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2008 DIGILAW 441 (CAL)

Swapan Roy v. Maya Roy (Kar)

2008-04-25

ARUNABHA BASU

body2008
JUDGMENT: ARUNABHA BASU, J. (1) THE application under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure is filed by the petitioner herein being aggrieved by the order dated 23. 12. 2004 passed by the learned Additional Sessions Judge, Fast Track 2nd Court, Barrackpore in connection with Criminal Revision No. 109 of 2004 affirming the order dated 19. 2. 2004 passed by learned Judicial Magistrate, 4th Court, Barrackpore in connection with No. M Case No. 90 of 2003. (2) THE main contention of the petitioner is that he is married to one smt. Tapati Roy and the said marriage was solemnized according to Hindu rites on 10th May, 1978. Out of said marriage, one son was born in the year 1979 and one daughter was born in the year 1984. The said marriage is still subsisting, opposite party No. 1 is legally married wife of one Badal Kar @ paritosh Kar which is revealed from the voter list of Noapara Assembly constituency. The said opposite party introduced herself as legally married wife of petitioner on the basis of purported Certificate of Marriage and the wife of the petitioner has filed a suit for annulment of marriage with consequential reliefs for cancellation of the Certificate of Marriage in the court of the learned District Judge at Barasat. The said suit was registered as Matrimonial Suit No. 1495 of 2004 and the suit is still pending. (3) PETITIONER along with his family members obtained ration cards and got their names registered in the electoral roll. (4) OPPOSITE party No. 1 filed an application claiming maintenance under section 125 of the Code of Criminal Procedure and the same is registered as m Case No. 90 of 2003. In the said application, opposite party claimed to be legally married wife of the petitioner herein and it is also averred that from the said marriage, a daughter was born. (5) OPPOSITE party also filed an application claiming an amount of Rs. 1,200/-per month as interim maintenance for self and a sum of Rs. 800/- as interim maintenance for the daughter. (5) OPPOSITE party also filed an application claiming an amount of Rs. 1,200/-per month as interim maintenance for self and a sum of Rs. 800/- as interim maintenance for the daughter. (6) PETITIONER herein contested the said application and disputed about the alleged marriage on the ground that in view of the earlier marriage of the opposite party with one Paritosh kar, there cannot be any valid marriage with the petitioner herein but the learned Court below did not consider the objection raised, by the petitioner and also failed to consider the documents produced by the petitioner and granted a sum of Rs. 700/- as interim maintenance to opposite party and Rs. 500/-as interim maintenance to the minor daughter. Learned Court below also took into consideration a certificate of Marriage between the petitioner and opposite party and decided that in view of the certificate produced by the opposite party before the learned Court below, she shall be entitled to interim maintenance. The order granting interim maintenance was challenged before the learned revisional Court in connection with Criminal Revision No, 109 of 2004. The learned Revisional Court affirmed the said order. (7) IT appears from the record that in spite of sending several notices, no appearance was effected by the opposite party herein and the matter is now decided after hearing the submission made by learned Advocate for the petitioner. (8) LEARNED Advocate for the petitioner in support of his contention referred to a two-Judge Bench decision of Supreme Court in Savitaben Somabhai bhatiya vs. State of Gujarat and Ors., reported in AIR 2005 SC 1809 , wherein the Supreme Court held at para 8, which is set out below: "8. There may be substance in the plea of learned Counsel for the appellant that law operates harshly against the woman who unwittingly gets into relationship with a married man and section 125 of the Code does not give protection to such woman. This may be an inadequacy in law, which only the legislature can undo. But as the position in law stands presently there is no escape from the conclusion that the expression wife as per section 125 of the Code refers to only legally married wife. " (9) AT para 18 of the aforesaid decision, the Supreme Court held, which is set out below: "18. But as the position in law stands presently there is no escape from the conclusion that the expression wife as per section 125 of the Code refers to only legally married wife. " (9) AT para 18 of the aforesaid decision, the Supreme Court held, which is set out below: "18. It may be noted at this juncture that the legislature considered it necessary to include within the scope of the provision an illegitimate child but it has not done so with respect to woman not lawfully married. However, desirable it may be, as contended by learned Counsel for the appellant to take note of the plight of the unfortunate woman, the legislative intent being clearly reflected in section 125 of the Code, there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression wife. " (10) THERE cannot be any conflict with the proposition of law set out by Supreme Court in Savitaben Somabhai Bhatiyas case (supra). Section 125 of the Code of Criminal Procedure defines "wife" which includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (11) IF the status of the opposite party is second wife and if the marriage between the petitioner with his wife Tapati Roy was solemnized before the subsequent marriage and if the earlier marriage is still subsisting then the second marriage, will be void in the eye of law, and as such the opposite party cannot get the status of wife enabling her to claim maintenance in terms of section 125 of the Code of Criminal Procedure. (12) IT may be pointed out in this context that the stage in which