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2016 DIGILAW 288 (CAL)

Ram Pandey v. Rita Pandey (Das)

2016-03-21

MALAY MARUT BANERJEE

body2016
JUDGMENT : M.M. Banerjee, J.: 1. An order passed on 10.08.2011 by the Ld. Chief Judicial Magistrate, South 24 Paraganas, Alipore has been challenged by the revisionist/petitioner. It appears that in terms of the impugned order the Ld. Chief Judicial Magistrate, Alipore was pleased to dismiss and reject the application filed under Section 127 Cr.P.C. by the petitioner Ram Pandey registered as Misc. Case no.284/2010. 2. Mr. Pratik Bhattacharya, the Ld. Advocate appearing for the revisionist/petitioner argued that the opposite party no.1 Rita Das claiming herself to be his wife filed an application under Section 125 Cr.P.C. seeking maintenance for herself and her minor son and in Misc. Case No. 350/1999 an ex parte order of maintenance was passed without any service of notice upon him and Rita Das put the award of maintenance in Misc. Ex. Case no. 6/2005, Misc. Exe. No.45/2007 and Misc. Exe. Case no. 14/2009 but the Ld. Chief Judicial Magistrate while disposing of the application under Section 127 Cr.P.C. squarely failed to consider that the opposite party no.1 cannot be said to be his wife inasmuch as prior to her marriage with him (the revisionist petitioner) she was earlier married twice. It was argued that the revisionist/petitioner believed himself to be the husband of the opposite party no.1 but when subsequently he came to know that Rita was married earlier with other persons she cannot be allowed to claim maintenance either for herself or for her son as her purported marriage with him is a nullity. In support of his contention the Ld. Advocate argued that on behalf of the revisionist/petitioner certified Xerox copies of plaints in Mat. Suit No. 1232/1995 brought by one Sadhan Das against the present opposite party no.1 Rita Das and of Mat. Suit No. 556/1996 instituted by one Khokan Roy against her (opposite party no.1), as will be found from page 95 onwards annexed with the revisional application along with C.R.R. 1451/2009 were filed before the Ld. Magistrate. It was strenuously argued that copies of plaint being public document the content thereof ought to have been read as evidence in the proceedings under Section 127 Cr.P.C. 3. To the query of this Court whether the revisionist/petitioner on his behalf examined either of those supposed plaintiffs/petitioners in the matrimonial suits as witness on his behalf the Ld. Advocate argued that it was incumbent upon the Ld. To the query of this Court whether the revisionist/petitioner on his behalf examined either of those supposed plaintiffs/petitioners in the matrimonial suits as witness on his behalf the Ld. Advocate argued that it was incumbent upon the Ld. Magistrate to summon those persons and it was not the responsibility of the revisionist/petitioner because by filing copies of plaints he was able to prove his contention. 4. Mr. Bhattacharya went on to argue that the purported marriage between the revisionist/petitioner and the opposite party no.1 had taken place on 24.05.1990 and she gave birth to a son but prior thereto she had left the opposite party’s house 15 months before the birth of the child and so the child begotten by her is not the son of the petitioner Ram Pandey and he cannot be saddled with liability to pay for his maintenance. 5. The Ld. Advocate further argued that revisionist/petitioner Ram Pandey instituted a suit for divorce against the opposite party no.1 Rita Das and the said suit was decreed ex parte. It was argued that Xerox certified copy of the order passed in Mat Suit no. 24/1999 can be found at page 116 of the records of C.R.R. 1451/2009 and it would be evident that the said suit was decreed ex parte on the ground of cruelty and desertion. It was argued that in view of the specific provision contained in Section 125(4) the opposite party no.1 is not entitled to receive any amount of maintenance from the petitioner. The Ld. Advocate relied on a decision reported in AIR 2003 SC 3174 . The Ld. Advocate also relied on the observation of the Apex Court in the case of Rohtash Singh vs. Smt. Remendri & Ors. and invited the Court’s attention to the penultimate paragraph of the judgment where it was been observed :- “It is contended that since the decree of divorce was passed on the ground of desertion by the respondent, she would not be entitled to maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act. To that extent, Ld. Counsel appears to be correct”. 6. The Ld. To that extent, Ld. Counsel appears to be correct”. 