High Court of Gauhati
By, THE HONOURABLE MR. JUSTICE MIR ALFAZ ALI
Crl. Rev. P. No. 183 of 2017
Decided On, 15 February 2018
Mantush Choudhury @ Mantu Choudhury
State of Assam & Another
For the Petitioner: T.H. Hazarika, Advocate.
For the Respondents: S. Jahan, APP,S.K. N. Mohammed, Advocates.
This criminal revision is directed against the judgment and order dated 29.04.2017 passed by the Principal Judge, Family Court No. 1, Guwahati in F.C.(Crl.) No. 17/2016. By the said judgment, the learned Principal Judge, Family Court granted maintenance @ Rs. 7000/- per month in favour of the respondent.
2. The respondent/first party filed an application under section125Criminal Procedure code, 1973 before the Family Court praying for granting maintenance. The respondent/first party stated in her petition that she was in love with the present petitioner for long time. They were also in sexual relationship and the respondent became pregnant through the petitioner. She got her pregnancy terminated by consuming tablet provided by the petitioner. The respondent was insisting the petitioner to marry her, but the petitioner was delaying and postponing the marriage and ultimately decided to marry the respondent and on 25.07.2014 marriage between the petitioner and the respondent was solemnized in the house of the maternal uncle of the respondent. After marriage, they remained for about 18 days in the house of the said maternal uncle of the respondent and thereafter the petitioner left the respondent. The respondent came to know that the petitioner developed elicit relation with another woman and ultimately started avoiding the respondent and did not even take her call. Finding no other way, the respondent filed criminal proceeding under the domestic violence act and also the petition under Section 125 Criminal Procedure Code, 1973 claiming maintenance.
3. The petitioner as second party contested the petition, interalia, on the ground that there was no relationship of husband and wife between the petitioner and the respondent, as no marriage was solemnized between them. According to the respondent, story of marriage was a mere concoction. Both the parties adduced evidence and the learned Family Court on appreciation of evidence adduced by the parties granted maintenance in favour of the respondent as indicated above.
4. Aggrieved by the order passed by the learned Family Court, the petitioner preferred the instant revision petition.
5. I have heard Mr. T.H. Hazarika, learned counsel for the petitioner and Mr. N. Mohammed, learned counsel for the respondent No. 2 as well as Ms. S. Jahan, learned Addl. P.P., Assam for the State.
6. Mr. Hazarika, leaned counsel for the petitioner contended that the petitioner adduced ample evidence showing that there was no marriage, nor there was any relationship of husband and wife between the parties, but the learned Family Court without considering the evidence adduced by the petitioner, granted maintenance and therefore, the impugned judgment and order suffered from the defect of perversity.
7. Par contra, Mr. Mohammed, learned counsel for the respondent No. 2 submitted that the learned Family Court after having considered the evidence adduced by both the parties granted maintenance and as such, this revisional court cannot re-appreciate the evidence. Learned counsel further submitted that the provision of section125Criminal Procedure code, 1973 being a social justice measure, strict proof of marriage is not necessary and that criminal court while deciding a proceeding under Section125Criminal Procedure Code, 1973 cannot question the validity of the marriage nor can decide the validity of the marriage. To buttress the submission Mr. Ahmed, placed reliance on the following decisions:
(i)Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal reported in (1978) 4 SCC 70;
(ii)Dwarika Prasad Satpathy v. Bidyut Prava Dixit reported in AIR 1999 SC 3348
(iii)Balram Yadav v. Fulamaniya Yada reported in AIR 2016 SC 2161
(iv)Smt. Maya Devi v. Jagadish Prasad reported in AIR 2007 SC 1426
(v)Shanta @ Usha Devi v. B.G. Shivananjappa reported in (2005) 4 SCC 468
(vi)Bakulbai v. Gangaram reported in (1988) 1 SCC 537.
