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2012 DIGILAW 946 (JHR)

Santosh Kisku v. Maklu Hembrom

2012-07-09

H.C.MISHRA

body2012
JUDGMENT 1. Heard learned counsel for the petitioner and learned counsel for the Opp. Parties. 2. Petitioner has challenged the Judgment dated 15.7.2010 passed by the learned Principal Judge, Family Court, Pakur, in Criminal Misc. Case No. 24 of 2008, whereby in a proceeding under Section 125 of the Cr.P.C., the Court below has directed the petitioner to make the payment of Rs. 1200/-per month as maintenance to his deserted wife. 3. From perusal of the impugned Judgment, it appears that the application under Section 125 Cr.P.C. was filed by the O.P. No.1, claiming herself to be the legally wedded wife of the petitioner, stating that marriage had taken place about 13 years ago and out of the wedlock, she had also a son, aged about four years. It is alleged that thereafter the petitioner had fallen in love with some other girl, whom he had married and ousted the petitioner No. 1 from her matrimonial home along with her son. 4. It appears that the petitioner had filed his show cause in the Court below in which the petitioner had denied the marriage stating that the OPs are completely stranger to him and he had no relation with OPs. He has stated that he has a wife with whom he is living and the opposite party has filed this case only to grab the money from the petitioner. It further appears from the impugned Judgment that in the Court below, the O.P. No.1, who was the petitioner in the Court below, had examined three witnesses, but none of the witnesses had proved the marriage between the parties. P.W. 1 and 2, who were the villagers of the O.P. No.1, had only stated that the O.P. No.1 was married with the petitioner and they had a son. P.W. 3 is the alleged son of the petitioner who is a student of class – VII and he also cannot be the witness to the marriage between the parties. P.W. 4 is the petitioner herself and she has only stated that she was married to Santosh Kisku and they had a son. Witnesses examined on behalf of the petitioner have denied the marriage between the parties. 5. P.W. 4 is the petitioner herself and she has only stated that she was married to Santosh Kisku and they had a son. Witnesses examined on behalf of the petitioner have denied the marriage between the parties. 5. The Court below has stated in an order that when the opposite party (i.e., the petitioner herein) denied the marriage, the onus was on him to prove that who was the husband and the father of the petitioners in the Court below. 6. Learned counsel for the petitioner has submitted that the impugned Judgment passed by the Court below is absolutely illegal and cannot be sustained in the eyes of law, in as much as, the Court below has illegally shifted the onus on the petitioner to prove the marriage between the parties. Learned counsel submitted that the onus was on the opposite parties, who were the petitioners in the Court below to prove their case and accordingly, the impugned order cannot be sustained in the eyes of law. 7. Learned counsel for O.Ps., on the other hand submitted that O.P. No.1 had proved the marriage in the Court below and they are deserted wife and the son of the petitioner and as such, they were entitled for maintenance as awarded by the Court below. Accordingly, learned counsel submitted that there is no illegality in the impugned Judgment and the same cannot be interfered with. 8. Having heard learned counsels for both the sides and upon going through the record, I find from the Judgment passed by the Court below that the marriage in this case is denied by the petitioner and he had stated that the O.Ps. are completely stranger to him and he had no relation with them. He has stated that he has a wife with whom he is living and the opposite party has filed this case only to grab the money from the petitioner. It further appears from the impugned Judgment that in the Court below, the O.P. No.1, who was the petitioner in the Court below, had examined three witnesses, but none of the witnesses had proved the marriage between the parties. P.W. 1 and 2, who were the villagers of the O.P. No.1, have only stated that the O.P. No.1 was married with the petitioner and they had a son. It appears that they are not the witness to the marriage between the parties. P.W. 1 and 2, who were the villagers of the O.P. No.1, have only stated that the O.P. No.1 was married with the petitioner and they had a son. It appears that they are not the witness to the marriage between the parties. P.W. 3 is the alleged son of the petitioner who is a student of class – VII and he cannot be the witness to the marriage between the parties. P.W. 4 is the O.P. No. 1 herself and she has only stated that she was married to Santosh Kisku and she has a son out of the wedlock. Witnesses examined on behalf of the petitioner have denied the marriage between the parties. The Court below has stated in the order that when the petitioner denied the marriage, the onus was on him to prove that who was the husband and the father of the O.Ps. It is thus, apparent that the Court below has completely misdirected itself in shifting the onus of proof upon the petitioner, whereas, the assertion was on behalf of the opposite parties that O.P. No.1 was the wife of the petitioner and O.P. No.2 is the son of the petitioner. In that view of the matter, the onus was on the O.P. No.1 to prove the marriage between the parties by bringing cogent evidence on record, examining the witnesses who had witnessed the marriage between the parties and / or the priest who had performed the marriage, or by proving the marriage by any cogent documentary evidence. Mere ipse dixit of the witnesses that both the parties were married to each other, having a son from the wedlock, only cannot be the proof of the marriage between the parties. That having not been done, the onus cannot be shifted on the petitioner to prove, who was the husband and the father of O.Ps. The onus was on the opposite parties, who were the petitioners in the Court below, to prove the marriage and the birth of the son form the petitioner. 9. In view of the aforementioned discussions, I am of the considered view that the opposite parties, who were the petitioners in the Court below, had failed to prove the marriage and the parenthood between the parties and as such, petitioner cannot be saddled with the responsibility to give any money for the maintenance of the opposite parties. 9. In view of the aforementioned discussions, I am of the considered view that the opposite parties, who were the petitioners in the Court below, had failed to prove the marriage and the parenthood between the parties and as such, petitioner cannot be saddled with the responsibility to give any money for the maintenance of the opposite parties. The impugned Judgment is thus, absolutely illegal and the same cannot be sustained in the eyes of law. As such, the impugned Judgment dated 15.7.2010 passed by the learned Principal Judge, Family Court, Pakur, in Cr. Misc. Case No.24 of 2008 is hereby set-aside. This application is accordingly, allowed. Application allowed.