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2018 DIGILAW 1519 (GAU)

LAKSHMI BHAR v. SHIV NARAYAN BHAR

2018-10-09

RUMI KUMARI PHUKAN

body2018
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Mr. JUNM Laskar, learned counsel for the petitioner. None is present for and on behalf of the respondent. 2. The present revision has been preferred against the judgment and order passed by the learned Principal Judge, Family Court, Cachar at Silchar, in F.C. (Crl.) No.289/2006, dated 05.12.2009, under Section 125 CrPC. 3. Briefly stated, the case of the petitioner is that she preferred a petition under Section 125 CrPC, before the Principal Judge, Family Court, Cachar contending inter alia that the respondent is her married husband and he married her as per the Hindu rites and stayed together for around 10/12 years. The petitioner was a widow at the time of her marriage having two sons from her earlier husband. But however the respondent accepted the petitioner as his wife and also the responsibility of her two sons. After the living together for 10/12 years, the accused ousted her from the house by maintaining illicit affair with another woman. He never enquired about her wellbeing or about the children nor provided any maintenance to her. Praying for monthly maintenance, she preferred the claim petition for herself and her minor sons. 4. The respondent contested the case by filing written statement, admitting about keeping the petitioner in his house along with her two children, as a maidservant but has however denied the marriage with her. It is stated that the petitioner is not legally married wife of the respondent, so she is not at all entitled to any maintenance. 5. In support of their respective claim, either side examined three witnesses in support of their case and after examination of the witnesses, the learned Principal Judge, Family Court, Cachar came to a finding that there is no legally valid marriage between the parties and as such she being no legally married wife of the respondents, is not entitled to get any maintenance and the case was dismissed. 6. Being dissatisfied with the aforesaid judgment, the present revision has been preferred against the aforesaid order. 7. The learned counsel for the petitioner has submitted that although the petitioner has led evidence to prove her marriage but the respondent save and except some denial has failed to disprove their marriage at all and the factum of cohabitation. 6. Being dissatisfied with the aforesaid judgment, the present revision has been preferred against the aforesaid order. 7. The learned counsel for the petitioner has submitted that although the petitioner has led evidence to prove her marriage but the respondent save and except some denial has failed to disprove their marriage at all and the factum of cohabitation. Relying on a Supreme Court decision in Sadhu Mondal vs. Sarathi Bala Mondal, (1985) CriLJ 979, submit that for the purpose of the provision of Section 125 CrPC, the strict proof of marriage is not required. In the aforesaid decision, it has been held by the Apex Court that strict proof of marriage in maintenance case under Section 125 CrPC is not required and the evidence of prosecution witness that the couple was living as husband and wife is sufficient proof, notwithstanding absence of evidence of performance of sampradan and saptapadi. 8. It is worth mentioned that the Apex Court laid down the aforesaid ratio in catena of case discussed below: (i) In Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and another, (1999) AIR SC 3348, the Supreme Court held that no strict proof of performance of marriage is required if the claimant prima facie satisfied the Court that claimant and her husband lived as husband and wife. The Court also observed that the standard of proof of marriage in proceeding under Section 125(1) of CrPC is not as strict as required in trial of offences under Section 494 of the Indian Penal Code. The Court opined that if the claimant in proceedings under Section 125(1) of CrPC succeeds in showing that she and the respondent have lived together as husband and wife, the court can presume that they are legally wedded spouse and in such situation, the party who denies the marital status can rebut the presumption. That once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the said procedure was complete as per the Hindu Rites in the proceedings under Section 125(1) of CrPC. From the evidence which is led if the Magistrate is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125(1) of CrPC which are of summary nature strict proof of performance of essential rites is not required. From the evidence which is led if the Magistrate is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125(1) of CrPC which are of summary nature strict proof of performance of essential rites is not required. (ii) In Chanmuniya vs Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141 , the Supreme Court held that the term "wife" occurring in Section 125(1) of CrPC is to be given a very wide interpretation. "A broad and expansive interpretation should be given to the term "wife" to include even those cases where a man and woman have been living together as husband and wife for reasonably long period of time, and strict proof of marriage should not be a pre- condition for maintenance under Section 125(1) of CrPC so as to fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125(1) of CrPC." (iii) In Badshah vs Sou. Urmila Badshah Godse & another, (2014) AIR SC 869, the Supreme Court in the case while ruling in favour of the respondent opined that the provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from "adversarial" litigation to social context adjudication is the need of the hour. The Court held that an expansive and purposive interpretation needs to be given to the provisions of Section 125(1) of CrPC. The Apex Court remarked that while dealing with the application of destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalized sections of the society. The purpose is to achieve "social justice" which is the Constitutional vision, enshrined in the Preamble of the Constitution of India. Preamble to the Constitution of India clearly signals that we have chosen the democratic path under rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society .". 9. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society .". 9. The evidence of both the parties is gone through by this Court and it is evident that the petitioner side has examined three witnesses to prove the marriage between the parties, of-course not in strict manner and the respondent has also adduced evidence to show that there was no marriage between the parties. It is to be noted that the witnesses of the respondent who are not his relatives, has simply stated that there was no such relation between the parties but however the respondent and his witnesses have specifically admitted about the stay of the petitioner in the house of the respondent for a long period of 10/12 years. 10. In view of such evidence of the respondent's side itself, there is scope to explore as to and on what relation they stayed together in the house. Only on mere denial of the respondent, the learned Trial Court has acted upon and has refused to hold that the petitioner is the married wife of the respondent. 11. As has been discussed above, for the purpose of the proceeding under Section 125 CrPC, which is social legislation, strict proof of marriage is not required. The witnesses for the petitioner, in course of their evidence have stated about the marriage between the parties, as per the Hindu rites. The PW.2 has also attended the marriage. 12. In view of the materials on record, it can be held that the learned Trial Court has not appreciated the broaden prospect to be considered in the proceeding under Section 125 CrPC, which is intended to protect the destitute women from vagrancy and the law laid down on this aspect, as discussed above that the strict proof of marriage in the proceeding is not a condition precedent for awarding any relief under the provision. 13. Taking into note all the above, this Court is of the opinion that the learned Trial Court has committed irregularity while arriving at the decision. 13. Taking into note all the above, this Court is of the opinion that the learned Trial Court has committed irregularity while arriving at the decision. Accordingly the impugned judgment and order dated 05.12.2009, passed by the learned Principal Judge, Family Court, Cachar at Silchar, in F.C. (Crl.) No.289/2006, is hereby quashed and set aside, with a direction to the learned Court to decide the matter afresh, as per provision of law, in the light of evidence on record. 14. The parties are directed to appear before the Court below on 28.11.2018, for receiving further order. 15. Return the LCR immediately, with a copy of this order.