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2007 DIGILAW 72 (GAU)

Joginder Paul Bagga v. Premi Devi

2007-01-18

ANIMA HAZARIKA

body2007
JUDGMENT A. Hazarika, J. 1. Invoking power under Section 482 of the Criminal Procedure Code, 1973 (Code in Short) read with Sections 397/401 of the Code, the petitioner had challenged the legality and validity of the judgment and order dated 19.5.2003, passed by the learned Sessions Judge, Sonitpur, Tezpur in Criminal Motion Case No. 36 (S-4)/2002, whereby the learned Sessions Judge allowed the revision petition by setting aside the judgment and order dated 21.9.2002 passed in M.C. No. 132/2001 by the learned Sub-Divisional Judicial Magistrate(S) (SDJM in short), Tezpur, Sonitpur. 2. The respondent as 1st party filed an application under Section 125 of the Code in the Court of the SDJM, Tezpur, Sonitpur, against the petitioner herein being the Misc. Case No. 132/2001 alleging inter alia therein that the respondent (1st party) was married to the petitioner (2nd party) on 15.2.1999 and since then both of them lived together as husband and wife at the rented house of one Sri Gaman Singh Sherpa at Latihapara village under Missamari Police Station from where the petitioner (2nd party) attended his service. The petitioner (2nd party) is a driver, posted at IMTART, C/O 99 APO, drawing a salary of Rs. 7,000 (Rupees seven thousand) only per month. The petitioner (2nd party) thereafter, was transferred to IMTART, C/O 99 APO at Hashimara, District Jalpaiguri, West Bengal and there also both the parties lived together as husband and wife in the house belonging to one Mrs. Moti Singh. The respondent wife alleged that the 2nd party was a heavy drunker and he gradually began to leave her alone in the house and used to come late at night. He also used to beat her and drove her out from her house many a times. Some time the 2nd party, husband, threatened her with dire consequences if she would not leave the house of 2nd Party. She thus finding no other alternative left her matrimonial house and began to live alone without any source of income. As she had no income she requested the 2nd party husband to pay her maintenance, to which he did not pay any heed. According to the respondent wife, the 2nd party husband draws salary of Rs. 7000 (Rupees seven thousand) per month. In the aforesaid circumstances, the first party wife filed the Misc. As she had no income she requested the 2nd party husband to pay her maintenance, to which he did not pay any heed. According to the respondent wife, the 2nd party husband draws salary of Rs. 7000 (Rupees seven thousand) per month. In the aforesaid circumstances, the first party wife filed the Misc. Case being M.C. No. 132/2001, in the Court of the SDJM(S), Tezpur, praying inter alia therein for a direction to the second party husband to pay Rs. 3,000 (Rupees three thousand) per month as maintenance to her. 3. On receipt of the notice, the 2nd party husband had entered appearance and filed a written statement of defence denying the statements made by the 1st party wife. The 2nd party in his written statement denied the marriage with the 1st party and stated that he is an employee of IMTART and presently posted at Mangalbari, Jaygaon, where he is living with his wife Smt. Santosh Kumari with four children (two sons and two daughters) and that his marriage with Santosh Kumari was solemnized in the year 1975. He further contended that the 1st party was known to him when he was posted at Missamari in Sonitpur district. According to him, the 1st party is a married women and name of her husband is Sri Puspa Kanta Nath. She has three children, two sons and one daughter, namely, Ratul Nath, Mitul Nath and Malabika Nath and they are residing permanently with their father Puspa Kanta Nath at village Sonajuli under Sonitpur District. He further contended that the 1st party being not his married wife, he is not liable to pay maintenance allowance to her and thus prayed for dismissal of the petition of the 1st party. 4. During the trial, both the parties adduced evidences. 1st party adduced evidence of three witnesses including herself to prove her case, whereas the second party adduced the evidence of one witness. The learned Trial Court after hearing the learned Counsel appearing for the parties and upon perusal of the materials available on record, as well as the evidence adduced by the parties, came to the conclusion that both the parties have spouse living at the time of their alleged marriage and that they lived together as husband and wife when their respective marriage still subsisting. The learned Trial Court thus held that under such circumstances, it cannot be presumed that the 1st party is the wife of the 2nd party for the purpose of claiming maintenance allowance from him under Section 125of the Code and therefore the 2nd party husband is not liable to pay maintenance to the 1st party. 5. Aggrieved by the aforesaid judgment and order passed by the learned Trial Court, respondent wife preferred a revision petition before the learned Sessions Judge, Sonitpur, Tezpur being CM Case No. 36(S-4)/2002 and on going through the materials on record vide judgment dated 31.5.2003 the learned Sessions Judge set aside the impugned judgment of the learned Trial Court and directed the petitioner husband to pay maintenance at Rs. 500 (Rupees five hundred) per month to the respondent wife, making it clear that the aforesaid order shall take effect from 5.10.2001, i.e. from the date of filing the case before the learned Trial Court. 6. Against the aforesaid judgment and order passed by the learned Sessions Judge, Sonitpur, Tezpur, this revision petition has been preferred by the petitioner husband. 7. I have heard Mr. S.C. Biswas, learned Counsel appearing for the petitioner. None appeared for the opposite party. 