Research › Search › Judgment

Calcutta High Court · body

2020 DIGILAW 399 (CAL)

Mamta Devi v. Rajesh Ram @ Rajesh Kumar

2020-03-06

MADHUMATI MITRA

body2020
JUDGMENT : Madhumati Mitra, J. Both the Revisional Applications have been preferred challenging the same judgment and order dated August 21, 2013 passed by the Learned Additional Chief Judicial Magistrate Raghunathpur, Purulia, in Misc. Case No.46 of 2001. Criminal revisional application being No.3758 of 2013 has been preferred by wife/petitioner and criminal Revisional Application being No.41 of 2014 has been preferred by petitioner/husband. 2. For the sake of convenience both the revisional applications have been heard together. 3. By the order impugned the Learned Magistrate directed the petitioner/husband to pay sum of Rs.1200/- per month to the petitioner/wife for her maintenance from the date of filing of the application under Section 125 of the Code of Criminal Procedure i.e. on and from June 25, 2001. 4. The petitioner/wife in her application being CRR No.3758 of 2013 has prayed for enhancement of the quantum of maintenance. On the other hand the petitioner/husband by way of filing the revisional application being No.41 of 2014 has prayed for setting aside the impugned judgment and order granting maintenance to the wife. 5. During the course of hearing the Learned Counsel appearing for the petitioner/husband of CRR No.41 of 2014 has submitted that the opposite party is not the legally married wife of the petitioner and as such she is not entitled to get any maintenance. In support of her contention the Learned Counsel for the petitioner of CRR 41 of 2014 has forcefully submitted that the factum of marriage between the parties has been denied by the petitioner and the alleged wife totally failed to prove her marriage with the present petitioner by adducing cogent and reliable evidence. It is her further contention that at the time of solemnization of alleged marriage the parties to the alleged marriage were minor as reflected in their voter identity card issued by the Election commission and as such the alleged marriage has no binding force in the eye of law. The impugned judgment and order have been assailed on the ground that the Learned Magistrate came to his conclusion regarding the marriage of the parties without considering the materials placed on record and as such the findings of the Learned Judge regarding the marriage of the parties are not tenable in law. The impugned judgment and order have been assailed on the ground that the Learned Magistrate came to his conclusion regarding the marriage of the parties without considering the materials placed on record and as such the findings of the Learned Judge regarding the marriage of the parties are not tenable in law. Another contention has been raised on behalf of the petitioner of CRR 41 of 2014 that the petitioner/wife has willfully withdrawn the society of the petitioner/husband and as such she is not legally entitled to get any maintenance in view of the provision of sub-Section 4 of Section 125 of the Code of Criminal Procedure. 6. On the contrary the Learned Counsel appearing for the petitioner/wife of CRR 3758 of 2013 has submitted that the petitioner has succeeded in proving her marriage with the opposite party and she was being compelled to reside separately from her husband. According to the contention of Learned Counsel appearing for the petitioner/wife, the observations made by the Learned Trial Court regarding factum of marriage are based on cogent evidence adduced by the parties during trial. The Learned Counsel appearing for the petitioner/wife of CRR 3758 of 2013 has specifically contended that the amount of maintenance as determined by the Learned Magistrate is too much meagre for the maintenance of the wife. It is further contended that the husband has sufficient income and the amount of maintenance granted by the Learned Magistrate requires to be enhanced so that the wife can maintain herself properly. 7. From the contention of the parties it appears that the petitioner/wife has only challenged the quantum of maintenance and prayed for enhancement of said quantum of maintenance granted by the Learned Magistrate. On the other hand the opposite party/husband has come forward to challenge the entire judgment and order and has contended that the petitioner/wife is not his legal married wife and as such she is not entitled to get any maintenance from him. 8. In order to appreciate the respective contentions of the parties, the submission and counter submission of the parties it would be better to have a look at the factual scenario of the case. 9. In the year 2001 the petitioner of CRR 3758 of 2013 filed an application before the then Sub-Divisional Judicial Magistrate Raghunathpur, Prurulia against the opposite party. In order to appreciate the respective contentions of the parties, the submission and counter submission of the parties it would be better to have a look at the factual scenario of the case. 9. In the year 2001 the petitioner of CRR 3758 of 2013 filed an application before the then Sub-Divisional Judicial Magistrate Raghunathpur, Prurulia against the opposite party. In her application she stated that she was the legally married wife of the opposite party and their marriage was solemnized in the month of June, 1987 according to Hindu Rites and Customs prevailing in their community. In her application she has stated that her marriage with the opposite party is still subsisting. After marriage the petitioner went to her matrimonial home at Adra, and started to reside