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Gauhati High Court · body

2018 DIGILAW 178 (GAU)

Hitesh Kumar Sarmaj Tarun Das v. Purnima Bora Das

2018-01-30

HITESH KUMAR SARMA

body2018
JUDGMENT AND ORDER 1. This criminal revision petition is filed under section 397/401 of the Cr.PC, challenging the legality, propriety and correctness of the final order, dated 12.12.2014, passed by the learned Judicial Magistrate First Class, Tezpur, Sonitpur in Misc. Case No. 20/2009 under section 125 of the Cr.PC ordering the present petitioner to pay an amount of Rs. 2,000 per month as maintenance allowance to the present respondent. 2. The present respondent initiated a proceeding against the present petitioner under section 125 of the Cr.PC claiming maintenance allowance vide her petition, dated 10.2.2009. In her petition, the respondent claimed that the present petitioner married her on 8.12.2004 in the office of the Marriage Officer, Sonitpur, Tezpur under the provisions of the Special Marriage Act. At the time of marriage, her father gave furniture, gold ornaments and utensils, etc. Both the parties lived together peacefully for about 2-3 months after their marriage and thereafter the petitioner subjected her to torture, both mentally and physically, although she continued with her conjugal life thinking about her future. She has also alleged in her petition that she got pregnant thrice through the petitioner although every time the pregnancy was terminated at the instance of the petitioner. It has been specifically stated in the petition by the present respondent that before her marriage with the present petitioner she had maintained relation with one youth and through him she has mothered two children, one male and one female, aged about 11 years and 8 years respectively. Her first male child is staying with her parents and the second female child has been adopted by a couple. 3. After her relation with the youth got severed, the present respondent stayed in her parental home and during her such stay at her parental home, she came in contact with the present petitioner who proposed to marry her to which she agreed with initial reluctance. Thereafter she got married under the Special Marriage Act, as aforesaid, with the present petitioner. She alleged that after marriage she was behaved like a servant by the present petitioner and he married her only to fulfill his lust. 4. The present respondent has also alleged in her petition that on 1.10.2008 at about 10 : 00 p.m., the petitioner came home drunk and assaulted her and drove her out of his house with warning not to return to his house. 4. The present respondent has also alleged in her petition that on 1.10.2008 at about 10 : 00 p.m., the petitioner came home drunk and assaulted her and drove her out of his house with warning not to return to his house. Since then she has been taking refuge in her parental home. 5. The father and brother of the present respondent went to the house of the petitioner in the 1st week of November, 2008 but they had to come back feeling mortified on being misbehaved by the petitioner. She has not been provided maintenance by the petitioner although he is a able bodied person and is a journalist, apart from doing some smaller contract works. He has also landed property. According to the present respondent, the petitioner earns about Rs. 18,000 to Rs. 20,000 per month. She has no income of her own. 6. The present petitioner, as opposite party, contested the claim of the respondent by filing written statement. He denied the allegations made against him by the present respondent in her petition. His specific case is that the respondent, under threat and pressure, took him to the office of the Marriage Officer on 8.2.2004 and got his signature on some papers. According to him, the present respondent and the members of her family informed him that the first marriage of the present respondent has been dissolved by way of divorce. But, he came to know that legal divorce has not been affected between the present respondent and her first husband, Pradip Bora, and, therefore, according to him, she is not his legally married wife. He has also claimed that they never lived together as husband and wife as he came to know that the first marriage of the present respondent was not dissolved and when this was enquired about from her, the respondent called the members of her family and assaulted him in his own house and even threatened him that they would cause his death. 7. The present petitioner has specifically stated in his written statement that he did not consummate the marriage with the respondent. He also claimed that the statement made by the respondent in her petition that she had relation with a youth is false rather she married the said youth socially and lived together as husband and wife and thereafter parented two children. He also claimed that the statement made by the respondent in her petition that she had relation with a youth is false rather she married the said youth socially and lived together as husband and wife and thereafter parented two children. He claimed that the respondent convinced him that her first marriage with the aforesaid youth got dissolved and he came to know after his marriage with her under the Special Marriage Act that no legal divorce of the respondent has taken place with her former husband. He refused to admit that he assaulted and drove out the respondent from his house rather he claimed that she left his house on her own. He has no landed property. Even the house he is residing in is provided to him by the Government. He also denied that he used to do some small contract work and earns Rs. 18,000 to Rs. 20,000 as claimed. According to him, the present respondent is working in a PCO and earns from her such engagement and that now she is living with her former husband, and, therefore, he is not liable to maintain her. 8. To substantiate the rival claim, the respondent as petitioner in the aforesaid revision petition claiming maintenance, examined as many as four witnesses including herself and the present petitioner as opposite party examined as many as two witnesses including himself. 