Research › Search › Judgment

Uttarakhand High Court · body

2008 DIGILAW 195 (UTT)

Smt. Kamla Devi v. State of Uttaranchal

2008-05-01

B.C.KANDPAL

body2008
JUDGMENT: B.C. Kandpal, J. By way of this writ petition under Article 227 of Constitution of India, the petitioner has sought the relief for issuing direction quashing the impugned orders dated 26.6.2001 and 28.6.2002, contained in Annexures-5 and 6 to the writ petition, passed by Chief Judicial Magistrate, Chamoli and Sessions Judge, Chamoli respectively. 2. Brief facts of the case are that petitioner-Smt. Kamla Devi moved an application against respondent no. 2-Sheri Lal for grant of maintenance under Section 125 of Cr.P.C. alleging therein that she became widow at the age of 17 years and at the time of death of her husband a fetus of three months was in her womb and after 6-7 months a daughter was born. The petitioner further alleged in the application that her father married her with one Sheri Lal in the year 1989 and at that time Sheri Lal was unemployed and subsequently he did his B.Ed. with the help of her father. In the year 1995 she conceived from Sheri Lal and subsequently she gave birth to a daughter. As Sheri Lal became a teacher in a primary school therefore his attitude was changed towards the petitioner. Respondent no. 2- Sheri Lal removed the newly infant baby and kept the baby at some unknown place, thereafter respondent no. 2 took the petitioner to Narayan Bagar and kept her in a room there. When the petitioner asked Sheri Lal about her baby, then he threatened her with dire consequences and pushed her also from his house. Since then respondent no. 2 has not been maintaining her. It is further alleged that on 13th April, 1997 respondent no. 2 married with one Usha. The petitioner has thus claimed a sum of Rs.1000/- per month as maintenance. 3. The application filed by the petitioner was contested by respondent no. 2 and he pleaded in his objection that he was never married with petitioner- Kamla Devi. He has further pleaded that he and Kamla Devi never lived as husband and wife. He has also pleaded that he gets the salary of Rs.2800/- after deduction. He has admitted his marriage with Usha. He has further stated that Kamla Devi is an employee of Aanganwari and is able to maintain herself. He has thus prayed that application is liable to be rejected. 4. He has also pleaded that he gets the salary of Rs.2800/- after deduction. He has admitted his marriage with Usha. He has further stated that Kamla Devi is an employee of Aanganwari and is able to maintain herself. He has thus prayed that application is liable to be rejected. 4. The learned Chief Judicial Magistrate, Chamoli after having considered the entire material available on record and hearing learned counsel for the parties was pleased to dismiss the application filed by the petitioner under Section 125 of Cr.P.C. vide judgment and order dated 26.6.2001. The petitioner preferred the revision against the aforesaid judgment and order and the learned Sessions Judge, Chamoli also dismissed the revision vide judgment and order dated 28.6.2002. 5. Feeling aggrieved by the aforesaid impugned judgments and orders, the petitioner has preferred the writ petition before this Court. 6. Heard Sri R.P. Nautiyal, learned counsel for petitioner, Sri S.S. Adhikari, learned A.G.A. for respondent no. 1, Sri N.S. Negi, learned counsel for respondent no. 2 and perused the record. 7. Both the courts below have come to the conclusion that marriage between Kamla Devi and Sheri Lal is not proved hence Kamla Devi is not entitled to get the maintenance allowance from Sheri Lal. 8. It reveals to me that both the courts below have ignored the statement of Jagmohan Singh, Probation Officer, which has been produced by the respondent-Sheri Lal before the court below as DW-3. This witness has specifically stated in his deposition that Kamla Devi had been getting the widow pension but after the enquiry conducted by Tehsildar Tharali it revealed that Kamla Devi had been residing with Sheri Lal since the year 1989 as his wife, hence the pension which was provided to Kamla Devi being widow was stopped with effect from financial year 2000-01. It is also worthy to mention here that one Rajia Bhatt, who was posted as A.N.M. in Primary Health Centre, Tharali, has also been produced as PW-2 by the petitioner before the court below and she has stated in her deposition that during her posting Kamla Devi visited Primary Health Centre, Tharali with Sheri Lal for