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2015 DIGILAW 464 (MP)

Jitendra Kumar Saket v. Saroj Kumari

2015-04-22

C.V.SIRPURKAR

body2015
JUDGMENT : C.V. Sirpurkar, J. 1. This Miscellaneous Criminal Case has been instituted on an application filed under section 482 of the Code of Criminal Procedure, challenging order dated 7.2.2009 passed by the Court of Additional Sessions Judge, Baidhan, district Sidhi, in Criminal Revision No. 54/2009, whereby learned Additional Sessions Judge had affirmed the order dated 7.2.2009 passed by J.M.F.C. Baidhan in M.J.C. No. 189/2006 awarding maintenance at the rate of Rs. 500/- per month to respondent No. 1, wife Saroj and at the rate of Rs. 400/- per month to respondent No. 2, daughter Sonu. 2. The case of respondent No. 1 wife Saroj before the trial Court was that she married applicant Jitendra about 2 years prior to the date of filing of the application under section 125 of the Code of Criminal Procedure on 31.05.2006 by Hindu rites. For about one year, they lived amicably as husband and wife; however, thereafter the attitude of the applicant towards the respondent No. 1 changed and he started to demand dowry from her. The applicant used to inflict cruelty upon her. Consequently, respondent's father called a Panchayat of society elders; wherein, a written compromise was reached between the parties. After the compromise, the relations between the parties were normal and a daughter named Sonu, was born to Saroj in the wedlock. However, after the birth of the daughter the attitude of the applicant towards the respondent changed again. He started persecuting her and drove her out of her matrimonial home after beating her up. The respondent No. 1 is unable to maintain herself. The applicant, despite having sufficient means is refusing to maintain the respondents. 3. In reply, before the trial Court, the applicant husband stated that respondent No. 1 Saroj is not his legally wedded wife. In fact, respondent No. 1 Saroj was married to one Radheshyam S/o. Jaitu Harijan R/o of village Rehdol district Sonbhadra, U.P., in the year 2005; however, respondent No. 1 has deserted Radheshyam and is at present living with her parents. Jwala Prasad, the father of respondent No. 1, conspired to prepare the written compromise and coerced the applicant into signing that document. Respondent No. 2 is not the daughter of the applicant. 4. After trial, on the basis of compromise deed Ex. Jwala Prasad, the father of respondent No. 1, conspired to prepare the written compromise and coerced the applicant into signing that document. Respondent No. 2 is not the daughter of the applicant. 4. After trial, on the basis of compromise deed Ex. P/1, the learned Magistrate held that the applicant was able to prove that she is legally wedded wife of the applicant and respondent No. 2 Sonu was born in the wedlock. It was further held that despite having sufficient means, the applicant is refusing to maintain the respondents. Therefore, maintenance, as aforesaid, was granted to the respondents. 5. The applicant challenged the aforesaid order of maintenance passed under section 125 of the Code of Criminal Procedure in revision, which was dismissed on the ground that no interference was warranted in the order passed by the Judicial Magistrate First Class. The order passed in revision has been assailed in this M.Cr.C. under section 482 of the Code of Criminal Procedure invoking inherent powers of the High Court. 6. Learned counsel for the applicant confined his argument to the relationship between the parties. It has been submitted that no legal marriage ever took place between the parties. To prove the factum of marriage between the applicant and the respondent No. 1, the respondent No. 1 has only examined herself and her father Jwala Prasad. No independent witness, who is said to have been present during the marriage ceremony, has been examined. Learned trial Court has categorically held in paragraph Nos. 7, 8 & 9 of the order dated 7.2.2009 that there are several discrepancies in the statement of respondent No. 1 and statement of her father Jwala Prasad with regard to date of marriage and the sacraments that took place during the alleged marriage; yet, learned trial Court, on the basis only of the compromise deed Ex. P/1, has held that the respondent No. 1 was legally wedded wife of the applicant. It has further been argued that the document Ex. P/1 was inadmissible in evidence. In any case, it was prepared pursuant to a conspiracy hatched by the father of the respondent No. 1 and the applicant was made to sign that document under coercion. Therefore, invoking inherent powers of the High Court under section 482 of the Code of Criminal Procedure, it has been prayed that the order of maintenance passed in favour of the respondents be quashed. Therefore, invoking inherent powers of the High Court under section 482 of the Code of Criminal Procedure, it has been prayed that the order of maintenance passed in favour of the respondents be quashed. 7. In reply, learned counsel for the respondents has submitted that in a proceeding under section 125 of the Code of Criminal Procedure, the standard of proof of marriage is not as strict as is required in a trial for an offence under section 494 of the I.P.C. The maintenance cannot be denied where there was some evidence on which the conclusions of living together could be reached. It has further been argued that in any case, the applicant is admittedly a signatory to document Ex. P/1; as such, the burden was upon the applicant to prove that his signatures were obtained by fraud or coercion. The applicant has not been able to prove that he was coerced into signing the document; therefore, the factum of marriage between the parties was well established. Therefore, it has been prayed that the application be dismissed. 