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2010 DIGILAW 598 (CAL)

Nirmal Bhowmik v. Safala Das

2010-06-10

PRASENJIT MANDAL

body2010
JUDGMENT:- Prasenjit Mandal, J.: This revisional application has arisen out of the order dated July 29, 2006, passed by the learned Additional District Judge, Alipurduar, District-Jalpaiguri in Criminal Revision No.12 of 2006 thereby affirming the order of maintenance dated March 28, 2006 passed by the learned Judicial Magistrate, Alipurduar in M. R. Case No.81 of 2003. The husband/petitioner has filed this revisional application against his wife/O.P. No.1 and the State of West Bengal for setting aside the order passed by the learned Additional District Judge. The wife/opposite party no.1 filed one case under Section 125 of the Code of Criminal Procedure for her maintenance at the rate of Rs.1,500/- per month, stating, inter alia, that the marriage between her and her husband, petitioner herein, was solemnised on June 15, 2003. It was also registered on that very day under the Special Marriage Act. After marriage, they lived together in the house of the husband but the members of his family including himself inflicted torture upon her demanding dowry. She was not provided with enough food. Then, on September 9, 2003 the wife was taken to an unknown house and she was forced to sign on some blank papers at the point of threat and then she was driven out of the house of the husband. Since then, she has been living at the house of her brother in the same village. She has no source of income. On the other hand, the husband earns Rs.15,000/- per month and so she has claimed maintenance at the rate of Rs.1,500/- per month from her husband. The husband contested the said maintenance case by filing a written objection challenging the maintainability of the case for want of cause of action. He denied that he was ever married to the opposite party no.1 at all. They never lived together as husband and wife. The wife was minor at the time of so-called marriage. In fact, the wife was a neighbour residing in the house of her elder sister and there were visiting terms between the two families and they visited the house of the other as a neighbour. When the family of the wife demanded that the husband/petitioner should marry her the father of the husband/petitioner refused stating that the husband had no income, as claimed. When the family of the wife demanded that the husband/petitioner should marry her the father of the husband/petitioner refused stating that the husband had no income, as claimed. The wife and her men came to the house of the husband on June 15, 2003 and they took the husband forcibly and then the marriage was held between the two under threat. Thereafter they took the wife to the house of the husband and left her thereat. After three days, the wife left the house of her husband and went to her brother’s house in the same village. Even, at the time of departure, the men of the wife took Rs.1,500/- from the father of the husband as charges for the vehicle. For that reason, one case was lodged against those persons and that is still pending. Upon consideration of evidence of both the sides, the learned Magistrate allowed the application under Section 125 of the Cr. P. C. granting maintenance at the rate of Rs.750/- per month from the date of the order. Being aggrieved, the husband preferred a revisional application which was dismissed by the order impugned. Being aggrieved, the husband has preferred this revisional application. Upon perusal of the materials on record and on hearing the submission of the learned Advocate of both the sides, I find that it is not in dispute that the petitioner and the opposite party no.1 reside in the same village under District–Jalpaiguri, Sub- Division -Alipurduar and their houses are situated nearby. It is also not in dispute that the wife is an illiterate lady and the husband is a graduate. It is not in dispute that the wife hailed from Assam and she stayed in the house of her elder sister in the same village of her husband. Now the questions that arise in this revisional application for decision are mentioned below: 1) whether the marriage between the two was held on June 15, 2003 and 2) whether the wife was minor at the time of the so called marriage. As regards marriage, Mr. Maity, learned Advocate for the husband, contended that marriage between the parties to the M. R. case was not proved at all. He contended by referring certain observations of the Trial Court as well as the first revisional Court by pointing out that the close relations of the wife did not come to depose before the Court. Maity, learned Advocate for the husband, contended that marriage between the parties to the M. R. case was not proved at all. He contended by referring certain observations of the Trial Court as well as the first revisional Court by pointing out that the close relations of the wife did not come to depose before the Court. Even the priest who performed the Hindu rites had not been examined. All the formalities of the marriage according to Hindu customs and rites were not observed and so there was no marriage at all between the two under the provisions of the Hindu Marriage Act. He also contended that so far as the registration of the marriage under the Special Marriage Registration Act is concerned, the so-called marriage certificate cannot be looked into because the same certificate suffers from infirmities. For that reason, the so-called marriage certificate should not be accepted. He contended that the marriage certificate does not lay down the address of the parties. It also does not contain the address of the witnesses violating the provisions of the said Act. Therefore, the marriage certificate could not also be accepted as a proof of marriage between the two. He also contended that the wife was minor at the time of so-called marriage and so it could not be held that the marriage was validly performed between the two. Therefore, the order of the learned Trial Judge as well as of the learned Additional District Judge should be set aside. On the other hand, Mr. Banerjee, learned Advocate for the wife, supported the judgment. Now upon due consideration of the entire matter, I find that the wife stayed just adjacent to the house of her husband before their marriage and there was a visiting term between the two as per admission. The contention of the wife is that there were love affairs between the two and for that reason the members of the family of the wife requested the husband to marry and when he did not agree one Salisi was held. Though the husband denied such contention of the wife, from admission of the father of the husband, in his deposition, I find that one Salisi was held before the so-called date of solemnisation of marriage on June 15, 2003. Thus, I find that the contention of the wife gets support from