Dulen Saikia vs State Of Assam

1) This is a criminal petition, filed under Section 482 of the Cr.PC, assailing the legality and validity of the judgment and order, dated 22.6.2016, passed

by the learned Sessions Judge, Lakhimpur, North Lakhimpur, in Criminal Revision No. 15(2)/2016, upholding the judgment and order, dated 28.1.2016,

passed by the learned Chief Judicial Magistrate, Lakhimpur, North-Lakhimpur, in Misc.Case No. 49/2015, under Section 125 of the Cr.PC, awarding

monthly maintenance allowance of Rs. 4,000/- per month to the respondent No. 2.

2) I have heard Mr. S. Chamaria, learned counsel for the petitioner and Mr. D. Borah, learned counsel for the respondent No. 2. State respondent No.

1 is represented by learned Additional Public Prosecutor, Mr. B.J. Dutta, who has not made any submission, being a formal party only.

3 I have also perused the petition as well as the annexures furnished therewith including the judgments of the learned courts below. Also perused the

records of the learned trial court including the evidence of the parties.

4) This proceeding, under Section 125 of the Cr.PC, was initiated by the present respondent No. 2 stating that she got married with the present

petitioner in the Assamese Month “Bohag†in the year 2002. She also gave birth to a child through the petitioner who died. Thereafter, she did not

conceive, and therefore, the present petitioner told her that he would marry a second wife, and ultimately, married a second wife and lived separately

from her in a rented house leaving her alone. She was also subjected to torture by the petitioner and has also not been providing maintenance to her.

Therefore, she prayed for maintenance allowance from the present petitioner.

5) The present petitioner, as opposite party to the aforesaid proceeding under Section 125 of the Cr.PC, submitted his written statement denying the

averments made by the petitioner/present respondent No. 2 in her petition. It is the case of the present petitioner that he got married in the year 1990

with one Smt. Torbori Saikia. They also parented two children in the year 1996 and 1998 respectively. According to him, his aforesaid wife Smt.

Torbori, developed some relation with his brother John Saikia and they left for some other place and there they are living together as husband and wife

leaving two children with him who were respectively 3 years and 1 year old at that time. According to him, to look after his said two children, she kept

the present petitioner as a maid. She subjected the children to torture. When confronted with the respondent No. 2 with such facts, she told him that if

he gets her married then she would not torture his children.

6) In the proceeding before the learned trial court, the respondent No. 2/petitioner, examined 3 (three) witnesses including herself and the present

petitioner/opposite party in the said proceeding, examined 2 (two) witnesses including himself.

7) The decisions of the learned courts below have already been indicated above. During the course of hearing, the learned counsel for the petitioner

has submitted that as per evidence before the learned trial court itself, there was no marriage took place, by performing Hom-Jaygya (Vedic Rites).

He also submitted that the respondent No. 2 was a maid in the house of the present petitioner for 9 years under the same roof but there was no

relationship of husband and wife between them, as according to him, there was no marriage performed between them. Learned counsel for the

petitioner has also referred to the judgment passed by the learned revisional court of Sessions Judge wherein it has been stated, in paragraph-7, that

after the death of the first wife, the present petitioner and the present respondent No. 2 lived together as husband and wife for 9 years. Referring to

the evidence on record, learned counsel for the petitioner has submitted that there was no evidence that the first wife of the present petitioner died,

rather the evidence of the present petitioner as well as the statement made in his written statement show that his wife left with his brother and lived

together somewhere else as husband and wife leaving his two children with him This submission made by the petitioner appears to be correct from the

evidence on record and there is no evidence that the first wife of the petitioner died. On the basis of such fact, he argued that the present respondent

No. 2 is not the wife of the present petitioner, there being no marriage took place between them.

8) The petitioner in his written statement as well as in his evidence stated that the respondent No. 2 is already a married lady having her children, but

his fact could not be established by evidence. Mere statement, without corroboration, in respect of the fact, particularly, to the fact that the respondent

No. 2 is already a married lady, could not be established and no evidence is brought on record to that effect. Therefore, such unsubstantiated fact has

no bearing on the merit of the proceeding.

9) On perusal of the evidence on record, it is found to be an admitted position that the present petitioner and the respondent No. 2 lived together under

the same roof since 2002-11, and, this fact has not been disputed either in the evidence or during the course of hearing. At the same time, this is also a

fact that the first wife of the present petitioner, if there was any, has not been living with the present petitioner and as per his evidence, she is living

with his brother at some other place, as husband and wife. Therefore, such evidence reveals that the first wife of the present petitioner is not living

with him and the present respondent No. 2 is living with him for 9 years since 2002 under the same roof. As against her claim, the respondent No. 2

has not been able to lead any specific proof of marriage with the present petitioner except saying that the social marriage took place between herself

and the present petitioner in the month of “Bohagâ€​ in the year 2002 and that they were living together as husband and wife.

