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2012 DIGILAW 490 (ORI)

Akhaya Kumar Sahu v. Sitarani Sahu @ Sarama Das

2012-11-06

B.K.NAYAK

body2012
JUDGMENT B.K. NAYAK, J. : This criminal misc. case has been filed challenging the judgment dated 29.10.2005 passed by the learned Additional Sessions Judge, Dhenkanal in Criminal Revision No.5 of 2004/08 of 2005 dismissing the revision and thereby confirming the judgment dated 19.01.2004 passed by the learned J.M.F.C., Dhenkanal in Misc. Case No.85 of 1998 granting maintenance of Rs.400/- per month in favour of the present opposite party under Section 125, Cr.P.C.. 2.The present opposite party filed the petition under Section 125, Cr.P.C. before the learned J.M.F.C. alleging that she is the legally married wife of the petitioner and their marriage was solemnized on 28.4.1990. The parties led a happy conjugal life for a month whereafter the present petitioner demanded further dowry of Rs.20,000/- or else he would not allow the opposite party to stay with him. So the opposite party approached her father, who expressed his inability to meet the dowry demand. Thereafter the petitioner started torturing the opposite party mentally and physically and continued to demand such dowry. Once the matter was settled by the village gentlemen and as per his promise the petitioner maintained good marital relationship with the opposite party for a few days and thereafter again started torturing her and lastly drove her away from the matrimonial home in the month of February, 1997 by which time her father had already died. She claimed that she has no source of income of her own and that the present petitioner was serving as a Peon under Paradeep Port Trust and earning a monthly salary of Rs.4,000/-. Accordingly, the present opposite party claimed monthly maintenance of Rs.500/-. 3.The present petitioner filed his objection in the proceeding denying his marriage with the present opposite party Sitarani Sahoo @ Sarama Das and even denied to have ever stayed or resided with her. He has also denied all averments in the petition. His specific plea is that he had married one Anusaya Sahu, who died, whereafter he has married one Mamata Sahu as his second wife. 4.The opposite party examined two witnesses including herself and also relied on a large number of documents marked Exts.1 to 9 whereas the present petitioner examined three witnesses including himself and relied on some documentary evidence. His specific plea is that he had married one Anusaya Sahu, who died, whereafter he has married one Mamata Sahu as his second wife. 4.The opposite party examined two witnesses including herself and also relied on a large number of documents marked Exts.1 to 9 whereas the present petitioner examined three witnesses including himself and relied on some documentary evidence. On consideration of the evidence on record, the learned J.M.F.C. came to hold that the present opposite party was the wife of the petitioner, and that the petitioner neglected and refused to maintain her and accordingly granted a monthly maintenance of Rs.400/- in her favour. 5.The petitioner challenged the judgment of the learned J.M.F.C. by filing Criminal Revision No.5 of 2004/8 of 2005, which was heard and disposed by the learned Additional Sessions Judge, Dhenkanal, who confirmed the findings recorded by the learned J.M.F.C. and dismissed the revision. 6.The only contention in this application under Section 482, Cr.P.C. raised by the learned counsel for the petitioner is that there is no adequate and acceptable proof of marriage between the parties and, therefore, the Courts below could not have granted maintenance in favour of the opposite party. 6.The only contention in this application under Section 482, Cr.P.C. raised by the learned counsel for the petitioner is that there is no adequate and acceptable proof of marriage between the parties and, therefore, the Courts below could not have granted maintenance in favour of the opposite party. In this respect he has relied upon a decision rendered by the apex Court in the case of Chanmuniya v. Virendra Kumar Singh Kushwaha and another CLT (2011) Supp.CRL 411 (SC) where a division bench after taking note of a large number of earlier decisions, where it has been held that for the purpose of Section 125, Cr.P.C. strict proof of marriage is not necessary and that a strong presumption arises in favour of wedlock where the parties lived together for long spell as husband and wife, doubted the said proposition and referred the matter to a larger bench to consider whether the strict proof of marriage is essential for claiming maintenance under Section 125, Cr.P.C. This decision however has not laid down an acceptable proposition that strict proof of marriage like the requisite under Section 7 (1) of the Hindu Marriage Act or customary rites or any other personal law evidencing marriage is necessary for entitling a woman to claim maintenance under Section 125, Cr.P.C. 7.He also placed reliance on the decision of this Court reported in (1998) 15 OCR 119; Gullab Jana and Sakir Khan v. Zabir Khan and also (2012) 52 OCR 13; Kabita Sahoo v. Dhirendra Beje where it has been said that the petitioner having failed to prove that she was the married wife of the opposite party she was not entitled to maintenance. The learned counsel appearing for opposite party, on the other hand, contends that the question of marriage being a question of fact and both the Courts below having decided concurrently and that the opposite party is the wife of the petitioner, this application under Section 482, Cr.P.C. in the guise of a second revision is not maintainable. He has submitted that apart from the evidence of the opposite party herself and her witness, there are large number of documentary evidence including voter lists where the opposite party has been described as the wife of the petitioner and a host of letters sent by the petitioner to the opposite party where he has described himself as her husband. He has submitted that apart from the evidence of the opposite party herself and her witness, there are large number of documentary evidence including voter lists where the opposite party has been described as the wife of the petitioner and a host of letters sent by the petitioner to the opposite party where he has described himself as her husband. 8.There is no absolute rule that merely because there is concurrent finding of the Courts below, a petition under Section 482, Cr.P.C. would not be entertained. Even concurrent findings can be interfered with where they are based on no evidence or are contrary to the evidence or they are absolutely perverse. Now coming to the question of marriage, it is found from the evidence that the opposite party, who examined herself as O.P.W.1 stated that on 28.04.1990 the parties solemnized their marriage in Kali Mandir at Calcutta by exchange of garlands and performance of Homa and that relations of both the parties were present. At the time of marriage, the present petitioner was serving at Calcutta. She has described also how for a month they lived happily and she has also proved Exts.1 to 6, which are letters written by the petitioner to the opposite party in Bengali language as she belonged to Bengali community. She has proved the handwriting or signature of her husband, the present petitioner on the letters. She has also proved her joint photograph with the petitioner and its negative as Exts.7 and 8. She filed voter list of the year 1999, which being not certified copy was marked as ‘X’, which shows that the opposite party has been described as the wife of petitioner. The Court below has also taken into account a voter identity card of opposite party wherein the petitioner has been described as the husband of the opposite party. P.W.2 stated that though he was not a witness to the marriage ceremony of the petitioner and the opposite party, he has the knowledge that the parties are husband and wife. As against these evidences, the present petitioner examined himself and two other witnesses who merely denied the marriage between the parties. Some documents have been filed by the petitioner to show that he married one Mamata Sahu in the year 1997 which by itself will not disprove the marriage between the petitioner and opposite party. As against these evidences, the present petitioner examined himself and two other witnesses who merely denied the marriage between the parties. Some documents have been filed by the petitioner to show that he married one Mamata Sahu in the year 1997 which by itself will not disprove the marriage between the petitioner and opposite party. Both the Courts below have properly appreciated the evidence on record and have come to the right conclusion that the opposite party is the wife of the petitioner and I find no infirmity in the orders of the Courts below. The Criminal Misc. Case is, therefore, dismissed. CRLMC dismissed.