pregnancy investigation and after enquiry she was found to be pregnant. This witness appeared before the court below along with Mother and Child Care Record Register of Primary Health Centre, Tharali and pointed out that at serial no. This witness appeared before the court below along with Mother and Child Care Record Register of Primary Health Centre, Tharali and pointed out that at serial no. 11 the endorsement was there as 'Kamla Devi wife of Sheri Lal'. I have perused the cross-examination of this witness which is contained in Annexure-3 to the writ petition and I am of the view that nothing adverse has appeared to me in the cross- examination which may suggest that this witness is not worth reliance. As the Additional District Magistrate produced by respondent no. 2-Sheri Lal is an independent witness and his deposition is clearly going to indicate that Kamla Devi had been getting the widow pension previously and after this fact came to the knowledge of Department during the course of investigation by Tehsildar that Kamla Devi had been living with Sheri Lal in the capacity of his wife, then the pension being given to Kamla Devi was stopped. Both the courts below have not given due importance to the deposition of this witness which has resulted miscarriage of justice to the petitioner. 9. On the basis of statement of Jagmohan Singh DW-3, it is clear that Kamla Devi and Sheri Lal had been living as husband and wife since 1989, therefore, no strict proof of performance of essential rites with regard to performance of marriage in the proceedings under Section 125 of Cr.P.C. which are summary in nature, is required. The Hon'ble Apex Court in a case, reported in 2000 CRI. L.J. 1 (SC), Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and another, has observed as follows: This extract is taken from Dwarika Prasad Satpathy v. Bidyut Prava Dixit, (1999) 7 SCC 675, at page 680 : 6- Learned counsel for the appellant at the time of hearing had not disputed the paternity of the child. Hence, the question is whether the marriage between the appellant and Respondent 1 was valid or invalid? In our view, 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. In our view, 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 succeeds in showing that she and the respondent have lived together as husband and wife, the court can presume that they are legally wedded spouses, and in such a situation, the party who denies the marital status can rebut the presumption. Undisputedly, marriage procedure was followed in the temple, that too, in the presence of the idol of Lord Jagannath, which is worshipped by both the parties. 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. 13- Hence, in our view from the evidence which is led if the Magistrate is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125, Cr.P.C. which are of summary nature, strict proof of performance of essential rites is not required. Either of the parties aggrieved by the order of maintenance under Section 125, Cr.P.C. can approach the civil court for declaration of status as the order passed under Section 125 does not finally determine the rights and obligations of the parties." 10. In view of the discussion made by me in the body of judgment as well as in the light of observations made by the Hon'ble Apex Court in the judgment (supra), I am of the view that both the courts below fell in error in coming to the conclusion that Kamla Devi could not prove her marriage with Sheri Lal strictly and in accordance with law. I am of the view that judgments and orders passed by both the courts below are liable to be set aside. I am of the view that judgments and orders passed by both the courts below are liable to be set aside. I further direct the learned Chief Judicial Magistrate, Chamoli, to decide the matter afresh in the light of evidence available on record as well as in the observations made by me in the body of judgment and in the light of judgment of the Hon'ble Apex Court which has been quoted by me in the body of judgment. 11. With the aforesaid observations, the petition is allowed. The impugned orders dated 26.6.2001 and 28.6.2002 passed by Chief Judicial Magistrate, Chamoli and Sessions Judge, Chamoli respectively, are set aside. 12. As the matter is quite old, the Chief Judicial Magistrate, Chamoli is directed to dispose of the matter pertaining to Section 125 of Cr.P.C., within a period of three months from the date of filing the certified copy of the judgment passed by this Court.