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2015 DIGILAW 869 (JHR)

Shyamdeo Ram v. Sunita Devi

2015-07-28

RAVI NATH VERMA

body2015
Order : Challenge in this revision application is to the order dated 20.06.2013 passed by Principal Judge, Family Court, Bokaro in Maintenance Case No.135 of 2008 whereby and whereunder the petition filed by the present opposite party- Sunita Devi for grant of maintenance under Section 125 of the Code of Criminal Procedure (in short ‘the Code’), has been allowed and the petitioner has been directed to pay a sum of Rs.2,000/- as maintenance. 2. At the instance of the present opposite party, a petition under Section 125 of the Code was filed in the court below for grant of maintenance with the allegation that she is legally wedded wife of the present petitioner- Shyamdeo Ram and their marriage was solemnized on 18.12.2006 at Bokaro Steel City according to Hindu Rites and Customs and since after their marriage they lived together as husband and wife in Quarter No.411 of Sector 9D in Bokaro Steel City and the opposite party, before her present marriage with the petitioner, was married with one Keshav Das, who died on 05.07.2005 leaving behind this opposite party and three sons and a daughter. The present petitioner was also a widower after the death of his first wife Late Taramuni Devi and from said Taramuni Devi, the petitioner has also sons and daughters. After marriage with this petitioner, they lived together and enjoyed the marital life but as the petitioner has some bad habits and used to come at the residence in drunken condition in night and misbehaved and abused the opposite party and her children, a Panchayti was held on 07.03.2007 with the intervention of common friends and relatives and the petitioner undertook to keep the opposite party and her children with full honor and dignity and an agreement was executed between them before Notary Public duly signed by the present petitioner but on 30.10.2007 at about 10.00 p.m., the petitioner brutally assaulted her and ousted her with children from his Quarter. Whereafter, the present opposite party filed a criminal case against the petitioner under Sections 498A and 323 of the Indian Penal Code and in the said case, the petitioner entered into a fresh agreement with an undertaking to keep and maintain the opposite party with her minor children. Whereafter, the present opposite party filed a criminal case against the petitioner under Sections 498A and 323 of the Indian Penal Code and in the said case, the petitioner entered into a fresh agreement with an undertaking to keep and maintain the opposite party with her minor children. It is also the case of the opposite party that the petitioner is a permanent employee of Bokaro Steel City and is getting very handsome salary and on the other side opposite party has no source of income to maintain herself and her minor children. Hence, her prayer was to direct the petitioner to give maintenance per month from his salary. 3. The petitioner, after appearance, filed his show cause denying his marriage with the opposite party and also denied that he ever lived with the opposite party as husband and wife and so there is no question of either torture or assault or providing any maintenance to the opposite party. The petitioner also denied that any Panchayti ever took place and that he had executed any agreement and the petitioner is a married man and leads happy and peaceful life with his children and other family members. The opposite party is not legally married wife and she is not entitled to any maintenance from this petitioner. 4. It appears from the record that both the parties adduced oral and documentary evidences thereafter the court after scrutinizing and appreciating the evidence, the submissions of the counsels and the material available on record, held that the opposite party is the legally wedded wife of the petitioner and awarded Rs.2,000/- as maintenance to the present opposite party but also held that as the children of the opposite party were born from the former husband of the opposite party, they are not entitled to any maintenance. Being aggrieved by the order, this present revision application has been filed. 5. Looking at the facts of the case, the primary question which has come up for determination before this court is as to whether the opposite party is the legally wedded wife of the present petitioner or not and whether she is entitled to any maintenance? 6. Being aggrieved by the order, this present revision application has been filed. 5. Looking at the facts of the case, the primary question which has come up for determination before this court is as to whether the opposite party is the legally wedded wife of the present petitioner or not and whether she is entitled to any maintenance? 6. Assailing the order impugned, learned counsel submitted that the court below without appreciating the evidence adduced on behalf of the petitioner in right perspective and without following the mandate that the onus lies upon the opposite party to establish that she is the wife of the petitioner, awarded the maintenance. It was also submitted that when there are material contradictions in the testimony of the witnesses on the point of marriage, no maintenance can be awarded. Learned counsel further relying upon the judgment in the case of Rabindra Prasad @ Rabindra Sao Versus State of Jharkhand & Anr.; 2013(1) JBCJ 525 submitted that unless there is a finding that there was valid marriage between the parties, the direction to pay maintenance cannot sustain. It was also submitted that law is fairly well settled regarding the definition of expression ‘wife’ and there is no scope for giving an extended meaning to include a woman, who is not legally married. Learned counsel in support of his contention has also relied on judgments reported in (2005)3 SCC 636 ; Savitaben Somabhai Bhatiya Versus State of Gujarat and Others and Easwari Versus Parvathi & Ors.; 2014(4) JLJR 172 . 