Tripura High Court

Smt. Panchami Chakraborty vs Sri Amit Chakraborty on 8 January, 2021

                      HIGH COURT OF TRIPURA
                            AGARTALA
                          Crl. Rev. P. 58 of 2017

Smt. Panchami Chakraborty,
Wife of Sri Amit Chakraborty
daughter of Late Prafulla Chakraborty
Resident of Madhupur, Laxmanpara
PS: Amtali,
District-West Tripura
                                                 ---- Petitioner(s)

                                 Versus


Sri Amit Chakraborty
Son of Late Rabindra Chakraborty
Resident of Village Madhupur,
P.O:Laxmanpara, PS: Amtali
District-West Tripura
                                              ---- Respondent(s)

For Petitioner(s)                 : Ms. Sarama Deb, Adv.

For Respondent(s)                 : Mr. D.R. Chowdhury, Adv.

Date of hearing                   : 18.12.2020

Date of pronouncement             : 08.01.2021

                                   Yes   No
Whether fit for reporting :
                                         √


                             BEFORE
      HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

                    Judgment             & Order

1. This criminal revision has been directed against the

order dated 30.05.2017 passed by the Family Court, West

Crl. Rev. P. 58 of 2017

Tripura, Agartala in case No. Miscellaneous 252 of 2015

whereby the claim of the petitioner under section 125 of the

Code of Criminal Procedure (Cr.P.C in short) for maintenance

allowance was turned down by the Family Court.

2. The facts in brief giving rise to the present petition

are as follows:

The petitioner, claiming to be the legally married

wife of the respondent filed a petition under section 125 Cr.P.C

before the Judge, Family Court at Agartala seeking monthly

maintenance allowance of Rs.10,000/- (Rupees ten thousand)

from her husband wherein it was alleged by her that she was

married to the respondent in the year 1996 and their marriage

ceremony was solemnized on 15.03.1996 in accordance with

rites and customs of Hindu marriage in the house of the

petitioner at Laxmanpara, Amtali in West Tripura. After the

marriage, the petitioner accompanied her husband to her in

laws' house where she was subjected to torture and various

kinds of humiliation by her husband and his relatives. She was

told that she was ugly looking and not suitable to the family.

She was also tortured for bringing dowry from her parents but

she bore their torture in silence in the hope of a better future.

Meanwhile, a son was born to them within their wedlock. Few

years thereafter, her in-laws had driven her out of her

Crl. Rev. P. 58 of 2017

matrimonial home along with her son. The petitioner returned

to her parents in the same neighbourhood where from she saw

her husband maintaining illicit relationship with another woman

who was a near relative of him. The petitioner then filed a

complaint at Amtali police station on 06.02.2015. But police did

not take any action on her complaint. Then she moved the

court seeking maintenance allowance under section 125 Cr.P.C.

She asserted in her petition that monthly income of her

husband from his travel agency was not less than Rs.50,000/-

(Rupees fifty thousand). This apart, he had other sources of

income. The petitioner, therefore, claimed Rs.10,000/- (Rupees

ten thousand) per month from her husband.

3. In his written objection filed in the Family Court,

the respondent denied his marriage with the petitioner and the

paternity of her son. He contended that the petitioner was his

next door neighbour who maintained illicit relationship with one

Sri Pradip Chakraborty who was a relative of her and the

respondent had seen them staying together in the house of the

petitioner. According to the respondent, he had no other

relationship with the petitioner apart from their neighbourly

relationship and the petitioner never lived in his house. He

further stated in his written objection that he was always ready

to undergo a DNA test for determination of the paternity of her

Crl. Rev. P. 58 of 2017

son. According to the respondent, since there was no marriage

between him and the petitioner and even there was no live in

relationship between them he was not liable to pay

maintenance allowance to the petitioner.

4. In view of the pleadings of the parties, the learned

Judge, Family Court framed the following issues in the case:

"I. Is the petitioner legally wedded wife of the opposite party?