there with the opposite party as husband and wife. It is her specific contention that her marriage with the opposite party was consummated and they lived there for 3 months. It has been specifically alleged by the petitioner that after 3 months of marriage the opposite party and his family member started torturing the petitioner both mentally and physically for demand of additional dowry of Rs.25,000/-. Father of the petitioner failed to meet the demand of additional dowry and as a result she was driven out from her matrimonial home. In spite of that, she visited her matrimonial home on several occasions and most of the time she was driven out and she was not allowed to enter her matrimonial home. It was the specific allegation of the petitioner that her husband married for the second time to another lady namely Baby Devi. On 30.03.1996 the petitioner was compelled to bring criminal action under Section 498A of the Indian Penal Code against opposite party and others. Petitioner has claimed that she is unable to maintain herself and she is living in semi-starvation condition. It has been claimed by the petitioner that the opposite party is an able bodied person and he is an employee of Railway and earns Rs.8000/per month. Petitioner has also claimed Rs. 2000/- per month for her maintenance. 10. In his written objection the opposite party has denied the factum of marriage with the petitioner and claimed that he never resided as husband and wife with the petitioner. Petitioner has also claimed Rs. 2000/- per month for her maintenance. 10. In his written objection the opposite party has denied the factum of marriage with the petitioner and claimed that he never resided as husband and wife with the petitioner. The opposite party has claimed that he married one Baby Devi daughter of Late Litoram of Persanda, Jharkhand, long back in accordance with Hindu Rites and Ceremonies. Opposite party has stated that they are residing together as husband and wife. It has been further claimed by the opposite party that due his wedlock said Baby Devi, two male and one female children were born. He has denied his income and stated that he only earns Rs.3200/- per month. It has been alleged by the opposite party that the father of the petitioner in order to create pressure on his father had proposed for his marriage with the petitioner, but the father of the opposite party did not accept that proposal on the ground that the petitioner was minor. The opposite party has stated that the petitioner started a false criminal case against him and his family members under Section 498A of the Indian Penal Code. 11. The application under Section 125 of the Code of Criminal Procedure was registered as Misc. Case No. 46 of 2001. After giving opportunity of being heard to both the parties, the Learned Judicial Magistrate on 14.07.2006 dismissed the application under Section 125 Cr.P.C. with observation that the petitioner failed to substantiate her claim that she was the legally married wife of the opposite party. The petitioner/wife preferred one revisional application before the Learned Additional Sessions Judge challenging the said judgment and order passed by the Learned Magistrate. Learned Additional Sessions Judge, Purulia, reversed the judgment passed by the Learned Magistrate and held that the petitioner was the legally married wife and she was entitled to get maintenance. The petitioner/wife was granted maintenance at the rate of Rs.1000/- per month. Being aggrieved by that order the opposite party to the application under Section 125 of the Code of the Criminal Procedure preferred one Revisional Application being CRR No.592 of 2007 before the High Court. The petitioner/wife was granted maintenance at the rate of Rs.1000/- per month. Being aggrieved by that order the opposite party to the application under Section 125 of the Code of the Criminal Procedure preferred one Revisional Application being CRR No.592 of 2007 before the High Court. The said Revisional Application was disposed by one Coordinate Bench of this Court on 14.03.2011 with the following directions:- "Upon hearing the rival contentions, I feel that the learned Additional Sessions Judge possibly overlooked the issues raised by the learned Magistrate. The learned Magistrate observed that P. Ws. 2 and 3 could not produce their identity. Their evidence also did not find corroboration from any other witness. No other witness identified them before the learned Magistrate. Hence it would be unsafe to rely upon their evidence to come to a definite conclusion of solemnization of marriage. I also cannot brush aside the issue raised by the petitioner with regard to the validity of the marriage. In my considered view, the learned Magistrate considered each and every evidence and ultimately came to conclusion that the respondent could not prove that she was legally married wife of the petitioner to claim maintenance from him. Such definite conclusion based on finding of fact, in my view, could not be upset by the learned Additional Sessions Judge in a slipshod manner as discussed above. At the same time I feel that interest of justice would be subserved if I give another opportunity to the respondent to prove her marriage before the learned Magistrate to claim maintenance. The revisional applications succeed. The order of the Revisional Court impugned in C. R. R. No. 592 of 2007 is set aside. The order passed from time to time in the execution proceeding initiated in terms of the order of the learned Magistrate are set aside. The execution proceeding is quashed. This order