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Lakhi Hazra-vs-Gopal Hazra on 8 August, 2001

Calcutta High Court Lakhi Hazra-vs-Gopal Hazra on 8 August, 2001
Equivalent citations:II (2002) DMC 795
Author: D Sengupta
Bench: D Sengupta

JUDGMENT

Debiprasad Sengupta, J.

1. This revisional application is against a judgment and order dated 30.9.1992 passed by the learned Sub-Divisional Judicial Magistrate, Ghatal, Midnapore in Misc Case No. 58/1990 thereby dismissing the petition filed on behalf of the petitioner/wife and her minor daughter under Section 125 of the Code of Criminal Procedure.

2. The present petitioner filed an application under Section 125 of the Code of Criminal Procedure before the learned Magistrate claiming maintenance for herself and her minor daughter. In the said application it was stated that on 24th Baisakh 1386 the petitioner got married with the opposite party according to Hindu rites and customs. Some time after marriage she was subjected to torture and ill-treatment by her husband and in-laws both mentally and physically and finally she was driven out of her matrimonial home by the parents of the opposite party along with her minor daughter. She was compelled to take shelter in her father’s house. It was also stated that the opposite party/husband having sufficient means to maintain his wife, refused and neglected to maintain the petitioner and her daughter.

3. The opposite party/husband appeared and contested the said proceeding under Section 125 of the Code of Criminal Procedure by filing written objection against the petitioner under Section 125, Cr.P.C. thereby denying all the allegations made against him. In her objection petition it was specifically stated that there was no valid marriage and as such the present petitioner is not entitled to get any maintenance. It was the case of the opposite party/husband that at the instance of the present petitioner a proposal for marriage was given to the opposite party, which was refused. Subsequently, at the instance of the petitioner there was exchange of garlands in the month of Ashar, 1392 B.S. and that was ultimately disclosed by the present petitioner to her relatives and on that basis the present petitioner used to come to the house of the opposite party/husband and she used to reside there for 5 to 7 days at a time and thereafter used to leave the house of the opposite party/husband. It was the case of the opposite party/husband that he never resided with the present petitioner as husband and wife. The learned Magistrate after taking evidence was of the view that there was no valid marriage between the parties and the present petitioner failed to prove that she is legally married wife of the opposite party/husband and that she ever resided with the opposite party as husband and wife. In such circumstances the learned Magistrate was of the view that the present petitioner is not entitled to get any maintenance from the opposite party/husband and accordingly he dismissed the petition under Section 125, Cr.P.C.

4. The learned Advocate appearing for the petitioner submits that the impugned order suffers from serious illegality inasmuch as there are sufficient evidence in support of the contention of the present petitioner. There are evidence of torture and ill-treatment by the opposite party/husband and other members of his family.

5. I have carefully gone through the impugned order passed by the learned Magistrate and also the entire evidence on record. After going through the evidence on record I find that the present petitioner miserably failed to prove that she was legally married wife of the opposite party/husband. It is true that strict proof of marriage under the Hindu Marriage Act is not necessary in the proceeding under Section 125 of the Code of Criminal Procedure, but there must be some evidences to show that there is a valid marriage between the parties and they resided together as husband and wife. No doubt some of the witnesses have given some vague statements regarding torture and ill-treatment by the husband and in-laws but such allegations could not be substantiated by the petitioner. It appears that on the basis of a complaint lodged by the present petitioner against the opposite party/husband and other in-laws a case was registered with Ghatal Police Station under Sections 498A/120B, I.P.C. The said case ended in acquittal by an order dated 26.11.1999 passed by the Sub-Divisional Judicial Magistrate, Ghatal. From the said judgment it appears that there is absolutely no evidence regarding torture and ill-treatment against the opposite party/husband and other in-laws and accordingly they were acquitted of the charge under Section 498A of Indian Penal Code.

6. Considering the facts and circumstances of this case and in view of the discussion made above I am of the view that the learned Magistrate was justified in dismissing the petition under Section 125 of the Cr.P.C. The learned Magistrate passed the impugned order after considering the evidence on record and on proper application of mind. I do not find any merit in this revisional application and in my opinion this is not a fit case for interference by this Court.

Accordingly the revisional application fails and the same is dismissed.

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