Smti Dharmibala Deka vs Shri Mani Ram Deka

T.C. Das, J.—The Petitioner Smti. Dharmibala Deka having lost in both the Courts below to get any redress in her petition u/s 125 Code of Criminal Procedure, has come to this Court with this application with a faint hope that she along with her minor child may get some protect ion from this Court.

The case arises out of the petition tiled by the Petitioner in the Court of the learned Magistrate 1st Class (Judicial) at Gauhati u/s 125 Code of Criminal Procedure against the opposite party claiming a sum of Rs. 250/- in total for her maintenance as well as for her minor son on the allegation that the opposite party married her in the form of "Vaishnava marriage" as per their custom in the month of March, 1977 and out of their wedlock, a child was born and the Petitioner along with the opposite party lived together as husband and wife. It was further alleged by the Petitioner that about 3/4 months alter tie: marriage while they lived together, she was turned out by the husband without any reason or cause whatsoever. She was not (sic) back and now she is residing with her child in the house or her father. Therefore, found no alternative, she claimed for maintenance from the opposite party the petition was confused by the opposite party in the trial Court. Both the (sic) adduced evidence in support of their respective claim (sic) Petitioner adduced evidence to prove the legal marriage and the opposite party while denying the allegations of the Petitioner, adduced evidence to rebut the claim of the Petitioner with, regard to the alleged marriage. The Petitioner produced in documents which were marked as Exhibits by the learned court. The learned trial court, on considering the evidence of the parties, rejected the application and as such tin-Petitioner approached the learned Sessions Judge, Gauhati with application u/s 399 of Code of Criminal Procedure praying for revision of the order passed by1 the leaned Magistrate is that the Petitioner had failed to prove a valid marriage and that she (sic) a neither; legally married wife nor the child was born out of there wedlock. The revision application of the Petitioner was (sic)lately heard by the learned Addl. Sessions Judge arid the learned Judge by his order dated 18.8180 did not interfere with the findings of the learned trial court on that count. The learned Addl. Sessions Judge observed:

That there is nothing in the record to show that this in of so called vaishnava marriage is widely prevalent in this (sic) which has sanction of law.

I have heard Mr. J.N. Sarma, the learned Counsel for the Petitioner as well as Mr. Y.K. (sic) the learned Counsel for opposite party who resisted the petition. Both the learned Counsels have placed reliance upon the provisions of Section 3(a) of Hindu Marriage Act (in short the ''Act'') which is quoted below:

3(a) the expressions "custom" and usages" signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of jaw among Hindus in any local area, tribe, community group or family:

Provided that the rule is certain and not unreasonable or disposed to public: policy; and

Provided further that in the case of a rule applicable only, to a family it has not been discontinued by the family:

In this context Mr. Sarma, the learned Counsel for the Petitioner has submit tied that the learned Addl. Sessions Judge did not seriously consider the true interpretation and meaning of Section 3(a) of the said Act. Further'' submission of Mr. Sarma; is that the learned Court below though casually referred exhibit No. 1 but failed to consider the evidentiary value of the document. The observation as made by the learned Court below is only to the effect that the Bazar committee has no jurisdiction to perform a valid marriage according to Hindu Law. The document Exhibit No. 1 has not been considered by the learned Addl. Sessions Judge in its proper perspective and therefore, as submitted by Mr. Sarma, the finding as to whether there was a valid and legal marriage was not based on the correct reading of exhibit 1 together with other material evidence on record.

Mr. Y.K. Phukan, the learned Counsel for the opposite party has submitted that his client cannot be saddled with any liability inasmuch as both the Courts below came, to the categorical findings that there was no valid marriage nor the child was born as a result of the wedlock between the parties. Therefore, Mr. Phukan submits that unless a legal and valid marriage is proved, the opposite party can not be burdened with the order for payment of maintenance charge in any form.

I have perused the impugned order of the courts below. It is clear from the impugned order itself that though several witnesses were examined by the parties on both sides, the earned Sessions Judge did not consider the merits and demerits of the evidence of the witness-(sic) with the document (Exhibit 1) to come to the conclusion as to whether the marriage was a valid marriage between the Petitioner and the opposite party. It is true, that the petition before the learned Addl. Sessions Judge was a revision application. But considering the facts and circumstances of the case and the involvement of two lives viz�a life of a young woman and of a child of 3 years should not be ignored arid to push them further ahead towards downtrodden society. Their case is to be considered by the Court Keeping in| mind that they need protection and care for their lives in this context, I feel that it is the duty of the Court to take proper consideration of all material particulars to come to a concrete conclusion as to the right and obligation of the parties in particular nature of each case. To keep the best interest of a helpless women with her minor child the society has some obligation and the a helpless women with her minor child, the society has some obligation and the court should take into consideration the legal aspect of the matter as to whether the evidence discloses that the conclusion can be arrived at that they actually need protect. Naturally, the helpless woman with a baby cannot be kept homeless and under an open sky. If actually the Petitioner is the legally married wife of the opposite party, and if marriage proved, (he opposite party shall be bound to obey the mendatory provision of Section 125 Code of Criminal Procedure for the maintenance of Petitioner and the child. If however, the Petitioner fails to prove the legal marriage under the (sic )of Hindu Law or under any customary Law the husband Certainty cannot be saddled with any liability (sic) The fact is to be considered by the learned Addl. Sessions Judge on proper appreciation of evidence on record. I feel inclined that the case should go back on remand to the Court of the learned Addl. Sessions Judge for proper disposal of the case according to law. With this observation end direction the petition is disposed of with no order as to cost.

Before I part with the record, I have made a suggestion to Mr. J.N. Sarma to take a move if there can be any chance of reconciliation. At this stage, Mr. Phukan wants to seek some instructions from his client and states that this may be possible if the parties agree and can be done even during the pendency on his case before the learned Addl. Sessions Judge who will record the statement and finally dispose of this matter if the compromise is effected between the parties. Otherwise the case should be disposed on merit.

Send down the records to the Court below.