II. Is the petitioner entitled to maintenance from the OP and if so what shall be the quantum of maintenance?"

5. In support of her claim the petitioner examined

herself as PW-1, her neighbour Sri Rajeswar Sarkar as PW-2,

another neighbour of her namely Sri Suresh Ch. Sarkar as PW-

3, Smt. Maya Rani Sarkar as PW-4 and Sri Prasenjit

Chakraborty, elder brother of the petitioner as PW-5.

6. The respondent on the other hand examined

himself as OPW-1, his neighbour Sri Sanjib Sarkar as OPW-2

and Sri Gopal Sarkar as OPW-3 in support of his case.

7. Heard Ms. Sarama Deb, learned counsel appearing

for the petitioner who submits that despite adequate proof of

marriage between the petitioner and the respondent, the

learned Family Judge erroneously held that the factum of

marriage between them was not proved and improperly denied

Crl. Rev. P. 58 of 2017

maintenance allowance to the petitioner wife on this ground.

Ms. Deb, learned counsel, therefore, urges for setting aside the

impugned order of the learned Judge, Family Court. According

to Ms. Deb, learned counsel, the respondent is a wealthy

person who runs several business including travel agency and

earns a huge amount of money from those businesses and in

spite of being capable of maintaining his wife he has been

neglecting her maintenance for quite a long period of time. It is

contended by Ms. Deb, learned counsel that the wife has no

income and she has become a destitute after being deserted by

her husband and it is necessary to allow her petition for

maintenance allowance to save her from destitution.

8. Mr. D.R. Chowdhury, learned counsel appearing for

the respondent submits that he agrees with the submission of

learned counsel of the petitioner that purpose of section 125,

Cr.P.C is to save neglected wife, children and parents from

destitution but the relief as claimed for cannot be given to the

petitioner wife unless she can adduce some evidence in proof of

her marriage with the respondent. According to Mr. Chowdhury,

learned counsel, in the case in hand there is no proof at all that

the petitioner and the respondent was ever married or they

lived together as husband and wife at any point of time.

According to Mr. Chowdhury, learned counsel, the learned

Crl. Rev. P. 58 of 2017

Family Court Judge decided the case after proper appreciation

of evidence and the facts and circumstances of the case and

therefore the impugned order does not call for any interference

in revision.

9. Evidence of the petitioner wife demonstrates that

the petitioner as PW-1 reiterated her plaint case. According to

her the marriage was solemnized on 15.03.1996 in her house

and thereafter she accompanied her respondent husband to her

place where she was regularly tortured for various reasons

including dowry. Ultimately she gave birth to a son and

thereafter she was driven out of her in laws house. According to

her, monthly income of her husband from various sources

including his travel agency exceeded Rs.50,000/- (Rupees fifty

thousand) and he was capable of providing monthly

maintenance allowance.

In her cross examination, she was asked who was

the priest in their marriage. In answer she replied that the

priest who conducted their marriage already died. She further

stated that the son of the priest was alive but he was not

available at home. She further stated in cross that no invitation

card was printed for their marriage because the marriage was

settled a day before its solemnization. She also stated that she

conceived before her marriage as a result of physical

Crl. Rev. P. 58 of 2017

relationship with the respondent. She admitted that Sri Pradip

Chakraborty was the younger brother of her sisters' husband

but she denied to have any affair with said Sri Pradip

Chakraborty. She also denied that said Sri Pradip Chakraborty

is the father of her son.

10. Sri Rajeswar Sarkar [PW-2] who is a neighbour of

the petitioner told the court that marriage ceremony between

the petitioner and the respondent was solemnized according to

Hindu rites and customs and thereafter the petitioner lived with

the respondent in his house where she delivered a male child.

The PW further told that he heard about some

misunderstanding between the couple but he was not aware

actually what happened to them.

In his cross examination, the PW admitted that he

was not aware of the date and month of the marriage. It was

then suggested to the PW that there was no marriage between

the petitioner and the respondent. The PW denied the

suggestion. He also denied that the petitioner had illicit

relationship with one Sri Pradip Chakraborty.

