Narayan Meher vs Mukta Meher and Another

B.K. Nayak, J.—This application u/s 482 of the Code of Criminal Procedure has been filed by the Petitioner challenging the order dated 30.01.2003 passed by the learned Judicial Magistrate First Class. Barpali in Narayan Meher v. Mukta Meher Crl. Misc. Case No. 34 of 2001 granting maintenance of Rs. 500/-per month in favour of each of the opposite parties u/s 125 Cr.P.C., which has been confirmed by the judgment dated 29.07.2004 passed by the learned Additional Sessions Judge (F.T.C), Bargarh in Criminal Revision No. 14 of 2003.

The present opposite party Nos. 1 and 2 were respectively Petitioner Nos. 1 and 2 and the present Petitioner was the opposite party in Crl. Misc. Case No. 34 of 2001 in the Court of the learned Judicial Magistrate First Class, Barpali. The opposite dparties filed on application u/s 125 of the Code of Criminal Procedure praying for monthly maintenance of Rs. 1000/-each from the present Petitioner. Their case, in brief, is that the opposite party No. 1 and the Petitioner were in love with each other and had physical relationship and both of them lived together as wife and husband in the house of the Petitioner in their village. While living together they entered into matrimony in a marriage ceremony performed in the house of the present Petitioner in presence of village gentries, relations and caste people. Out of their relationship, opposite party No. 2. Pramod was born in the year 1999. After the birth of opposite party No. 2 the health condition of opposite party No. 1 deteriorated and the Petitioner started rebuking and neglecting her and did not provide food and medicines. The Petitioner and his family members also tortured her both physically and metally on the pretext that her father had not given sufficient dowry at the time of marriage. At the instance of opposite party No. 1 a Panchayati was convened, but the Petitioner disregarded the decision taken in the said Panchayati for which the opposite parties were forced to take shelter in Anr. house of the Petitioner in the same village and were depending upon the charity and mercy of Ors. . It is the further case of the opposite parties that the Petitioner is working as a Primary School Teacher and getting monthly salary of Rs. 4500/-, besides having cultivable lands in the village.

The Petitioner filed show cause in the maintenance proceeding denying the allegations made by the opposite parties in their petition. It was admitted by him that he and opposite party No. 1 are residents of the same village Ambarmunda. Having denied the relationship between him and opposite party No. 1 and their alleged marriage, it was stated that question of birth of opposite party No. 2 out of their relationship does not arise. It was stated by the Petitioner that before being appointed as Primary School Teacher he was studying outside the village for five years and that opposite party No. 1 became pregnant through somebody else, but since both of them belong to the same caste, opposite party No. 1 and his family members wrongly asserted that he is the father of opposite party No. 2. With such assertions the Petitioner claimed for dismissal of the maintenance application. Indian Law Reports, Cuttack Series [2011]

In the proceeding before the learned Judicial Magistrate First Class, Barpali, the opposite parties examined five witnesses including opposite party No. 1 as P.W.5 and also led into evidence the birth certificate and vaccination card of opposite party No. 2 and true copy of the electoral roll which have been marked as Exts. 1, 2 and 3. The present Petitioner examined three witnesses including himself as O.P.W. No. 1. On consideration of the evidence led by the parties, the learned judicial Magistrate First Class came to hold that opposite party No. 1 is the legally married wife of the Petitioner and opposite party No. 2 is their child and that the Petitioner neglected and refused to provide maintenance to the opposite parties, who are unable to maintain themselves. Accordingly, learned Judicial Magistrate First Class, Barpali passed the order directing the Petitioner to pay monthly maintenance of Rs. 500/-to each of the opposite parties from the date of filing of the maintenance application.

Being aggrieved by the aforesaid maintenance order, the Petitioner filed Criminal Revision No. 14 of 2003 in the Court of the learned Additional Sessions Judge (F.T.C.) Bargarh and the learned revisional Court confirmed the findings of the Trial Court and upheld the maintenance order. The Petitioner, has, therefore, approached this Court u/s 482 of the Code of Criminal Procedure.

