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2013 DIGILAW 587 (CAL)

Tripti Halder v. Panchu Gopal Halder

2013-08-14

ASIM KUMAR MONDAL

body2013
JUDGMENT : Asim Kumar Mondal, J. 1. This revisional application under Section 401 read with Section 482 in the Code of Criminal Procedure, 1973 has been filed challenging the judgment and order dated 10.06.2009 passed by Ld. Judicial Magistrate, 3rd Court, Krishnagor, Nadia in miscellaneous case number 1234 (IV) of 2000. Smt. Tripti Haldar wife of Panchu Gopal Haldar filed the present revisional application against her husband Panchu Gopal Haldar/opposite party challenging the rejection order of maintenance under section 125 of the Code of Criminal Procedure, 1973. 2. The case of the petitioner/wife is that in the last week of Jaistha 1406 B.S. she got married to the opposite party according to Hindu rites and customs. Petitioner started to live with her husband at matrimonial home and during her stay there, the opposite party and his family members were pressing her for bringing money from her father. On the said issue petitioner was subjected to mental and physical torture. In the mean time petitioner became pregnant and she was kept in her parents house. The opposite party for the reasons best known to him did not provide any sort of maintenance while the petitioner was at her parents house. Finding no other alternative petitioner initiated the proceeding for maintenance under Section 125 Criminal Procedure Code. The opposite party did not take her back to her in-laws house in spite of repeated request. On enquiry, petitioner came to know that the opposite party again got married with one Chabi Haldar. The petitioner has not sufficient income to maintain herself as well as her minor daughter. She claimed maintenance for herself and her minor daughter at the rate of Rupees one thousand five hundred each per month. 3. Opposite party filed a written objection denying and disputing the case of the petitioner. He stated that he never married petitioner and he is not a father of the child of the petitioner. Opposite party claimed that he duly marriage one Chabi Haldar and in their wedlock a male child was born. The opposite party further states that there was no marriage in between the petitioner and himself and as such question of making payment for maintenance does not rise. 4. In course of trial, petitioner examined herself as PW1. Opposite party claimed that he duly marriage one Chabi Haldar and in their wedlock a male child was born. The opposite party further states that there was no marriage in between the petitioner and himself and as such question of making payment for maintenance does not rise. 4. In course of trial, petitioner examined herself as PW1. She has categorically stated that her marriage with opposite party took place at the last part of the month of Jaistha 1406 B.S. The marriage was solemnised as per Hindu rites and customs in presence of other invited persons of the village. Petitioner also examined her further as PW2 and one Sushil Haldar as PW3. One Smt. China Das examined as PW4 and one Sri Biswanath Mondal examined as PW5 the Barbar Kanai Pramanik has examined as PW6. 5. On the contrary the opposite party examined himself as opposite party No.1. On conclusion of the trial Ld. Judicial Magistrate 3rd Court, Krishnanagar, Nadia rejected the application filed by the petitioner under Section 125 of the Code of Criminal Procedure and at the same time allowed prayer for maintenance of minor daughter of petitioner at the rate of Rupees seven hundred per month from the date of filing of the application. 6. Being aggrieved and dissatisfied with the judgment and order, dated June 10, 2009 passed by the Ld. Judicial Magistrate 3rd Court Krishnagor, Nadia in the said miscellaneous case, petitioner has preferred the present application on the grounds that: (i) That Ld. Judge erred in law as well as fact in holding that Chabi Haldar is the first wife of the opposite party where the petitioner is his second wife. (ii) That since the petitioner found to be second wife, she is not entitled to get maintenance. Thus, Ld. Magistrate appeared at erroneous conclusion. 7. Ld. Advocate Mr. Manas Kumar Das appearing on behalf of the petitioner submits that the petitioner examined as many as seven witnesses in course of trial including herself, her father, barbar, neighbours, Panchayet members and priest. From their evidences it has transpired that the marriage in between the petitioner and opposite party solemnised at the last part of the month of Jaistha 1406, B.S. All formalities like Saptapadi, Malabodal, etc. were observed. The father of the petitioner who has been examined as PW2 who made the "Sampradan" of his daughter. From their evidences it has transpired that the marriage in between the petitioner and opposite party solemnised at the last part of the month of Jaistha 1406, B.S. All formalities like Saptapadi, Malabodal, etc. were observed. The father of the petitioner who has been examined as PW2 who made the "Sampradan" of his daughter. The independent witnesses of the village of the petitioner as well as village of the opposite parties have categorically stated that they have seen the parties live as husband and wife. The factum of marriage of petitioner and the opposite party has been proved. It is further submits that the Ld. Magistrate accepted Chabi Haldar as the first wife of opposite party whereas petitioner is his second wife. In fact, there is no iota of evidence in this regards to substantiate that Chabi Haldar is the first wife of opposite party. 