8. From the rival submissions, the sole question fallen for consideration is, whether there was marital relationship between the petitioner and the respondent or in other words whether the finding of the learned Trial Court with regard to the marital relationship between the parties was perverse.
9. Before adverting to the submission of the parties, let me have a quick look at the authorities cited by the learned counsel for the respondent.
10. The Apex Court in Dwarika Prasad Satpathy (supra) held that in a proceeding under section 125 Criminal Procedure code, 1973 it is not necessary to prove the performance of essential ceremonies of marriage. It is sufficient if the claimant prima facie shows that she and the respondent had been living together as husband and wife and strict proof of marriage is not necessary.
11. In Shantha @ Usha Devi (supra) dealing with the question of limitation for filing petition for payment of arrear maintenance under section125(3) Criminal Procedure code, 1973 the Apex Court held that “section 125 Criminal Procedure code, 1973 is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter.
12. The Apex Court in Captain Ramesh Chander Kaushal (supra) observed that the provision of section 125 Criminal Procedure code, 1973 is a measure of social justice specially enacted to protect the woman and children and therefore, out of two alternative interpretation, which advances the cause the derelicts, should be adopted.ÿÿ13. The ratio laid down by the Apex Court inSmt. Maya Devi v. Jagadish Prasad(supra) was that the concept of proof beyond reasonable doubt should not be applied in matrimonial dispute.
14. The common thread passing through all these above authorities is that in view of social object of the legislation, in a proceeding under section 125 Criminal Procedure Code, 1973 court should adopt a liberal interpretation which sub-save the cause of derelicts and should not look for strict proof of marriage.
15. In Bakulbai v. Gangaram(supra), the Apex Court held that if the order does not suffer from any error of law finding of the Magistrate on disputed question of fact recorded after full consideration of evidence should not be disturbed by the revisional court.
16. There is no quarrel with regard to scope and contour of power of the revisional court. It is no doubt true that usually, the revisional court is not supposed to re-appreciate the evidence and dislodge the finding of fact recorded by the original court and even if two views are possible, the revisional court should not replace the view of the trial court by its own view. Unless the judgment or order suffers from manifest illegality causing miscarriage of justice, revisional court should be slow in interfering with the factual findings of the court below. Nonetheless, if the judgment or order suffers from perversity or learned Trial Court fails to take into account the material evidence or the impugned judgment appears to be against the weight of the evidence, resulting in miscarriage of justice, obviously the revisional court has the power to interfere or correct such defect to secure the ends of justice. Hon’ble Supreme Court inSanjaysinh Ramrao Chavan v. Dattratray Gulabrao Phalke reported in (2015) 3 SCC 123dealing with the scope of interference by a revisional court observed that – unless the finding of the court whose decision is sought to be revised, is shown to be perverse or untenable in law, or is grossly erroneous or glaringly unreasonable, or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously the revisional court may not interfere with the decision.
17. It is no doubt true, that in a proceeding under section 125 Criminal Procedure code, 1973 if it can be established that parties were living together as husband and wife for long time and they were recognized by society as husband and wife, it may not be necessary to prove the marriage strictly by the standard required in other criminal proceeding. However, it is to be borne in mind that there can be two situations, – firstly where parties were living together as husband and wife for long time and society also recognized them as such; in such situation the criminal court while considering grant of maintenance under section 125 Criminal Procedure code, 1973 can presume the existence of marital relationship between them without looking for strict proof of marriage in view of the fact that provision of section 125 Criminal Procedure code, 1973 is a measure of social justice intended for the welfare and benefit of the wife and children. Secondly, there may be another situation, where party did not reside as husband and wife nor they were recognized as husband and wife by the society and the petition is filed claiming maintenance on the basis of solitary averment, that they got married on a particular date and time and immediately thereafter they were separated and thereafter claims maintenance on the plea that there was marriage between the parties and such marriage is denied by other party. In such situation, when there is no other materials or facts capable of giving rise to a presumption of marital relationship between the parties and the claim is based solely on the averment that marriage was solemnized on a particular date, the court is certainly obliged to look into the evidence and materials brought on record to ascertain in the touchstone of preponderance of probability, that there was marital relationship or marriage took place, inasmuch as, such relationship is the basis for granting maintenance under section 125 Criminal Procedure code, 1973. It may not be necessary to prove the marriage by adducing evidence with regard to observance of all essential ceremonies and rituals, but some evidence is certainly necessary to establish, that marriage really had taken place in any manner or form or to show that the parties were living as husband and wife. In absence of such materials and finding that there was relationship of marriage between the parties, court cannot granted maintenance under section 125 Criminal Procedure code, 1973 on mere asking.
