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2011 DIGILAW 440 (GAU)

Ratneswar Saikia v. Kalpana Saikia

2011-05-20

P.K.MUSAHARY

body2011
JUDGMENT P.K. Musahary, J. 1. This Criminal Revision is directed against the judgment and order dated 7.10.2005 passed by the learned Principal Judge, Family Court, Kamrup, Guwahati in F.C. (Crl.) No. 335 of 2003 holding therein that the Petitioner Smt. Kalpana Saikia is the legally married wife of the present Petitioner and she is entitled to get maintenance and also directing the present Petitioner to pay Rs. 1,200/- p.m. w.e.f. the date of filing of the application. 2. I have heard Dr. Y.K. Phukan, learned Sr. Counsel assisted by Smt. S. Bora, learned Counsel for the Petitioner and Mr. S.S.S. Rahman, learned Counsel appearing for the Respondent-wife. 3. The brief facts as stated by the Respondent are that the marriage between the Petitioner and the Respondent was solemnized on 04.05.97 according to Hindu rites and rituals and after their marriage, they lived together as husband and wife. After marriage, the Petitioner started to ill-treat and misbehave, and even threatened to kill the Respondent and ultimately due to physical and mental torture she was compelled to leave the house of the Petitioner on 24.04.2003 in the midnight. The Respondent had to take help of Basistha P.S. to enter the house of the Petitioner. The Respondent was under prolonged treatment and the Petitioner refused to provide any financial help to her. Thereafter, on 2.7.03, an agreement was signed in presence of 3 (three) witnesses between the Petitioner to maintain peace and good behaviour between the parties. But inspite of such agreement, the Petitioner again on 29.7.03, in an inebriated state, assaulted the Respondent fastening her hands and attempted to throw her in a ring well. She was rescued by the neighbours. The Petitioner stopped providing food to the Respondent for which she is suffering immensely. As per the statement made in the petition, the Petitioner is working in the Special Branch of Assam Police at Kahilipara and he draws handsome salary and hence he is under obligation to maintain the Respondent. She claims Rs. 4,000/- as maintenance. 4. The Petitioner contested the suit by filing written statement. He denied the marriage with the Respondent and asserted that she is the wife of one Shri Bhadreswar Nath who was working as Habildar in 4th Assam Police Battalion and having a female child named, Moni Nath through their wedlock. Their said daughter has already grown up and got married to Dr. Ranjan Kanta Nath. He denied the marriage with the Respondent and asserted that she is the wife of one Shri Bhadreswar Nath who was working as Habildar in 4th Assam Police Battalion and having a female child named, Moni Nath through their wedlock. Their said daughter has already grown up and got married to Dr. Ranjan Kanta Nath. The Petitioner often used to quarrel and beat the Respondent mercilessly for which she had to leave the matrimonial house and requested the Petitioner to provide accommodation for a temporary period which he allowed on humanitarian ground. The Respondent used to stay in a room but after sometime, with ill motive and ill advice from others, she wanted to stay with the Petitioner as his wife. He asked her to vacate the room but the local people came to her help and forced to sign an agreement on 2.7.03. The Petitioner denied all the allegations and stated that the Respondent should file a case against her legal husband Sri Bhadreswar Nath for maintenance. 5. Dr. Y.K. Phukan, learned Sr. Counsel submits that an order of maintenance cannot be passed by a Magistrate in favor of a woman whose earlier marriage has not been dissolved as per law and the relationship as husband and wife still subsists. According to him, as per evidence on record, the Respondent married to Bhadreswar Nath and out of the said wedlock, a female child was born who is now grown up and got married. He further submits that there is no evidence on record that the marriage between Respondent and the said Bhadreswar Nath has been dissolved as per law and there is no more relationship as husband and wife between the said person and the Respondent. The Respondent cannot claim maintenance unless, she proves that her earlier marriage with Bhadreswar Nath has been dissolved. In this regard, he has relied on some decisions of the Apex Court rendered in Rohtash Singh vs. Ramendri and other, (2000)3 SCC 180 , Savitaben Somabhai Bhatiya vs. State of Gujarat and other (2005) SCC 636 and Rameshchandra Rampratapji Daga vs. Rameswari Rameshchandra Daga, reported in (2005)2 SCC 33 . 6. Mr. Rahman, learned Counsel appearing for the Respondent-wife submits that the matter may be remanded to the learned Family Court for fresh hearing to decide the question regarding dissolution of earlier marriage between the Respondent and Bhadreswar Nath. 6. Mr. Rahman, learned Counsel appearing for the Respondent-wife submits that the matter may be remanded to the learned Family Court for fresh hearing to decide the question regarding dissolution of earlier marriage between the Respondent and Bhadreswar Nath. The said prayer has been opposed by the learned Sr. Counsel representing the Petitioner inasmuch as it would provide opportunity to improve her case by the Respondent which is not permitted under the law. 7. I have gone through the evidence and materials on record and given my anxious consideration on the submission made by the learned Counsel for the parties. As per Explanation (b) to Section125 Cr. P.C "wife" includes a woman who has been divorced by or has obtained a decree of divorce from her husband and