8. Mr. Das Ld. Advocate appearing on behalf of the petitioner submits that it is nobodies case that the petitioner is the second wife of the opposite party and none of the witnesses have stated in that tune as concluded by the Ld. Magistrate in the judgment. Ld. Magistrate came to the conclusion that petitioner is the second wife as she could not mention the exact date of marriage. Ld. Magistrate has failed to appreciate that the petitioner is a rustic village woman and it is quite natural for her not to mention the exact date of marriage. 9. In reply Ld. Advocate Mr. Mondal appearing on behalf of the opposite party in support of the findings of the Ld. Magistrate submits that the opposite party produced marriage registration certificate showing that the marriage in between the opposite party Panchu Gopal Haldar and one Chabi Haldar took place on 24 Jaistha 1406, B.S. It is nothing to disbelieve such document having its legal value. On the contrary, the petitioner has failed to state the date of marriage and none of the witnesses examined on her behalf as stated the date of marriage as alleged in the petition under Section 125 of the Criminal Procedure Code 1973. 10. Mr. Manas Kumar Das, Ld. On the contrary, the petitioner has failed to state the date of marriage and none of the witnesses examined on her behalf as stated the date of marriage as alleged in the petition under Section 125 of the Criminal Procedure Code 1973. 10. Mr. Manas Kumar Das, Ld. Advocate appearing on behalf of the petitioner relied upon the reported decision of Supreme Court as reported in (2011) 12 Supreme Court Cases 189 Pyla Mutyalamma Alias Satyavathi v. Pyla Suri Demudu and another and (2010) 10 Supreme Court Cases 469 D. Velusamy v. D Patchaiammal, (2013) 2 Supreme Court Cases 137 Deoki Panjhiyara v. Shashi Bhushan Narayan Azad and another. 11. Hon'ble Supreme Court observes that revisional Court has no power to be assessed evidence and substitute its own findings since questions whether appellant is a marriage wife, child are legitimate/illegitimate, are pre-eminently question of fact. High Court in revision cannot interfere with the positive finding in favour of the marriage and patronage of child but where findings is negative, High Court could interfere in revision revealed evidence since it has likely consequences on the right of both the child and woman. 12. Revisional Court can interfere only if there is any illegality in the order or there is any material irregularity in the procedure or in error of jurisdiction. Keeping in view of the ratio of above referred judgments of Supreme Court, I find that there is a negative findings in the instant case. The Ld. Magistrate has come to the findings that the petitioner is the second wife of the opposite party erroneously and illegally. In fact, there is a gross irregularity in the findings of Ld. Magistrate to refuse the prayer for maintenance of the petitioner. The impugned judgment is full of self contradictory findings and based on the 3rd case as made out by the Magistrate himself. It is nobodies case that the petitioner is the second wife of the opposite party. 13. The nature of proof of marriage required for a proceeding under Section 125 Criminal Procedure Code need not be so strong or conclusive as in a criminal proceeding for an offence under Section 494 of the Indian Penal Code. Since, the jurisdiction of the Magistrate under Section 125 Criminal Procedure Code being preventive in nature, the Magistrate cannot usurp in the jurisdiction in matrimonial dispute possessed by the Civil Court. Since, the jurisdiction of the Magistrate under Section 125 Criminal Procedure Code being preventive in nature, the Magistrate cannot usurp in the jurisdiction in matrimonial dispute possessed by the Civil Court. The determination by the Magistrate as to the status of the parties being subject to a finding determination of the Civil Court, when husband denies that applicant is not his wife, all that the Magistrate has to find in a proceeding under Section 125 Criminal Procedure Code, is whether there was some marriage ceremony between the parties, whether they have lived as husband and wife on the eyes of their neighbours, whether child were born in the union. 14. Magistrate would not enter into complicated question of law as to the validity of the marriage if there was affirmative evidence on the aforesaid points. The burden lies upon the husband who wishes to impeach the validity of the marriage. He will have to bring a declaratory suit in the Civil Court where the whole question may be gone into wherein he can contend that the marriage was not a valid marriage or was a fraud or coercion practice upon him. The validity of the marriage will not be a ground for refusal of maintenance if other requirements of Section 125 of Criminal Procedure Code are fulfilled. 