Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 1068 (JHR)

Phatik Kanti Gon v. State of Jharkhand

2015-09-10

AMITAV K.GUPTA

body2015
ORDER : This revision application is directed against the order dated 08.05.2013 passed by the Principal Judge, Family Court, Dumka in Criminal Misc. Case no. 90 of 2005 under section 125 Cr.P.C. whereby the petitioner was directed to pay maintenance @ Rs. 3000/- per month to opposite party no. 2 and @ Rs. 2000/- per month to opposite party no. 3 in the present revision. 2. The learned senior counsel has contended that the learned Family Court has erred in law, by holding that the marriage of the petitioner with Mukta Rani @ Maku Tudu was void in terms of Sub-section (2) of Section 5 of the Hindu Marriage Act which is beyond the jurisdiction of the court, while deciding an application under section 125 Cr.P.C. It is contended that even assuming for arguments sake that Chanchala Devi had married the petitioner then also from the documents, i.e. Exhibit-A, which is the certified copy of the trial register of P.C.R. Case no. 208 of 1994, (T.R. no. 723 of 1994), Exhibit-B the certified copy of trial register of Criminal Misc. Case no. 31 of 1994, it is explicit that Mukta Rani @ Maku Tudu had instituted a case under section 125 Cr. P.C. and under section 498(A) of the Indian Penal Code against the petitioner. In both the cases compromise was arrived at and these documents establish the fact that the petitioner was earlier married to Mukta Rani @ Maku Tudu, who has been examined as O.P.W.-5. That the petitioner’s categorical stance as per the showcause is that he was married to Mukta Rani @ Maku Tudu in the year 1984, since he had married a tribal lady his family members severed relationship with him and had banned Mukta Rani @ Maku Tudu’s and his entry to the ancestral house, consequently O.P.W.- 5 had no acquaintance whatsoever with his brothers and sisters hence it was but natural that she remained ignorant about the names of his sisters and relatives. It is argued that Exhibit-C, is the electoral roll of 2003 of Godda Assembly Constituency wherein Mukta Rani @ Maku Tudu has been mentioned as wife of the petitioner and Exhibit-C/1 and C/2, are the Voter I-Cards issued in the year 2003 and 2008 respectively in the names of petitioner and Mukta Rani @ Maku Tudu. It is argued that Exhibit-C, is the electoral roll of 2003 of Godda Assembly Constituency wherein Mukta Rani @ Maku Tudu has been mentioned as wife of the petitioner and Exhibit-C/1 and C/2, are the Voter I-Cards issued in the year 2003 and 2008 respectively in the names of petitioner and Mukta Rani @ Maku Tudu. These documents prove the factum of marriage of Mukta Rani @ Maku Tudu with the petitioner. It is argued that the trial court has adopted a double yardstick by not considering these documents, but has relied on the Exhibits E, E/1 and E/2 and held that since there is finding of a competent court to show that opposite party no. 2 was the legally wedded wife accordingly she was entitled to maintenance. Learned senior counsel has argued that it is surprising that the learned judge has discarded Exhibits A, B and C and held that the earlier marriage of the petitioner with Mukta Rani @ Maku Tudu was void under the Hindu Marriage Act. The finding regarding the factum of marriage of the petitioner with O.P. no. 2 can only lead to the conclusion that O.P. no. 2 was the second wife of the petitioner, hence, she is not entitled to maintenance under Section 125 Cr.P.C. 3. On the other hand learned counsel for opposite party no. 2 has submitted that the learned Judge has rightly held that opposite party no. 2 is the legally wedded wife of the petitioner and it is evident that opposite party no. 2 had instituted P.C.R. Case no. 124 of 2002 under section 498(A) which resulted in conviction of the petitioner and the Criminal Appeal no. 16 of 2007 preferred by the petitioner was dismissed. This clinches the issue that opposite party no. 2 was the legally married wife and the learned Judge has considered and discussed the oral evidence adduced on behalf of O.P. no. 2 whereby she has been able to establish the factum of marriage with the petitioner. Thus, the learned judge has rightly held that she is the legally wedded wife and granted the maintenance to O.P. no. 2 and her son who was a minor at that point of time in 2006 when the application was filed under Section 125 Cr.P.C. 4. Heard the counsels. Thus, the learned judge has rightly held that she is the legally wedded wife and granted the maintenance to O.P. no. 2 and her son who was a minor at that point of time in 2006 when the application was filed under Section 125 Cr.P.C. 4. Heard the counsels. On perusal of the impugned order it is amply clear that the learned court below has discussed the evidence on record and held that opposite party no. 2 has brought on record the documents and the depositions to show that she was married to petitioner. However, the learned Judge, has not assigned cogent reasons for discarding or disbelieving the petitioner’s documents, i.e. Exhibits A and B which are of the year 1994. These documents cannot be assumed to be manufactured by the petitioner as a defence for this case, which has been instituted in the year, 2002. It is true that the factum of marriage of opposite party no. 2 with the petitioner has not been dislodged, on the other hand Exhibits A and B disclose the fact that the petitioner was earlier married to Mukta Rani @ Maku Tudu. In the attending facts and circumstances, the question for determination is whether opposite party no. 2 is entitled to maintenance considering the fact that the marriage was performed during the subsistence of the first marriage. Had it been a case that the petitioner had misrepresented the fact that he was unmarried or a single person and duped opposite party no. 2 into marrying him then in that case she would have been entitled for maintenance, as the husband cannot be allowed to take advantage of his own wrong and deny the maintenance which is the right of a destitute wife. In the instant case there is no averment or evidence on record to show that the petitioner had projected himself as unmarried person. In fact opposite party/wife in her testimony has admitted that the petitioner wanted to marry another lady and he had brought and kept another lady in the house which shows that she was well aware of the state of affairs of the earlier marriage of the petitioner. In fact opposite party/wife in her testimony has admitted that the petitioner wanted to marry another lady and he had brought and kept another lady in the house which shows that she was well aware of the state of affairs of the earlier marriage of the petitioner. The finding of the learned Judge that marriage of a Hindu male with a woman of Santhal tribe is null and void in terms of Subsection (2) of Section 5 of the Hindu Marriage Act is beyond the jurisdiction of the court in a proceeding under section 125 Cr.P.C. Such an issue could have been adjudicated in a suit instituted under Section 7 of the Family Courts Act and not in a summary proceeding under Section 125 Cr.P.C. Thus, in view of the evidence on record and the discussion made, it is held that marriage of opposite party no. 2 was solemnized during the subsistence of the first marriage, accordingly she is not entitled to maintenance in terms of Section 125 Cr.P.C. 5. It is necessary to mention that though the trial court has framed the issue “whether the petitioner no. 2 is the son of the parties”? but, it has not adjudicated the issue. It is explicit from the deposition of P.W.-2 i.e. opposite party/wife, the present opposite party no. 2, that she had begotten a son out of the said marriage. This has not been controverted in cross-examination. Thus, it is established that O.P. no. 2, was the son born out of the wedlock and he is entitled to the maintenance as ordered by the learned trial court accordingly, the petitioner shall pay maintenance amount of Rs. 2000/- per month to opposite party no. 3. 6. In view of the discussion made hereinabove, the order granting the maintenance to opposite party no. 2 is hereby set aside. However, opposite party no. 3-the minor son is entitled to maintenance under the provision of section 125 Cr.P.C. 7. Admittedly, the petitioner is a government employee and considering the fact that the matter has lingered for such a long period, the petitioner shall pay the arrear maintenance amount to opposite party no. 3 from the date of application till the date of his attaining majority within two months from the date of this order. 8. In the result this revision application is partly allowed.