Calcutta High Court (Appellete Side)
Palash Das vs Smt. Keya Ganguli on 4 September, 2024
1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
CRR 18 of 2015
with
CRAN 7 of 2024
Palash Das
Vs.
Smt. Keya Ganguli
For the petitioner :Mr. Karan Bapuli, Adv.
For the Opposite party :Mr. Apalak Basu, Adv.
Mr. Amrita Sinha, Adv.
Heard On : :29.04.2024, 16.05.2024,
19.06.2024, 25.06.2024,
03.07.2024
Judgment On : :04.09.2024
Bibhas Ranjan De, J. :
1. Challenge in this revision application is the judgement and
order dated 31.05.2014 passed by Ld. Judicial Magistrate, 1 st
Court, Bolepur, Birbhum in connection with Misc. Case No.
227 of 2008 wherein Ld. Magistrate directed the
husband/petitioner herein to pay maintenance allowance to
the tune of Rs. 4000/- per month in favour of wife/opposite
party herein.
Backdrop:-
2. The facts leading to the application made under Section 125 of
the Code of Criminal Procedure (for short Cr.P.C.) with a
prayer for maintenance, is that the opposite party is a legally
married wife of the petitioner herein. The marriage was
solemnized on 6 Aswin, 1415 at Tarapith Mandir as per Hindu
Rites and Customs, in presence of mother of the petitioner,
Gopinath Bhandari, Joydeb Das & Nirmal Dey. After marriage,
the petitioner/husband herein used to reside with the opposite
party/wife in the house situated at Hetampur which was gifted
to the petitioner by his grandmother. After demise of his
grandmother the parents of the petitioner used to leave with
them in Hetampur. But soon after, the petitioner used to
return late at night and even inflict physical torture upon the
opposite party/wife. Even the mother of the petitioner used to
threaten the opposite party over phone to withdraw herself
from the life of the petitioner otherwise she would face dire
consequences. She even forced the opposite party to bring Rs.
1 lac from her paternal home so that it can be used by the
petitioner/ husband for his business. It is further alleged that
the quantum of torture increased severely and finally she was
driven out from her matrimonial home in a single wearing
apparel. Even after such torture the opposite party tried to
reconcile with her husband/petitioner but to no avail. As per
the claim of the opposite party/wife, she was unable to
maintain herself and she was under the charity of her parents
and therefore the aforesaid case was filed by the opposite
party/wife.
Observation of the Trial Court:-
3. Ld. Magistrate after evaluation of the evidence adduced by the
parties recorded her decision that both the parties to the
application under Section 125 of the Cr.P.C. lived together
after marriage at Tarapith at the matrimonial home of the
opposite party/wife herein and after careful perusal of the
statement of available witnesses it has been well established
that there was marriage and co-habitation between the
parties. Even though in an application under Section 125 of
the CrPC strict proof of marriage is not required in order to
allow maintenance if the parties have lived together and co-
habitated with each other. In addition to that the opposite
party herein has been able to well establish the fact that she
was subjected to physical torture and eventually she was
driven out from her matrimonial home and thereafter the
petitioner neglected and refused to maintain his wife/opposite
party herein. In the light of the aforesaid observation 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.
Arguments Advanced:-
4. Ld. Counsel, Mr. Karan Bapuli, appearing on behalf of the
petitioner has mainly canvassed his argument on the veracity
of the factum of marriage or cohabitation. Mr. Bapuli has
contended 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 is
furnished by the opposite party/wife herein. In addition to
that, contradictions in the testimony of the witnesses has been
highlighted by Mr. Bapuli in order to strengthen his case that
the whole story regarding the purported marriage has been
made up by the opposite party/wife in order to extract money
from the petitioner. In support of his contention, he has
further added that no testimony of any independent witness
has been adduced in this case in order to corroborate the
factum of marriage or cohabitation by and between the
parties. Mr. Bapuli has even contended that Ld. Advocate
appearing on behalf of the opposite party/wife in the Court
below has caused law clerks to depose as witnesses to the
purported marriage.
5. Before parting with, Mr. Bapuli has argued that the opposite
party has been previously married and no document with
regard to her divorce with her previous husband has been
placed in order to identify the exact date of the divorce which
culminates to the position that whether the opposite party's
previous marriage was duly terminated or not is not
conclusively established. Moreso, the petitioner in his
deposition has stated that he is already married with another
lady and supporting evidence has been adduced in order to
proof his existing marriage. So, the opposite party/wife by no
means can claim maintenance as she is not the wife of the
petitioner.