7. Contrary to the aforesaid submissions, learned counsel appearing for the opposite party seriously contended that strict proof about valid marriage is not a sine qua non for getting maintenance under Section 125 of the Code. 8. After having heard the learned counsels and upon going through the evidences available on record and the order impugned, I find that both the parties adduced their oral as well as documentary evidences in court below. On the one hand, the testimony of the witnesses examined on behalf of the present opposite party fully corroborates the marriage of the opposite party with the present petitioner while on the other hand, the witnesses examined on behalf of the present petitioner have testified in favour of the petitioner. On the one hand, the testimony of the witnesses examined on behalf of the present opposite party fully corroborates the marriage of the opposite party with the present petitioner while on the other hand, the witnesses examined on behalf of the present petitioner have testified in favour of the petitioner. The petitioner, who was examined as O.P.W. No.2, in Paragraph 8 of his deposition admitted his signature on Ext.1 (the Ekrarnama) entered between the parties. Another witness O.P.W. No.1 in Paragraph 9 of his cross-examination has also admitted the fact that after the death of the first wife, the present petitioner solemnized his second marriage with Sunita Devi (the present opposite party). The provision of Section 125 of the Code was enacted for social justice and specially to protect woman and children as also old infirm parents and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. In the case of Dwarika Prasad Satpathy V. Bidyut Prava Dixit; (1999)7 SCC 675 the Hon’ble Supreme Court held that the validity of marriage for the purpose of summoning proceedings under Section 125 of the Code 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 of the Indian Penal Code. In the instant case, since the petitioner has admitted his signature on Ekrarnama (Ext-1), he cannot deny the contents of the said Ext.1. and O.P.W No.-1 has also testified that the petitioner had solemnized his second marriage with this petitioner. Thus, it can be inferred that the opposite party succeeds in showing that she alongwith petitioner lived together as husband and wife. In that circumstance, the court has to presume that they are legally wedded spouse and in such a situation one who denies the marital status can rebut the presumption. 9. In the instant case, though the petitioner has stated subsequently that his signature was obtained forcibly but admittedly the said document was executed long back and the petitioner had never raised any objection in respect of the said signature obtained forcefully. The petitioner has not brought any chit of paper in rebuttal of that presumption. 9. In the instant case, though the petitioner has stated subsequently that his signature was obtained forcibly but admittedly the said document was executed long back and the petitioner had never raised any objection in respect of the said signature obtained forcefully. The petitioner has not brought any chit of paper in rebuttal of that presumption. He has simply brought on record one document to show that the opposite party is working in one college in Piro (Bhojpur District, Bihar) as Class-IV employee and she is capable of maintaining her family. The Principal of that College was examined as a witness on behalf of this petitioner in the complaint case filed by the opposite party and from the deposition of the said witness which is Ext.B. in the present case, it appears that the Principal has testified that Sunita Devi is neither working on any sanctioned post nor on approved post and she is not getting any salary. This clearly proves that the opposite party even if she was working somewhere was not getting any salary to maintain either herself or to her children. The court below has found sufficient evidence to record the finding that the petitioner had solemnized the second marriage with the opposite party. 10. After the above finding that the petitioner has solemnized the marriage with opposite party brings this court to the other question relating to the quantum of maintenance awarded by the court below and the question as to whether opposite party is entitled to any maintenance. Since, the marriage between the parties has been answered in positive undoubtedly the opposite party is entitled to maintenance under Section 125 of the Code. The petitioner has not challenged the quantum of maintenance awarded by the court below. Even before this court the petitioner by filing supplementary affidavit brought his salary slip (Annexure-7) and from the said document it is clear that the petitioner was getting Rs.17,503/- as his basic salary and upon that he was getting Rs.15,617/- as dearness allowances besides the other benefits. The court below has awarded a sum of Rs.2,000/- only as maintenance. So far as the power of this Court sitting in revision is concerned in the case of Santosh (Smt.) Vs. Naresh Pal (1998) 8 SCC 447 , as also in the case of Pravati Rani Sahu Vs. The court below has awarded a sum of Rs.2,000/- only as maintenance. So far as the power of this Court sitting in revision is concerned in the case of Santosh (Smt.) Vs. Naresh Pal (1998) 8 SCC 447 , as also in the case of Pravati Rani Sahu Vs. Bishnupada Sahu (2002) 10 SCC 510 the ratio decidendi which emerges out of the two above decisions on the power of revisional court is that it is not open to the High Court in revision to re-examine the evidence for the purpose of arriving at a different conclusion and should not interfere and disturb the finding. 11. I donot find any plausible ground or illegality or any jurisdictional error or irregularity in the order impugned to interfere in the said amount of maintenance awarded by the court below. 12. In view of the discussion made above, this revision application, being devoid of any merit, is, hereby dismissed.