Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 265 (GAU)

Asha Biswas @ Barman v. Karen Barman

2014-03-04

C.R.SARMA

body2014
JUDGMENT C.R. Sarma, J. 1. Heard Mr. M.U. Mahmud, learned counsel appearing for the petitioner. None appears for the respondent despite service of notice. By this application filed under Section 397/401/407/482 of the Cr.P.C. read with Article 227 of the Constitution of India, the present petitioner, has challenged the impugned judgment and order, dated 10.8.05, passed by the learned Sessions Judge, Bongaigaon in Criminal Motion No. 16(2) 2005, where by the learned Session Judge, Bongaigaon set aside the judgment and order dated 31.03.05, passed by the learned Chief Judicial Magistrate, Bongaigaon in Misc Case No. 14/2004. The petitioner, claiming to be the wife of the respondent, filed an application under Section 125 Cr.P.C. seeking maintenance allowances for herself and her minor child. In her said application, she (petitioner) stated that she was married by the respondent and there after they were living together as husband and wife. But the respondent married another woman and drove out the petitioner from the marital home and as such she was compelled to leave her husband's house with her minor child, born through the respondent. 2. According to the petitioner, she had no source of income for maintaining herself and her minor child. The said application was registered as Misc Case No. 14/2004 under Section 125 Cr.P.C. The respondent (husband) contested the claim of the petitioner and pleaded that the petitioner was not his married wife. While denying the paternity of the said child of the petitioner, the respondent averred that the petitioner was working as his maid servant and that she was paid her wages, in addition to some financial help. In order to prove her case, she (petitioner) examined herself and two other witnesses. The respondent examined himself as D.W. 1. 3. Considering the evidence, on record, the learned trial judge came to the findings that though the petitioner could not prove her lawful marriage with respondent, she could establish that the minor child (daughter) was born through the respondent and, accordingly, the learned Chief Judicial Magistrate, Bongaigaon granted maintenance allowance at the rate of 1000/- per month for maintenance of her said daughter w.e.f. 16.04.04, 4. Being aggrieved by the said order, dated 31.3.05, the respondent, as petitioner, filed a Criminal Motion being Criminal Motion No. 16(2) 2005 before the learned Sessions Judge, Bongaigaon and the learned Sessions Judge, Bongaigaon by his judgment and order, dated 10.08.05, allowed the revision petition and set aside the impugned judgment and order, dated 31.03.05, passed by the trial judge in Misc Case No. 14/2004. 5. Dissatisfied with the said judgment and order, dated 10.8.05, passed by the learned Session Judge, Bongaigaon the petitioner (wife) of the respondent has come up with this criminal revision petition. The petitioner has challenged the impugned judgment and order of the learned Sessions Judge, Bongaigaon on the grounds, amongst others, that the learned Session Judge, Bongaigaon committed error by failing to properly appreciate the evidence on record and committed gross illegality and perversity in reversing the judgment and order passed by the leaned Chief Judicial Magistrate, Bongaigaon, despite sufficient evidence in favour of the petitioner. 6. Mr. M.U. Mahmud, learned counsel appearing for the petitioner has submitted that the learned trial judge, relying on the evidence, on record, rightly came to the findings that the minor child of the petitioner was born through the respondent and, as such, the learned trial judge committed no error by granting maintenance allowance to the said minor child of the petitioner. He has also submitted that the learned Sessions Judge, Bongaigaon misread the evidence on record, more particularly the evidence of Sri Baneswar Prasad Singh (P.W. 2), who was an independent witness and thus came to an erroneous finding regarding the paternity of the said child. It is stated that the findings of the learned Sessions Judge, Bongaigaon is not based on the evidence, on record, and as such, the same suffers from perversity. It is also submitted that the impugned judgment and order dated 10.8.05, passed by the learned Sessions Judge, Bongaigaon not being based on evidence is liable to be set aside and quashed, thereby restoring the judgment and order, 31.03.05, passed by the learned Chief Judicial Magistrate, Bongaigaon. 7. Having heard the learned counsel for the petitioner, I have carefully gone through the impugned judgment and orders, passed by the learned Courts below and examined the evidence, on record. 