18. The present case fall in the second category. As alleged by the respondent, the petitioner and respondent were in love and physical relationship for long time and the petitioner was avoiding marriage and ultimately on a particular date, marriage was solemnized and immediately thereafter, the parties got separated. But such marriage as well as relationship has been denied by the petitioner. In support of the marriage between the parties, PW-1, the respondent herself stated that on 25.07.2014, marriage was solemnized in the house of her maternal uncle in presence of PW-2, PW-3 and PW-4. She also stated that after marriage, they lived in the house of the said maternal uncle for two weeks and thereafter the petitioner had left her in her parent’s house and went to his place of posting. In cross examination, she failed to state anything as to who was priest in the marriage, what was the amount of dower, who was the witnesses etc.
19. PW-2, mother of the respondent, PW-3 & 4 maternal aunt and uncle of the respondent respectively and PW-5 one Mojammil stated that marriage was solemnized on 25.07.2014 in the house of PW-3 & 4. According to PW5, few people were present in the marriage, whereas according to PW-1, PW-2, PW-3 and PW-4 except themselves, no other person was present in the marriage, which was solemnized at 4 PM on 25.07.2014. PW-2, mother of the respondent and PW-3, maternal aunt, stated categorically that marriage was solemnized at 4 PM on 25.07.2014. Although, PW-3 stated that after the marriage, the mother of the respondent went to the house of the petitioner with the petitioner and the respondent, but the member of the family of the petitioner did not accept them, no other witness stated that the petitioner and the respondent were taken to the house of the petitioner by the respondent No. 3. All the witnesses of the respondent stated that after the marriage, the petitioner and respondent stayed 15 days in the house of PW-3 & PW-4 being maternal aunt and uncle and thereafter the petitioner left for his job.
20. The petitioner examined seven witnesses including himself in support of his plea that no marriage, in fact, was solemnized between them. The petitioner himself examining as DW-1 stated, that on 25.07.2014, he was appearing B.A. examination under Krishna Kanta Handique State Open University (KKHSOU) and examination time was from 1.30 PM to 4.30 PM. He further stated that on 27.07.2014 also i.e. after one day, he appeared another paper. According to him since he was appearing in the examination on 25.07.2014 from 1.30 PM to 4.30 PM and he had another paper on 27.07.2014, immediately after the examination was over, he came home. In support of his plea that he was appearing in the examination on 25.07.2014, he proved Ext.A, a certificate issued by the coordinator of KKHSOU; Ext.b, registration certificate; Ext.C, admit card; Ext.D, marksheet.
21. DW-3, a fellow examinee, stated that she appeared in B.A. examination under KKHSOU from 15.07.2014 to 27.07.2014 and she also proved her admit card as Ext.F and mark sheet Ext.G, showing that she appeared B.A. examination from 15.07.2014 to 27.07.2014.
22. DW-7 stated that he was lecturer-cum-coordinator of KKHSOU for Baihata Chariali centre. According to him, the petitioner appeared in the examination on 27.07.2014. He also proved the certificate Ext.A issued by him. According to him, on 25.07.2014 and 27.07.2014, there were examination for Political Science 4th and 5th paper and the petitioner appeared in both the examination. He also stated that as per routine, examination time was from 1:30 PM to 4:30 PM. This witness also endorsed the Ext.B registration certificate; Ext. C, admit card; Ext.D, marksheet of the petitioner. He further stated that examinees were not allowed to leave examination hall during the first one hour of the examination.
