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Jharkhand High Court · body

2009 DIGILAW 1326 (JHR)

Bouri Mahto @ Bal Ram Mahto v. State of Jharkhand

2009-10-09

D.K.SINHA

body2009
Order Petitioner has invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure for quashment of the order impugned dated 30.7.2005 passed by the learned Additional Judicial Commissioner-II, Khunti in Criminal Revision No. 31 of 2001 by which the order ,passed by the Judicial Magistrate, Khunti in Miscellaneous Case No. 10 of 1999 in a proceeding under Section 125 of the Code of Criminal Procedure on 12.1.2001 calling upon the petitioner to pay a sum of Rs. 400/- per month to the wife-opposite party No. 2 was upheld and confirmed. 2. The brief fact of the case is that the complainant-opposite party No. 2 preferred a proceeding under Section 125 of the Code of Criminal Procedure, claiming monthly maintenance from her husband petitioner on the ground that he extended torture to her and also that he solemnized second marriage with one Bindeshwari daughter of Mahendra Mahto some six years ago without her consent. It was further alleged that the petitioner-husband had extended threat that she would be strangulated to death in case she would return back to his home. Complainant-wife asserted that the petitioner had income of Rs. 40,000/- to 50,000/- per annum from the business and that he was the son of a big farmer. In his causes shown, petitioner-husband refuted the entire assertion related to his second marriage and annual income. 3. Counsel for the petitioner submitted that in a different set of allegation brought about by the opposite party No. 2 charge was framed under Sections 498A/494 of the Indian Penal Code against the petitioner and he was convicted by the Trial Court but It is conviction and sentence were set aside in Criminal Appeal N.o.167 of 2000 by the learned 1st Additional Judicial Commissioner, Khunti on 21.9.2001 and accordingly, petitioner was acquitted. 4. Main contention of the petitioner was that he had 'never married to the complainant-opposite party No. 2 rather, she was imposter and that she could not be able to establish in the criminal case aforesaid that she was legally married wife of the petitioner, even in the proceeding under Section 125 of the Code of Criminal Procedure. 5. The observation made by the Additional Judicial Commissioner, Khunti in Criminal Appeal No. 167 of 2000 by which the conviction of the petitioner for the charge under. 5. The observation made by the Additional Judicial Commissioner, Khunti in Criminal Appeal No. 167 of 2000 by which the conviction of the petitioner for the charge under. Sections 498A/494 of the Indian Penal Code has got no relevancy at all in the present Criminal Revision for the reasons that the said court erred by observing that the second marriage, of the petitioner could not be proved since saptpadi was not observed. A proceeding under Section 125 of the Code of Criminal Procedure is an independent proceeding and the petitioner failed to prove prima facie that the opposite party No. 2 was not his legally wedded wife. Thus he failed to discharge such heavy onus. 6. It would not be out of place to mention that the allegation made on behalf of the complainant-opposite party No. 2 could not be rebutted as the petitioner husband did not produce himself to be examined in the proceeding for rebuttal of the contention made on behalf of the complainant-wife and therefore, the learned Judicial Magistrate has no way out except to rely upon the testimony of the complainant in the court and to pass the impugned order which has been affirmed by the Revisional Court. 7. On the other hand, I find that the judgment passed by the learned Judicial Magistrate in a proceeding under Section 125 of the Code of Criminal Procedure has been affirmed in Criminal Revision No. 31 of 2001 by the learned Additional Judicial Commissioner-II, Khunti with the reasoned order. In the facts and circumstances, I find that the maintenance amount .to .the tune of As. 400/- per month awarded to the complainant-opposite party No. 2 is reasonable which does not call for interference. There is no merit in the instant petition of the petitioner-husband. 8. Accordingly, this criminal miscellaneous petition is dismissed.