would, however, not preclude the respondent to approach the learned Magistrate afresh with fresh materials. In case she approaches the learned Magistrate, the learned Magistrate would give her all opportunities to examine herself again as well as any other witness according to her choice to prove her case. The execution proceeding is quashed. This order would, however, not preclude the respondent to approach the learned Magistrate afresh with fresh materials. In case she approaches the learned Magistrate, the learned Magistrate would give her all opportunities to examine herself again as well as any other witness according to her choice to prove her case. The learned Magistrate would consider the rival contentions of the parties as well as the evidence that would be led before him and pass appropriate order of the said maintenance proceeding without being influenced by any of the observations made by the learned Magistrate earlier or by this court in the foregoing judgment and order." 12. Thereafter on August 25, 2013 the application under Section 125 of the Code of Criminal Procedure has been disposed of by the Learned Magistrate as per the directions passed in CRR No.592 of 2007. 13. During the course of hearing the impugned judgment and order have been challenged by the petitioner/husband on the ground that the petitioner/wife is not his legally married wife and at the time of solemnization of alleged marriage she was minor. The Learned Counsel has laid stress on the ground that question of valid marriage between the parties does not arise at all as the parties to marriage were minor at the relevant point of time. Another plea has been taken by the petitioner/husband that the petitioner/husband is a married parson. The name of his wife is one Baby Devi and they have three children. Both the parties adduced evidence in support of their respective contentions. The petitioner/wife adduced further evidence to prove her marriage with the opposite party. It is true that in her application under Section 125 of Code of Criminal Procedure the petitioner/wife has admitted that opposite party married one Baby Devi. The averments of the application under Section 125 of the Code of Criminal Procedure as well as the materials placed on record reveal that the petitioner/wife has claimed herself to be the legally married wife of the opposite party/husband and the said marriage took place prior to the marriage of the opposite party with said Baby Devi. Petitioner was subjected to lengthy cross-examination by the opposite party/husband. She has deposed that her marriage was solemnized in the year 1987. She deposed before the Court on 4th November, 2003. Petitioner was subjected to lengthy cross-examination by the opposite party/husband. She has deposed that her marriage was solemnized in the year 1987. She deposed before the Court on 4th November, 2003. In her deposition she has stated that on that day she was aged about 37 years. The petitioner has stated that her marriage was solemnized in accordance with Hindu Rites and Customs prevailing in their community. In her deposition the petitioner has mentioned the names of priest and barber who were present there and acted as priest and barber. From her evidence it appears that at the time of solemnization of her marriage several persons were present. In her deposition she has mentioned the names of some of the persons who were present at the time of solemnization of her marriage. While making his submissions in support of marriage of the petitioner/wife the Learned Counsel has given emphasis on Exhibit-1. Learned Counsel has contended that from the said Exhibit No.1 it can be presumed that Mamta Devi is the wife of the Opposite party as the said document disclosed the existence of matrimonial dispute between the parties. Exhibit 1 is a document relating to settlement of the matrimonial dispute. During her cross-examination the petitioner/wife has deposed that she is a Hindu lady and her marriage was solemnized as per Hindu Rites. One Mahabir Pandey acted as priest in her marriage. From her cross-examination it appears that one Sarju Thakur was the barber of their marriage. She has specifically deposed during her cross-examination that Saptapadi was performed at the time of solemnization of marriage. 14. Pw-2 Mahabir Pandey has deposed that he performed the marriage ceremony of the petitioner and the opposite party in accordance with Hindu Rites and Ceremonies. From his deposition it comes out that Kannaydan, Saptapadi, Sindurdan etc. were performed at the time of solemnization of marriage between the petitioner and the opposite party. PW-3 is Sarju Thakur, he has also deposed that he acted as barber at the time of marriage of the petitioner. He has corroborated the evidence of PW-1 and PW-2 by stating that at the time of marriage Mahabir Pandit acted as priest. Though the PW-3 failed to identify the opposite party but he has specifically deposed that he was present as barber at the time of solemnization of marriage between the petitioner and the opposite party. He has corroborated the evidence of PW-1 and PW-2 by stating that at the time of marriage Mahabir Pandit acted as priest. Though the PW-3 failed to identify the opposite party but he has specifically deposed that he was present as barber at the time of solemnization of marriage between the petitioner and the opposite party. PW-2 and PW-3 were subjected to cross-examine but in spite of their cross-examination their evidence remains unshaken. 