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2014 DIGILAW 570 (GAU)

Subudh Das v. Pratima Das

2014-05-27

INDIRA SHAH

body2014
JUDGMENT Indira Shah, J. 1. By filing this Revision Petition, the petitioner has challenged the order dated 04.09.2013 passed by the learned Sub Divisional Judicial Magistrate, Hojai, Sankardev Nagar in MR Case No. 99/2008, allowing the petition filed by the opposite party claiming maintenance under Section 125 Cr. P.C. and thereby directing the petitioner to pay a maintenance of Rs. 4000/- per month w.e.f. the date of the judgment and also to pay litigation cost of Rs. 1000/- to the opposite party under Section 126(3) of the Code. The opposite party claiming herself wife of the petitioner, filed a petition under Section 125 Cr. P.C. and initially a monthly maintenance of Rs. 5000/- was allowed. The petitioner approached this Court by filing Criminal Revision Petition No. 33 of 2011 and this Court vide order dated 31.01.2012 set aside the judgment passed by the trial Court and remanded back the matter with a direction to decide the case afresh giving opportunity to both the parties to lead additional evidence with regard to solemnization of marriage between the parties. Accordingly, both the parties adduced evidence and on completion of enquiry under Section 125 Cr. P.C., the trial Court held that the opposite party is legally married wife of the petitioner, she is unable to maintain herself, the petitioner/husband has neglected and failed to maintain her and awarded maintenance of Rs. 4000/- in favour of the opposite party, as stated earlier. 2. It is submitted by the learned counsel for the petitioner that the petitioner had denied the opposite party as his legally married wife and there was no relationship between the petitioner and the opposite party at any point of time. The petitioner by adducing evidence and additional evidence successfully proved that the opposite party is not his married wife on the contrary opposite party failed to prove her marriage with the petitioner and yet the impugned judgment allowing maintenance to the petitioner has been passed. 3. The opposite party, as first party, in the 125 proceeding avermed that her marriage with the petitioner was solemnized 33 years back as per the Hindu law and customs. Both the parties lead conjugal life and out of their wedlock three children were born. 3. The opposite party, as first party, in the 125 proceeding avermed that her marriage with the petitioner was solemnized 33 years back as per the Hindu law and customs. Both the parties lead conjugal life and out of their wedlock three children were born. The petitioner herein after getting his employment in the Railway Department started harassing and torturing the opposite party thereafter he married for second time with one Usha Das who however, died on 21.02.1998. She (Pratima) being expelled from house of the petitioner along with her children, she took shelter in her father's house and was earning her livelihood by doing petty business. In the meantime, the petitioner brought one Sumitra Das and kept her as his mistress. The father of the opposite party expired and her brothers are not providing her sufficient maintenance. The opposite party herself became incapable to earn her livelihood due to her serious illness. She alleged that the monthly income of the petitioner/husband from his salary is Rs. 10,000/- and she claimed an amount of Rs. 5000/- per month as maintenance. 4. The petitioner, herein, contested the claim by filing his written statement contending inter alia that the maintenance petition is not maintainable. He denied all the allegations made by the opposite party. He denied that the opposite party is his legally married wife and there she was not unable to claim any maintenance. 5. Learned counsel for the petitioner has pointed out that the petitioner as PW - 1 on 30.09.2010 deposed before the trial Court and she disclose her age as 45 years. She produced a voter list of the year 1977 wherein name of her husband had been mentioned as Subud Das. If she was aged about 45 years in the year 2010 she was not eligible to cast her vote being minor in the year 1977, whereas her age has been shown as 27 years in the voter list. 6. Maya Mazumdar stated that the marriage between the parties was solemnized in the year 1975-76. Similarly PW - 3 Deepak Das stated that he has heard that the opposite party Pratima was married with the petitioner 35 years ago. PW - 3 disclosed his age as 38 years while his evidence was recorded on 28.04.2010, therefore, at the time of marriage of the petitioner she was a small child. Similarly PW - 3 Deepak Das stated that he has heard that the opposite party Pratima was married with the petitioner 35 years ago. PW - 3 disclosed his age as 38 years while his evidence was recorded on 28.04.2010, therefore, at the time of marriage of the petitioner she was a small child. Petitioner on the other has exhibited his family declaration submitted by him in the Railway Department, as well as voter list wherein Sunita Das has been shown as wife of the petitioner. 7. Corroborating the evidence of petitioner, DW - 2, Sunita Das deposed that the second party, petitioner, is her husband and her children were born out of her wedlock with the petitioner. According to her 32-35 years ago she married with the petitioner and the petitioner was then unmarried and it is a fact that she is the only wife of the petitioner. DW - 3, son of the petitioner corroborated the evidence of DW - 1 and 2. DW - 4, brother of the petitioner deposed in the same line. 8. In the case of D. Velusamy vs. D. Patchaiammal, (2010) 10 SCC 469 a petition was filed by the petitioner's wife claiming maintenance after 12 years of her separation from her husband. It was held that a delay of about 12 years shall have to be satisfactorily explained by the wife as it create some doubt about the validity of the marriage. Here in this case a petition claiming maintenance was filed by the wife after 35 years of her marriage with the petitioner. The petitioner denied his marriage and adduced his own evidence as well as evidence of his wife and son. Whether, DW - 2, is his second wife or the respondent herein is the first wife could not be established, the delay in filing the petition has not been explained by the wife. Therefore, the judgment passed by the trial Court is liable to be set aside. Accordingly, it is set aside and quashed. 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