Learned Counsel for the Petitioner contended that the findings of the Court below with regard to the relationship and marriage between the Petitioner and opposite party No. 1 and the paternity of opposite party No. 2 are completely perverse and suffer from complete non-application of mind to the glaring discrepancies in the evidence of P. Ws and the inherent improbabilities in the case of the opposite parties on account of non examination of the parents of opposite party No. 1 and the priest, who allegedly performed the marriage. Learned Counsel for the opposite parties on the other hand, submits that in a proceeding u/s 125 of the Code of Criminal procedure strict proof of marriage between the parties is not warranted and that the clear and consistent evidence of P. Ws coupled with the documentary evidence clearly prove that the opposite party Nos. 1 and 2 are respectively wife and son of the Petitioner and both the courts below have assessed the evidence in its right perspective. It is his further submission that findings of fact recorded by both the courts below are well reasoned and free from any perversity and therefore, this second revision in the guise of an application u/s 482 of the Code of Criminal procedure is not maintainable to upset the concurrent findings of fact recorded by the Courts below. NARAYAN MEHER v. MUKTA MEHER [B.K. NAYAK, J. ]

With regard to the question whether the High Court is competent to interfere with the concurrent findings of the learned Courts below in exercise of its power u/s 482 of the Code of Criminal procedure, the Apex Court in the case of Smt. Dukhtar Jahan Vs. Mohammed Farooq, has observed thus:

The proper course for the High Court, even if entitled to interfere with the concurrent findings of the Courts below in exercise of its power u/s 482 Cr.P.C., should have been to sustain the order of maintenance and direct the Respondent to seek an appropriate declaration in the Civil Court, after a full fledged trial, that the child was not born to him and as such he is not legally liable to maintain it. Proceedings u/s 125, Cr.P.C., it must be remembered are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner. The High Court was, therefore, clearly in error in quashing the order of maintenance in favour of the child

There is absolutely no bar for entertaining a petition u/s 482 Code of Criminal Procedure at the instance of a person who has lost before the trial Court as well as in revision before the Sessions Court. Inherent power of the High Court u/s 482 Cr.P.C. is extraordinary in nature and not circumscribed by any other provision of the Code. Such power can be exercised to give effect to any order under the Code, or to prevent abuse of the process of any Court, or otherwise to secure the ends of justice. The power however is to be exercised sparingly. Re-appreciation of evidence so as to reach a different conclusion on a question of fact and to upset the concurrent findings of the Courts below which are otherwise reasonable and based on assessment of evidence is not permissible. It is only where the findings are based on no evidence or suffer from non-consideration of material and relevant evidence that the High Court can interfere with such findings in exercise of inherent power in order to secure the ends of justice.