11. Sri Suresh Ch. Sarkar [PW-3], a neighbour of the

petitioner also supported the claim of the petitioner that her

marriage with the respondent was solemnized according to the

Crl. Rev. P. 58 of 2017

rites and customs of Hindu marriage and after marriage a son

was born to them within their wedlock.

In his cross examination, PW-3 also said that he

could not recollect the month and date of marriage between the

petitioner and the respondent. He could not also recollect who

was the priest of their marriage.

12. Smt. Maya Rani Sarkar [PW-4], another neighbour

of the petitioner supported the case of the petitioner and told

that marriage between the petitioner and the respondent was

solemnized and after marriage they started living together as

husband and wife. After few years of marriage the petitioner

left her matrimonial home and started living with her parents.

In her cross examination the PW stated that Sri

Pradip Chakraborty, the brother of the husband of the elder

sister of the petitioner came to the petitioner's house during her

sisters' marriage and stayed there for some days. But the PW

denied that the petitioner developed an affair with said Sri

Pradip Chakraborty at that time.

13. Sri Prasenjit Chakraborty [PW-5] is the elder

brother of the petitioner. He told the court that marriage

between his sister and the respondent was solemnized in his

house and after marriage his petitioner sister accompanied her

husband to his place. It was also stated by the PW in his

Crl. Rev. P. 58 of 2017

examination in chief that after marriage her sister was

subjected to torture by her in-laws at her matrimonial home

and she was driven out from her matrimonial home along with

her son.

In cross examination the PW denied that there was

no marriage between his sister and the respondent. He also

denied that the respondent was not the father of the son of his

sister.

14. As noted, the respondent to embellish the case of

the petitioner adduced the evidence of 3 (three) witnesses

including himself. The respondent himself appeared as OPW-1

and told the court that the petitioner was not unknown to him

because she lived in the same neighbourhood. He denied the

marriage with the petitioner. He straightaway told the court

that he did not have any kind of relationship with her. He

further stated in his examination in chief that the petitioner

conceived owing to her physical relationship with one Sri Pradip

Chakraborty who is the brother of her elder sisters' husband.

In his cross examination he stated that he knew

Bhudeb Chakraborty, son of the petitioner. He denied the

paternity of said Bhudeb Chakraborty. He also denied to have

love affair with the petitioner. In his cross examination he

further denied that he had travel agency and his monthly

Crl. Rev. P. 58 of 2017

income from the said business was Rs.50,000/- (Rupees fifty

thousand).

15. Sri Sanjib Sarkar [OPW-2] is a neighbour of the

respondent. According to the PW, the respondent never lived

with the petitioner as her husband and no marriage was

solemnized between them.

The PW stated in his cross examination that he did

not have any idea as to whether his father Sri Nikhil Sarkar

attended the marriage ceremony of the respondent and the

petitioner.

16. Sri Gopal Sarkar [OPW-3] stated in his examination

in chief that both the petitioner and the respondent were his

neighbours. According to him no marriage between the

petitioner and the respondent was solemnized. The witness did

not also see the petitioner and the respondent living together

as husband and wife.

In his cross examination he reiterated that no

marriage between the petitioner and the respondent was

solemnized and they were never seen to have been living as

husband and wife.

17. The learned Judge, Family Court seems to have

denied maintenance allowance to the petitioner on the ground

that the factum of marriage is under challenge and the

Crl. Rev. P. 58 of 2017

petitioner has failed to prove her marriage with the respondent

and she also failed to prove that she ever lived with the

respondent as husband and wife. The relevant paragraph of the

impugned order is as under:

