Crl.Pet./556/2020
2022 Latest Caselaw 4809 Gua

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GAHC010157642020




                           THE GAUHATI HIGH COURT AT GUWAHATI
           (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                                PRINCIPAL SEAT AT GUWAHATI


                                 Criminal Petition No.556/2020


                                         Smti. Sumitra Boro.



                                                                 ..................petitioner
                                              -Versus-




                                     State of Assam and Anr.
                                                                 ...............Respondents

Legal Aid Counsel for the appellant: Mr. J. Islam.

Advocates for the respondents:        Mr. Z. Alam and
                                       Mr. B. Sarma, Addl.P.P.


                                           BEFORE
                       HON'BLE MRS. JUSTICE MALASRI NANDI


Date of hearing             :      02.12.2022.
Date of judgment            :      07.12.2022
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                            JUDGEMENT AND ORDER

Heard Mr. J. Islam, learned Legal Aid counsel for the petitioner. Also heard Mr. B. Sarma, learned Additional Public Prosecutor for the State/respondent No. 1 as well as Mr. Z. Alam, learned counsel for the respondent No. 2.

2. The petitioner/wife has preferred an application under Section 482 Cr.P.C. praying for quashing of impugned judgment and order dated 28.05.2019 passed by the ld. Sessions Judge, Nalbari in criminal revision case No. 32/2018.

3. The case is fixed for admission. However, with the consent of ld. counsel for both the parties, matter is taken up for final hearing at the admission stage.

4. The brief facts of the case is that the petitioner had filed a petition under

Section 125 Cr.P.C. being case No. 162 M/2017 against her husband i.e. opposite party No. 2(herein after referred to as O.P. No.2) before the ld. JMFC, Nalbari. The ld. Magistrate, Nalbari, after hearing both parties, passed judgment and order dated 19.05.2018 and awarded monthly allowance of Rs.3000/- to the petitioner. Thereafter, the O.P. No.2 preferred a revision before the ld. Sessions Judge, Nalbari, challenging the judgment and order of the ld. Magistrate dated 19.05.2018 and after hearing both sides, ld. Sessions Judge, passed the judgment and order dated 28.05.2019, allowing the prayer of the O.P. No.2 by setting aside the judgment and order of the ld. Magistrate dated 19.05.2018 in

case No. 162M/2017. Hence this petition.

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5. The case of the petitioner is that she got married to the O.P. No.2 about 25 years back and lived together as husband and wife and out of their wedlock, a male child was born. It is also stated in the petition that her husband had an illicit relationship with his sister-in-law Ganga Swargiary and the O.P. No.2 along with his sister-in-law had made a dowry demand towards her. As the petitioner was unable to fulfill their demand, they started to torture her both physically as well as mentally. It is also alleged that the O.P. No.2 did not provide food to the petitioner and also neglected their son. The petitioner had to take care of her child by begging. It is further alleged that in the month of February, 1995, the O.P. No.2 along with his sister-in-law physically assaulted the petitioner and drove her out from her matrimonial home. Finding no other alternative, she took shelter in the house of her parents. Subsequently she started to stay in a rented house at Nalbari.

6. Against the petition filed by the petitioner before the ld. Magistrate under Section 125 Cr.P.C., the O.P. No.2 had filed a written statement, wherein he denied all the allegations made by the petitioner in her petition and he also denied any marriage with the petitioner as well as birth of a child out of their wedlock. It is also stated in the written statement that since 2011, he was serving as a State Government employee in the Fishery Department and thereafter, he got married to another woman. In the written statement, the O.P. No.2 did not say anything that the petitioner got married to one Sarma Boro and out of their wedlock two children were born.

7. The learned counsel for the petitioner has argued that the ld. Sessions Judge has failed to appreciate the fact that the DW2 who is the witness of the Page No.# 4/11

O.P. No.2, has admitted the marriage of the petitioner with the O.P. No.2. He also disclosed that as per direction of the O.P. No.2, he stated that he got married to the petitioner. It is also submitted by the learned counsel for the petitioner that strict proof of marriage is not required for allowing maintenance under Section 125 Cr.P.C. Hence, the impugned judgment and order passed by the ld. Sessions Judge dated 28.05.2019 in criminal revision case No. 32/2018 is liable to be set aside.

8. On the other hand, the learned counsel for the O.P. No.2 categorically stated that no marriage was held between O.P. No.2 and the petitioner. As the petitioner is not the legally married wife of the O.P. No.2 and as such, she is not entitled to get any maintenance allowance as per provision of Section 125 Cr.P.C.