I have gone through the evidence on record carefully, as also the judgments of both the learned Courts below. Opposite party No. 1, as Petitioner before the trial Court examined five witnesses including herself as P.W.5. All the P. Ws. categorically state that the Petitioner and opposite party No. 1 had relationship between themselves much prior to the marriage and they both stayed together in the house of the present Petitioner and subsequently marriage between them was performed as per their caste custom in which ceremonies like Homa, exchange of garland and Saptapadi were performed. It is also in evidence that a Brahmit Priest, namely, Sundarmani Panigrahi performed the marriage. It is also in evidence of the INDIAN LAW REPORTS, CUTTACK SERIES [2011] witnesses that on the occasion of the marriage a feast was given by the Petitioner to the Caste men and villagers. While some P. Ws. state that the feast was given on the date of the marriage, P.W.2 has stated in his cross-examination that feast was given to 7 to 8 days after their demand. It is in the evidence that since the Petitioner and opposite party No. 1 continued to stay together in the house of the Petitioner without a formal marriage, the Caste men demanded a marriage feast. In view of such evidence the statement of P.W.2 in cross-examination can not be interpreted to mean that the marriage feast was given 7 to 8 days after the marriage, as contended by the learned Counsel for the Petitioner,. It is also contended that non-examination of the parents of opposite party No. 1 and the Priest makes the story of marriage improbable. But such contention can not be accepted in view of the evidence of P.W.5 that her parents did not attend the marriage. Besides, non-examination of the Priest is not fatal in as much as there is no contrary evidence on record that Sundarmani Panigrahi did not act as the Priest. Besides oral evidence, opposite party No. 1 also proved the Birth Certificate and Vaccination Card of opposite party No. 2 as Exts.1 and 2 and the copy of the electoral roll of the village as Ext.3. Ext.1 which has been issued by the Registrar, Birth and Death reveals that opposite party No. 2 was bron on 07.06.1999 and the date of registration of such birth is 23.07.1999. It is apparent that on the date of registration of birth of opposite party No. 2 there was no dispute between the Petitioner and opposite party No. 1. Therefore, the name of the Petitioner appearing as the father of opposite party No. 2 in the Birth Certificate is a strong circumstance about the relationship between the parties and the paternity of opposite party No. 2. The Vaccination Card Ext.2 also refers the date of birth of opposite party No. 2 and the name of the Petitioner as his father. The Voter list of the year 2001 (Ext.3) is a true copy, which has been attested by the Tahasildar, Barpali. In the voter list opposite party No. 1 has been described as the wife of the Petitioner. As against such evidence, the Petitioner examined three witnesses including himself as O.P.W. No. 1. While the Petitioner only denied his relationship and marriage with opposite party No. 1, O.P. Ws.2 and 3 have only expressed their ignorance about the relationship and marriage between the Petitioner and opposite party No. 1. The learned J.M.F.C., Barpali has considered the entire evidence on record in its proper perspective in order to record his findings with regard to the marital status of opposite party No. 1 and paternity of opposite party No. 2.

It is well settled in a catena of decisions that in a proceeding u/s 125 Code of Criminal Procedure the Magistrate is not expected to go into the question regarding the validity of marriage and that living as husband and wife and being treated by Ors. as such is sufficient for awarding maintenance. In NARAYAN MEHER v. MUKTA MEHER [B.K. NAYAK, J. ] this context decisions in the cases of Smt. Ratna Pradhan v. Abhi Pradhan 63 (1987) CLT 628: Pankaj Naik alias Padmalochan Naik v. Hemanta Naik (1993) 6 OCR 465 and Smt. Jemamani Das alias Panda v. Sri Umesh Ch. Panda (1988) 1 OCR 44 may be seen. The standard of proof regarding marriage in a proceeding u/s 125 Code of Criminal Procedure is not as strict as in a case u/s 494 of the Indian Penal Code. The proceeding being summary in nature, ordinarily it is not expected by the Magistrate to insist upon strict proof of marriage.

The learned Counsel for the Petitioner has placed reliance on the decision of this Court in the case of Kshifish Chandra Mishra v. Smt. Sara Sahoo and Anr. (1996) 10 OCR 360 where in a revision against a maintenance order this Court set aside the finding of the magistrate regarding the marriage between the parties. On going through that decision, it is found that there were serious infirmities, improbabilities and incongruity in the case of the alleged wife. Sufficient evidence was led from the side of the alleged husband to show that there was no marriage between the parties. Even though the marriage was claimed to be performed inside a temple, the Priest and Tax Collector of the Temple deposed against the alleged wife stating that there was no such marriage. Testimony of the alleged wife went totally uncorroborated apart from the overwhelming denial evidence adduced on behalf of the alleged husband. The said decision is therefore, non applicable to the facts and circumstances of the present case as no infirmity of the nature found therein are present here.

In the light of the discussion made above, I find no infirmity in the judgments of the Courts below. The CRLMC is therefore devoid of merit and as such dismissed.