23. The documentary evidences, being Ext.A, Ext.B, Ext.C & Ext.D remained uncontroverted. Ext.A the certificate issued by the course coordinator of KKHSOU shows, that the petitioner was pursuing three years B.A. course under the KKHSOU and he was appearing examination, held from 15.07.2014 to 27.07.2014. Ext.B, registration certificate shows that the petitioner was registered with the University and the admit card, Ext.C shows that time of examination for full paper was from 1:30 PM to 4:30 PM and the examination was scheduled from 15.07.2014 to 27.07.2014. Ext.D, marksheet shows that the petitioner appeared in the said examination and also passed by securing more than 50% marks. Thus, the uncontroverted documentary evidence Ext.A, Ext.B, Ext.C & Ext.D and the testimony of DW-3 & DW-7 clearly established that the petitioner appeared B.A. examination on 25.07.2014 from 1:30 PM to 4:30 PM. Ext.D marksheet showing that the petitioner obtained more than 50% marks in the examination, clearly suggested that one could not secure more than 50% marks in the examination without appearing and attending the examination for full time. Thus, the uncontroverted documentary evidences Ext.A, Ext.B, Ext.C & Ext.D and the evidence of DW-3 & DW-7 reinforced the claim of the petitioner that on 25.04.2014, he was appearing in the examination from 1:30 PM to 4:30 PM and this fact, is found to have rendered the claim of the respondent that marriage was solemnized between them at 4:00 PM on 25.07.2014 highly improbable and absurd.
24. While granting maintenance in favour of the respondent holding that no strict proof of marriage was required in a proceeding under section 125 Criminal Procedure code, 1973 learned Trial Court appears to have totally ignored the vital evidence adduced by the petitioner side which rendered the version of the respondent that marriage was solemnized on 25.07.2014 at 4:00 PM totally improbable and absurd. In the face of the above evidence, the finding of the learned Trial Court that there is relationship of husband and wife between the parties appears to be perverse and against the weight of the evidence. Evidently, it was not a case where the parties were living together for considerable time as husband and wife or they were recognized by society as husband and wife. When the maintenance petition was based on the claim that there was marriage on a particular day and admittedly they did not live as husband and wife and the factum of marriage as claimed by the respondent, having found improbable and absurd negating any marital relationship between the parties, no maintenance could be granted under section 125 Criminal Procedure code, 1973. Although, learned Trial Court dedicated half of the judgment discussing essentials of Muslim marriage, the material evidence adduced by the petitioner rendering the claim of marriage by the respondent improbable, escaped the notice of the learned Trial Court. In view of the clear evidence of the DW-1, DW-3 & DW-7 supported by uncontroverted documentary evidence, I have no hesitation to hold that the findings of the learned Trial Court with regard to marital relationship between the parties was perverse and the learned Trial Court fell in error while deciding that there was relationship of marriage between the parties on the spacious argument that no strict proof of marriage is required for a proceeding under section 125 Criminal Procedure code, 1973 ignoring the material evidence on record. It is to be borne in mind that liberal interpretation of the social welfare legislation is necessary to further the object of the legislation and not to dilute the same.
25. From the nature of controversy involved in the instant case, decision of Balram Yadav v. Fulmaniya Yadav(supra) appears to be misplaced as question of validity of marriage was not at all the issue in the instant case. Issue involved here was whether there was marriage at all or relationship of husband and wife. The finding of the learned Trial Court with regard to marriage and relationship between the parties being perverse and against the weight of evidence, such findings certainly deserves to be interfered.
26. For the reasons stated above, I find merit in the revision petition and accordingly, the revision petition is allowed and the impugned order is set aside.
27. Send down the LCR.