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2005 DIGILAW 89 (GAU)

Bulbuli Dutta v. Subodh Datta

2005-02-03

H.N.SARMA

body2005
JUDGMENT H.N. Sarma, J. 1. Claim of maintenance by the petitioner for herself and her unfortunate minor daughter, has led her to knock the door of the justice, even by way of this petition Under Section 482 Cr. P.C. read with Article 227 of the Constitution of India, praying for exercise of inherent power of this Court. 2. The brief facts leading to the present petition are as follows : the petitioner filed a petition Under Section 125 Cr. P.C. praying for maintenance for herself and her minor daughter from the respondent Sri Subodh Datta. The parties are the residence of Rangapara Town, under Rangapara P.S. in the district of Sonitpur. It is stated in her application for maintenance that they were in love affairs and as a result of sexual intercourse between the minor girl was begotten. It is further stated that on 1.6.1990, the respondent married the petitioner by putting vermilion on her forehead, and although the petitioner is the married wife of the respondent and the respondent is the father of the minor child, he has failed and neglected to pay any maintenance to the petitioner and her daughter, leading to the innumerable hardships to this. The petitioner, accordingly is staying is her parents house and is living on the mercy of others. The petition for maintenance was filed in the Court of the Chief Judicial Magistrate, Tezpur, which was registered as Misc. Case No. 13/92. Notice having been served, the respondent appeared and submitted his written statement denying all the allegations made by the petitioner. The respondent specifically denied his marriage with the petitioner. It was also denied that he as the father of the minor-daughter of the petitioner. It is pertinent to note herein that alongwith aforesaid application for maintenance two photocopies of documents dated 1.6.1990 and 15.1.1992, allegedly written by the respondent, were also submitted. In the said document dated 1.6.1990 it is stated that the second party admitted that he married the first party by putting vermilion on her forehead and the document dated 15.1.1992 discloses that a minor child was begotten to the 1st party/petitioner through the second party/respondent. The petitioner agreed to maintain the first party as per documents dated 1.6.1990. These two documents are available on records. 3. During the course of trial, the petitioner/first party examined four witnesses whereas the second party examined himself in support of his case. The petitioner agreed to maintain the first party as per documents dated 1.6.1990. These two documents are available on records. 3. During the course of trial, the petitioner/first party examined four witnesses whereas the second party examined himself in support of his case. Upon consideration and appreciation of the materials and evidence on record, the learned Magistrate held that the petitioner/first party failed to prove the marriage and also failed to prove that the second party/respondent is the father of the minor child and accordingly, rejected the prayer of the maintenance. Being aggrieved, the present petitioner filed Criminal revision in the Court of Sessions Judge, Sonitpur which was registered as Criminal Motion No. 9(S1) 93. The learned Sessions Judge vide judgment and order dated 25.04.1996 dismissed the said criminal revision. 4. I have heard Mr. S.C. Biswas, learned counsel for the petitioner. None appears for the respondent although notice was sent by registered post. Mr. Biswas fairly submits that it is a second revision by the same party, and although, such a revision is based Under Section 397(3) Cr. P.C., the present case, being a exceptional one, this court can exercise inherent power Under Section 482 Cr. P.C. and can dealt with the matter on merit. Mr. Biswas referred to the decision of the Apex Court in the case of Krishna v. Krishna Veni reported in AIR 1997 4 SCC 241 and Ganesh Narayan v. Bongrappa reported in. Referring to the aforesaid cases, Mr. Biswas submits that in spite of the bar Under Section 397(3) Cr. RC., the power of the Court Under Section 482/483 or Article 227 of the Constitution will still be available for the petitioner, in the facts and circumstances of the case. In the case of Prasanta Kr. Dey v. State of West Bengal, reported in AIR 2003 4412, which was also a case Under Section 125 Cr. RC., the power of the Court Under Section 482/483 or Article 227 of the Constitution will still be available for the petitioner, in the facts and circumstances of the case. In the case of Prasanta Kr. Dey v. State of West Bengal, reported in AIR 2003 4412, which was also a case Under Section 125 Cr. P.C. the Apex Court held, inter alia, "that : - "5, In the facts and circumstances of the present case, we are of the opinion that the present one is a fit case where the High Court ought not to have dismissed the revision preferred before it solely on the ground of non-maintainability but should have gone into the merits so as to find out if it was s fit case calling for interference of the High Court, shorn of technicalities under Section II 401 read with Section 482 of the Cr. P.C". 