Jyotsna Mondal vs Bhim Chandra Mondal

Asim Kumar Ray, J.—This application under sections 401 /482 of Cr.PC is directed against the judgment and order dated 31-7-2006 passed in Misc. Case No. 190 of 1998 (TR No. 149 of 1998) by learned Judicial Magistrate, Second Court, Durgapur thereby dismissing an application for maintenance u/s 125 Cr.PC on the ground that the marriage has not been solemnized. It is the case of the petitioner Jyotsna Mondal that she got married with opposite party Bhim Chandra Mondal according to Hindu Rites and Customs on 5th Agrahan, 1388 B.S. corresponding to 21-11-1981. The petitioner thereafter lived with the opposite party at Kenduliya village/the house of the opposite party as husband and wife. She had to leave her matrimonial house in 1984 following ill treatment both mental and physical. She is dependant on her old and ailing father as she has no personal income of her own. In that backdrop the application u/s 125 Cr.PC was filed by her before the learned Court below praying for maintenance from the opposite party.

Mr. Partha Dutta, learned counsel appearing for the petitioner has contended that the finding of the learned Magistrate that there was no marriage between the parties is based on surmise and not on material on record. The learned Magistrate has not considered the evidence of independent witness/priest and other evidence on record who had proved the marriage of the parties. The impugned order is, therefore, bad and illegal.

Mr. Monish Sen, learned counsel appearing for the opposite party has contended that the impugned judgment has highlighted the evidence on record and on analysis of it the learned Magistrate has arrived at a finding that there was no marriage between the parties. The judgment impugned does not suffer from any illegality and as such the question of interference in it does not arise.

The judgment impugned speaks that the petitioner, her younger brother, priest and another person who attended the marriage have been examined as witnesses from petitioner''s side. On the other hand the opposite party has been examined himself as his witness. It is claimed by the petitioner that their marriage took place on 21-11-1981 and she was compelled to leave her matrimonial home in the year 1984. But the fact remains that the Misc. case u/s 125 Cr.PC praying for maintenance was filed in the year 1998 i.e. after the lapse of 14 years. Though there is no hard and fast rule that the delay in initiating the proceeding u/s 125 Cr.PC is required to be explained but it is desirable that such inordinate delay in fifing the Misc. case be explained. The record is silent alike the evidence of the petitioner regarding such delay.

On perusal of the evidence of the petitioner it has come to my notice that the father and elder brother of the petitioner had been to her matrimonial house for reconciliation but it is surprising to note that neither the father nor the elder brother of the petitioner are the witnesses from her side. Beside it, it appears from the evidence of petitioner''s brother that he has six other sisters and at the time of the marriage of the petitioner he was a student of Class-IV. The evidence of the priest displays that Haradhan Ghorai father of the petitioner has six daughters and three sons. None of the daughter and two other elder sons of Haradhan Ghorai have been examined as petitioner''s witness. Nothing comes out from the record as to why they were not tendered as witness by the petitioner though they were very much vital and the most appropriate witnesses to give light to the solemnization of marriage between the parties which has been disputed by the opposite party.

On close scrutiny of the evidence of the petitioner it appears that she has stated that her marriage took place in her father''s house at Fuljhore but the evidence of the petitioner''s witness No. 4 Abu Hossain speaks that Debi Das Mondal is the owner of that house from which the opposite party got married. He has also stated that he cannot say the name of ''Barkarta''. The evidence of the priest says that the marriage was solemnized at village Fuljhore but it is not clear as to whether the place of marriage was the father house of the petitioner or not.

On the contrary, it is coming out from the evidence of the opposite party/husband that his wife''s name is Subhadra Mondal and out of his wedlock with her he had three daughters one son. His service record indicates that Subhadra Mondal is his wife and he is the father of four children. His family members enjoy some facilities through his service as he is an employee of Eastern Coalfield Limited (ECL). He has furnished the voter identity card and ration card. Those voter identity card and ration card have been marked as exhibited documents. It appears from those exhibited documents that Subhadra Mondal is his wife.

The learned Court below has scanned the evidence on record and arrived at a finding that there was no believable evidence to show that the parties got married to each other. I do not find any illegality in the judgement. It does not call for any interference in it. In the result, the revisional application being CRR No. 3032 of 2006 stands dismissed. Interim, order, if any, stand vacated.