Binod vs Anju Sharma

Joymalya Bagchi, J—Order dated March 4, 2015 passed by the learned Additional Sessions Judge, First Court, Hooghly in Criminal Motion No. 28 of 2013 setting aside the order dated December 24, 2012 passed in M.C. Case No. 4 of 2007 passed by the learned Judicial Magistrate, Second Court, Hooghly Sadar and remanding the matter for fresh consideration upon production of additional evidence, has been assailed by the husband-petitioner.

The proceeding under Section 125 of the Code of Criminal Procedure was filed by the opposite party claiming herself to be married to the petitioner wherein she prayed for maintenance allowance at the rate of Rs. 3,000/- per month for herself and Rs. 2,000/- per month for the minor child.

According to her, the marriage was solemnized under Hindu rites and customs on May 12, 2001 and a dead child was born to the couple on October 16, 2002. On March 3, 2005, another male child was born but the same died. She became seriously ill and was admitted to Kalyani at Jaharlal Nehru Hospital. After she was discharged from the hospital, she came to her parental home and thereafter the petitioner did not take care of her. It is further alleged that the opposite party had been earlier married to the brother of the petitioner and upon his death, was married to the petitioner. The opposite party further claimed that the petitioner is an employee of Indian Railway and earns a salary of around Rs. 8,000/-.

The petitioner contested the matter by filing written-objection and denied that he was married to the opposite party. He further admitted that he took over the responsibility of the opposite party along with her minor son who was born from the earlier marriage on humanitarian consideration. He has been married to one Lalita Sharma.

In the course of the proceeding, the opposite party examined herself as PW-1 and also examined four other witness including PW-3, who is a Section Engineer of Indian Railways. On the other hand, the petitioner examined himself and examined three other witnesses including the said Lalita Sharma.

After analysis of the evidence-on-record which included the Service Book and the family declaration of the petitioner (Exhibits 2 and 3), wherein the opposite party has been shown as his wife/nominee, the learned Magistrate came to a finding that the opposite party was not the lawfully married wife of the petitioner.

The opposite party preferred a revision petition before the learned Additional Sessions Judge, First Court, Hooghly being Criminal Motion No. 28 of 2013. In course of the proceeding, an application under Section 391 of the Code of Criminal Procedure was filed praying for adducing additional evidence including documents to establish the matrimonial tie by and between the parties. The said documents are as follows.

"1. Letter sent by Medical Superintendent, College of Medicine, Kalyani, addressed to the opposite party Anju Sharma.

Death Certificate issued by the Kolkata Municipal Corporation dated 04.03.2005.

The declaration of relation by the petitioner before his employer, Eastern Railway, in the sick Memo of the Opposite Party.

The certificate issued by the Bandel Gram Panchayat.

An application before the Public Information Officer, Eastern Railway under the Right to Information Act made by the petitioner."

The revisional Court by the impugned judgment set aside the order passed by the learned Magistrate and remanded the matter for adducing additional evidence as aforesaid. Hence, the present revision petition has been filed at the behest of the petitioner wherein it is laid down only in exceptional cases resort may be made to Section 391 of the Code of Criminal Procedure in maintenance proceeding.

Mr. Chattopadhayay, learned Advocate appearing for the petitioner submits that the prayer for additional evidence was misconceived inasmuch as the evidence was already available to the wife/opposite party. He further submits that even if the said evidence is taken on record, the matrimonial tie would not be proved. He relied on an unreported decision of the Andhra Pradesh High Court in case of Yalla Ram Naresh Naidu v. Yalla Rama Tulasi & Anr., passed in Criminal Petition No. 3476 of 2011 dated March 4, 2014 wherein it is laid down only in exceptional cases resort may be made to Section 391 of the Code of Criminal Procedure in maintenance proceeding.

Mr. Mitter, learned Advocate appearing on behalf of the opposite party opposes the prayer and submits that there is sufficient material to establish the marriage. The learned Magistrate erred in law in coming to the finding that there was no matrimonial tie. He prays for dismissal of the instant petition.

I have considered the rival submissions of the parties. It is trite law that strict proof of marriage is not necessary in the course of a proceeding under Section 125 of the Code of Criminal Procedure. It is admitted by the petitioner that after the death of the husband of the opposite party, the petitioner took over all the responsibilities of the opposite party and her minor child merely on humanitarian grounds but there was no matrimonial ties by and between the parties.

Exhibits 2 and 3 relates to the service records of the petitioner where the petitioner made a declaration that the opposite party is his wife. Such materials were, however, not sufficient for the learned Magistrate to come to a finding that there was a marriage by and between the parties even for the purpose of entitling her to a claim of maintenance in a proceeding under Section 125 of the Code of Criminal Procedure.

Under such circumstances, the opposite party in the revisional Court made prayer for adducing additional evidence of contemporaneous documentary evidence corroborating the aforesaid documents, which already on record to establish that she was married to the petitioner. It is true that only in exceptional circumstances additional evidence may be permitted to be adduced in course of a proceeding. However, I find that pursuant to prayer under the Right to Information Act relevant documents were obtained by the petitioner only after the order of the learned Magistrate had been passed.

Bearing in mind the nature of the proceeding and the social purpose that it seeks to achieve, I am of the view that it would be imprudent & contrary to the interest of justice to shut out additional evidence for effective adjudication of the claim of marriage between the parties in the instant case on a hyper-technical ground. The petitioner shall also be permitted to lead rebuttal evidence in support of his defence before the learned Magistrate.

Accordingly, I am of the opinion that the impugned order passed by the revisional Court does not call for interference. The issue as to whether there is a matrimonial relationship between the parties be reconsidered by the learned Magistrate on the basis of evidence already on record in addition to the further or other evidence which may be adduced by the parties on remand.

With the aforesaid observations, the revision petition is disposed of.