illegality by acting upon the evidence of P.Ws. 2 and 3 and in coming to the conclusion that the respondent successfully proved that she is the wife of the revision petitioner. 9. On the other hand, Mr. U.B. Saha, learned senior counsel appearing for the respondent submits that the impugned judgment is not liable to be interfered with inasmuch as the learned Addl. Sessions Judge has properly ignored the evidence of D.W.2, who is not a natural witness. The learned senior counsel for the respondent also contends that the evidence led by D.W.2 is beyond the pleadings of the revision petitioner, which is illegal. 10. I have carefully perused the judgment of the learned Judicial Magistrate 1st Class and also of the learned Addl. Sessions Judge. The learned Addl. The learned senior counsel for the respondent also contends that the evidence led by D.W.2 is beyond the pleadings of the revision petitioner, which is illegal. 10. I have carefully perused the judgment of the learned Judicial Magistrate 1st Class and also of the learned Addl. Sessions Judge. The learned Addl. Sessions Judge after carefully examining the deposition of the witnesses has come to the conclusion that the marriage of the respondent with the revision petitioner has been duly proved by the evidence of P.W.2, the priest who solemnised the marriage. The learned Addl. Sessions Judge was of the view that the evidence of P.W.2 had been fully corroborated by the evidence of P.W.3 and the respondent. In so far as the evidence of D.W.2 that the respondent had married the said Dilip Ghosh alias Dipak Ghosh is concerned the learned Addl. Sessions Judge ignored this evidence on the ground that this allegation was never pleaded by the revision petitioner in his written statement. It was under such circumstances that the learned Addl. Sessions Judge rejected the evidence of D.W.2 and came to the conclusion that the marriage between the revision petitioner and the respondent was duly proved. 11. The moot point is whether the findings of the learned Addl. Sessions Judge that the revision petitioner is the husband of the respondent, is in order ? 12. P.W.3 who is the sister-in-law of the revision petitioner, categorically asserted that the revision petitioner and the respondent are husband and wife and that their marriage was solemnised as per Hindu rites and customs on last 19th Afalguna in the parent's house of the respondent. This statement is fully corroborated by the evidence of P.W.2, who is the priest, who solemnised the marriage of the revision petitioner and the respondent on last 19th Falguna as per Hindu rites and customs. It is on the basis of the evidence of these two witnesses that learned Addl. Sessions Judge reached the finding that the revision petitioner and the respondent are husband and wife. 13. It is on the basis of the evidence of these two witnesses that learned Addl. Sessions Judge reached the finding that the revision petitioner and the respondent are husband and wife. 13. The law regarding proof of marriage for the purpose of Section 125 of the Code has been laid down by the Hon'ble Apex Court in Dwarika Prasad Satpathy, Appellant v. Bidyut Prava Dixit and Anr., Respondents, reported in Para 6 of the said judgment is reproduced hereunder : - "The validity of the marriage for the purpose of summary proceedings Under Section 125 CrPC is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence Under Section 494 IPC. If the claimant in proceedings Under Section 125 of the Code succeeded in showing that she and the respondent have lived together as husband and wife, the court can presumed that they are legally wedded spouses, and in such a situation, the party who denies the marital status can rebut the presumption. The appellant contended before the learned Magistrate that the said marriage was performed under duress and at the point of a knife, he was required to exchange garlands. That contention is not proved by leading necessary evidence. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the said procedure was complete as per the Hindu rites in the proceedings Under Section 125 CrPC." The Hon'ble Apex Court has also observed that an order passed in an application Under Section 125Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide a summary remedy for providing maintenance to a wife, children and parents. 14. I have taken pains to find out whether the revision petitioner has successfully rebutted the presumption that he is the husband of the respondent. The revision petitioner has relied upon the statement of D.W.2, i.e., Shri Madhav Ghosh, who stated that the respondent had married his brother Shri Dilip Ghosh alias Dipak Ghosh in 1992. I have carefully gone through the deposition of this witness. The revision petitioner has relied upon the statement of D.W.2, i.e., Shri Madhav Ghosh, who stated that the respondent had married his brother Shri Dilip Ghosh alias Dipak Ghosh in 1992. I have carefully gone through the deposition of this witness. The evidence of this witness cannot be safely relied upon inasmuch as the story set up by him with respect to said marriage has not been pleaded by the revision petitioner in his written statement nor in his evidence. It may be noted that the learned Magistrate was completely swayed by the evidence of this witness in coming to the conclusion that the respondent is not the wife of the revision petitioner. It is the settled proposition of law that no evidence can be led beyond the pleadings of the parties. There is no whisper of the marriage between the respondent and the said Shri Dilip Ghosh alias Dipak Ghosh in the evidence of the revision petitioner or in his written statement. This particular aspect was also not included in the points for determination formulated by the learned Judicial Magistrate Ist Class. Even though the proceedings Under Section 125 Cr.P.C. is quasi-criminal proceeding, the law of pleadings has been held to be applicable therein. The provisions relating to pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular cause of action must take. 15. In the context of writ petition which, I am of the view, is applicable to a proceeding Under Section125 of the C.P.C. The Hon'ble Apex Court in V. K. Majotra v. Union of India and Ors., reported in AIR 2003 SC 4504 has held that the writ courts would be well advised to decide the petitions on the points raised in the petition and if in a case keeping in view the facts and circumstances of the case any additional points are to be raised then the concerned and affected parties should be put to the notice of the additional points to satisfy the principles of natural justice and that parties cannot be taken by surprise. In the instant case also the question whether the respondent was really married to Shri Dilip Ghosh alias Dipak Ghosh was never raised by the revision petitioner in his pleadings or n his evidence nor in the points formulated for decision by the learned Magistrate. 16. In that view of the matter, the learned Magistrate has over stepped his jurisdiction by holding that the revision petitioner is not the husband of the respondent on the bias of the evidence of D.W.2 which was not in issue between the parties at the trial. Consequently, the learned Addl. Sessions Judge has rightly discarded this piece of evidence belatedly introduced by D.W.2 and has rightly held that the respondent is the wife of the revision petitioner. 17. In the result, I am of the view that the revision petitioner has not made out any jurisdictional error committed by the learned Addl. Sessions Judge in passing the impugned judgment. 18. For what have been stated above, this revision petition is devoid of merit and is hereby dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.