Jharkhand High Court
Vimal Murmu @ Munshi Murmu @ Bimal @ ... vs The State Of Jharkhand on 5 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 159 of 2014
Vimal Murmu @ Munshi Murmu @ Bimal @ Munshi
Murmu S/o Mangal Murmu, Resident of Village-
Brindavan, P.O.- Mirjachauki, P.S.- Mirjachauki, District-
Sahibganj ... ... Petitioner
-Versus-
1. The State of Jharkhand
2. Marang Kudi Tudu wife of Bimal @ Munshi Murmu
3. Mangal Murmu son of Bimal @ Munshi Murmu
Both are residents of Village- Dhokuti, P.O. & P.S.-
Mirjachauki, District- Sahibganj ... Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Ranjan Kumar Singh, Advocate
For the State : Mr. Shailesh Kumar Sinha, A.P.P.
For O.P. Nos. 2 & 3 : Mr. Jai Shankar Tripathi, Advocate
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Through Video Conferencing
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09/05.07.2021
1. Heard Mr. Ranjan Kumar Singh, the learned counsel
appearing on behalf of the petitioner.
2. Heard Mr. Shailesh Kumar Sinha, the learned A.P.P.
appearing on behalf of Opposite Party No.1-State.
3. Heard Mr. Jai Shankar Tripathi, learned counsel
appearing on behalf of Opposite Party Nos.2 and 3.
4. The petitioner has preferred the present criminal revision
application against the order dated 12.12.2013 passed by the
learned Principal Judge, Family Court, Sahibganj in
Maintenance Case No. 330 of 2009 whereby and whereunder
the maintenance petition under Section 125 of Cr.P.C. filed by
the Opposite Party Nos. 2 and 3 has been allowed and the
petitioner has been directed to pay maintenance allowance of
Rs.2,000/- per month to the Opposite Party No.2-wife and
Rs.500/- per month to the Opposite Party No.3-son (total
Rs.2,500/- per month) with effect from the date of filing the case
i.e. from 04.08.2009 by 10th day of next succeeding month and
he has been further directed to pay the arrears of the
maintenance allowance within 60 days from the date of the
order, failing which Opposite Party Nos. 2 and 3 were held
entitled to take the same through the process of law.
Arguments on behalf of the petitioner
5. The learned counsel for the petitioner assailing the
impugned order submitted that the solitary point which is
involved in the case is that the Opposite Party No.2 is not the
legally wedded wife of the petitioner. He further submitted that
a specific plea was raised before the learned court below that
the first marriage of the Opposite Party No.2 was solemnized in
Village - Belbathan, but her husband deserted her and
thereafter, she started living at her parents' house and she got
second marriage in Village- Hatmari. He submitted that as the
petitioner has never solemnized marriage with the Opposite
Party No.2, the impugned order granting maintenance
allowance to the Opposite Party No.2 and her minor son
amounting to Rs. 2,000/- and Rs. 500/- respectively is not
sustainable in the eyes of law. He also submitted that the
petitioner is continuously making payment of the maintenance
allowance to the private Opposite Parties as per the order
passed by the learned court below.
Arguments on behalf of the Opposite Parties
6. The learned counsel appearing for the Opposite Party
Nos.2 and 3 opposed the prayer and submitted that in a case of
maintenance, the court has to prima-facie see whether the
applicant is the wife of the opposite party or not. He further
submitted that one certified copy of the judgment bearing Case
No. 150/2005 was also filed on behalf of the Opposite Party
No.2 (wife) before the learned court below wherein the
petitioner has been convicted under Section 498-A of the Indian
Penal Code. He also submitted that there is enough material on
record to come to a conclusion that the marriage of the
petitioner was solemnized with the Opposite Party No.2 and
accordingly, the impugned order does not call for any
interference.
7. The learned counsel for the Opposite Party No.1-State
adopted the submissions advanced on behalf the Opposite
Party Nos. 2 and 3 and submitted that the impugned order does
not suffer from any irregularity, illegality or perversity and
accordingly, no interference is called for under revisional
jurisdiction.