the petitioner herein has moved this Court to exercise its jurisdiction under section 482 of the Code of Criminal Procedure, appears to be that the application under section 125 of the Code of Criminal Procedure filed before the learned Magistrate is yet to be finally decided by the Court below. (13) THE petitioner herein has challenged the order for granting interim maintenance and at this stage it is the contention of learned Advocate for the petitioner that the entire proceeding initiated by opposite party is required to be quashed as the status of the opposite party can at best be that of second wife and as such the alleged marriage between the petitioner and opposite party is void ab initio. (14) THE main contention of the learned Advocate for the petitioner rests on the plaint in connection with Matrimonial Suit No. 1495 of 2001 instituted by Tapati Roy against opposite party herein and petitioner herein praying for declaration, which is set out below: "a) A decree be passed declaring the marriage between the respondents as null and void and marriage solemnized in between the respondents on 15. 12. 1998 according to Special Marriage Act, 1954 before Sri Prabal bagchi is a nullity, void and of no effect. b) Judgment and decree against the defendant directing them to deliver up the Certificate of the Marriage for cancellation of marriage registered with Sri Prabal Bagchi, Dist. 24Parganas (North) under the Special marriage Act, 1954 with a notice to the Marriage Registrar of such cancellation for recording the same in his records. c) Such other relief or reliefs which the petitioner may be found entitled to. d) Costs of the suit including Advocates fees. " (15) IT is not disputed that the said civil suit is still pending and as such there is no declaration by the Civil Court of competent jurisdiction declaring the status of the petitioner in terms of the prayer submitted in connection with the civil suit. So at this stage, it cannot be said that merely by filing a civil suit before a Court of competent jurisdiction, petitioner has established that opposite party is not legally married wife in view of earlier marriage of petitioner with Tapati Roy. Mere filing of the suit does not necessarily mean that a party who has filed the suit has already established his case before the Court. Unless his right is established, and declared by Civil Court, the question of status will remain at the stage of consideration before the Civil court. So merely by filing the suit, one cannot say that petitioner has already established that opposite party herein is not a legally married wife under law. Unless his right is established, and declared by Civil Court, the question of status will remain at the stage of consideration before the Civil court. So merely by filing the suit, one cannot say that petitioner has already established that opposite party herein is not a legally married wife under law. (16) SO far as the case under section 125 of the Code of Criminal Procedure is concerned, the said application is filed for claiming maintenance by the wife and minor daughter. (17) SO far as the minor daughter is concerned, her claim for maintenance cannot be defeated, even if the case of the petitioner is accepted. (18) I must point out here that question of accepting the plea of the petitioner cannot and does not arise while hearing the application under section 482 of the Code of Criminal Procedure in view of the fact that there is no finding by the Civil Court declaring the status of the parties. (19) IT may also be pointed out in this context that the alleged marriage between the petitioner and opposite party was solemnized under the provision of Special Marriage Act, 1954. Prayer A of the plaint as mentioned above, will show that the plaintiff in connection with civil suit has prayed for a declaration that the marriage between the respondents i.e. petitioner and opposite party solemnized on 15.4.1998 according to the Special Marriage act, 1954 is a nullity and void. So the solemnization of marriage between petitioner and opposite party in terms of provision under the Special Marriage act, 1954 is not disputed. On the contrary, the said solemnization of marriage under the provisions of Special Marriage Act is sought to be challenged on the ground about earlier marriage between the petitioner with Tapati Roy, who is the plaintiff in connection with the matrimonial suit. (20) IT may be pointed out that the solemnization of earlier marriage between the petitioner and Tapati Roy is yet to be established before the learned Civil Court dealing with the civil suit. (21) LEARNED Civil Court while dealing with the Matrimonial Suit No. 1495 of 2001, is required to come to a positive finding about the solemnization of earlier marriage between the petitioner with Tapati Roy and then and then only the question of legality of the alleged marriage, solemnized between the petitioner and opposite party can be considered by the Court. (21) LEARNED Civil Court while dealing with the Matrimonial Suit No. 1495 of 2001, is required to come to a positive finding about the solemnization of earlier marriage between the petitioner with Tapati Roy and then and then only the question of legality of the alleged marriage, solemnized between the petitioner and opposite party can be considered by the Court. (22) IT may be pointed out in this context that section 13 of the Special marriage Act carries certain legal effect about a marriage solemnized under the Special Marriage Act, 1954 and particularly when the certificate is entered in the Marriage Certificate Book by the Marriage Officer. (23) SECTION 13 of the Special Marriage Act, 1954 is set out below:- "13. Certificate of marriage.