15. Pw-4 is the younger brother of the petitioner. From his deposition it comes out that the marriage of his elder sister was solemnized with the opposite party and after marriage she (his sister) went to her matrimonial home. He has deposed that his sister was happy for the first 2/3 months. Thereafter the opposite party and other family members of the opposite party started to create pressure on his sister to bring more money from his father. He has stated that several attempts were made to solve the problem. From his examination-in-chief it also comes out that one document was prepared to settle the matrimonial dispute between the petitioner and the opposite party. In his cross-examination PW-4 has deposed that the marriage of his Sister were solemnized in the year 1987 and one Mahabir Pandey and Sarju Thakur acted as priest and barber at the time of solemnization of the said marriage. PW-4 also stated the names of their relative and other persons who were present in the said marriage as invitees. Several questions were put to PW-4 during his cross-examination regarding the essential ceremonies of the marriage prevailing in their community. PW-4 was subjected to cross-examination regarding the contents as well as preparation of the document for settlement of the matrimonial dispute between the parties. 16. Pw-5 deposed in support of observations of Tilak ceremony in connection with the marriage between the parties. 17. One Diblal Thakur (PW-6) has deposed in support of execution of the document by the father of the opposite party. From his deposition it comes out that the father of the opposite party/husband signed on the document in the form of an undertaking in presence of PW-6. In his written objection opposite party has averred that the father of the petitioner gave a proposal of marriage of his daughter with him to his father. From his deposition it comes out that the father of the opposite party/husband signed on the document in the form of an undertaking in presence of PW-6. In his written objection opposite party has averred that the father of the petitioner gave a proposal of marriage of his daughter with him to his father. It has also been mentioned in the written objection that the said proposal was refused by the father of the opposite party on the ground the petitioner was minor at the relevant point of time. A specific question was asked to PW-6 during his cross-examination whether there was any custom in their society for giving marriage of the minor in the year 1987 and in reply to that question PW-6 has stated that minor marriage was accepted in their community. The evidence of the petitioner that her marriage was solemnized with the opposite party has been corroborated by other witnesses viz. PW-7, 8, & 9. The father of the petitioner that is PW-10 has also corroborated the evidence of PW-1 regarding her marriage with the opposite party. 18. Opw-1 is the opposite party. He has deposed that he was born in the year 1971 and he joined service in the year 1999. In his examination-in-chief OPW-1 stated that in the year 1994 he married one Baby Devi in accordance with Hindu Rites and Ceremony and three children were born out of his wedlock with Baby Devi. 19. Opw-2 has deposed that he was present at the time of marriage of opposite party Rajesh Ram with Baby Devi. He has stated that he had never heard any incident that the petitioner Mamta Devi used to reside in the residence of Rajesh Ram. OPW-3 is one of the neighbours of opposite party. He has deposed that the opposite party married and has three children. 20. It has been specifically contended on behalf of the opposite party/husband that he never married to the petitioner and he married one Baby Devi. He has three children out of his wedlock with Baby Devi. The next contention of the Learned Counsel for the opposite party/husband is that the date of alleged marriage was shown in the year 1987 and at the relevant point of time the petitioner and the opposite party were minor and as such the question of valid marriage between the parties does not arise. The next contention of the Learned Counsel for the opposite party/husband is that the date of alleged marriage was shown in the year 1987 and at the relevant point of time the petitioner and the opposite party were minor and as such the question of valid marriage between the parties does not arise. In her application under Section 125 of the Code of Criminal Procedure of the petitioner/wife has claimed that her marriage was solemnized with the opposite party/husband in accordance with Hindu Rites and Customs prevailing to their community. It has been specifically claimed by the petitioner in her application for maintenance that her marriage with the opposite party was solemnized in the year 1987. From the evidence of witnesses produced by the petitioner/wife before the Learned Magistrate it appears that there was matrimonial dispute between the petitioner and her husband. A settlement arrived at by the opposite party/husband and his father. In his evidence opposite party/husband has tried to prove his marriage with one Baby Devi in the year 1994. In this connection Learned Counsel for the opposite party/husband has contended that it is an admitted fact that Baby Devi is the wife of the opposite party. It is true that in her application for maintenance the petitioner has stated that the opposite party married one Baby Devi but this does not ipso facto prove that no marriage was solemnized between the petitioner/wife and the opposite party/husband. The evidence adduced by the petitioner for maintenance is sufficient to draw an inference regarding the solemnization of her marriage with