Findings of this Court
8. After hearing the learned counsel for the parties and
perusal of the impugned order, this Court finds that on
04.08.2009, the Opposite Party Nos. 2 and 3 filed a petition
under Section 125 of Cr.P.C. in the court of the learned Principal
Judge, Family Court, Sahibganj stating inter alia that the
Opposite Party No.2 is the legally married wife of the petitioner
and their marriage was solemnized in the month of March, 2001
according to Santhal Customary Law and tribal customs, rites
and at her house as per custom. After the marriage, she went
with the petitioner to his house, but at her sasural, her in-laws
assaulted her demanding more dowry from her father and she
was not given food and lodging. However, she tolerated the ill
behaviour of the petitioner and her in-laws. The petitioner and
his family members demanded Rs.10,000/- from her and
finally, on 19.04.2005, she was ousted from the petitioner's
house and she went to her father's house. Thereafter, several
efforts were made to restore their relationship, but the same did
not work and lastly, she gave a written complaint to the
Superintendent of Police, Sahibganj. She is residing at her
father's house, but the petitioner did not provide any
maintenance for her livelihood. She is unable to maintain
herself without any source of income. It was further stated that
the petitioner is residing with another lady who is said to be his
second wife. The petitioner has sufficient source of income, but
he has neglected the Opposite Party No.2. She has one son,
aged about 8 years, out of her conjugal life with the petitioner.
It was further stated that the Opposite Party No.2 has also filed
a Complaint case under Section 498A of the Indian Penal Code
against the petitioner. The petitioner is employed in Indian
Army and earns Rs.20,000/- per month, whereas the Opposite
Party No.2 is unemployed, helpless and poor and she has got
no source of income for her survival.
9. The petitioner filed his show cause stating that the
Opposite party No.2 is neither his legally married wife, nor
paramour and further stated that she was firstly married in
Village- Belbathan, Godda in 2001 and she conceived due to
physical relation with her first husband. After desertion by her
first husband, she solemnized second marriage in Village-
Hathmari, but she was deserted by her second husband also
and then, she started living at her father's house. He further
stated that the Opposite Party No.2 has filed Borio (M) P.S. Case
No.58/2007 to compel him to accept her as his wife, although
he has already married in 2005 with Priyanka Tudu. He denied
the allegations made against him and also denied the Opposite
Party No.3 to be his son.
10. The learned Principal Judge, Family Court, Sahibganj
framed the following issues for consideration:
(a) Whether Marang Kudi Tudu is the legally married wife of
Bimal @ Munshi Murmu or not?
(b) Whether Mangal Murmu is son of Marang Kudi Tudu and he
was born out of the wedlock of both the parties or not?
(c) Whether Marang Kudi Tudu is unable to maintain herself?
(d) Whether Bimal @ Munshi Murmu has not been maintaining
his wife Marang Kudi Tudu?
(e) Whether Bimal @ Munshi Murmu is neglecting or refusing to
maintain his wife?
11. The applicant (Opposite Party No.2 herein) examined
altogether five witnesses. A.W.-1 is Hopna Murmu, who is the
Pradhan of Village- Dahukutti, A.W.-2 is Fagu Soren, A.W.-3 is
Sham Lal Soren, A.W.-4 is Marang Kudi Tudu, who is the
applicant herself and A.W.-5 is Asok Kumar Yadav. The
applicant filed certified copy of Judgment passed in Marang
Kudi Tudu -vs- Bimal @ Munshi Murmu which has been
marked as Exhibit-1.
12. On the other hand, the petitioner examined altogether six
witnesses. O.P.W.-1 is Parta Tudu, O.P.W.-2 is Shiv Lal Murmu,
O.P.W.-3 is Bimal Murmu @ Munshi Murmu, who is the
petitioner himself, O.P.W.-4 is Moti Lal Murmu, O.P.W.-5 is
Sushil Tudu and O.P.W.-6 is Talu Tudu. The petitioner
exhibited the order-sheet of Trial Case No. 219/2005 (Marang
Kudi Tudu -vs- Bimal @ Munshi Murmu) as Exhibit-A and the
statement of the Complainant on oath as Exhibit-B.
13. The learned court below discussed the oral and
documentary evidences adduced by the parties and also the
arguments advanced on behalf of the parties and recorded its
findings in Para-27 that AW-1 has fully corroborated the fact
that both the parties came in love and they solemnized
marriage and they further solemnized their marriage as
according to Santhal Custom and after the marriage, applicant
remained at the house of present petitioner. A.W.-2 has also
corroborated the fact that the marriage of applicant was
solemnized with the present petitioner according to Santhali
customs and had seen the marriage and after the marriage,
applicant went to the house of the present petitioner herein.
A.W.-3 has also fully corroborated the fact that the marriage of
the applicant was solemnized with the present petitioner
according to Santhali custom and after the marriage, she had
gone to the house of the present petitioner. A.W.-4 has fully
corroborated the fact that the marriage of both the parties was
solemnized as sometime ten years ago as according to Santhali
custom and after the marriage, she went to the house of her
husband. A.W.-5 stated that the present petitioner came to him
and he executed an affidavit regarding his marriage alongwith
the applicant which was executed on 30.10.2002. In Para-28, the
learned court below recorded that so far as the marriage of the
applicant alongwith the present petitioner is concerned, almost
all the witnesses have fully corroborated the fact that the
marriage of the applicant was solemnized with the present
petitioner in the year 2001 according to Santhali custom and the
witnesses have also corroborated the fact that applicant came in
love with the present petitioner and thereafter, they solemnized
their marriage according to Santhali customs.