7. Having heard the learned counsel for the petitioner, I have carefully gone through the impugned judgment and orders, passed by the learned Courts below and examined the evidence, on record. The petitioner, who deposed as (P.W. 1), clearly stated, in her evidence, that she and the respondent were living together as husband and wife and that the child was born through the respondent. Though the petitioner (P.W. 1) was cross-examined by the respondent, no material contradiction could be elicited to render her evidence disbelievable. 8. Sri Baneswar Prasad Singh, who was a neighbor of the petitioner, deposed as P.W. 2. He supporting the P.W. 1 clearly stated that the petitioner and the respondent lived together as husband and wife in a rented house of Tulsi Saha at Babupara, along with the child. He also stated that the respondent used to visit the petitioner every Saturday evening and stayed with her till the Monday morning. Though this witness was cross examined on behalf of the respondent, his evidence remained undemolished. Hence it is found that he has corroborated the evidence of the P.W. 1 regarding her living with the respondent. 9. Smti. Kanchan Sarnakar deposed as P.W. 3. She also supporting the evidence given by the PW 1, stated that the said child was born through the respondent. Her evidence that the petitioner and the respondent lived together as husband and wife and that the child was born through the respondent, remained intact. The respondent deposed as D.W. 1. He failed to adduce any evidence in support of his claim that the petitioner was living as maid-servant in his house and that he did not marry the petitioner. 10. There can be no dispute that in a proceeding under Section 125 Cr.P.C., strict proof of marriage to ascertain the paternity of the child should not be a pre-condition. The object of Section 125 Cr.P.C. is to protect women and children from vagrancy and destitution. Therefore, child born to a woman during her living with a person, unless in contrary is proved, is to be presumed to be fathered by that person. 11. In view of the above discussion and the evidence on record, it has been established that both the petitioner and the respondent lived together as husband and wife and that the petitioner gave birth to the child. 11. In view of the above discussion and the evidence on record, it has been established that both the petitioner and the respondent lived together as husband and wife and that the petitioner gave birth to the child. Hence, there is no difficulty in holding that the respondent was the father of the child. In my considered opinion, the learned Chief Judicial Magistrate, Bongaigaon considered the evidence on record, and came to the correct findings that the child was born through the respondent and also that the child was entitled to get maintenance under Section 125 Cr.P.C. The learned Sessions Judge, Bongaigaon, while reversing the order of the learned Chief Judicial Magistrate, Bongaigaon observed as follows:-- The learned court below has not ascertained the date of marriage between the parties further to ascertain the nexus between the alleged access of the petitioner to the opposite party and the birth of the child. Hence I am of the view that the opposite parry has failed to prove conclusively that the petitioner was the father of the daughter of the opposite party as there was no reliable corroboration of evidence of the opposite party who is a married woman. As such the petitioner is not liable to pay any allowance for the maintenance of the child. 12. In my considered opinion, in order to decide entitlement of maintenance allowance, the date of marriage of the parents of the child cannot be a pre-condition. The facts that the petitioner and the respondent lived together as husband and wife and that the child was born to her during the said period are sufficient to hold that the respondent was the father of the child. In the absence any contrary evidence, in my considered opinion, the said findings, arrived at by the learned Sessions Judge, Bongaigaon is perverse and erroneous in the eye of law. Therefore, the impugned judgment and order passed by the learned Sessions Judge, Bongaigaon dated 10.8.05 cannot be maintained. 13. Accordingly, this criminal revision petition is allowed. The judgment and order dated 10.8.05, passed by the learned Sessions Judge, Bongaigaon is set aside and the judgment and order dated 31.3.2005, passed by the learned Chief Judicial Magistrate, Bongaigaon in Misc Case No. 14 of 2004 is upheld and affirmed. The respondent (husband) shall pay the maintenance allowance as directed by the learned Chief Judicial Magistrate, Bongaigaon. The judgment and order dated 10.8.05, passed by the learned Sessions Judge, Bongaigaon is set aside and the judgment and order dated 31.3.2005, passed by the learned Chief Judicial Magistrate, Bongaigaon in Misc Case No. 14 of 2004 is upheld and affirmed. The respondent (husband) shall pay the maintenance allowance as directed by the learned Chief Judicial Magistrate, Bongaigaon. In the result, this revision petition is allowed. Return the LCR forthwith.