9. So, after hearing both sides and on appreciation of the evidence led by the parties, the learned trial court allowed the prayer of the present respondent and ordered the present petitioner to pay an amount of Rs. 2,000 per month w.e.f. the date of the application as maintenance allowance to the present respondent vide the order referred to above. 10. The present petitioner has challenged the legality, propriety and correctness of the aforesaid final order, passed by the learned trial court, on the following grounds: That learned trial court failed to appreciate the pleaded case of the respondent and thereby arrived at a wrong decision. That the learned trial court failed to appreciate that the present petitioner never refused or neglect to maintain his wife or children and rather from the evidence on record it would be clear that he has been regularly maintaining his wife/respondent, and, therefore, the petition filed by the respondent ought to have been dismissed by the learned trial court. That the learned trial court failed to appreciate that the present petitioner never refused or neglect to maintain his wife or children and rather from the evidence on record it would be clear that he has been regularly maintaining his wife/respondent, and, therefore, the petition filed by the respondent ought to have been dismissed by the learned trial court. That while marrying the present petitioner the respondent never disclosed that she was already married and having children, which he came to know from her earlier husband Sri Pradip Bora. That the respondent left her matrimonial home on her own and that he earned a meagre amount only being an assistant priest of a sani temple received from the priest of the temple. 11. I have heard Mr. S.C. Biswas, learned counsel for the petitioner as well as Ms. R. Deka, learned legal aid counsel for the respondent. 12. I have perused the impugned judgments as well as the evidence of both the parties available in the record of the learned trial court. 13. Taking into account the rival contention of both the parties, the learned trial court framed the following points for decision (i) Whether the first party is wife of the second party? (ii) Whether there is any just ground on the part of the first party to live separately from the second party? (iii) Whether the second party having sufficient means neglected to maintain the first party? (iv) Whether the first party is entitled to relief as prayed for? 14. In respect of the 1st point for decision, the evidence of PW 1-respodent wife is that she got married with the present petitioner on 8.12.2004 under the provisions of Special Marriage Act. The certificate of the Special Marriage between the parties has been marked as Annexure 1. The present petitioner as DW 1 has admitted the special marriage. He has also admitted the special marriage in his written statement. Firstly, he has taken the plea in his evidence that the marriage under the Special Marriage Act was effected under duress by the respondent-wife and her family members and that he was told that the first marriage of the respondent-wife with her first husband was dissolved. But in his evidence, he has categorically stated that the wife-respondent had divorced her former husband, Pradip Bora. But in his evidence, he has categorically stated that the wife-respondent had divorced her former husband, Pradip Bora. Such evidence of the present petitioner, as defence witness, means to show that before he married the wife-respondent under the provisions of the Special Marriage Act, he had some doubt as to whether the wife-respondent was divorced by her former husband or not. Such evidence means that he enquired about the antecedent of the respondent-wife before the marriage under the Special Marriage Act took place and thereafter he married the respondent-wife. This shows that the allegation made by him that he had to marry the respondent-wife under duress is a plea failed to stand the test of credibility. The marriage, under the Special Marriage Act, therefore, is an admitted position. 15. The second leg of argument of the present petitioner is that the respondent-wife got married with one Pradip Bora and through him she mothered two children, one male and one female, aged about 11 years and 8 years respectively. 16. The evidence of the PW 1/respondent-wife reveals that she lived together with one Pradip Bora before the marriage with the present petitioner and she has got two children through him. 17. The evidence of the PW 3 shows that the wife-respondent eloped with the aforesaid Pradip Bora who belonged to the same village and stayed together in a live-in-relationship and through him she mothered the children. 