5. In the light of the ratio of the aforesaid decisions, I propose not to reject this petition as not maintainable being a second revision, Under Section 397(3) of the Cr. P.C., in the fact and circumstance of the instant case. 6. Mr. Biswas led me to the impugned judgment passed by the learned Sessions Judge as well as the other relevant materials on record. From the judgment passed by the learned Sessions Judge, it appears that the learned Judge agreed with the view of the learned trial Court that there was no valid marriage between the petitioner and the respondent in as much as no such marriage could be proved by the petitioner as required under the Hindu law Which govern the parties. 7. The learned Judge also rejected the prayer for maintenance of the child on the ground that "apart from making out and establishing the paternity of the child with consistent and substantive evidence, it is striking to take notice that the evidence of the first party in this aspect is so contradictory and inconsistent and they are even not sure in which year the child was born" and accordingly it is held that the 1st party failed to discharge their onus to establish that the 2nd party is the father of the child. 8. I have scrutinized the record not for re-appreciation but for the purpose of to find out propriety of aforesaid findings arrived by the learned Judge. 8. I have scrutinized the record not for re-appreciation but for the purpose of to find out propriety of aforesaid findings arrived by the learned Judge. I find from the statement of PW 1 who is the mother of the child, who, inter alia, stated that the child was born about 4 years ago, PW 2 the father of PW 1 has not stated anything regarding the birth of the child. PW 3 the Mother of the claimant stated, inter alia, that the child was born 6 years ago. Prima-facie, scrutiny of the aforesaid evidence disclose that there are some contradiction regarding the date of birth of the child, but there is no contradiction at all regarding the birth of the child, i.e., the child was born out with the relationship of the respondent to the petitioner. The learned Judge did not notice this aspect at all goes to the root of the dispute is a vital one but the minor contradiction does not affect the merit of the case. The Apex Court time and again laid down the some principles regarding the manner in which discrepancies should be considered, and some of such cases may be cited below for read, reference : - (2003) 5 SCC 37 (State of Rajasthan v. Nathu) (State of M.P. v. Man Singh) (Rijan v. State of Chattisgarh)" 9. There is vital distinction between material discrepancies and normal or minor discrepancies. Discrepancies which do not erode the credibility of the case is of no vital consequences and not fatal. 10. The Sessions Judge has rejected the prayer of maintenance in respect of the child only on the aforesaid count, i.e., on the count of minor contradiction regarding the date of birth. It is well settled that in deciding a case Under Section 125 Cr. P.C., for claim of maintenance of a child, the proof of paternity is not as strict as in civil case. In the instant case, the petitioner and her witness specifically asserted that the child in question was born out as result of intercourse between the petitioner and the respondent. Except putting simple suggestion, there is no cross examination to the prosecution witness from the side of the second party. The second party has also, except making an omnibus statement, that he has no female child, not stated anything. Except putting simple suggestion, there is no cross examination to the prosecution witness from the side of the second party. The second party has also, except making an omnibus statement, that he has no female child, not stated anything. The object of the provision of Section 125 IPC is to provide some solace with regard to the class of person mentioned therein by way of granting maintenance, who has no means of livelihood. It provides a cheap remedy and the proceedings are of summery in nature. 11. On consideration of the aforesaid and on discussion made hereinabove and keeping in mind the object of Section 125 Cr. P.C., this Court find it difficult to hold that the criminal revision petition was properly disposed of in accordance with law. Accordingly, the impugned judgment passed by the learned Session Judge is not sustainable and the same is hereby set aside. 12. In the result, this revision petition is allowed and. the case is remanded back to the Court of the learned Sessions Judge, Tezpur with a direction that he shall dispose of the matter expeditiously, after-hearing the parties, preferably within a period of two months, in accordance with the law alluded hereinabove. 13. Send down the records forthwith. Petition allowed.