- (1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses. (2) On a certificate being entered in the Marriage Certificate Book by the marriage Officer, the ertificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with. " (24) LEARNED Advocate for the petitioner, however, argued that section 24 of the Special Marriage Act, 1954 stipulates the condition of void marriage on such contingency particularly when condition as prescribed under section 4 of the Special Marriage Act is violated in the solemnization of marriage under the provisions of Special Marriage Act, 1954. (25) SECTION 24 stipulates that marriage solemnized under this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity. (26) SO far as the present case is concerned, such decree of nullity is yet to be passed by the Court and unless such decree of nullity is passed, it cannot be said that marriage solemnized between the petitioner and the opposite party under the provision of Special Marriage Act, 1954 is null and void. (26) SO far as the present case is concerned, such decree of nullity is yet to be passed by the Court and unless such decree of nullity is passed, it cannot be said that marriage solemnized between the petitioner and the opposite party under the provision of Special Marriage Act, 1954 is null and void. Such a conclusion at this stage as sought to be argued by the learned advocate for the petitioner will not only be premature but will be given by this Court on incomplete materials on the basis of surmise and conjectures. Such a course of action while deciding a litigation cannot be adopted by any court of Law. (27) IT may also be pointed out that the interim order of maintenance passed by the learned Court below and affirmed by the Revisional Court appears to be based on reasons and on consideration of the entire materials, it cannot be said that learned Court below did not take into consideration about the grounds taken by the petitioner but refused to interfere on the ground that certificate of registration of marriage produced by the petitioner cannot be ignored at this stage. Petitioner also produced copy of voters list before the learned Court below and a copy of the said voters list is also produced here. Voters list by itself, does not prove conclusively the status of the parties as mentioned in the said list. (28) IT may at best carry some presumption but nothing beyond that and such presumption can only be raised when the document is proved as per the provisions of law. However, I must point out that petitioner herein has sought to agitate that serial No. 10 which is in the name of one Maya Kar and the husbands name is stated to be Paritosh Kar is one of the identical person namely Maya Kar, wife of Badal Kar as mentioned in the plaint in the matrimonial Suit No. 1495 of 2001. It is not clear as to how or on what basis such presumption can be raised by the Court without the document being proved according to the provisions of law and without their being sufficient evidence to identify that Badal Kar and Paritosh Kar is one and the same person. It is not clear as to how or on what basis such presumption can be raised by the Court without the document being proved according to the provisions of law and without their being sufficient evidence to identify that Badal Kar and Paritosh Kar is one and the same person. Unless such identification is established, it will be again premature on the part of any Court to decide the matter either way, such decision in my view will be based only on surmise and conjectures and not on proof. (29) LASTLY, so far as the minor daughter is concerned, it is immaterial whether the marriage between the petitioner and opposite party is a legal marriage in the eye of law. I have already pointed out that legality of the said marriage is the subject matter of civil suit and pending for consideration before the Court and unless the decision is reached, one cannot say that marriage between the petitioner and opposite party is void in the eye of law. But so far as the minor daughter is concerned, her claim for maintenance cannot depend on the legality of the marriage of her parents, because, even if she is an illegitimate child, her claim for maintenance will be maintainable under section 125 of the Code of Criminal Procedure. (30) THE petitioner herein has also challenged that part of the order of the learned Magistrate wherein the learned Court below awarded a sum of Rs. 700/- for the opposite party and Rs. 500/- for the minor daughter totaling Rs. 1,200/-per month from the date of the order. There is nothing to show that the petitioner is complying with the said order. (31) ON consideration of the entire matter, I am of the view that the decision in Savitaben Somabhai Bhatiyas case (supra) has no manner of application in the fact situation of this case. (32) I am of the view that no illegality were committed either by the learned Magistrate in passing the order of interim maintenance or by the revisional Court in affirming the said order of interim maintenance and as such the present application is devoid of any merit and liable to be dismissed. (33) THE application is dismissed accordingly. (34) THERE shall be no order as to costs. (33) THE application is dismissed accordingly. (34) THERE shall be no order as to costs. (35) IN view of dismissal of the revisional application, the question of extension of interim order prayed for in application being CRAN 195 of 2008 does not arise and the same also stands dismissed. (36) INTERIM order earlier granted stands vacated. (37) IT is directed that learned Court below shall proceed with the application filed under section 125 of the Code of Criminal Procedure as expeditiously as possible and shall decide the application positively within a period of six months from the date of receipt/communication of the order without granting any unnecessary adjournment to either of the parties. (38) CRIMINAL Section is directed to send a copy of the order to learned court below as urgently as possible. (39) CRIMINAL Section is directed to supply urgent certified copy of the orders to the parties as and when applied for. Appeal dismissed.