18. The mother of the respondent-wife, examined as PW 2, states that the respondent-wife lived with the aforesaid Pradip Bora for about 6 years and then she came back to her parental home with her children. She has further stated in her evidence that there is no divorce taken place between the aforesaid Pradip Bora and the wife-respondent. 19. But, it appears from the evidence on record that there is no formal marriage that took place between the wife-respondent and the aforesaid Pradip Bora rather the wife-respondent eloped with Pradip Bora and stayed together in a live-in-relationship. It has also come out from the evidence on record and found to be an undisputed position that the wife-respondent left the house of the aforesaid Pradip Bora about 6 years back before her marriage with the present petitioner under the Special Marriage Act. It has also come out from the evidence on record and found to be an undisputed position that the wife-respondent left the house of the aforesaid Pradip Bora about 6 years back before her marriage with the present petitioner under the Special Marriage Act. There is no social marriage or a legal marriage solemnized between the wife-respondent and the aforesaid Pradip Bora is evident from the evidence on record. Rather the evidence makes it appear that the wife-respondent was living with the aforesaid Pradip Bora after she eloped with him. 20. It is a settled position of law that for a proceeding under section 125 of the Cr.PC, valid marriage is not necessary. But in the instant case, the stand taken by the present petitioner that his marriage under the Special Marriage Act with the wife-respondent is not valid due to the fact that her first marriage with the aforesaid Pradip Bora still exists and there is no divorce between them. As we have already found that there was no legal or social marriage between the wife-respondent and the aforesaid Pradip Bora, there cannot be any question of divorce. The respondent-wife left the house of the aforesaid Pradip Bora about six years back before her marriage with the present petitioner in the similar manner as she eloped with him. Therefore, in the absence of a valid first marriage, even if it is presumed for the sake of argument that the marriage between the wife-respondent and the present petitioner is a second marriage yet it is not barred under the law. However, in the instant proceeding, this court is not deciding on the validity of the marriage between the parties, this being a proceeding under section 125 of the Cr.PC. 21. The hon'ble Supreme Court in the case of Rajathi v. C. Ganesan, (1999) 6 SCC 326 : AIR 1999 SC 2374 held that the Magistrate is to take a prima facie view and it is not necessary for him to go into the matrimonial dispute between the parties in detail in order to deny maintenance to the claimant-wife. Section 125 of the Cr.PC proceeds on de facto marriage and not de jure marriage. Therefore, the validity of the marriage will not be a ground for refusal of maintenance, if other requirements under section 125 of the Cr.PC is satisfied. 22. Section 125 of the Cr.PC proceeds on de facto marriage and not de jure marriage. Therefore, the validity of the marriage will not be a ground for refusal of maintenance, if other requirements under section 125 of the Cr.PC is satisfied. 22. In the instant case, there is admittedly a valid legal marriage under the Special Marriage Act. Even if for the purpose of this proceeding under section 125 of the Cr.PC, the live-in-relationship between the respondent-wife and aforesaid Pradip Bora is taken to be the first marriage, yet when there is a presumed marriage and a legally valid marriage, in the considered view of this court, the legally valid marriage will prevail upon the presumed first marriage. 23. In the instant case, the present petitioner allegedly drove the wife-respondent on 1.10.2008. He had married the respondent-wife in the year-2004 under the Special Marriage Act. This means that after 4 years of his marriage with the respondent-wife, they started living separately. After performing the marriage under the Special Marriage Act and living together for 4 years as husband and wife the present petitioner could not have taken the plea for refusal of maintenance saying that the marriage between them was not valid in view of the existence of the first marriage of the respondent-wife with the aforesaid Pradip Bora. We have already found that no social or legal marriage took place between the wife-respondent and the aforesaid Pradip Bora rather they were living in a live-in-relationship only. That being so, in the light of the discussion in the foregoing paragraph, in the considered view of this court, the respondent-wife is the wife of the present petitioner both de facto as well as de jure. 24. In respect of the point No. 2 for decision, it has to be seen whether the wife-respondent had a just ground to live separately from the present petitioner. The respondent-wife as PW deposed that she was assaulted and subjected to torture by the present petitioner under the influence of liquor and also assaulted her for the articles given to her by her parents in her marriage. She was not properly treated and when she required treatment, the petitioner used to tell her to approach her brother-in-law. Further allegation is that she was pregnant thrice through the present petitioner and every time he got her pregnancy terminated. She was not properly treated and when she required treatment, the petitioner used to tell her to approach her brother-in-law. Further allegation is that she was pregnant thrice through the present petitioner and every time he got her pregnancy terminated. She also deposed that the present petitioner demanded money from her to be brought from her parental house and for her not being able to do so, she was subjected to torture. Such allegations has been denied by the present petitioner. 