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2015 DIGILAW 538 (ORI)

Digambar Samal v. Narmada Mohanty

2015-09-11

S.PUJAHARI

body2015
ORDER : 1. I have heard the learned counsel for the petitioner and the learned counsel for the opposite parties. 2. This revision is directed against the judgment and order dated 16.1.2014 passed by the learned Judge, Family Court, Kendrapara in Criminal Proceeding No. 428 of 2003 directing the petitioner to maintain the opposite parties claiming to be his wife and son and to pay monthly maintenance of Rs. 1000/- to opposite party no. 1 wife and Rs. 500/- to opposite party No. 2 son from the date of application, adjusting the arrear maintenance paid. 3. It appears that the present opposite parties have filed the aforesaid proceeding under Section 125 of the Code of Criminal Procedure (for short the Cr. P.C.) as according to them, though the present petitioner had sexually assaulted the present opposite party no. 1 but to keep the said sexual assault in secret and to save him from criminal prosecution, he made a promise to marry opposite party no. 1 and married her in a temple and kept her as his wife, but some days thereafter when opposite party no. 1 conceived and gave birth to opposite party no. 2 the petitioner refused to maintain her. The present petitioner in the aforesaid 125, Cr. P.C. proceeding denied the allegation that he had ever married to her and opposite party no. 2 was born into their wedlock, rather he stated that opposite party no. 1 had raised false allegation of rape against him. 4. The learned Judge, Family Court, Kendrapara on appreciation of the evidence on record accepted the case of the opposite parties repelling the contention made by the petition passed the impugned judgment. The same has been assailed here in this revision to be perverse as no material was there substantiating the fact that opposite party no. 1 was the legally married wife of the present petitioner and opposite party no. 2 was born into their wedlock and the learned Judge, Family Court, Kendrapara did not take into consideration the fact that in the criminal trial initiated at the instance of opposite party no. 1 against the petitioner for alleged commission of offence punishable under Section 376 of IPC the petitioner was convicted, which clearly dispels a relationship between the petitioner and opposite party no. 1 as husband and wife, so also the fact that the documentary evidence adduced by opposite party no. 1 against the petitioner for alleged commission of offence punishable under Section 376 of IPC the petitioner was convicted, which clearly dispels a relationship between the petitioner and opposite party no. 1 as husband and wife, so also the fact that the documentary evidence adduced by opposite party no. 1 wife in the said trial was admitted into an evidence behind his back without giving him any reasonable opportunity of adducing evidence to dispute such documents. 5. During the course of hearing, it has been submitted by the learned counsel for the petitioner that since at the instance of opposite party no. 1, a false case was initiated against the petitioner for alleged commission of rape to her and the petitioner was convicted therein, thereafter the learned Judge, Family Court, Kendrapara could not have held that opposite party no. 1 to be the legally married wife of the present petitioner and into their wedlock opposite party no. 2 was born and the petitioner was refused to maintain them, is liable to be maintained them. The same is bad also for the reasons that once the petitioner has been convicted on the allegation of rape raised by opposite party no. 1, he could not thereafter be fastened with the liability to maintain her as his wife and the same hit by the principle of double jeopardy. Furthermore, the same has also been assailed on the ground that the prayer made by opposite party no. 1 for issuance of income certificate of the petitioner having been refused by the Tahasildar and such document filed by the petitioner in the sessions trial and copy of the depositions in the session trial disowning such relationship, the finding of the learned Judge, Family Court, Kendrapara in this regard cannot be sustained as the same suffers from perversity by ignoring the aforesaid materials while arriving into a conclusion. 6. Per contra, the learned counsel for the opposite parties submitted that the aforesaid contention of the learned counsel for the petitioner challenging the impugned order to be perverse, appears to have no force in view of the fact that when the rape was committed, there was no relationship of husband and wife between the petitioner and opposite party no. 6. Per contra, the learned counsel for the opposite parties submitted that the aforesaid contention of the learned counsel for the petitioner challenging the impugned order to be perverse, appears to have no force in view of the fact that when the rape was committed, there was no relationship of husband and wife between the petitioner and opposite party no. 1 and thereafter the petitioner assured her not to proceed against him for such commission of offence entered into the relationship of marriage in a temple and thereafter kept relationship as a wife and out of their such relationship, opposite party no. 2 was born and opposite party no. 1 petitioner in this regard has adduced voluminous evidence disclosing the fact that they had relationship of husband and wife which is also fortified from the other evidence adduced as well as the documentary evidence produced disclosing that opposite party no. 2 was born into their wedlock and their relationship of husband and wife. So also, this Court had refused the prayer made by the petitioner as well as the opposite part no. 2 for DNA test. Therefore, there being no perversity in the appreciation of the evidence on record and the petitioner admittedly having refused to maintain opposite party nos. 1 and 2, the impugned order needs no interference. 