9. Both the parties have adduced their evidences in support of their case before the trial court. The petitioner was examined in the case as PW1 and she had reiterated the same thing whatever she had stated in her petition. In support of the fact of birth of her child, she exhibited one school certificate of her son Rajesh Swargiary vide Exhibit No. 1. According to the petitioner, her marriage with the O.P. No. 2 was held about 25/26 years back and after the marriage, they lived together as husband and wife and one child was born out of their wedlock. She left the house of her husband when her son was about one year old. It is also alleged that some years back, Jiten Swargiary promised to pay Rs.1200/- to her and 5 mound paddy but ultimately he did not pay anything to her.

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10. In respect of the marriage of the petitioner with the O.P. No.2, another witness was examined Rina Swargiary, who happens to be the sister of the petitioner. According to PW2, her sister got married to Jiten Swargiwary about 25/26 years back and they lived together as husband and wife and a child was born out of their wedlock.

11. The O.P. No.2 was examined himself as DW1 before the trial court. From his deposition, it reveals that the petitioner is not entitled to get any maintenance from him as because there was no marriage between him and the petitioner and he came to know that Sumitra Boro got married to one Sarma Boro and they have blessed with one son and one daughter.

12. In his cross-examination, DW1 replied that in Exhibit No.1, the name of the father of Rajesh Swargiary has been mentioned as Jiten Swargiary. The Exhibit No. 1 was issued by the Headmaster of Puran Sripur Primary School but he did not make any objection before the Headmaster of the school as to why he issued such certificate showing him as father of Rajesh Swargiary. He did not make any complaint against the Headmaster of the school regarding issuance of false certificate showing him as father of Rajesh Swargiary.

13. In his cross-examination, DW1 admitted that he contracted second marriage in the year 2010 and the name of his second wife is Maikan Swargiary but he did not disclose who was his first wife. It was suggested that Sumitra Boro i.e. the present petitioner was his first wife. It is also admitted by the O.P. No.2 that he moved a petition before the President and Secretary of their village on 27.12.2016, that on 05.03.1995, it was decided by the village people to pay Page No.# 6/11

an amount of Rs.12,000/- as price of 2Bighas of land and 5 mounds of paddy to the petitioner as compensation. The O.P. No.2 has also admitted that he did not disclose in his written statement the fact of marriage of the petitioner with Sarma Boro and they were having one son and one daughter.

14. DW2 is Sarma Boro. He deposed in his evidence that the first party is his wife and out of their wedlock, one son and one daughter were born but at present petitioner is not staying with him.

15. In his cross-examination, DW2 replied that Jiten Swargiary is his cousin brother and he is a rich man and he did not receive any notice from the court. Jiten Swargiary brought him to the court and asked him to adduce evidence before the court that he got married to the first party and accordingly he stated so. But this witness subsequently stated that about 25/26 years back, Jiten got married to Sumitra. He has no knowledge regarding filing of case by Sumitra against Jiten. As per instruction of Jiten, he had stated before the court that he got married to Sumitra.

16. Though the petitioner has stated that her marriage with the O.P. No.2 was held as per hindu rituals but no any evidence was adduced by the petitioner to prove the fact in question and no any independent witness was examined to prove their marriage. PW2 is her own sister. It is quite natural that she would tell in favour of her sister but it is interesting to note that though the O.P. No.2 denied his marriage with the petitioner but DW2 who happens to be the brother of the O.P. No.2 admitted that the petitioner got married to the O.P. No. 2.

17. In the case of Dwarika Prasad Satpathy vs. Bidyut Prava Dixit & Anr. reported Page No.# 7/11

in (1999) 7 SCC 675, it was held by the Hon'ble Supreme Court that-:

"The validity of the marriage for the purpose of summary proceeding under s.125 Cr.P.C. is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceeding is not as strict as is required in a trial of offence under section 494 of the IPC. If the claimant in proceedings under s.125 of the Code succeeds in showing that she and the respondent have lived together as husband and wife, the court can presume that they are legally wedded spouse, and in such a situation, the party who denies the marital status can rebut the presumption. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the said procedure was complete as per the Hindu Rites in the proceedings under S.125,Cr.P.C. From the evidence which is led if the Magistrate is prima facie satisfied with regard to the performance of marriage in proceedings under S.125, Cr.P.C. which are of summary nature strict proof of performance of essential rites is not required.

It is further held:

It is to be remembered that the order passed in an application under section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents. For the purpose of getting his rights determined, the appellant has also filed Civil Suit which is pending before the trial court. In such a situation, this Court in S.Sethurathinam Pillai vs. Barbara alias Dolly Sethurathinam, (1971) 3 SCC 923, observed that maintenance under section 488, Cr.P.C. 1898 (similar to Section 125, Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal Court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties."