15. In the instant case, Ld. Magistrate curiously observed that the marriage certificate under the Hindu marriage Act produced by the opposite party during trial was collected long before filing of the instant case and as such Ld. Magistrate came to the conclusion that the marriage between the petitioner and opposite party was not held on 8th June, 1999, Ld. Magistrate emphasised much on the evidence of PW1 that she failed to mention the date of marriage though it is contented that marriage took place on 8.6.1999. 16. Ld. Magistrate opined after observing a photograph of the parties closely seen like husband and wife, that opposite party has marital relation with the petitioner. Ld. Magistrate also considered one letter allegedly written by opposite party and addressed to the petitioner that there is indication about marriage of opposite party with another woman and the petitioner was suggested to live with her like sister accepting all that happen for a shake of happiness. Ld. Magistrate also considered one letter allegedly written by opposite party and addressed to the petitioner that there is indication about marriage of opposite party with another woman and the petitioner was suggested to live with her like sister accepting all that happen for a shake of happiness. Ld Magistrate also observed that from the document relating to birth of the petitioners daughter that the name of opposite party appears as father of the said daughter. It is also observed that opposite party has not filed any Civil suit praying for declaration in terms that he has no marital relation to the petitioner and/or he is not father of the petitioners daughter. Considering all these aspects Ld. Magistrate came to the conclusion that the petitioner is also wife of the opposite party and the opposite party is the father of the petitioners daughter. Ld. Magistrate has come to the conclusion that as petitioner has failed to prove her marriage held on 8.6.1999, on the contrary the marriage certificate shows the marriage in between the opposite party and Chabi Haldar held on 8.6.1999 and as such Ld. Magistrate held that Chabirani is the first wife of opposite party. 17. These findings it appears to me baseless and without support of any legal propositions. Ld Magistrate has relied upon the marriage certificate produced by the opposite party to come to the conclusion that the marriage of the opposite party with Chabi Haldar took place on 8.6.1999. Admittedly, Chabi Haldar purported wife of opposite party has not been examined. The marriage certificate produced is under Hindu Marriage Act. In the said registration certificate only the factum of marriage has been registered. Relying upon the said marriage certificate it cannot be conclusively determined that the marriage between opposite party and Chabi Haldar took place on 8.6.1999. In his written objection it has not been categorically denied that he married petitioner on the alleged date and out of the wedlock one female child was born. 18. It is the positive case of the opposite party that he marriage Chabi Haldar on 8.6.1999 and in support of the said marriage one marriage registration certificate under Hindu Marriage Act has been produced. Petitioner has disputed the said marriage of the opposite party with Chabi Haldar and claimed that the said alleged marriage if any took place during the subsistence of marriage of opposite party with her. 19. Petitioner has disputed the said marriage of the opposite party with Chabi Haldar and claimed that the said alleged marriage if any took place during the subsistence of marriage of opposite party with her. 19. In view of conscientious issue regarding first marriage, the opposite party must seek Court declaration of validity/nullity of the second marriage under Section 11 of Hindu Marriage Act. Mere certificate issued under Section 13 of the Hindu Marriage Act is not sufficient for Courts to determine marital status of the parties in a collateral proceedings for maintenance. In absence of such declaration Court will proceed on the basis that the relationship between the parties was one of the marriage. 20. It may conclude in view of the above facts and circumstances, evidences adduced by the parties, document exhibited by the parties as well as the citations of the cases referred by the parties that Ld. Magistrate has erred both in law and fact in holding that the petitioner is the second wife of the opposite party and as such is not entitled to get maintenance under section 125 of the Criminal Procedure Code 1973. The impugned judgment is liable to be set aside. The judgment and order dated 10.6.2009 passed by Ld. Judicial Magistrate, 3rd Court, Krishnanagore, Nadia in miscellaneous case number 1234 (IV) of 2000 corresponding to trial No.1752 of 2000 is here by set aside with a direction that Ld. Magistrate will consider the prayer for maintenance of the petitioner in the light of the above observations and on the basis of evidences already adduced by the parties, and without being influenced by his view already held in the impugned judgment. 21. The matter be disposed of as early as possible preferably within a period of six months from the date of communication without giving any unnecessary adjustment to either of the parties.