Dulal Ch. Dey vs Kuku Rani Dey
2022 Latest Caselaw 703 Gua

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GAHC010049182018




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Crl.Pet./240/2018

            DULAL CH. DEY
            S/O- LATE MUKUNDA CHANDRA DEY, R/O- LUMDING UPPER BABU
            PATTY, RLY QTR NO. 870, BLOCK (B), NEAR SITALA BARI, LUMDING, P.O
            AND P.S- LUMDING, DIST- HOJAI, ASSAM



            VERSUS

            KUKU RANI DEY
            W/O- SRI DULAL CH. DEY, D/O- LATE RAMANI RANJAN DEB, R/O- PUB-
            LUMDING SAMAJBARI, P.O AND P.S- LUMDING, DIST- HOJAI, ASSAM



Advocate for the Petitioner   : MR. N K KALITA

Advocate for the Respondent : MR. S KHOUND

BEFORE HON'BLE MR. JUSTICE HITESH KUMAR SARMA

28-02-2022

Heard Mr. N.K. Kalita, learned counsel for the petitioner.

None appears for the respondent on call.

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This is an application under Section 482 of the Code of Criminal Procedure seeking quashment of the judgment and order dated 3.1.2017 passed by the learned Sub-Divisional Judicial Magistrate (M), Sankardev Nagar, Hojai, in M.R. Case no.236 of 2014 under Section 125 of the Code of Criminal Procedure, granting monthly maintenance allowance of Rs.4,000/- to the respondent first party along with a cost of Rs.3,000/- as well as the judgment and order dated 7.2.2018 passed by the learned Additional Sessions Judge, Hojai, in Criminal Revision Petition No.7/2017 upholding the aforesaid judgment and order passed by the learned Sub- Divisional Judicial Magistrate (M), Hojai.

The fact of the case is that the respondent first party had initiated a proceeding under Section 125 of the Code of Criminal Procedure seeking monthly maintenance allowance of Rs.10,000/- from her husband/petitioner claiming herself to be his married wife claiming that their marriage to have been performed as per Hindu rituals. The sole respondent has also stated in her petition as well as in her evidence that she has cohabitated with the petitioner -husband in the Railway Quarter at Lumding. The second party has filed written statement contesting the proceedings denying that the respondent is his wife and that he had married with her. The vital issue for decision in the case was whether the respondent was the wife of the petitioner or not. The evidence on record, particularly the evidence of respondent as P.W.1, specifically stated in her evidence that on 9.11.1997 she got married with the petitioner at Kamakhya Temple as per Hindu rites. She has exhibited the marriage certificate issued by the Kamakhya Temple authorities as Ext.1.

During the course of cross-examination, the petitioner could not shake Page No.# 3/4

such evidence of the respondent wife. The evidence of the respondent wife rather asserted that she has cohabitated with the petitioner for eight(8) years at Railway Quarter at Lumding. After three months of their such marriage, the petitioner had brought three children claiming those to be the children of her brother, who had expired. The petitioner also claimed the children to be his from his marriage with his wife.

The learned Court below has thoroughly examined the issue as to whether the respondent was the wife of the petitioner or not and came to the conclusion that the respondent is the wife of the petitioner. Such finding was subjected to challenge before the learned Additional Sessions Judge in the criminal revision petition, referred to above. The learned Additional Sessions Judge, by the judgment impugned in this application, has affirmed the decision rendered by the learned Sub-Divisional Judicial Magistrate (M) in respect of the entire proceedings including the decision holding the respondent to be the wife of the petitioner.

On a perusal of the entire materials on record including the evidence, it appears that the alleged marriage performed at Kamakhya Temple is a fact established by Ext.1, i.e. the certificate issued by the Kamakhya Temple authorities. The fact that the petitioner and the respondent wife lived together as husband and wife is also not a fact disputed at all. Such being the position appearing from the materials on record, this Court is not inclined to interfere with the concurrent findings of both the Courts below holding that the respondent wife is entitled to maintenance as wife.

This Court has also taken note of the fact that during the course of hearing the learned counsel for the petitioner has submitted that there is a civil suit pending before the Court of Munsiff, Hojai, Sankardev Nagar, Page No.# 4/4

seeking declaration that the respondent is the wife of the petitioner and that Title Suit is still pending. Therefore, whatever decision is taken in the aforesaid maintenance proceeding by the learned Court below is, as per law, subject to the decision of the Civil Court.

That being so, this Court disposes of this application holding that there is no reason to interfere with the findings recorded by the learned Court below since the same does not amount to abuse of the process of the Court and as ends of justice does not require interference. However, at the cost of repetition, this Court would like to state that as per the settled proposition of law, the decision to be rendered by the Civil Court would prevail upon this order.

JUDGE

Comparing Assistant