18. No doubt, it is not a case of second marriage but deals with standard of proof under Section 125, Cr.P.C. by the applicant to prove her marriage with the respondent and was not a case of second marriage. However, at the same time, this reflects the approach which is to be adopted while considering the cases of maintenance under Section 125,Cr.P.C. which proceedings are in the nature of summary proceedings.

19. In the case of Chanmuniya vs. Virendra Kumar Singh Page No.# 8/11

Kushwaha & Anr. reported in (2011) vol.1 SCC 141, it was held that the term "wife" occurring in Section 125, Cr.P.C. is to be given very wide interpretation. This is so stated in the following manner:

"A broad and expansive interpretation should be given to the term 'wife' to include even those cases where a man and woman have been living together as husband and wife for reasonably long period of time, and strict proof of marriage should not be a pre- condition for maintenance under Section 125 of the Cr.P.C. so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125."

20. The case of Dwarika Prasad Satpathy -vs- Bidyut Prava Dixit & Anr. (supra) makes is clear that the maintenance cannot be denied where there was some evidence on which the conclusion for grant of maintenance could be reached. Following the aforesaid legal proposition, in the case in hand though the O.P. No.2 denied any marriage with the petitioner but subsequently he admitted that he contracted second marriage with one Maikon Swargiary but it was not disclosed who was his first wife. It also appears from the evidence of DW2 that the petitioner got married to the O.P. No.2 about 25/26 years back. Though in his examination-in-chief DW2 stated that the petitioner is his first wife but whatever stated in his evidence which was as per direction of the O.P. No.2.

21. Under such backdrop, it can easily be gathered that the petitioner and the O.P. No.2 lived together as husband and wife in the house of the O.P. No.2 which is sufficient to grant maintenance under Section 125Cr.P.C.

22. While dealing with the application of destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalized sections of the society. The purpose is to achieve "social justice" which is the Page No.# 9/11

Constitutional vision, enshrined in the Preamble of the Constitution of India. Preamble to the Constitution of India clearly signals that we have chosen the democratic path under rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society. Provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual.

23. In the case of criminal Misc. petition No. 19530/2013 Badshah vs Urmila Badshah Godse, it was held by the Hon'ble Supreme Court that the principles of Hindu Personal Law have developed in an evolutionary way out of concern for all those subject to it so as to make fair provision against destitution. The manifest purpose is to achieve the social objectives for making bare minimum provision to sustain the members of relatively smaller social groups. Its foundation spring is humanistic. In its operation field all though, it lays down the permissible categories under its benefaction, which are so entitled either because of the tenets supported by clear public policy or because of the need to subserve the social and individual morality measured for maintenance.

24. In another case Ramesh Chander Kaushal -vs-Veena Kaushal reported in (1978) 4 SCC 70, the Hon'ble Supreme Court has observed that-

"The brooding presence of the Constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause - the cause of the derelicts."

25. Reverting back to the present case, I have already stated that the O.P. No.2 denied his marriage with the petitioner. It is true that the petitioner filed a Page No.# 10/11

case claiming maintenance before the Magistrate after a long gap of 24/25 years. However, the ld. Magistrate took the note of view that a strict proof of marriage is not required by referring the case of Dwarika Prasad Satpathy(supra) for allowing the maintenance under Section 125 Cr.P.C. and accordingly maintenance was allowed in favour of the petitioner. But on revision, the ld. Sessions Judge has allowed the revision petition by setting aside the judgment and order of the ld. Magistrate.

26. The ld. Sessions judge has put much stress on the wrong mentioning of dates and year of marriage by the petitioner and date of birth of her son and other such dates when some of the incident took place in the house of the O.P. No.2. But the petitioner being an illiterate lady, it is quite obvious on her part to calculate or recall rightly the date of her marriage or birth of her son, in the day of her distress. The admitted position is that she has no income of her own and on the other hand, the O.P. No.2 is the State Government employee on the Fishery Department having monthly salary, apart from other source of income through landed property.

27. In view of the aforesaid legal proposition as well as considering the factual background of the instant case, I am of the view that the petitioner is entitled to get maintenance from the O.P.No.2. The judgment and order passed by the ld. Sessions Judge, Nalbari dated 28.05.2019 in criminal revision case No. 32/2018 is set aside. The judgment passed by the ld. JMFC. Nalbari in case No.

162M/2017 dated 19.05.2018 is hereby restored. The O.P. No.2 is directed to pay maintenance to the petitioner as per the judgment and order of ld. Magistrate.

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28. The criminal petition stands disposed of.

JUDGE Comparing Assistant