6. In support of his contention, Mr. Bapuli has taken assistance
of the following cases:-
Lakhi Hazra Wife of Gopal Hazra vs. Gopal Hazra son
of Shyam Charan Hazra reported in 2000 SCC OnLine
Cal 334
Mantush Choudhury @ Mantu Choudhury vs. State of
Assam and anr. reported in (2018) 3 Gauhati Law
Reports 365
7. On the contrary, Ld. Counsel, Mr. Apalak Basu, appearing on
behalf of the opposite party has refuted all the allegations put
forth by the Ld. Counsel appearing on behalf of the petitioner
and has contended that the factum of marriage including date,
place of the same has been duly proved beyond any reasonable
doubt through corroborative supporting evidence. In addition
to that Mr. Basu has also added that cohabitation by and
between the parties can easily be assessed through the
testimony of the witnesses and also the available cogent
evidence.
8. Before parting with, Mr. Basu in reply to the claim of the
petitioner regarding his existing marriage with another lady
has submitted that this is only an attempt by the petitioner to
dissuade the opposite party from her legitimate claim of
maintenance. Even if, the story of the petitioner is to be
considered as gospel truth then also it is no more res integra
that even if a person marries for the second time by
suppressing his earlier marriage and cohabits with the lady is
inconsequential with regard to whether he is previously
married or not. By relying on the various judgments of the
Hon'ble Apex Court, Mr. Basu has contended that the legality
of the marriage cannot be the sole subject matter of an
application for maintenance under Section 125 of CrPC as
litigating circumstances to prima facie proof cohabitation of a
couple as husband and wife is sufficient to grant relief to the
aggrieved. Therefore, he has duly supported the impugned
judgment and order passed by the Ld. Magistrate and has
concluded that there is no scope for any interference with the
said order as it suffers from no illegality or infirmity.
9. In support of his contention, Ld. Counsel has relied on the
following the judgments which stands as follows:-
Chanmuniya vs. Virendra Kumar Singh Kushwaha and
another reported in (2011) 1 SCC 141
Kamala and others vs. M. R. Mohan Kumar reported in
(2019) 11 SCC 491
Badshah vs. Urmila Badshah Godse and another
reported in (2014) 1 SCC 188
Rajnesh vs. Neha and another reported in (2021) 2 SCC
Analysis:-
10. Before delving into the merit of the case, I think it would
be profitable to discuss the cases relied on behalf of the
parties in order to get a more clear idea about their main
respective contentions.
In the case of Lakhi Hazra (supra) this Hon'ble Court
observed that even though in a proceeding under Section
125 of the CPC strict proof of marriage is not required but
there must be some evidence to show that there was a valid
marriage between the parties and that they resided together
as husband and wife.
In Mantush Choudhury (supra) Hon'ble Gouhati High
Court held that the Court is certainly obliged to look into
the evidence and materials brought on record to ascertain
in the touch stone of preponderance of probability, that
there was marital relationship or marriage took place
between the parties as this is the main basis for grant of
maintenance under Section 125 of the CrPC. It was further
held that to proof such marriage there is no necessity to
adduce evidence with regard to observance of all essential
ceremonies and rituals, but some evidence is certainly
necessary in order to show that marriage actually took
place or the fact that the parties were living as husband and
wife. In absence of such materials court cannot grant
maintenance under Section 125 of CrPC on mere asking.
In the case of Chanmuniya (supra) Hon'ble Apex Court
has defined the term wife and extensively dealt with the
rights of a wife to maintenance so as to include those
women within the definition who cohabitate with another
man as husband and wife and held that the question of
validity of marriage is not of primary importance in
determining the cases under Section 125 of the CrPC and
they are also entitled to maintenance.
In Kamala (supra) Hon'ble Supreme Court has extensively
dealt with the effects of cohabitation with the woman as
husband and wife and the rights accrue therefrom in favour
of the woman. It was further held that standard of proof of
marriage in a Section 125 CrPC proceeding is not as strict
as is required in a trial for an offence under Section 494 of
the IPC.
In the case of Badshah (supra) Hon'ble Apex Court while
dealing with the right of maintenance of a second wife from
her husband held that even if the husband is already
married, if he duped the wife by suppressing the factum of
alleged first marriage then he cannot be permitted to deny
the benefit of maintenance to the wife by taking advantage
of his own wrong.
In Rajnesh (supra) the Hon'ble Supreme Court held that
even though a judicial discretion is conferred upon the
Court to grant maintenance either from the date of
application or from the date of order, it would be
appropriate to grant maintenance from the date of
application in all cases including Section 125 CrPC as there
is significant delay in disposal of the applications for interim
maintenance for years on end therefore in the interests of
justice and fair play, maintenance usually should be
awarded on the date of application.