6. The Ld. Advocate appearing for the opposite party no.1 Rita Das (as the name appears from the Revisional Application although her surname is found as Pandey in the copy of the impugned order) argued that the grounds that notice of the 125 proceedings was not served on the revisionist/petitioner and that he had obtained an ex parte decree of divorce on the ground of desertion and cruelty attributable to the opposite party no.1 were not taken in the Application under Section 127 Cr.P.C. and such contention of the revisionist/petitioner are not tenable. It was argued that the revisionist/petitioner is a cunning person and he is only interested in filing applications and suits and that is why knowing fully well that for declaring the marriage between him and the opposite party no.1 as null and void the forum is the District Court he instituted Title Suit no. 2071/2007 in the Court of the Civil Judge (Jr. Div.) at Alipore, which naturally came to be dismissed. It was argued that the Ld. Chief Judicial Magistrate while passing the impugned order took into consideration every minute detail and even the parties adduced evidence and such evidence were taken into consideration. It was argued that mere filing of copies of plaint of Mat. Suits purportedly instituted by Khokan Roy and Sadhan Das using the name of the present opposite party no.1 as respondent to the suits by no stretch of imagination can be said to have proved that those persons had ever married the opposite party no.1. It was argued that even a glimpse over those copies of plaints will reveal that everything except change of names are same in both suits and this demonstrates that those were filed by one and the same man to create some sort of evidence but both the suits having dismissed for default and quite obviously because there is every reason for doubt as to whether those persons are real persons at all. It was argued the evidence of the revisionist/petitioner taken in the 127 proceedings goes to show that he knows every minute detail as to when said Khokan Roy and Sadhan Das had married the opposite party no.1 but in spite thereof he never dared to bring them as witnesses to depose on his behalf. 7. Further argument of the Ld. It was argued the evidence of the revisionist/petitioner taken in the 127 proceedings goes to show that he knows every minute detail as to when said Khokan Roy and Sadhan Das had married the opposite party no.1 but in spite thereof he never dared to bring them as witnesses to depose on his behalf. 7. Further argument of the Ld. Advocate of the opposite party no.1 is that the opposite party cannot be permitted to come with contradictory contentions like that his allegation that the opposite party no.1 was previously married twice and that she is not the legally married wife of the revisionist/petitioner and further that she deserted him and, therefore, not entitled to get any maintenance for being guilty of deserting her husband. 8. The Ld. Counsel appearing for the State argued that the suits purportedly brought by one Khokan Roy and Sadhan Das having been dismissed the allegation of their so called marriage with the present opposite party no.1 never got the seal of the court whereas her marriage with the present revisionist/petitioner received such seal of the Court in various proceedings and even in the matrimonial suit that was brought by the revisionist/ petitioner himself. 9. First of all, on the decision relied on by the Ld. Advocate for the revisionist/petitioner it can well be said that in the facts and circumstances of the instant case those decisions cannot be of any help to the revisionist/petitioner because the fact situation in both those cases differs from the present one. In the instant case, it is not the case of the revisionist/petitioner that he is a very good and responsible husband and all along properly maintained his wife/opposite party no.1, but on the contrary, he attributed cruel aspersions against her – questioning her character and the paternity of her son and even to the extent that she was previously married with two other persons. 10. The argument advanced by the Ld. Advocate for the revisionist/petitioner that copies of plaint would suffice for proving the content thereof and that it was incumbent upon the Ld. Magistrate to summon those persons who instituted those matrimonial suits against the opposite party no.1 as witnesses I firmly hold that such argument has no merit and found to be absurd and wholly untenable. Advocate for the revisionist/petitioner that copies of plaint would suffice for proving the content thereof and that it was incumbent upon the Ld. Magistrate to summon those persons who instituted those matrimonial suits against the opposite party no.1 as witnesses I firmly hold that such argument has no merit and found to be absurd and wholly untenable. It is held that if at all there was any truth in the contention of the revisionist/petitioner he could have brought those persons to depose in his favour because when he wanted the Court to believe that the opposite party no.1 Rita was previously married with other persons, the burden of proof was on him. He failed to discharge that burden. 