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2004 DIGILAW 163 (ORI)

Bhabagrahi Samantaray v. Satyabhama Swain

2004-03-19

L.MOHAPATRA

body2004
JUDGMENT L. MOHAPATRA, J. — The husband is the petitioner before this Court challenging the order dated 19.8.1999 granting main¬tenance to the opposite party in a proceeding under Section 125 Cr.P.C. passed by the learned Judge, Family Court, Cuttack in Criminal Proceeding No. 345 of 1996. 2. From the record it appears that opposite party filed an application under Section 125 Cr.P.C. read with Section 7 of the Family Court Act claiming maintenance of Rs. 1,500/- per month from the petitioner. The case of the opposite party is that she married the petitioner in the month of June, 1979 according to caste, custom provided in their community and led a conjugal life till 21st August, 1990. At the time of marriage gold ornaments, cash etc. were given to the petitioner towards dowry. While the matter stood thus for no reason the opposite party was subjected to cruelty and ill-treatment as the opposite party did not con¬ceive. After torture, cruelty and ill-treatment for sometime the opposite party was forced to stay with her parents. It is further alleged that the petitioner had neglected her. The opposite party claimed that the petitioner is a Central Government employee and getting Rs. 8,000/- per month towards his salary and he has also income from agricultural lands and accordingly claimed main¬tenance of Rs. 1,500/- per month. The petitioner had filed his show cause denying his marriage with the opposite party. It was specific case of the petitioner that the opposite party had married another person and a false case was initiated against him claiming maintenance. In support of the claim, the opposite party examined three witnesses whereas the petitioner examined one witness. The learned Judge, Family Court on consideration of the evidence on record, accepted the claim of marriage and accordingly granted maintenance at the rate of Rs. 300/- per month to the opposite party. 3. The learned counsel appearing for the petitioner challenged the findings of the judgment of the Family Court on the ground that there is no evidence before the trial Court in proof of so called marriage and in absence of any material on record, the findings of the trial Court that there was a marriage between the parties is liable to be set aside. According to the learned counsel, when the marriage was in dispute, it was the duty of the opposite party to lead evidence to prove the marriage. According to the learned counsel, when the marriage was in dispute, it was the duty of the opposite party to lead evidence to prove the marriage. In absence of any such proof, the findings of the trial Judge that there was a valid marriage cannot be sustained. In support of the contention, the learned counsel referred to the evidence led on behalf of the opposite party. In course of hearing of this case, none appeared for the opposite party. 4. Law is well settled that in a proceeding under Section 125 Cr.P.C. strict proof of marriage as required in a civil proceeding is not necessary. However, this Court has also held that when the marriage is in dispute, some evidence must be led by the wife to show that some rituals of marriage had been per¬formed. The opposite party examined herself as P.W.1. In her evidence she has only stated that she married the petitioner 17 years back and led a conjugal life for a period of ten years. Though in examination-in-chief she did not say anything with regard to ritual that had taken place during the marriage, in cross-examination she has only stated that the marriage took place in the month of Asadha, 1979. One Bhikari Pati was the Purohit and one Babaji Barik was the Barber in the marriage. P.W.2 is the sister of the opposite party. She has stated that during the marriage of the opposite party, one Dinabandhu acted as the priest and Babaji acted as the Barber. She has also stated that the priest is dead in the meantime but the Barber is alive. She has not stated anything about any ritual that had taken place during the marriage. P.W.3 is the mediator, who had arranged the marriage. In his evidence he has only stated that the marriage took place twenty years back and after keeping the opposite party for a period of about 10 years she was left in the house of her parents. This witness has also not stated anything about any ritual that had taken place during the marriage though he was a mediator. The petitioner examined himself as O.P.W.1 and he denied the marriage altogether. 5. This witness has also not stated anything about any ritual that had taken place during the marriage though he was a mediator. The petitioner examined himself as O.P.W.1 and he denied the marriage altogether. 5. On analysis of the entire evidence placed before the Court, it appears that none of the witnesses examined on behalf of the opposite party stated anything about any ritual taking place in course of the marriage. Though the Barber is stated to be alive, he was not examined by the opposite party. Had the Barber been examined, he could have thrown some light with regard to ritual that had taken place during the marriage. Therefore, the evidence held on behalf of the opposite party only shows that there was a marriage between the parties, but there is no evi¬dence of any other kind to support the evidence. In absence of the materials with regard to marriage, it is difficult to accept the case of the opposite party that in fact she had married the petitioner. In view of the above, I do not find any material in support of the claim of the opposite party that there was a marriage between the parties and consequently the direction for payment of maintenance cannot be sustained. I, therefore, allow the Criminal Revision and set aside the impugned order. Revision allowed.