the statement of the father of the husband. Though the husband denied such contention of the wife, from admission of the father of the husband, in his deposition, I find that one Salisi was held before the so-called date of solemnisation of marriage on June 15, 2003. Thus, I find that the contention of the wife gets support from the statement of the father of the husband. Unless, there was a love affair between the two as contented by the wife, the question of holding Salisi did not arise at all in the locality before their marriage. The contention of the petitioner that the husband took her to the Kali temple at Durgabari at Alipurduar and the marriage ceremony was performed thereat with the help of the priest of that temple cannot be disbelieved. The evidence of the petitioner gets support from the P.W. Nos.2 and 3 who are the neighbours of the wife. Above all, the wife has been able to produce one photograph of the marriage in Kali temple (exhibit – 1). On observation of such photograph, it does not support at all the contention of the husband that he was forced to marry the wife under threat. It is an admitted position that after marriage the husband and wife lived together in the house of the husband for three days and the wife took meals thereat, though the wife contended that she stayed thereat for three months. The wife has stated in her deposition that religious ceremonies including exchange of garland, Saptapadi, etc. were held between the two in presence of the goddess Kali. The photograph shows the performance of one of such religious rites. Thus, I find that the evidence of the wife is trustworthy in this regard. When the wife has proved some sort of ceremonies according to the provisions of the Hindu Marriage Act, the marriage should be treated as complete. My observation gets support from the decision reported in (1999) 7 SCC 675 wherein it has been observed that once it is admitted that the marriage procedure was followed, it was not necessary to further probe whether the said procedure was complete as per Hindu rites in the proceeding under Section 125 of the Cr. P. C. Above all, the proceedings under Section 125 of the Cr. P. C. Above all, the proceedings under Section 125 of the Cr. P. C. is of a summary nature and so the wife is not required to prove every details of the marriage which is required in a proceeding under Divorce Act or Sections 494, 495, 497 & 498 of the I. P. C. The marriage certificate (exhibit – 2) also lends support that the marriage between the two was held on the same day under the provisions of the Special Marriage Act. The question whether it is valid or not on the ground that it does not lay down the address of the parties to the marriage or the witnesses to the marriage, may be decided in other proceedings/suits. It may be mentioned here that the wife was an illiterate village girl at the time of marriage and the so-called marriage was being held after culmination of the love affairs. The wife might not be interested to know the name of the priest or the fact whether the husband who is a graduate, was taking all the necessary steps to incorporate the name and full address of the parties and the witnesses. Whatever may be the situation, I find that husband has filed a civil suit for annulment of the marriage. I am told that the said declaratory suit is pending at the stage of examination of the P.Ws. So there is scope to ventilate the grievance of the husband in that suit to decide whether the marriage between the two was held really or not; but for the purpose of deciding the claim of the petitioner for maintenance, I am of the view that the evidence on record is sufficient to conclude that the opposite party no.1 is the legally wedded wife of the petitioner. The learned Advocate for the husband has referred to the decision reported in 2008 (1) CHN 856 contending, inter alia, that when the marriage was held by registration, as in the instant case, the learned Single Judge of this Hon’ble Court did not accept the factum of marriage. The learned Single Judge came to that conclusion when the wife failed to state the date of his marriage and even the date of birth of the child though she read up to Class VIII. Even she could not state the name of the priest. This is not the situation at all here. The learned Single Judge came to that conclusion when the wife failed to state the date of his marriage and even the date of birth of the child though she read up to Class VIII. Even she could not state the name of the priest. This is not the situation at all here. The wife has stated that both the social marriage and the marriage by registration were held between the two and in support of such contention the wife had been able to produce some materials which are sufficient for the purpose of deciding the factum of marriage between the two in this proceedings under Section 125 of the Cr. P. C. Therefore, I hold that the said decision is not applicable in this case. I hold that there is nothing to interfere with the concurrent views of the learned Trial Court and the first revisional Court regarding the factum of marriage. As regards age, the wife has been able to produce his birth certificate (exhibit-3) which proves that she was major at the time of her marriage and so the contention of the husband that the wife was minor at the time of marriage cannot be accepted. In spite of marriage, the husband denied the factum of marriage and such contention clearly proves that the husband refuses to maintain his wife. As regards sufficient means of the husband, the learned Advocate for the husband did not make any submission and evidence on record is sufficient to conclude that the husband has the sufficient means to pay the nominal maintenance of Rs.750/- per month as awarded from the date of the order. The two questions formulated are answered thus. Therefore, so long as a decree of nullity is not obtained from a competent Court, the marriage between the two subsists. The findings of the learned Trial Court and the first revisional Court cannot be said to be perverse or without any evidence. Therefore, I am of the view that there is nothing to interfere with the concurrent views of the two Courts below. Accordingly, the revisional application fails to succeed. It is dismissed. The husband is directed to pay all the arrears of maintenance within two weeks hence and the current maintenance as per order of the learned Trial Court, failing which the wife will be at liberty to execute the order of maintenance. Accordingly, the revisional application fails to succeed. It is dismissed. The husband is directed to pay all the arrears of maintenance within two weeks hence and the current maintenance as per order of the learned Trial Court, failing which the wife will be at liberty to execute the order of maintenance. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.