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2016 DIGILAW 134 (TRI)

Sibani Bhowmik v. Narayan Baidya

2016-06-30

C.DAS

body2016
JUDGMENT : By filing this petition under Section 482 of the Code of Criminal Procedure, the petitioner has challenged the judgment and order, dated 29.04.2009 passed by learned Addl. Sessions Judge, Belonia in Criminal Revision No.01 of 2009, whereunder the judgment and order, dated 24.12.2008 passed by learned SubDivisional Judicial Magistrate, Belonia in Case No. Misc. 41 of 2007 under Section 125 of CrPC was upheld. 2. Heard learned counsel, Mr. B. Majumder for the petitioner and learned counsel, Mr. A. Dasgupta for the respondent. 3. Shorn of unnecessary details, the fact leading to the filing of the present petition, is that the petitioner approached the Court of SubDivisional Judicial Magistrate, Belonia presenting a petition under Section 125 of CrPC praying for directing the respondent to pay her maintenance at the rate of Rs.1,500/per month on the ground that the respondent, being her husband was refusing and/or neglecting to maintain her having sufficient means. The petitioner further contended that her marriage with the respondent was solemnized as per Hindu rites on 15.07.1993 and thereafter they lived and cohabited as husband and wife but after about six months the respondent married another woman and refused to live with her and also was neglecting to maintain her. The respondent by filing written objection inter alia contended that no marriage was solemnized between him and the petitioner and there was no occasion of living together as husband and wife and further stated that the petitioner claiming to be the wife of the respondent filed a criminal complaint in the Court of SDJM, Belonia in the year 1993 and that complaint was sent to Belonia P.S. and the police after investigation submitted final report in the complaint. The respondent further stated that on 16.06.1994 under the pressure of some political leaders and pursuant to advice of one advocate, namely Sujit Ranjan Biswas, the respondent paid Rs.12,000/to the petitioner and in a petition filed by the petitioner it was stated that the petitioner was not the legally married wife of the respondent. After thirteen years the petition claiming maintenance was filed only to harass the respondent. 4. After thirteen years the petition claiming maintenance was filed only to harass the respondent. 4. Both side adduced oral evidence in support of their contentions and the learned SDJM by impugned judgment dated 24.12.2008 dismissed the prayer of the petitioner holding that the petitioner has failed to prove that she was the legally married wife of the respondent and therefore is not entitled to get any maintenance from the respondent. 5. Aggrieved, the petitioner preferred Criminal Revision No.01 of 2009 in the Court of learned Addl. Sessions Judge, Belonia under Section 397 read with Section 401 of CrPC and the learned Addl. Sessions Judge by judgment dated 29.04.2009 dismissed the revisional application and thereby upheld the judgment and order passed by the learned SDJM. 6. Aggrieved, the present petition under Section 482 of CrPC is filed. 7. Mr. Majumder, learned counsel for the petitioner candidly submitted that Section 125 of CrPC is enacted for social justice to protect a wife, old and infirm poor parents and children who cannot maintain themselves and it is the obligation of the person having sufficient means to maintain his wife, children and old parents. While a wife is seeking maintenance she is not required to prove the marital status as strictly as it is required in a case of bigamy or in a matrimonial suit. If the evidence to the extent that the petitioner has enjoyed the status of wife the criminal court should grant maintenance under Section 125 of CrPC. Referring to the evidence of OPW1, an advocate of Belonia Bar, Mr. Majumder, learned counsel submitted that an inference may be drawn that there was a status of husband and wife between the petitioner and the respondent and under such circumstances the learned courts below would grant maintenance. He has also submitted that a petition under Section 482 of CrPC is maintainable since there is no other provision to challenge the orders passed by the courts below whereby the petitioner has been deprived of justice. 8. On the contrary, Mr. Dasgupta, learned counsel submitted that the courts below arrived at a concurrent finding that the petitioner has failed to prove that she is the legally married wife of the respondent and so the trial court as well as the revisional court rejected her prayer. 8. On the contrary, Mr. Dasgupta, learned counsel submitted that the courts below arrived at a concurrent finding that the petitioner has failed to prove that she is the legally married wife of the respondent and so the trial court as well as the revisional court rejected her prayer. This Court is not required to interfere in the concurrent finding of the courts below exercising jurisdiction under Section 482 of CrPC. 9. The inherent power of the High Court as prescribed under Section 482 of CrPC can be exercised if three conditions are fulfilled, namely—(i) the alleged injustice should be of a grave, and not trivial, (ii) it is palpable and clear, (iii) there exists no other provision of law by which the party aggrieved could have sought relief. The High Court also has to be satisfied that the order passed by the inferior court is not according to law and that the process of the court has been abused and further the ends of justice would not be secured unless the High Court interferes in the order. 