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2004 DIGILAW 97 (GUJ)

Jitendra Nath Das v. Minati Das

2004-02-20

ARUNABHA BARUA

body2004
ARUNABHA BARUA, J. ( 1 ) THIS revisional application is directed against the judgment and order dated 30. 3. 1996 passed by the Judicial Magistrate, ist Court, Barasat, in Miscellaneous Case No. 207 of 1988 arising out of an application filed by the opposite party under section 125 of the Code, of Criminal Procedure. 33 Heard learned Advocate of both sides. ( 2 ) THE matter pertains to an order of maintenance passed by the learned Court below whereby a maintenance allowance of rs. 400/- per, month was allowed in favour of the wife to be paid by the husband. ( 3 ) THIS order is assailed by the husband in the instant criminal case. ( 4 ) IT has been submitted by the learned advocate for the husband, that is the revigional applicant, that the impugned judgment and order of the learned Magistrate suffer from manifest illegality because he did not take into account admissible documents which went in favour of the applicant, that is the husband in the case, who is a military personnel. It is further submitted that the learned Magistrate did not also consider that the parties were minors at the time of the so-called marriage, that as a matter of fact there was no marriage at all taking place between the parties. Or, in other words, the factum of alleged marriage is squarely denied by the applicant-husband. According to the learned Advocate for the applicant-husband the learned Magistrate was totally wrong in coming to the conclusion he did and the petitioner-wife was not at all entitled to any maintenance whatsoever and her application under section 125 of the Code of Criminal procedure should have been dismissed. ( 5 ) THE learned Advocate for the opposite party-wife has submitted that the impugned judgment and order passed by the learned Magistrate were quite in order and in consonance with the evidence, oral and documentary, that came up for consideration before the learned Trial Court and that the learned Magistrate was perfectly justified in making the order of maintenance to the tune of Rs. 400/- per month in favour of the wife. ( 6 ) I have carefully gone through the impugned judgment and order passed by the learned Magistrate and also have given due consideration to the submissions made by the learned Advocates of the rival parties. 400/- per month in favour of the wife. ( 6 ) I have carefully gone through the impugned judgment and order passed by the learned Magistrate and also have given due consideration to the submissions made by the learned Advocates of the rival parties. ( 7 ) THE bone of contention seems to be, whether the parties are legally married husband and wife. Nothing has been seriously spelt out with regard to the quantum of maintenance. Now, the point is, whether the petitioner-wife by an application under section. 125, Code of Criminal Procedure could substantially prove that she was the legally married wife of the opposite party, that is the revisional-applicant here. In attempting to do so she has examined quite a number of witnesses. She herself as P. W. 1 has spelt out on oath some of the basic formalities of a Hindu marriage like seven steps before the sacred fire, exchange of garlands, putting of vermilion on the forehead as required in a hindu marriage. The sampradan was done by her father. She had also stated that after marriage she went to her matrimonial home and lived there with the opposite party as husband and wife. She did also prove negligence by the husband and the income of the husband was also prima facie satisfied, her testimony with regard to the formalities of marriage was substantially proved, one after the other, by the host of witnesses. She lad examined for herself, her elder sister, p. W. 4, Maya Das, and also the priest, kalipada Ghoshal, P. W. 7. A joint photograph of herself with the opposite party was also exhibited and there was the negative as well or the photograph coming before the Court, marked Ext. 1 and Ext. 1/1 respectively. This has been challenged by the husband as forged with the help of chemical powder but in no way it could be established. In plain, there was virtually not enough evidence to question the veracity of the testimony of witnesses for the wife which sound authentic and dependable and the learned Magistrate in an elaborate and well-reasoned order sustained the allegations of the petitioner-wife and dispelled those put forward by the opposite party-husband with adequate convincing reasons. In plain, there was virtually not enough evidence to question the veracity of the testimony of witnesses for the wife which sound authentic and dependable and the learned Magistrate in an elaborate and well-reasoned order sustained the allegations of the petitioner-wife and dispelled those put forward by the opposite party-husband with adequate convincing reasons. ( 8 ) IN a proceeding under section 125, code of Criminal Procedure, the rigours of strict proof of all the formalities of Hindu marriage can be dispensed with because whether the marriage is truly valid, invalid or void may be appropriately decided by the civil Court. A proceeding under section 125, code of Criminal Procedure is a piece of welfare or socialistic legislation to protect a neglected wife from destitution and vagrancy. It is also a summary proceeding for speedy disposal. ( 9 ) IN that view of the matter, the evidence that was adduced by the petitioner-wife was sufficient and good enough to sustain the belief that she was legally married wife of the revisional applicant, The learned magistrate, I find, came to the correct conclusion and rightly and justifiably awarded the maintenance of Rs. 400/- per month in favour of the wife to be paid by the husband. Hence, no interference is called for with the impugned judgment and order of the learned judicial Magistrate. 1st Class. Barasat. District-North 24-Parganas, dated 30. 3. 1996. ( 10 ) THIS revisional application, therefore, has no merits and is accordingly dismissed. ( 11 ) LET an urgent xerox certified copy of this order, if applied for. be given to the parties. .