Kartick Roy vs Prabitra Roy and Another

Alok Kumar Basu, J.—Both sides are present. Heard both sides. This is an application at the instance of the husband/opposite party of Misc. Case No. 61 of 1998 with a prayer for setting aside the order of maintenance passed against him by the learned Judicial Magistrate, 2nd Court, Jalpaiguri, in connection with said maintenance case.

From the revision application as well as from the nature of submissions made on behalf of the present husband-petitioner it is very much clear that the husband/petitioner has challenged the order of maintenance mainly on the ground that the very pre-condition for passing the order of maintenance, i.e. the husband-wife relation between the party was never existing and the wife-opposite party totally failed to discharge her onus in the matter of establishing that relation before the Court below.

The learned Advocate appearing on behalf of the husband/petitioner has taken me through the judgment impugned in this application along with the evidence of both the wife-opposite party and also the husband/ petitioner. The learned Advocate submits that it will appear from the judgment that the learned Magistrate was more concerned about the theory "living together" but he totally missed the point that although strict proof of marriage is not called for in a proceeding u/s 125 of the Code of Criminal Procedure but that cannot exonerate the wife from showing some piece of evidence which will go to indicate that the parties were married under the existing custom to which they have faith and adherence.

The learned Advocate contends that the wife/opposite party only relied on a xerox copy of the voter list, election identity card, birth certificate of the son and school admission register to indicate that she was the wife of the present petitioner and the son was born out of the wedlock. The learned Advocate contends that there is not a single witness to throw any light about the so-called marriage and the wife-opposite party did not examine either the priest or any invitee on the alleged ground of their death.

The learned Advocate submits that the husband, on the other hand, strongly challenged the factum of marriage both in his written statement as well as in his evidence before the Court below. It was the specific case of the husband/petitioner that he never married the wife-opposite party and there was never any husband-wife relation between the party. The learned Advocate therefore submits that as there was practically no proof of the marriage, the learned Magistrate erred in law and fact by accepting the opposite party as wife of the present petitioner and thereby passing the order of maintenance challenged in this application.

The learned Advocate appearing for the wife-opposite party has supported the judgment impugned in this application contending, inter alia, that the learned Magistrate, after recording evidence of both the sides, was satisfied that there was ample evidence before him indicating husband-wife relationship between the party though there was no strict proof of the marriage and that is not also required for a proceeding u/s 125 of Cr.P.C. The learned Advocate submits that it was the duty of the learned Magistrate to see that a stranger never comes before the Court with a claim of maintenance but at the same time it was the duty of the Court to see that a person should not refuse the claim of the legitimate wife taking a false plea that he had no relation with her. The learned Advocate submits that when there is no direct evidence on the factum of marriage, the Court has the liberty to consider such circumstantial evidence in the form of relevant documents which will go to show that before the society both the petitioner and the opposite party gained a social recognition and the publication of the name in the voter list, the birth certificate issued by a competent authority and also the entry in the School Admission Register or such relevant documents will create a situation wherefrom a reasonable inference can be drawn that there was husband-wife relation between the parties and when the learned Magistrate relied on these documents there is nothing wrong in his final verdict and there is no scope for interference with the order passed by him.

Having regard to the submissions made on behalf of the parties I have gone through the judgment impugned in this application along with the relevant documents which were referred to by both sides.

The learned Magistrate has recorded that in a proceeding u/s 125 of Cr.P.C. though proof of marriage is sine qua non for consideration of prayer of maintenance but at the same time law has made it clear that strict proof of marriage is not called for as Section 125, Cr.P.C. does not provide any penal action but it simply provides a source of maintenance for a destitute woman.

The learned Magistrate has relied on the xerox copies of the Voter List, the Birth Certificate of the minor boy and also his entry of name in the Admission Register of the school to indicate that in all these documents the name of the present petitioner appear as the father of the minor boy and the husband of the O.P. It is true that in the present case the wife did not succeed in the examination of such witnesses who will throw direct light on the ceremonial aspect of the marriage, but it cannot be ignored that the wife has examined other corroborative witnesses and also relied on some documents prepared by an authority which cannot be denied and taken together both the oral as well as the documentary evidence; there was little scope for the learned Magistrate to disbelieve factum of marriage. The husband/petitioner in his show-cause has denied the factum of marriage but mere denial cannot demolish a case well-established from documentary evidence and in that view of the matter I do not find any wrong with the observation of the learned Magistrate that the factum of marriage has been proved at least in the wider sense which is required for a proceeding u/s 125 of Criminal Procedure Code.

Accordingly, the present judgment was challenged only on the question of marriage and when I have no reason to differ from the order of the learned Magistrate on the aspect of marriage, I find no other point for interference with the judgment impugned in this revision application. Accordingly, this revisional application stands dismissed without any order as to costs.

Interim order passed earlier by this Court shall stand vacated.