7. It is well settled in law that the revisional jurisdiction of the High Court which is necessarily a supervisory jurisdiction can only be exercised for correcting the miscarriage of the justice, arising out of irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted, on the one hand, or on the other hand in some underserved hardship to individuals. This power of the High Court which is discretionary one, as such, must be exercised in the interest of justice with regard to the facts and circumstances of each particular case, which vary greatly from case to case. So also, though the power of the revision is as wide as the power of a Court of appeal, but the same has to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. So also, though the power of the revision is as wide as the power of a Court of appeal, but the same has to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Court subordinate, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. 8. The validity of the marriage for the purpose of summary proceedings under Section 125, Cr. P.C. is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence under Section 494, IPC. If the claimant in proceedings under Section 125 of Cr. P.C. succeeds in showing that she and the respondent have lived together as husband and wife, the Court can presume that they are legally wedded spouses and in such a situation, the party who denies the marital status can rebut the presumption. If the Magistrate is prima-facie satisfied with regard to the performance of marriage in proceedings under Section 125, Cr. P.C. which are of a summary nature, strict proof of performance of essential rites is not required. 9. Keeping in mind the aforesaid, when the case in hand is addressed, it is seen that in this case, the petitioner says that there was perversity in the appreciation of the evidence as the learned Judge, Family Court, Kendrapara is refused to take into consideration the finding of the criminal court wherein the petitioner was convicted in a charge of rape under Section 376, IPC on the report lodged by opposite party no. 1 which could not have sustained if opposite party no. 1 would have been the wife of the present petitioner. Therefore, the finding of the learned Judge, Family Court, Kendrapara with regard to the relationship between the petitioner and opposite party no. 1 being contrary to law, the same cannot be sustained. 1 which could not have sustained if opposite party no. 1 would have been the wife of the present petitioner. Therefore, the finding of the learned Judge, Family Court, Kendrapara with regard to the relationship between the petitioner and opposite party no. 1 being contrary to law, the same cannot be sustained. Such contention of the learned counsel for the petitioner appears to this Court to be misconceived inasmuch as in the facts and situation, such an allegation of rape does not repel the claim of opposite party no. 1 to be the wife of the present petitioner. As according to opposite party no. 1 that the petitioner kept opposite party no. 1 as his wife after making marriage in a temple to wriggle out from a charge of rape which he said to have committed prior to the marriage with opposite party no. 1. So far as the proof of marriage is concerned, opposite party no. 1 also adduced sufficient evidence disclosing that the present petitioner had kept her as his wife by marrying in a temple and they continued their such relationship as husband and wife and into their wedlock opposite party no. 2 was born which is also fortified from the documentary evidence adduced by Opposite party no. 1. The petitioner though made attempt to rebut the same, but except making some suggestions to prove the character of opposite party no. 1 and other rebuttal evidence has been adduced to dispel such evidence adduced by opposite party no. 1. In this regard, the learned Judge, Family Court Kendrapara placing reliance on the law with regard to the standard of proof as has been held by this Court if the cases of Narayan Mehere vs. Mukta Meher, 2010 (Supp. II) OLR 376 and Smt. Chandrhma Biswal @ Chadrama Biswal vs. Banchanidhi Biswal, 2010 (II) OLR 476 : 2011 (48) OCR 688 and also by the Hon'ble Apex Court in the case of Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and Another, (1999) 7 SCC 657 and Badri Prasad vs. Dy. Director of Consolidation and Others, (1978) 3 SCC 527 , held that the relationship was proved by opposite party no. 1. In such premises, the finding recorded by the learned Judge, Family Court. Kendrapara cannot be said to be suffering from any perversity warranting an interference of this Court on the existence of the relationship. Director of Consolidation and Others, (1978) 3 SCC 527 , held that the relationship was proved by opposite party no. 1. In such premises, the finding recorded by the learned Judge, Family Court. Kendrapara cannot be said to be suffering from any perversity warranting an interference of this Court on the existence of the relationship. So far as the contention that the petitioner once having fastened with the liability of conviction could not have simultaneously fastened with the liability under Section 125 Cr. P.C. as the same hit by double jeopardy, the same appears to this Court to be misconceived and the same has no application at all to the facts and circumstances of this case. 10. Hence, on re-appraisal of the materials on record vis-a-vis the law in this regard, I see no illegality, infirmity or impropriety in the impugned judgment and order passed by the learned Judge, Family Court, Kendrapara in petition under Section 125 Cr. P.C. As such, this RPFAM filed challenging the same being devoid of merit stands dismissed. L.C.R. received be sent back forthwith along with a copy of this order. RPFAM dismissed.