14. In Para-34, on the issue of earlier marriages of the
applicant, the learned court below disbelieved the evidences of
O.P.Ws. -1, 2, 3, 4, 5 and 6 on the basis that they could not
disclose the names of the persons with whom she was married.
The learned court below further recorded that the applicant
(Opposite Party No.2 herein) has filed a certified copy of the
judgment bearing Case No. 150/05 (State through Marang Kudi
Tudu -Vrs.- Bimal @ Munshi Murmu) u/s. 498A & 495 of the
I.P.C. and the petitioner has been convicted u/s 498A of the
I.P.C. In Para-37, the learned court below concluded that the
applicant is the legally married wife of present petitioner. On
the issue of parentage of the son of Marang Kudi Tudu, the
learned court below recorded in Para-40 that it is the case of the
petitioner (Opposite Party No.2 herein) that she gave birth to a
child out of the wedlock of both the parties and this fact has
already been corroborated by all the witnesses i.e., A.Ws.-1, 2, 3
and 4. The learned court below recorded in para 43 of the
impugned order that the petitioner did not even ask of any
DNA test of the child to prove that he was not his child. The
learned court below also recorded a finding that the opposite
party no 3 is the legitimate child of the petitioner.
15. This Court finds that on the point of marriage between
the petitioner and the opposite party no. 2 there is enough
material on record, both oral and documentary, to support the
case of the present opposite party no. 2 that she was the legally
wedded wife of the petitioner for the purposes of maintenance
under Section 125 Cr.P.C.
16. The Hon'ble Supreme Court in Para-22 of the Judgment
passed in the case of Kamala and Others -versus- M.R. Mohan
Kumar (2019) 11 SCC 491 has observed as under:
"22. Based upon oral and documentary evidence, when the
Family Court held that there was a valid marriage, the High
Court being the Revisional Court has no power reassessing the
evidence and substitute its views on findings of fact. The High
Court did not keep in view that in the proceedings under
Section 125 of CrPC, strict proof of marriage is not necessary.
The findings recorded by the Family Court as to the existence of
a valid marriage ought not to have been interfered with by the
High Court."
17. This Court finds that in the present case also, the learned
court below has recorded finding of marriage between the
petitioner and the Opposite Party No.2 after full consideration
of evidences for the purposes of grant of maintenance under
section 125 Cr.P.C. As strict proof of marriage is not necessary
in a proceeding for maintenance under Section 125 of Cr.P.C.,
such prima-facie finding of marriage, based on appreciation of
evidence on record, is not required to be disturbed by this
Court in revisional jurisdiction in absence of any error of law.
18. This Court further finds that the applicant had brought
enough material, both oral and documentary evidences to
establish that she is the legally wedded wife of the present
petitioner and a son was also born out of the wedlock for the
purposes of claiming maintenance under Section 125 Cr.P.C.
This Court also finds that the applicant has also produced
materials that she was forcibly ousted out from the house of the
petitioner by him and since then, she is residing at the house of
her father without having sufficient means and source of
income to maintain herself and her son. This Court finds that
the petitioner has failed to rebut the evidences and
circumstances available in favour of the Opposite Party Nos. 2
and 3 by any cogent evidence.
19. The finding of the learned court below that the petitioner
is employed in Indian Army and on the date of recording his
evidence, the petitioner had also admitted that he was getting
Rs.22,000/- per month, is not in dispute. It is also not in dispute
that the present opposite party no. 2 is unemployed and not
able to maintain herself and her son. No arguments have been
advanced by the learned counsel for the petitioner on the point
of quantum of maintenance.
20. This Court is of the considered view that the petitioner
has failed to point out any error of law or any perversity in the
impugned order and the points raised by the petitioner before
this Court have already been considered in details by the
learned court below by a well-reasoned order considering the
oral and documentary evidences and all the aspects of the case
and all the issues framed by the learned court below as quoted
above were decided in favour of opposite parties no. 2 and 3
and against the present petitioner.
21. Considering the limited jurisdiction of this Court in
criminal revision and the aforesaid facts and circumstances of
the case, this Court does not find any illegality or perversity in
the impugned order and accordingly, the present criminal
revision application is hereby dismissed.
22. Pending interlocutory application, if any, is dismissed as
not pressed.
23. Let a copy of this order be communicated to the learned
court below through "FAX/Email".
(Anubha Rawat Choudhary, J.)
Mukul/Saurav
