Smt. Lalita Tirkey vs Abhiram Tirkey
2023 Latest Caselaw 2115 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                  RPFAM No. 146 OF 2016
                 Smt. Lalita Tirkey                     ....       Petitioner
                                           Mr. Anam Charan Panda, Advocate
                                           -versus-
                 Abhiram Tirkey                            ....    Opp. Party


                        CORAM:
                        JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             14.03.2023
   4.       1.       This matter is taken up through hybrid mode.

2. Judgment dated 28th December, 2015 passed by learned Judge, Family Court, Rourkela in Criminal Proceeding No.69 of 2012 is under challenge in this RPFAM, whereby an application filed by the Petitioner under Section 125 Cr.P.C., has been rejected.

3. Mr. Panda, learned counsel for the Petitioner submits that the marriage between the Petitioner and the Opposite Party was solemnized on 25th December, 2001 at Hamirpur Church, Rourkela. Thereafter, they lived as husband and wife together in the quarter of the Opposite Party at Qrs. No.F/143, Sector-1, Rourkela. There is ample evidence on record to show that the Petitioner and Opposite Party were living as husband and wife in the quarter of the Opposite Party. The Opposite Party is still living in the said quarter. Witnesses examined on behalf of the Petitioner, have clearly and categorically stated that both of them were living in the said quarter till 2007. Thus, it is established that the Petitioner and Opposite Party were living as husband and wife in the quarter of the Opposite Party at least from 2001 to 2007. The Opposite Party also admits the said fact. But

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learned Judge, Family Court, Rourkela disbelieving both the marriage and stay of the Petitioner and Opposite Party in the quarter of the Opposite Party as husband and wife, dismissed the application under Section 125 Cr.P.C.

4. Mr. Panda, learned counsel for the Petitioner relied upon the decision in the case of Chanmuniya -v- Virendra Kumar Singh Kushwaha and another, reported in 2011 CRl. L.J. 96 (Supreme Court), in which it is held as under:

"46. We are of the opinion that 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 a 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 fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125."

He, therefore, submits that a strict proof of marriage is not necessary in a proceeding under Section 125 Cr.P.C.. Since it is established that the Petitioner and Opposite Party were living as husband and wife for a long time in the official quarter of the Opposite Party, it can be safely concluded that a petition under Section 125 Cr.P.C. is maintainable. Thus, learned trial Court has committed an error of law in dismissing the application under Section 125 Cr.P.C.

5. Upon hearing learned counsel for the Petitioner and on perusal of the impugned order, it is apparent that the Petitioner has alleged that the marriage between her and Opposite Party was solemnized on 25th December, 2001 at Hamirpur Church, Rourkela. No document whatsoever was filed in support of her marriage. Further no witnesses, who allegedly attended the marriage, were examined on behalf of the Petitioner in support of such marriage. It is the case of the Opposite Party that the

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great grandfathers of both the Petitioner and Opposite Party are brothers. Thus, the marriage between them is prohibited. Since the Petitioner is the cousin sister of the Opposite Party, she was allowed to stay in the said quarter. Taking advantage of the same, a frivolous application under Section 125 Cr.P.C. was filed. It also reveals from the record that the Opposite Party has married to one, Enjren Minz and they have been blessed with two children, namely, Anup Tirkey and Alex Tirkey. The marriage certificate as well as birth certificate of the children has been admitted in evidence as Ext.A to C.

6. It further appears from the impugned order that learned Judge, Family Court has framed the following points for determination in the case;

"5. The points for determination in this case are :-

(I) whether the Petitioner is the wife of the opposite party ?

(II) whether the petitioner is unable to maintain herself ?

(III) whether the Opposite Party, having sufficient means, has neglected or refused to maintain the petitioner ?

(IV) whether the Petitioner is entitled to get maintenance from the opposite party and, if so, what would be the quantum?

7. While answering Point (I), learned Judge, Family Court discussed the material on record in detail and come to a conclusion that there is no material on record to come to a conclusion that the marriage was solemnized between the Petitioner and Opposite Party, as alleged. Further though it is admitted by the Opposite Party that the Petitioner was living with him in his official quarter, but he denied the relationship as husband and wife. It is prima facie established that the Petitioner is the cousin sister of the Opposite Party and in that capacity she was staying in the quarter of the Opposite Party.

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Staying together in one accommodation cannot itself be sacrosanct to establish that the Petitioner and Opposite Party are husband and wife. The onus is on the person to establish the same, who claims that they are living as husband and wife. The witness examined on behalf of the Petitioner, namely, P.W.2 has clearly stated in his cross-examination that he being the neighbor had seen both the Petitioner and Opposite Party to be staying in the quarter of the Opposite Party. But he could not say as to whether they are staying as husband and wife or as siblings.

8. In view of the categorical findings of learned Judge, Family Court, which is based on material on record, this Court while exercising the power under Section 19(4) of the Family Courts Act, 1984, which is in the nature of Section 397 (1) Cr.P.C., cannot substitute its own finding, only because a second view may be possible by re-appreciation of evidence. Since on discussion of materials on record both oral and documentary, learned Judge, Family Court has rejected the application under Section 125 Cr.P.C., I am not inclined to interfere with the same.

9. Accordingly, the RPFAM stands dismissed being devoid of any merit.

Urgent certified copy of this order be granted on proper application

(K.R. Mohapatra) ms Judge