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2018 DIGILAW 493 (ORI)

Durga Dakua v. Lakshman Dakua

2018-05-02

A.K.RATH

body2018
JUDGMENT : A.K. Rath, J. This is a defendant’s appeal against confirming judgment. 2. Plaintiff-respondent instituted the suit for declaration that the defendant is not his married wife. The case of the plaintiff was that the defendant had filed Crl. Misc. Case No.205 of 1984 before the learned S.D.J.M., Sambalpur under Sec.125 Cr.P.C. for maintenance against him. In the said case, the defendant alleged that she married to the plaintiff on 9.12.81. The case having been allowed, he filed revision before the learned Additional Sessions Judge, Sambalpur, which was dismissed. According to the plaintiff, he is a ‘Barbar’ by caste and the defendant is ‘Ganda’ by caste. The marriage is not permissible by caste and customs. He had not married to the defendant. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. The defendant entered contest and filed a written statement. The case of the defendant was that she married to the plaintiff on 9.12.81 according to caste, custom and Hindu rites. As the marriage between the parties was an inter-caste marriage, the custom prevalent in Ganda caste was followed. After marriage, the parties lived together till the desertion in the year 1982. 4. On the interse pleadings of the parties, learned trial court struck five issues. Parties led evidence, oral and documentary, to substantiate their cases. Learned trial court decreed the suit with the finding that the defendant is not the legally married wife of the plaintiff. Unsuccessful defendant filed T.A. No.8 of 1997 before the learned District Judge, Sambalpur, which was eventually dismissed. 5. The second appeal was admitted on the following substantial question of law. “Whether the appellant is legally married wife of the respondent ?” 6. Heard Mr. Budhiram Das, learned counsel, on behalf of Mr. N.C. Pati, learned counsel for the appellant. None appeared for the respondent. 7. Mr. Das, learned counsel for the appellant, submitted that the defendant is the legally married wife of the plaintiff. The marriage was solemnized according to caste, custom prevailing in Ganda caste. The court below fell into patent error of law in dismissing the suit. 8. On an anatomy of the pleadings and evidence on record, both the courts concurrently held that defendant is not the legally married wife of the plaintiff. There is no pleading with regard to custom and ceremonies prevailing in Ganda caste. The court below fell into patent error of law in dismissing the suit. 8. On an anatomy of the pleadings and evidence on record, both the courts concurrently held that defendant is not the legally married wife of the plaintiff. There is no pleading with regard to custom and ceremonies prevailing in Ganda caste. The defendant had failed to substantiate the same. There is no perversity or illegality in the said finding. The substantial question of law is answered accordingly. 9. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.