"This is not a case of maintenance simpliciter. The marriage has been denied in this case. Therefore, it is vital for the petitioner to prove that she is the legally wedded wife of the Opposite-Party. The marriage between the petitioner and the OP has been denied by OP. He denies ever having lived together with the petitioner. The petitioner is therefore duty bound to prove as to whether she is a legally married wife of the OP or have live together in a matrimonial relationship. During her deposition as a witness, the petitioner has claimed that her marriage was solemnized with the OP on 15.03.1996 and one male child namely Bhudeb Chakraborty was born. As a proof she has not adduced nay document containing the name of the OP as being the husband of the petitioner. Let alone marriage certificate, there is no ration card, ROR or any document in favour of the claim of petitioner. Even birth certificate of the son was not adduced. On the other hand, opposite party denied and disputed all the allegations and he is even ready to undergo DNA test to disprove the case. This case has been filed after about 18 long years of the alleged marriage. Had there been an marital relationship, there would have been some documents at least in support. As the factum of marriage is under challenge, I am of the considered opinion that proper relied under section 125 Cr.P.C cannot be granted to the petitioner which is meant only for protecting the rights of

Crl. Rev. P. 58 of 2017

the legally married wife or someone in a marital relationship which the petitioner has not been able to prove."

18. With regard to the purpose of section 125 Cr.P.C,

the Apex Court in Vimala (K.) Vs. Veeraswamy (K.) [(1991) 2

SCC 375] observed as under:

"3. Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife............."

19. It is a settled proposition of law that the standard of

proof of marriage for the purpose of a proceeding under section

125 Cr.P.C is not as strict as is required for the purpose of trial

for offence under section 494 IPC. In this regard in Dwarika

Prasad Satpathy Vs. Bidyut Prava Dixit & Anr. [(1999) 7 SCC

675] the Apex Court observed as follows:

"6.............If the claimant in proceedings under Section 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 spouses, and in such a situation, the party who denies the marital status can rebut the presumption............"

20. In a later decision in Savitaben Somabhai Bhatiya

Vs. State of Gujarat & Ors. [(2005) 3 SCC 636], the Apex Court

referred to the decision in Dwarika Prasad Satpathy (Supra)

and held that provision under section 125 cannot be used for

Crl. Rev. P. 58 of 2017

defeating the rights conferred by the legislature on the

destitute woman, children or parents who are victims of social

environment. The observation of the Apex Court is as under:

"13.............The provision under Section 125 cannot be utilized for defeating the rights conferred by the legislature on the destitute women, children or parents who are victims of social environment. The provision is a measure of social justice and as noted above specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution.

14. The sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfill. 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. (See Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors.[(1978) 4 SCC 70]."

21. Then in Tulsa & Ors. Vs. Durghatiya & Ors. [(2008)

4 SCC 520] the Apex Court further held that where a man and

woman are proved to have been living together as husband and

wife it will be presumed unless the contrary is proved that they

were living together in consequence of a valid marriage. The

Apex Court in this regard observed as under:

Crl. Rev. P. 58 of 2017

"11. At this juncture reference may be made to the Section 114 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). The provision refers to common course of natural events, human conduct and private business. The court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.

12. A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. In first of them i.e. Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy [AIR 1927 PC 185] Their Lordships of the Privy Council laid down the general proposition that: (AIR p.187)

".........Where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary be clearly proved that they were living together in consequence of a valid marriage, and not in a state of concubinage."

13. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan [AIR 1929 PC 135] Their Lordships of the Privy Council once again laid down that: (AIR p.138)

"The law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years."

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14. It was held that such a presumption could be drawn under Section 114 of the Evidence Act.

15. Where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy. (See: Badri Prasad v. Dy. Director of Consolidation [AIR 1978 SC 1557]).

16. This court in Gokal Chand v. Parvin Kumari [AIR 1952 SC 231] observed that continuous co-habitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long co-habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them."

22. The case has been considered in the light of the

principles of law laid down by the Apex Court in the judgments

cited above. In the case in hand the petitioner claimed that her

marriage with the respondent was solemnized on 15.03.1996.

As noted, marriage between the parties is under challenge

because the respondent has denied the marriage and the

paternity of the child of the petitioner. He has also asserted his

readiness to undergo a DNA test to prove that he is not the

father of the child. The learned Family Judge has rightly held

that though the petitioner said that she was married to the

respondent on 15.03.1996, she could not produce any proof to

Crl. Rev. P. 58 of 2017