has not remarried. The status of the present Respondent is to be determined as per the said explanation. From the evidence on record, it is found that the present Respondent was married to one Bhadreswar Nath before she was allegedly married to the present Petitioner. She suppressed this fact in her petition for maintenance. The said fact was disclosed by the present Petitioner in his written statement filed before the Magistrate. The fact that the Respondent was married earlier to Bhadreswar Nath was not denied by her. What she was trying to establish is that her earlier husband Bhadreswar Nath married second wife, Aruna Devi, who has been made his nominee in place of the Petitioner in the pension papers. On the basis of this documentary evidence, the Respondent has tried to persuade the court that he has already been divorced by her earlier husband Bhadreswar Nath and as such her alleged second marriage with the present Petitioner is a valid marriage. Then a question would arise as to whether it is sufficient to prove divorce from her earlier husband and she can be treated as divorced wife inasmuch as no decree from the court for divorce or dissolution of marriage has been produced or proved before the learned court of Magistrate. 8. In the present case, both the parties are Hindus. The party with whom the Respondent married earlier i.e. Bhadreswar Nath, is also a Hindu. The marriage of Hindu couples can be dissolved only by a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 on grounds mentioned therein. 8. In the present case, both the parties are Hindus. The party with whom the Respondent married earlier i.e. Bhadreswar Nath, is also a Hindu. The marriage of Hindu couples can be dissolved only by a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 on grounds mentioned therein. There is no evidence adduced by the Respondent that either the Respondent or her earlier husband Bhadreswar Nath filed any objection for a decree of divorce under Section 13 of the Act. In absence of such decree of divorce from a competent Court of law, no court is authorized to hold that there is a dissolution of marriage between the Respondent and her earlier husband Bhadreswar Nath. If such evidence is not forthcoming, it must be accepted that the marriage between the Petitioner and her earlier husband still subsists. During subsistence of marriage, a Hindu couple cannot be married to other person and even if, he or she is married without dissolution of earlier marriage, it would amount to a void marriage which cannot be legalized in any manner under any law. 9. This point has been discussed elaborately by the Hon'ble Supreme Court in Savitaben's case (supra). It has been held therein that the word "wife" is not defined in the Code except indicating in the Explanation to Section 125 Code of Criminal Procedure its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status and the expression must, therefore, be given the meaning in which it is understood in law applicable to the parties. It has been clarified in the said judgment that marriage of woman in accordance with Hindu rites with a man having living spouse is a complete nullity in the eye of law and such woman is, therefore, not entitled to the benefit under Section 125 Code of Criminal Procedure or Section 13 of the Hindu Marriage Act, 1955. It is, therefore, declared therein that marriage with a person having a living spouse is null and void and not voidable. It is, therefore, declared therein that marriage with a person having a living spouse is null and void and not voidable. The status of the present Respondent is quite similar inasmuch as she has also a living spouse (Bhadreswar Nath) from whom she has obtained no decree of divorce from any competent court of law and she had allegedly entered into marriage with the 3rd person i.e. the Petitioner, which is absolutely null and void and cannot be recognized under the law. 10. Once it is established that there is no valid decree of divorce from the earlier husband, and the said husband is still alive and she got married to a 3rd person like the present Petitioner, which is void, the Respondent cannot legally claim monthly maintenance from the Petitioner. It is note worthy that the court in the aforesaid case clearly held that scope of Section 125 Code of Criminal Procedure cannot be enlarged by introducing any artificial definition to include a woman not lawfully married in the expression "wife". 11. In the impugned judgment, the learned Principal Judge, Family Court, Kamrup, Guwahati came to a conclusion that the Respondent is a legally married wife of the present Petitioner and is entitled to get maintenance is erroneous both in fact and law. It proceeded with a wrong assumption that marriage between the present Petitioner and the Respondent is voidable under Section 12 of the Hindu Marriage Act without applying its mind to the fact that the Respondent had her living spouse from whom she had obtained no decree of divorce under Section 13 of the Hindu Marriage Act, 1955. I do not agree with the aforesaid findings and conclusions of the learned Principal Judge, Kamrup, Guwahati. Applying the principle laid down in Savitaben's case (supra), I rather hold that the maintenance case initiated by the present Respondent is not maintainable and she is not entitled to get any maintenance allowance. 12. Consequently, the impugned judgment and order dated 7.10.2005 passed by the learned Principal Judge, Kamrup, Guwahati is liable to be quashed and set aside which I accordingly do hereby. 13. The Crl. Revision petition stands allowed. 14. Send down the L.C. Rs to the court below forthwith. Petition allowed.