10. Learned counsel, Mr. Majumder referred the decision of the Apex Court in the case of Krishnan v. Krishnaveni reported in (1997) 4 SCC 241 (para 8) and para 8 of the judgment reads thus- “8. The object of Section 483 and the purpose behind conferring the revisional power under section 397 read with section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482 . The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). In addition, the inherent power of the High Court is preserved by Section 482 . The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order.” It is quite clear from the above observation of the Apex Court that the High Court will interfere only when it notices that there has been a failure of justice or misuse of judicial mechanism or procedure in the process and otherwise it should not interfere in exercise of inherent power under Section 482 of CrPC. 11. No doubt, the provision prescribed under Section 125 of CrPC is meant for social justice. It is natural and fundamental duty of a man to maintain his wife, children and parents who are unable to maintain themselves. It is a settled position of law that wife means a legally wedded wife. For the purpose of maintenance, as required under Section 125 of CrPC, there is no doubt that a wife is not required to prove her status as strictly as it is required in a matrimonial suit or proceeding but in a case where the marital status has been specifically denied and strictly contested by the respondent, burden, no doubt lies on the petitionerwife to prove to the satisfaction of the court that she has the status of wife. 12. According to the petitioner her marriage was solemnized on 15.07.1993 with the respondent observing all Hindu customary rites and ceremony. The respondent contended that there was no marriage at all. Under such circumstances, the petitioner was supposed to adduce some evidence to prove the marriage. But unfortunately, except a mere statement that a marriage was solemnized, no other evidence adduced to prove the solemnization of the marriage. The petitioner was supposed to adduce some evidence about the solemnization of the marriage. Under such circumstances, the petitioner was supposed to adduce some evidence to prove the marriage. But unfortunately, except a mere statement that a marriage was solemnized, no other evidence adduced to prove the solemnization of the marriage. The petitioner was supposed to adduce some evidence about the solemnization of the marriage. The trial court and the revisional court have taken into consideration the oral evidence adduced by both side in details and I find no infirmity in the appreciation of evidence. 13. OPW1 is an advocate of the Belonia Bar and learned counsel, Mr. Majumder put lot of emphasis on his statement and submitted that in the statement of OPW1 there is a reference that the respondent being husband paid Rs.12,000/to compromise the criminal case. Learned counsel put emphasis on the particular word, ‘husband, used in the statement of OPW1 but was ignoring the other part of the statement of that witness. The statement of a witness should be read as a whole. A particular word or a particular line cannot be singled out to get a different meaning. In the lower court’s record I find the statement of OPW1, which reads thus “I am an Advocate by Profession and is practicing at Belonia Court for last 39 years. In the year 1994 the petitioner of this case Smti. Sibani Bhowmik has instituted a criminal case against her husband Narayan Baidya U/S 498(A) which was prepared by myself according to the version of Sibani Bhowmik. Subsequently the same complaint was forwarded to the concerned P.S. U/S 156(3) of Cr.P.C. for registering a case and also to investigation. During investigation of this case the Informant Sibani Bhowmik and her father Raj Mohan Bhowmik came to me and also expressed – they had intend to withdraw such complaint as their matter in dispute was amicably settled on pay ment of Rs. 12,500/paid by her husband. In such petition it has been stated that the Informant Sibani Bhowmik was not the legally married wife of Narayan Baidya. Such compromised petition was also written by myself as per their advice. The original compromise petn. was subsequently submitted to the O/C Belonia P.S. and the copy of the same for the Informant and her husband. Subsequently on the basis of that compromise petn. such proceeding was dropped.” 14. Such compromised petition was also written by myself as per their advice. The original compromise petn. was subsequently submitted to the O/C Belonia P.S. and the copy of the same for the Informant and her husband. Subsequently on the basis of that compromise petn. such proceeding was dropped.” 14. The above statement of OPW1 does not speak that there was a relation of husband and wife between the petitioner and the respondent. There may be some inferences that there might be some sorts of relation between the petitioner and the respondent but it has to be proved that the relationship of the husband and wife to the recognition of the society was there though it is not legally required that strict proof of marriage has to be there in a case under Section 125 of CrPC. There must be some legal evidence to prove that the petitioner is the legally wedded wife and only in that case the court will grant maintenance to the wife. In the statement of OPW1 there is rather a clear statement that the petitioner stated that she was not legally married wife of the respondent. 15. In view of the evidence and materials on record it cannot be said that the judgment passed by the learned Magistrate and affirmed by the learned Sessions Judge was a sheer abuse of the process of the courts. The judgment and order passed by the courts below is based on the appreciation of evidence adduced by the parties and while both the courts concurrently arrived at a conclusion assigning reason, I find no justification at all to interfere in the finding in exercise of inherent power conferred under Section 482 of CrPC. 16. Mr. Majumder, learned counsel for the petitioner referring to the case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit reported in (1999) 7 SCC 675 submitted that the petitioner should be given maintenance and the respondent should be directed to approach the civil court to prove that the petitioner was not the legally married wife of the respondent. After going through that judgment I find nothing to apply the ratio laid down by the apex court in that judgment, in the given facts of the present case. After going through that judgment I find nothing to apply the ratio laid down by the apex court in that judgment, in the given facts of the present case. The petitioner has failed to prove her status as a wife of the respondent which is consistently held by two courts below and the finding is based on evidence on record and therefore this court is not required to interfere in the judgment passed by the courts below in exercise of power under Section 482 of CrPC. 17. It is, however observed that the finding of the criminal court in respect of the marital status as claimed by the petitioner may not be a bar for her to approach the appropriate court of civil jurisdiction to prove her status. 18. The criminal petition accordingly stands disposed of. 19. Send back the L.C.Rs. along with a copy of this judgment.