the opposite party and that marriage was taken place in the year 1987 i.e. prior to the marriage of opposite party with Baby Devi. 21. Admittedly parties to the marriage are Hindus. A plea has been raised by the opposite party/husband that the alleged marriage took place between two minor and as such it has no legal force and binding effect. I respectively disagree with the view expressed by the Learned Counsel for the opposite party/husband. According to Hindu marriage Act (as amended) the age for marriage of the bride is 18 years and the bride-groom is 21 years of age. If the parties to the marriage are minor at the time of solemnization of the marriage then the consent of their guardian is necessary. According to Hindu marriage Act (as amended) the age for marriage of the bride is 18 years and the bride-groom is 21 years of age. If the parties to the marriage are minor at the time of solemnization of the marriage then the consent of their guardian is necessary. Abusing of consent of the parties or the guardians of the bride does not render the marriage void or even voidable if otherwise it was duly solemnized and other conditions of marriage were fulfilled. The marriage may be annulled by a decree nullity under Section 12(1)(c) on the ground of the consent of the petitioner spouse or the guardian in marriage of the petitioner was obtained by force or fraud. If any Hindu marriage is solemnized between the parties in contravention of the requirement as to the age of the parties as specified in the Act is not void or even voidable but the violation of the condition is punishable as an offence in future under Section 18 of the Act. In the instant case the opposite party/husband of the maintenance case has denied the solemnization of the marriage with the petitioner I have already observed that the petitioner has succeeded in proving her marriage. The plea that the marriage between the parties is a nullity on the ground of minority of the parties has no legal basis at all. 22. In view of the discussion and observations made above, I do not find any reason of interfere with the observations made by the Learned Magistrate regarding the marriage between the parties. The Learned Magistrate has rightly observed that the petitioner is the legally married wife of the opposite party and the marriage of the petitioner was solemnized with opposite party prior to his marriage with one Baby Devi. In her revisional application being CRR 3758 of 2013 the petitioner has prayed for enhancement of the quantum of maintenance and on the other hand the petitioner of CRR 41 of 2014 prayed for setting aside the order impugned passed by the Learned Magistrate. I have already observed that the Learned Magistrate after analyzing the evidence on record has come to a definite finding that the petitioner is the legally married wife of the opposite party/husband and the said marriage was solemnized in the year 1987. 23. I have already observed that the Learned Magistrate after analyzing the evidence on record has come to a definite finding that the petitioner is the legally married wife of the opposite party/husband and the said marriage was solemnized in the year 1987. 23. From the evidence of witnesses as produced by the petitioner/wife it transpires that the petitioner is residing separately from her husband. From the evidence of the brother of the petitioner and other witnesses namely PW-6, 7, 8 & 9 it has been established that though the marriage between the parties was solemnized in accordance with Hindu Rites and Ceremonies but the opposite party/husband tried to evade the said marriage on various pretext. The materials on record also indicate that the opposite party married another lady after his marriage with the petitioner Mamta Devi. The conduct of the opposite party clearly indicates that he is neglecting to maintain his legally married wife. The petitioner/wife is entitled to get maintenance. Regarding quantum of maintenance the Learned Magistrate has granted maintenance to the wife at the rate of Rs.40/- per day i.e. of Rs.1200/- per month. The Learned Magistrate has considered that the amount of Rs.1200/- per month would be just and sufficient amount for the maintenance of the wife. The order of maintenance was passed in the year 2013. The wife knocked at the door of justice for getting maintenance in the year 2001 and claimed maintenance at the rate of Rs.2000/- per month as the opposite party/husband is an employee of Railway. The quantum of maintenance as assessed by the Learned Magistrate requires to be modified considering the fact that Rs.40 per day is too meagre for the maintenance of a human being. I think that the justice would be subserved if the opposite party/husband is directed to pay maintenance at the rate of Rs.2000/- per month instead of Rs.1200/- per month to the wife. Accordingly, the opposite party/husband is directed to pay maintenance to the petitioner/wife at the rate of Rs.2000/- per month from the date of filing of the application for maintenance i.e. on and from June 25, 2001. As a result, the Revisional Application being CRR No.41 of 2014 is dismissed and the Revisional Application being CRR No.3758 of 2013 is allowed. 24. Both the Revisional Applications are disposed of accordingly. 25. As a result, the Revisional Application being CRR No.41 of 2014 is dismissed and the Revisional Application being CRR No.3758 of 2013 is allowed. 24. Both the Revisional Applications are disposed of accordingly. 25. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, upon compliance with all necessary formalities.