Sushanta Biswas vs Pampa Mondal

Asim Kumar Mondal, J.—This is an application u/s 482 of the Code of Criminal Procedure 1973. The petitioner Susanta Biswas has challenged the legality and maintainability of a proceeding being No. M.R. Case No. 74 (IV) 11 u/s 125 of the Code of Criminal Procedure, 1973, filed by the respondent pampa Mondal, now pending before the Ld. Additional Chief judicial Magistrate, Tehatta, Nadia. The case of the petitioner i.e. the respondent filed an application before Ld. Additional Chief Judicial Magistrate, Tehatta, Nadia u/s 125 of the Code of Criminal Procedure, 1973. Claiming herself legally married wife of petitioner Susanta Biswas and has claimed maintenance of Rupees three thousand per month for herself being a distress lady having no source of income.

The Ld. Additional Chief Judicial Magistrate Tehatta, Nadia passed an order directing the present petitioner to pay Rupees one thousand per month as interim maintenance to the respondent Pampa Mondal. In the said proceeding the petitioner Susanta Biswas appeared and filed a written objection to the claim of respondent Pampa Mondal. Mr. Satarup Purkayastha appearing on behalf of the petitioner submits that Ld. Magistrate had erred in law by admitting the application in respect of maintenance without considering the fact that the Marriage Registrar, holding jurisdiction under the Tehatta Police Station have clearly stated that the petitioner and the respondent though gave notice under special marriage Act but they had never marriage and thus question of staying in the matrimonial house of the petitioner is absurd. It is clear from the documents produced on behalf of the petitioner that there was no marriage on the date mention in the application u/s 125 of the Code of Criminal Procedure 1973 and the application is a false one. Mr. Purkayasta submits that the Marriage Registrar as clearly stated that there was no marriage solemnised under the special marriage Act though for which a notice was given by the parties. The report of marriage Registrar was obtained under the provisions of the right to information act. He claims that the said report issued by a public officer, should have been treated as a public document.

Mr. Purkayastha thus prays for quashing of the proceeding initiated by the respondent Pampa Mondal u/s 125 of the Code of Criminal Procedure 1973.

Mr. Manas Kumar Das, Ld. Advocate appearing on behalf of the opposite party submits that the High Court in revision cannot interfere with the positive finding in favour of marriage and patronage of child. He also submitted that validity of a marriage cannot be a ground for the refusal of the maintenance if other requirements of Section 125 Cr.P.C. are fulfilled. It reveals from the submission of Ld. Advocate for the parties that the Ld. Additional Chief Judicial Magistrate has only passed an order of ad interim maintenance on the basis of prima facie case as made out by the petitioner wife. Both the parties are yet to adduce evidences in support of their respective cases. The wife is to establish that there was some sort of marriage held between the parties and the husband is to prove there was no marriage as claimed. The jurisdiction of the Magistrate u/s 125 Cr.P.C. being preventive in nature, the Magistrate cannot usurp the jurisdiction in matrimonial dispute possessed by the Civil Court. Husband will have to bring a declaratory suit in the Civil Court where is whole question may be gone into wherein he can contend that the marriage was not a valid marriage or was a fraud or coercion practice upon him.

In the instant application I do not find any irregularity or illegality apparently noticed in passing the interim maintenance order by the Ld. Magistrate in favour of respondent wife. In the annexure P-2 which is an written objection filed by the petitioner husband nothing has been pleaded denying the marriage as alleged. So no question arises at this stage to quash the proceeding u/s 125 of the Code of Criminal Procedure 1973. The revisional application u/s 482 of the Code of Criminal Procedure 1973, in fact, has got no merit and thus is liable to be dismissed. Thus the revisional application is stands dismissed without any costs.