8. Mr. Biswas, learned Counsel has submitted that the learned Trial Court has passed the order after going through the evidences adduced by the parties and on perusal of the materials on record. After thorough examination of the materials on record, learned Trial Court has found that both the parties had spouse living at the time of their marriage and they lived together as husband and wife when their respective earlier marriage still subsisting and, therefore, found that respondent wife is not entitled to any maintenance allowance as per the provision laid down in Section 125 of the Code. Mr. Biswas thus submitted that learned Sessions Judge, committed an error in making reassessment of the evidences and came to the finding that the petitioner husband and respondent wife, after their alleged marriage lived together as husband and wife and therefore she is entitled to maintenance allowance. Mr. Mr. Biswas thus submitted that learned Sessions Judge, committed an error in making reassessment of the evidences and came to the finding that the petitioner husband and respondent wife, after their alleged marriage lived together as husband and wife and therefore she is entitled to maintenance allowance. Mr. Biswas further urged that while passing the impugned judgment, the learned Sessions Judge did not take into consideration the petitioner's categorical statement regarding his marriage in the year 1975 with Smt. Santosh Kumari and also the fact that the opposite party is a married woman, having husband and three children which remained unchallenged. Also in view of the fact that, in cross-examination the respondent wife categorically stated that she could not say whether her former husband Puspa Kanta Nath has knowledge or not about the performance of her marriage with the petitioner 2nd party. She also stated that she did not file divorce case for dissolving her marriage with her former husband Puspa Kanta Nath. Further, she could not show any document relating to dissolving her marriage with her former husband. Rather she categorically stated that her marriage with her former husband was not dissolved according to law, which clearly shows that the respondent had married the petitioner while her former marriage with Sri Puspa Kanta Nath was subsisting. It is also on record that her three children are living with their father Puspa Kanta Nath, i.e. her former husband, till date. 9. Mr. Biswas, learned Counsel drawing my attention to the aforesaid specific depositions of the respondent wife, has submitted that the learned Sessions Judge, in his revisional jurisdiction was not justified in substituting his own views on the findings arrived at by the learned Trial Court on question of fact and ought not to have passed the impugned judgment setting aside the judgment and order of the learned Trial Court by directing the petitioner to pay maintenance allowance as ordered. 10. The learned Counsel further submitted that the application under Section 125 of the Code is maintainable only when a person refuses to maintain his wife, children, legitimate or illegitimate. But in the instant case as there was no valid marriage, payment of maintenance in the facts and circumstances does not arise. 11. In support of his submission, Mr. Biswas has relied upon the following decisions; (1) 2005 CriLJ 2141, Sabitaben Somabhai Bhatia v. State of Gujarat and Ors. But in the instant case as there was no valid marriage, payment of maintenance in the facts and circumstances does not arise. 11. In support of his submission, Mr. Biswas has relied upon the following decisions; (1) 2005 CriLJ 2141, Sabitaben Somabhai Bhatia v. State of Gujarat and Ors. (2) (1993) 1 GLR 42 Pratap Narayan Adhikari v. Smt. Anita Medhi. In Sabitaben Somabhai Bhatia (supra), the Hon'ble Apex Court held that, marriage of a woman in accordance with Hindu rites with a man having a living spouse is a complete nullity in the eye of law. Such woman is therefore, not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act 1955. Scope of Section 125 of the Code cannot be enlarged by introducing any artificial definition to include a woman not lawfully married in the expression "wife" as defined under Section125 of the Code when the husband has a living spouse, at the time of alleged marriage, the second wife is not entitled to maintenance. In Pratap Narayan Adhikari (supra), this Court relying upon Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav reported in 1988 CriLJ 793, held that parties being Hindu and governed by the provisions of Hindu Marriage Act, 1955, a marriage in contravention of the Clause (1) of Section 5 of the Act will not be a valid marriage. Thus, marriage of woman with man governed by Hindu Marriage Act, 1955, already having a living spouse at the time of the marriage, would be void in the eye of law and the alleged wife cannot have the status of a lawfully wedded wife. She cannot therefore obtain maintenance under Section 125 of the Code. 12. Referring to the above citations, Mr. Biswas, learned Counsel for the petitioner submitted that in the instant case, the marriage of the petitioner with respondent wife could not be proved and even assuming that there was a lawful marriage between the parties, but for the subsistence of first marriage of both the parties, the second marriage would be void in the eye of law and as such the respondent wife is not entitled for any maintenance. 13. 13. In view of the decisions rendered by the Apex Court as well as this Court, even assuming that there was marriage between the parties, but during the subsistence of the first marriage, the second marriage would be void in the eye of law, inasmuch as, the parties are governed by the provisions of Hindu Marriage Act, 1955. The necessary condition for lawful marriage is that neither party have a spouse living at the time of the marriage. A marriage in contravention of this condition is null and void for the purpose of Section 125 of the Code. A wife must be a lawful wife. A marriage in violation of Section 5(i) of the Hindu Marriage Act cannot be termed as a valid marriage. In the instant case the second marriage during the subsistence of the first marriage is a nullity under the law and, therefore, no order can be passed granting maintenance under Section 125 of the Code to the respondent wife. 14. In view of the discussions made above, this revision petition is allowed. Judgment and order dated 31.5.2003 passed in CM Case No. 36(S-4) of 2002 by the learned Sessions Judge, Sonitpur, Tezpur is set aside and the judgment and order dated 21.9.2002 passed in M.C. No. 132/2001 by the learned Sub-Divisional Judicial Magistrate (S), Tezpur, Sonitpur is affirmed. 15. Send down the case records. Petition allowed.