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Smt. Mamta Devi vs Shri Rajesh Ram @ Rajesh Kumar & Anr on 6 March, 2020

Form No.J(1)

IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction

Present:

The Hon’ble Justice Madhumati Mitra

C.R.R. No. 3758 of 2013
With
C.R.R. No. 41 of 2014

Smt. Mamta Devi
-Versus-
Shri Rajesh Ram @ Rajesh Kumar Anr.

With
Shri Rajesh Ram @ Rajesh Kumar
-Versus-
Smt. Mamta Devi

Advocate for the Petitioner : Ms. Pratima Misra,
Ms. Sumitra Datta Purkayastha

Advocate for the Opposite Party : Mr. Abhra Mukherjee,
Ms. Anita Kundu,
Mr. Sauradeep Dutta.

Judgment on : 06.03.2020

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.

For the sake of convenience both the revisional applications have been

heard together.

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.

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.

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. 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.

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.

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.

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.

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.

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.

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 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 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.”

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.

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 applicaton 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. 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.

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. PW-2 and PW-3 were subjected to cross-examine but in spite of their

cross-examination their evidence remains unshaken.

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.

PW-5 deposed in support of observations of Tilak ceremony in connection

with the marriage between the parties.

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. 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.

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.

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.

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. 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.

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. 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.

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.

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.

Both the Revisional Applications are disposed of accordingly.

Urgent Photostat certified copy of this judgment, if applied for, be given to

the parties, upon compliance with all necessary formalities.

(Madhumati Mitra, J.)

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