11. In my humble opinion a thorough review of the evidence,
in spite of few immaterial contradictions, presented by the
witnesses reveals that marriage occurred on 6th Aswin, 1415
B.S. at Tarapith as per Hindu Law and they resided together
as husband and wife which has been unequivocally
corroborated by the evidence provided by PW1, 3,4 & 5. In
addition to the date and place of marriage another cogent
evidence has been adduced which solidifies the claim of the
PW1 that both the parties resided at Hetampur as husband
and wife after solemnization of their marriage at Tarapith.
These facts have been duly supported by the evidence by the
PW 3,4 & 5.
12. Now coming to the argument raised by the
petitioner/husband that the opposite party was not his wife as
he is already married to someone else does not dissuade the
opposite party from claiming her right to maintenance under
Section 125 of CrPC as it is no more res integra that even if a
person married for the second time by suppressing his earlier
marriage and cohabits with the lady, it is inconsequential
whether he was previously married or not as held by the
Hon'ble Apex Court in the case of Badshah (supra).
13. Now coming to the cases relied on behalf of the
petitioner, I am unable to connect the dots between the factual
matrix of the cases relied on with the matter at hand. In
Lakhi Hazra (supra) the Ld. Trial Judge after consideration of
relevant facts came to a conclusion that no valid marriage had
taken place between the parties whereas in the case at hand
there is no such finding of the Ld. Trial Court. On the
contrary, Ld. Judge has ordered grant of interim maintenance.
14. Now coming to the case of Mantush Choudhury (supra)
it was admitted position of fact that parties to that case never
lived as husband and wife and Court held that the claim of the
respondent relating to the factum of marriage was found
improbable and absurd. But in the instant case not only the
marriage but also cohabitation between the parties has been
substantiated with evidence.
15. With regard to evidence adduced by PW2 & 3 it was
submitted that they were tutored witnesses but both the
witnesses were tested through cross examination and nowhere
in their evidence it surfaced that they were directly related to
the Ld. Advocate appearing before the Trial Court or the
opposite party herein. Therefore, I find nothing which might
compel this Court to question the veracity of the testimony
provided by PW3 especially who is a law Clerk by profession.
16. In view of the findings of the Hon'ble Apex Court, in an
application for maintenance under Section 125 of CrPC the
validity of marriage does not need to be conclusively
determined. If there is reasonable presumption of marriage
based on cohabitation then maintenance can be awarded
without delving into the legality of the said marriage.
17. In appreciation of evidence in a case under Section 125 of
the CrPC, I am of the opinion that the principle of
'preponderance of probability' can be applied instead of 'proof
beyond reasonable doubt'.
18. It is settled proposition of law that the object behind
providing maintenance, to a spouse is to the effect that the
spouse can maintain herself or himself and not unduly suffer
for want of funds. A spouse unable to maintain himself or
herself is entitled to maintenance on the principle of
equistatus and respect that the spouse would have enjoyed if
he /she continued to live with the other spouse. While,
determining the amount of maintenance the court has to
necessarily arrive at the prima facie determination about the
earning capacity of the rival claimants. The determination
cannot be made with exactitude. The provisions are only
beneficent in nature and the power is exercised by the Court
not only out of compassion but also by way of judicial duty so
that the indigent spouse may not suffer at the instance of the
affluent spouse.
19. The purpose of paying maintenance is mainly two folds-
First to prevent vagrancy as a result of strained husband-
wife relationships and
To guarantee that the poor litigating spouse is not crippled
as a result of a lack of funds to live a dignified life.
20. Regard being had to the above, I find no scope to
interfere with order impugned save and except the date from
which the order of maintenance is to be effected. The law
regarding payment of maintenance from the date of
application itself has been further crystallized by the Hon'ble
Apex Court in the case of Rajnesh (supra) which has been
duly discussed above.
21. Given facts and circumstances, I am of the opinion that
the wife/ opposite party herein is entitled to quantum of
maintenance decided by the Ld. Trial Court from the date of
filing of the application under Section 125 of the CrPC.
22. In the light of the aforesaid discussion, the revision
application being no. CRR 18 of 2015 stands dismissed.
23. Interim order, if there be any, stands vacated.
24. Trial Court Record be transmitted back immediately.
25. Connected applications, if there be any, stand disposed
of accordingly.
26. All parties to this revision application shall act on the
server copy of this order downloaded from the official website
of this Court.
27. Urgent Photostat certified copy of this order, if applied
for, be supplied to the parties upon compliance with all
requisite formalities.
[BIBHAS RANJAN DE, J.]
