The High Court of Calcutta, while dismissing a petition filed challenging the judgment and order dated 31.05.2014 passed by Ld. Judicial Magistrate wherein Ld. Magistrate directed the husband/petitioner herein to pay maintenance allowance to the tune of Rs. 4000/- per month in favour of the wife/opposite party, held that if there is a reasonable presumption of marriage based on cohabitation, then maintenance can be awarded without delving into the legality of the said marriage.
Brief Facts:
The opposite party is a legally married wife of the petitioner herein. After marriage, the petitioner used to reside with the opposite party/wife in the house which was gifted to the petitioner by his grandmother. The petitioner used to return late at night and even inflict physical torture upon the opposite party/wife. Even after such torture the opposite party tried to reconcile with her husband/petitioner but to no avail. The Ld. Magistrate granted maintenance allowance to the tune of Rs. 4,000/- per month in favour of the opposite party from the date of Order to that effect. Hence, the present petition.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that there is no documentary proof of the marriage and also no photographs of the said occasion or any proof of the parties cohabiting together as husband and wife furnished by the opposite party/wife. He argued that there were contradictions in the testimony of the witnesses and the whole story regarding the purported marriage was made up by the opposite party to extract money.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent submitted that the factum of marriage, including the date and place, were duly proved beyond any reasonable doubt through corroborative supporting evidence. He argued that even if a person marries for the second time by suppressing his earlier marriage and cohabits with the lady, it is inconsequential with regard to whether he is previously married or not.
Observations of the Court:
The court noted that the petitioner argued that the opposite party was not his wife as he was already married to someone else. This does not dissuade the opposite party from claiming her right to maintenance under Section 125 of CrPC.
The Court observed that even if a person married for the second time by suppressing his earlier marriage and is cohabiting with the lady, it is inconsequential whether he was previously married or not. The Court said that there is nothing that might compel this Court to question the veracity of the testimony provided by PW3 especially who is a law Clerk by profession. In an application for maintenance under Section 125 of CrPC, the validity of marriage does not need to be conclusively determined. If there is a reasonable presumption of marriage based on cohabitation, then maintenance can be awarded without delving into the legality of the said marriage.
The decision of the Court:
The Calcutta High Court, dismissing the petition, held that there is no scope to interfere with the order impugned.
Case Title: Palash Das v Smt. Keya Ganguli
Coram: Hon’ble Justice Bibhas Ranjan De
Case No.: CRR 18 of 2015
Advocate for the Petitioner: Mr. Karan Bapuli
Advocate for the Respondent: Mr. Apalak Basu
Read Judgment @LatestLaws.com