11. As already indicated hereinabove that the revisionist/petitioner is not that good husband who suffered desertion at the hands of the opposite party no.1, I find and hold that the ex parte decree of divorce obtained by her in the Court of the District Judge, Bankura is of no help to him in the instant case. The provision contained in sub Section (4) of Section 125 Cr.P.C. is non-entitlement of a wife to receive maintenance when she is living in adultery and when without any sufficient reason, she refused to live with her husband and when she is living separately by mutual consent. No case has been made out that the wife/opposite party no.1 is living in adultery or has been living separate by mutual consent. The question is whether there is sufficient reason on her part to live separate from the revisionist/petitioner. Having regard to the aspersions made by the revisionist/petitioner against her it cannot but be held that she had every reason for refusing to live with him. 12. It is also found and held that when the ground of non-service of notice of 125 application was not taken in the 127 application itself the same cannot be allowed to be agitated before this Court. 12. It is also found and held that when the ground of non-service of notice of 125 application was not taken in the 127 application itself the same cannot be allowed to be agitated before this Court. Moreover, Section 127 Cr.P.C. does not postulate any such eventuality like non-service of notice of the 125 application and in that respect Section 126 Cr.P.C. has taken care of such happenings but the law is well settled and the present revisionist/ petitioner cannot be allowed now to file such application under Section 126 Cr.P.C. After going through the evidence and materials on record it is found that the revisionist/petitioner Ram Pandey married the opposite party no.1 Rita Pandey, although described in the revisional application as Rita Das, as appears from her name in the deposition form and from her signature in the affidavit-in-chief filed in Misc. Case no. 284/2010, as back as on 26.07.1990 and this is also there in the evidence of revisionist/petitioner himself. I have already held hereinabove that opposite party no.1 had sufficient reason to live separate from the revisionist/ petitioner. I also find and hold that the revisionist/petitioner cannot be permitted to make contradictory contentions like that his wife namely the opposite party no.1 deserted him without any sufficient reason and at the same time casting aspersions against her questioning her character and the paternity of her child and levelling allegation that she was previously married with two other persons and, therefore, his marriage with her is a nullity. His conduct demonstrates that by any means he will deprive the opposite party no.1 of her legitimate dues in terms of the order of maintenance passed in her favour and also in favour of her son which, needless to mention, was available till he was a minor. 13. In view of the discussion and analysis made hereinabove I find and hold that the revisional application is devoid of any merit and is liable to be dismissed with cost. 14. The Revisional Application is accordingly dismissed with costs of Rs.20,000/- only. The impugned judgment and order are hereby affirmed. 15. A copy of this order be immediately sent to the Ld. Chief Judicial Magistrate, Alipore for taking appropriate measure to ensure that the opposite party no.1 herein gets all her legitimate dues without delay. After the judgment is pronounced the Ld. The impugned judgment and order are hereby affirmed. 15. A copy of this order be immediately sent to the Ld. Chief Judicial Magistrate, Alipore for taking appropriate measure to ensure that the opposite party no.1 herein gets all her legitimate dues without delay. After the judgment is pronounced the Ld. Advocate for the revisionist/petitioner prays for stay of operation of the judgment and order. In view of the facts and circumstances of the case which has been discussed in detail in the body of the judgment and order, the prayer for stay is refused. Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early as possible.