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2012 DIGILAW 619 (JHR)

Rajmani Devi v. Hari Uraon

2012-04-23

R.R.PRASAD

body2012
ORDER 1. This application is directed against the order dated 15.3.2004 passed in Cr.Rev.No.74 of 2001 whereby learned Sessions Judge, Lohardaga set aside the order passed in Misc. case no.13 of 1998 whereby the petitioner was awarded maintenance of Rs.500/- per month. 2. The petitioner by claiming herself to be the wife of opposite party no.2 Hari Uraon filed an application under Section 125 of the Code of Criminal Procedure before the learned Magistrate stating therein that she was married to Hari Uraon 12 years before. Out of their wedlock, three children born but in course of time, Hari Uraon started neglecting her and ultimately, threw her out of the house. 3. Hari Uraon the opposite party on putting his appearance submitted show cause wherein it has been stated that the petitioner Rajmani Devi never happens to be his wife and that he is already married from before and does have two children from his wife Somari Uraon and therefore, the question of marring Rajmani Devi during subsistence of the marriage with his wife never arises as under the customs of Uraon 2nd marriage is not permissible if the person is having issue from the first wife. 4. Learned Magistrate having accept the plea of the petitioner, Rajmani Devi did hold that Rajmani Devi is the legally wedded wife and accordingly, passed an order for grant of maintenance of Rs.500/-per month. That order was challenged before the revisional court and the revisional court having found that it has been admitted by Rajmani Devi that she is the 2nd wife set aside the order after holding that as per customary law of Uraon community, 2nd marriage is not permissible. 5. Learned counsel appearing for the petitioner submits that it is true that necessary evidence which should have been there has not been brought on record and hence under the circumstances, it would be proper and appropriate that the matter be remanded before the court below with a liberty to the petitioner to adduce evidences on the point as to whether under customary law of Uraon community, 2nd marriage is permissible or not ? 6. 6. However, learned counsel appearing for the opposite party submits that there has been specific finding by the revisional court that under the Uraon community 2nd marriage is not permissible so long one has children with the 1st wife and therefore, prayer made by the petitioner for remanding the case before the court below for allowing the petitioner to adduce evidence on that part is not tenable. 7. Having heard learned counsel appearing for the parties and on perusal of the record, I do find that the petitioner claiming herself to be the wife of opposite party filed an application under Section 125 of the Code of Criminal Procedure. Subsequently, in course of evidence, she admitted that she is 2nd wife of the opposite party and now claim is being put forth that under the customary law, 2nd marriage is permissible and the matter be remanded back to the court below so that the petitioner may lead evidence in this regard. 8. I am afraid the prayer made by the petitioner be acceded to. 9. It be stated that “custom and usage” if continuously and uniformly observed for a long time, it assumes the force of law among Hindus in any local area, tribe, community, group or family. In such situation, it is necessary for the party claiming it, to plead and thereafter prove that such custom is ancient, certain and reasonable. Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence. In this respect reference may be made of the cases of Mirza Raja Pushpavathi Vijayaram Gajapathi Raj Manne Sultan Bahadur vs. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram ( AIR 1964 SC 118 ). 10. Thus, the petitioner was required to put the plea that under the customs of Uraon community 2nd marriage was permissible and was further required to establish the said plea by adducing cogent evidence. But the petitioner never seems to have taken such plea and therefore, question of allowing the petitioner to adduce evidence in this regard does not arise. 11. Accordingly, I do not find any illegality with the order passed by the revisional court. Accordingly, that order is hereby affirmed. 12. In the result this application stands dismissed. Application dismissed.