8. It has been held by the Supreme Court in the case of Dharimal Tobacco Products Ltd. & ors. v. State of Maharashtra & Anr., AIR 2009 SC 1032 that even in the cases where second revision before the High Court after dismissal of first one by the Court of Session, is barred under section397(2) of the Code of Criminal Procedure, the inherent power of the High Court is available. Such power can be used not only in terms of section 482 of the Code but also section 482 thereof; however, it is settled position of law that the power should be exercised very sparingly. 9. So far as standard of proof that is required to be adduced to prove factum of marriage in a proceeding under section 125 of the Code of Criminal Procedure is concerned, the Apex Court, after considering the cases of Mohd. 9. So far as standard of proof that is required to be adduced to prove factum of marriage in a proceeding under section 125 of the Code of Criminal Procedure is concerned, the Apex Court, after considering the cases of Mohd. Ahmed Khan v. Shah Bano Begum and others, (1985) 2 SCC 556 , Dwarika Prasad Satpathy v. Bidyut Prava Dixit and another, (1999) 7 SCC 675 , Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another, (1988) 1 SCC 530 , Savitaben Somabhai Bhatiya v. State of Gujarat and others, (2005) 3 SCC 636 and a few other cases, has observed in the case of Chhamuniya v. Virendra Kumar Singh Kushwaha and another, (2011) 1 SCC 141 that there is divergence of judicial opinion on the interpretation of word "wife" in section 125; however, the Bench was inclined to take a broad view of definition of wife, having regard to social object of section 125 of the Code of Criminal Procedure. Consequently, the question "whether strict proof of marriage is essential for a claim of maintenance under section 125 of the Code of Criminal Procedure, having regard to the provision of Domestic Violence Act, 2005?", along with two other questions was referred to a larger bench. The reference is yet to be answered. However, the Bench in the case of Chhamuniya was of the view that strict proof of the marriage should not be a precondition for maintenance under section 125 of the Code of Criminal Procedure, so as to fulfill the true spirit and essence of the beneficial provision of maintenance under section 125. 10. In the backdrop of aforesaid legal position, when we examine the pleadings and evidence available in the case at hand, we find that it is true that there are several discrepancies in the statement of respondent No. 1 Saroj and her father Jwala Prasad with regard to date of marriage and duration for which the applicant and respondent No. 1 lived together as husband and wife. Jwala Prasad has even admitted that the applicant had enticed the respondent No. 1 in having physical relationship with him and therefore, the respondent No. 1 had conceived even before their marriage. However, in his deposition, the respondent had admitted his signatures upon the document Ex. P/1. Jwala Prasad has even admitted that the applicant had enticed the respondent No. 1 in having physical relationship with him and therefore, the respondent No. 1 had conceived even before their marriage. However, in his deposition, the respondent had admitted his signatures upon the document Ex. P/1. He stated that his signatures were obtained on a blank paper and he signed because respondent Saroj's brother had asked him to do so; whereas, in paragraph No. 7 of his reply to the application under section 125 of the Code of Criminal Procedure, the applicant has prayed that respondent's father Jwala Prasad and his handpicked persons had prepared this forged document and he was made to sign that document under duress. Thus, the stand taken by the applicant in his pleading and the stand taken by him in the deposition are at variance. In any case, it is inconceivable that the applicant who has admittedly studied up to a 9th standard, would sign a document wherein it has been categorically stated that Jwala Prasad has married off his daughter Saroj to applicant Jitendra Kumar, under duress. It also does not stand to reason that in the backdrop of the controversy, the applicant would sign any blank paper presented by the other party, simply because the respondent's brother had asked him to do so, unless marital relationship between the parties existed. On the basis of evidence available on the record, it appears that a marriage ceremony in some form or the other was performed between the parties. Since the applicant had admitted in writing to the relationship, regardless of the discrepancies in the statements of respondent's witnesses, the factum of marriage, to the extent is necessary for the purpose of section 125, was established. Therefore, no interference in exercise of inherent powers of the High Court, which are required to be exercised sparingly and that too only to secure the ends of justice, is warranted. 11. Consequently, this application under section 482 of the Code of Criminal Procedure filed by applicant husband, deserved to be and is hereby dismissed.