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2017 DIGILAW 1194 (GAU)

Nabanita Ghosh, D/O Ram Ch. Ghosh v. Rubul Sarma, S/O Lt. Trayodhar Sarma

2017-08-29

HITESH KUMAR SARMA

body2017
JUDGMENT AND ORDER : 1. This Criminal Revision Petition is filed under Section 397/401 Cr.PC., challenging the legality and propriety of the judgment, dated 16.2.2006, passed by the learned Sessions Judge, Jorhat, in Criminal Revision No. 17/2005 setting aside the judgment and order, dated 16.8.2005, passed by the learned Sub-Divisional Judicial Magistrate (S), Jorhat, in Misc. Case No. 75/2004, directing the respondent to pay maintenance allowance of Rs. 7,000/- per month till re-marriage of the present petitioner. 2. I have perused the Criminal Revision Petition. Also perused the evidence led by the parties before the learned trial court. I have also perused the impugned judgments and orders. 3. None appears for the petitioner on call. Heard learned counsel Ms. P Bhattacharya for the respondent. 4. The present revision petitioner, as a 1st party, initiated a proceeding before the learned Sub-Divisional Judicial Magistrate (S), Jorhat, in Misc. Case No. 75/2004 under Section 125 Cr.PC, claiming monthly maintenance allowance from the 2nd party/respondent herein, on the ground that the present respondent, being her husband, refused to maintain her. The respondent, before the learned trial court as well as in the instant Criminal Revision Petition, has denied that the present petitioner is his wife and he ever married her. 5. On perusal of the entire records of the case, including the evidence recorded by the learned trial court, it appears to be an admitted position that the present petitioner fell in love with the present respondent since year 1990. They were neighbours to each other. On 16.8.1998, the present revision petitioner eloped with the present respondent as the present respondent assured to marry her. They cohabited in a hotel at Guwahati as husband and wife for few days. Thereafter, they came back to Mariani on 23.8.1998. The present revision petitioner wanted the present respondent to take her to his house, but, instead of taking to his house, he took her to the house of one Rupen Mallik of Mariani, and they stayed together as husband and wife there, wherefrom, they were apprehended by police. It is also the allegation of the present petitioner that she got conceived by the present respondent and also gave birth to a male child on 21.9.1998. The child did not survive. The present petitioner, thereafter, stayed with the present respondent in her parental home. It is also the allegation of the present petitioner that she got conceived by the present respondent and also gave birth to a male child on 21.9.1998. The child did not survive. The present petitioner, thereafter, stayed with the present respondent in her parental home. The respondent left her in her parental home on 25.2.2000, and since then, he has not been maintaining any contact with her. The present respondent appears to have denied such allegations of the revision petitioner before the learned trial court by way of written statement as well as in his evidence. 6. It deserves mention here that, against the order of the learned trial court, granting maintenance allowance, the learned court of Sessions Judge, in Revision, allowed the revision, and as such, refused to agree with the judgment and order of the learned trial court granting maintenance. Aggrieved by the said order, this present revision petitioner is before this court. 7. The fundamental question involved in this case is, whether the present revision petitioner is the wife of the present respondent, and, whether the present respondent has refused and neglected to maintain her, inspite of having sufficient means. 8. On perusal of the evidence on record, it is more than clear that there never took place a formal marriage between the parties. She is not found to have adduced any evidence that her marriage ever took place with the respondent in any manner. 9. The evidence of the present revision petitioner during the trial is that, she eloped with the respondent for few days, stayed at Guwahati, had sexual intercourse with the respondent, and thereafter, left for Mariani, and thereafter, she also stayed with the present respondent in the house of one Rupen Mallik maintaining same kind of relationship. After that, as claimed by her, she stayed at her parental home with the respondent. It has come out from the evidence on record that the respondent assured her that he would marry her. There is no evidence in the record that such assurance, if any, got materialize at any point of time. The evidence of the present revision petitioner, before the learned trial court, is consistent so far the fact of having sexual intercourse with the respondent on the promise to marry her is concerned. If the respondent promised her to marry and did not marry, then she does not become his wife automatically. The evidence of the present revision petitioner, before the learned trial court, is consistent so far the fact of having sexual intercourse with the respondent on the promise to marry her is concerned. If the respondent promised her to marry and did not marry, then she does not become his wife automatically. That can be an offence under other provisions of law. She appears to be a consenting party to the sexual relationship with the respondent. Not keeping the promise to marry her by the respondent is altogether a different issue. Whatever it may be, it does not transpire from the evidence on record that she became the wife of the respondent in any manner. It is a settled position of law that strict proof of marriage is not necessary in a proceeding under Section 125 Cr.PC. But, in the instant case, not to speak of strict proof of marriage, there is no marriage at all alleged to have taken place between the petitioner and the respondent. It is the evidence of the petitioner, as 1st party, that the respondent assured to marry her. There is no evidence that her marriage ever took place with the respondent in any manner. 10. That being so, this court is of the view, on the basis of the evidence on record, that she never became the wife of the respondent, and as such, the respondent is not her husband. Therefore, the respondent is not bound to maintain her as required under Section 125 Cr.PC. 11. The facts being as above, in the considered view of this court, the decision rendered by the learned revisional court of Sessions Judge, in the aforesaid revision petition, is based on evidence on record requiring no interference by this court as no illegality and impropriety is found to have committed by the learned revisional court. 12. The Criminal Revision Petition stands dismissed. 13. Send down the LCR along with copy of this judgment.