The evidence of the PW2, who is the sister of the PW1/present respondent, shows that both the petitioner and the respondent No. 2 got married in the

year 2002 and they were living together as husband and wife and out of their cohabitation, they parented a child, who died later on. PW3 is a witness

from the village of the present petitioner and she deposed that the petitioner and respondent No. 2 got married 9 years back and both are living as

husband and wife and out of their cohabitation, a child was born, who died later on. As against such evidence, the petitioner examined himself as

DW1, refuted the allegation that he married the respondent No. 2 and stated that she was kept as a maid only, to look after his children. The DW2

does not hail from the same village of the petitioner and he is having a hotel wherein the present petitioner had taken meal sometimes and he came to

know the petitioner as he was his customer. There is no evidence that he ever visited the house of the present petitioner and has any knowledge about

the relationship between the parties. Such being the rival evidence led by the parties, and in the absence of any strict proof of marriage between the

parties, this being a proceeding under Section 125 of the Cr.PC, this court is to see whether the present petitioner and the respondent lived together as

husband and wife under the same roof and they were considered as such, by the people.

10) The independent witness, examined by the petitioner as DW2, has not thrown any light on the relationship between the petitioner and the

respondent No. 2. The evidence of PW1/respondent No. 1 is that , she got married with the present petitioner in the year 2002 which is supported by

her sister, examined as PW2. Even if for the sake of argument, in the absence of very specific evidence as regards their marriage, if we disbelieve the

evidence of PW2, yet the evidence of PW3 is still there.

11) PW3 is an independent witness hails from the village of the petitioner himself and her evidence is very categorical that both the petitioner and the

respondent No. 2 were living as husband and wife together in the house of the petitioner and that they parented a child who died later on.That apart,

there is evidence led by the present respondent No. 2 as petitioner before the learned court as well made statement by her in her petition that the

petitioner married a second wife and lived with her in a rented house elsewhere although the petitioner stated in his written statement as well as in his

evidence that she married his alleged first wife in the year 1990 and she left with his brother to live as husband and wife, yet the fact remains that

there is another allegation made by the respondent No. 2 in her petition as well as in her evidence that he married a second wife after marrying her

and is living with the second wife in the rented house elsewhere. Although the alleged second marriage is denied by the petitioner in his evidence, yet

he has not denied that he has been living separately in a rented house. Then, the question comes as to what for the present petitioner is residing in a

rented house elsewhere leaving the present respondent No. 2 in his own house if she is his maid servant only. That apart, if she is her maid servant,

instead of himself leaving the house to live in a rented house, she could have discontinued as his maid servant. In the backdrop of the fact that the

alleged first wife of the petitioner has already left him as stated by himself in his evidence as well as in the written statement, the stay of the

respondent No. 2 with him for 9 years under the same roof with the supporting evidence of the PW3, that they parented a child also, it can be held

unhesitatingly that they were living as husband and wife for all these 9 years from year 2002-11.

12) That apart, the learned courts below arrived at a concurrent finding that the petitioner and the respondent No. 2 were living as husband and wife,

and therefore, decided the respondent No. 2 to be the wife of the petitioner for the purpose of the proceeding under Section 125 of the CrPC. It is a

settled position of law that strict proof of marriage or a legally valid marriage is not the essential necessity to establish the relationship of a husband

and wife in a proceeding under Section 125 of the Cr.PC. That being so, in the considered view of this court, the decision rendered by learned courts

below, needs no interference so far to see as to whether the present respondent No. 2 is the husband and wife or not.

13) Although the discussion on evidence on record as well as the judgments of the learned trial court, as above is made, yet it is made clear that this is

a petition under Section 482 of the Cr.PC only, and this court is required to see whether there was any abuse of the process of the court and whether

to secure ends of justice any interference is called for by invoking the power of this court under Section 482 of the Cr.PC. The learned trial court

passed the judgment on appreciation of the evidence on record and the learned appellate court upheld the same in due process of law. Therefore,

there is no abuse of process of the court, and in view of the findings recorded above, to secure ends of justice also, no interference is called for by

invoking the power of this court under Section 482 of the Cr.PC.

14) The petition is, accordingly, dismissed.

15) Send down the LCR along with a copy of this judgment.