25. The DW 1 said in his evidence that there was quarrel between him and his wife-respondent for which he filed a case against the wife-respondent and her family members following which police arrested them and also told him to stay away from the wife-respondent for which he stayed away from her. He has also alleged that the first husband, i.e., Pradip Bora came to him after his marriage with the wife-respondent and told him that she is his legally married wife. 26. The evidence of PW 3 and PW 4, who are the parents of the wife-respondent, supported the evidence of PW 1/wife-respondent although they have not specifically stated that as to how they gathered the knowledge about the alleged torture on the person the wife-respondent. 27. It has been admitted by the DW 1/present petitioner that he started living separately from the wife-respondent as he was told to do so by the police after a case was filed by him against the respondent-wife and her family members. Such facts admitted by the present petitioner means that he had made the respondent-wife to live separately, whether the allegation of torture leveled against him by the respondent-wife is proved or not. Therefore, such position admitted by the petitioner itself is indicative of the fact that there was a situation created which left the respondent-wife with no alternative but to live separately. During her stay in her parental home separately from the present petitioner, maintenance has not been provided to her is not a fact ever disputed in the evidence and, therefore, the claim that she has not been provided with maintenance by the present petitioner, as claimed, appears to be true. Therefore, it is found from the aforesaid evidence that the respondent-wife has just ground to live separately from the present petitioner. 28. Therefore, it is found from the aforesaid evidence that the respondent-wife has just ground to live separately from the present petitioner. 28. So far the third point for decision is concerned, the evidence of the PW 1/respondent-wife is that the petitioner is a journalist, he has landed property and also a small contractor earning about Rs. 18,000-20,000 per month. She has also deposed that she has no income although she used to work in a PCO before her marriage which she is not doing now. A certificate issued by the competent authority showing that the petitioner is a journalist has been produced in evidence through PW 4, vide Ext.A. On perusal of the said certificate, it appears that the present petitioner's name is registered as a journalist with the District Information & Public Relation Officer. But, this certificate does not speak about the income of the present petitioner and registration of his name as journalist itself does not necessarily mean that he is pursuing the said profession. So far landed property, contract work, etc., are concerned, no proof has been laid before this court except the mere statement by the wife-respondent. 29. During the course of hearing, the learned counsel for the present petitioner has submitted that the petitioner earns a meagre amount by assisting a priest of a Sani Temple. However, such statement does not receive corroboration from the evidence on record. From the evidence, the definite income of the petitioner could not be assessed. However, the fact remains that the petitioner is a able bodied person and the fact that he married the respondent-wife itself is indicative of his ability to maintain his wife. In view of the decision on the foregoing points, the present petitioner is bound to maintain his wife-respondent. The learned trial court had awarded an amount of Rs. 2,000 per month as maintenance allowance considering the fact that he does not have permanent source of income. 30. In the considered view of this court, Rs. 2,000 per month ordered to be paid as maintenance allowance to the wife-respondent appears to be on the higher side in the absence of any specific evidence of income. Therefore, considering such position, in the considered view of this court, an amount of Rs. 1,500 per month will meet the ends of justice instead of Rs. 2,000 per month. 31. 2,000 per month ordered to be paid as maintenance allowance to the wife-respondent appears to be on the higher side in the absence of any specific evidence of income. Therefore, considering such position, in the considered view of this court, an amount of Rs. 1,500 per month will meet the ends of justice instead of Rs. 2,000 per month. 31. So, in view of the above discussions and decisions, this revision petition is partly allowed reducing the maintenance allowance from Rs. 2,000 per month to Rs. 1,500 per month from the date of the final order, passed by the learned Judicial Magistrate First Class, Tezpur, Sonitpur, in Misc. Case No. 20/2009, on 12.12.2014. 32. Send down the LCR along with a copy of this judgment.