Uttam Das vs Smt. Rakhi Roy and Others

Tarun Kumar Gupta, J.—In terms of Order dated 28th of March, 2011 of Hon''ble the Chief Justice of this Court, the Criminal Revision together with application of stay (CRAN No.1674 of 2011) is required to be heard and disposed of along with this second appeal.

This second appeal is directed against judgment and decree dated 12th of July, 2005 passed by learned District Judge at Malda in O. C. Appeal No.38 of 2003 affirming judgment and decree dated 8th of August, 2003 passed by learned Civil Judge (Junior Division), First Court at Maldah in O.C. No.212 of 1995.

Appellant/plaintiff filed said suit being O. C. No.212 of 1995. Plaintiff''s case, in short, was that plaintiff''s father Dhananjoy Das used to reside at Kutubpur as a tenant under father of defendant Rakhi Roy. Defendant''s father made a proposal of marriage of Rakhi Roy with plaintiff to plaintiff''s father which was denied by plaintiff and his father. Then defendant, her family members and ''para'' people forcibly took plaintiff to the office of Hindu Marriage Registrar at Maldah on 24.11.1994 and obtained his forcible signature on some blank papers alleging registration of Hindu marriage between plaintiff and defendant. There was never any Hindu marriage performing necessary rites and ceremonies in between plaintiff and defendant. Accordingly, said case was filed for declaration that the registration of marriage by the Hindu Marriage Registrar without having any social marriage performing religious customs did not give any legal status of wife to the defendant with other consequential reliefs.

Defendant contested said suit by filing written statement denying material allegations of the plaint. It was contended inter alia that during stay of plaintiff''s father in the house of defendant''s father as a tenant there was free mixing and love affairs in between plaintiff and defendant resulting pregnancy of defendant followed by abortion. There was pressure from local people for marriage in between plaintiff and defendant and ultimately there was marriage between the parties on 23rd of November, 1994 according to Hindu rites and customs, and said marriage was registered before the Hindu Marriage Registrar at Malda on 24th November, 1994. She being legal married wife has prayed for dismissal of the false suit.

After contested hearing learned Trial Court dismissed the suit observing that there was legal marriage in between the parties followed by registration under Hindu Marriage Act. The same was confirmed by the learned Lower Appellate court. Hence was the second appeal by the plaintiff.

At the time of admission of this second appeal following substantial questions of law were framed.

(1) Whether the Courts below committed a substantial error of law in holding that there was a valid Hindu marriage between the parties, in the absence of proof of proper performance of the essential ceremonies, i.e., ''Saptapadi and Kanyadan'', as contemplated in Section 7 of the Hindu Marriage Act, 1955.

(2) Whether the findings of the Courts below as the validity of the alleged marriage between the parties are perverse inasmuch as those are not borne out by the evidence on record, particularly in view of the absence of any documentary evidence to prove such marriage and in view of the inherent contradiction among the defendant''s witness.

Mr. Anuruddha Chatterjee, learned advocate for the appellant, has submitted that there was no marriage between the parties as per Hindu rites and customs on 23rd of November, 1994 and that registration of said alleged marriage in the office of Hindu Marriage Registrar at Malda was held on 24th of November, 1994 by putting force upon the plaintiff. According to Mr. Chatterjee registration of Hindu marriage by itself does not prove a valid marriage u/s 7 of the Hindu Marriage Act, 1955. According to him, it was the duty of the defendant who was asserting Hindu marriage between the parties according to Hindu rites and customs, to establish that said marriage was performed as per Hindu rites and customs u/s 7 of the Hindu Marriage Act, 1955. In this connection he referred a case law reported in Mousumi Chakraborty Vs. Subrata Guha Roy, . In this connection he has drawn the attention of the Court to the evidence of the priest (D.W.3) to impress upon this Court that he was an interested witness and that his evidence did not disclose that the essential ingredients of Hindu marriage u/s 7 of the Hindu Marriage Act, 1955 namely ''Saptapadi'' and ''Jogga'' were really held. According to Mr. Chatterjee the findings of learned Lower Courts were based on sentiments and not on evidence and that this Court has ample power to set aside said findings and to allow this appeal.

Ms. Sharda Parmar, learned counsel for the respondent wife, on the other hand, has submitted that concurrent findings of fact by learned Lower Courts cannot be interfered by this Court at the time of hearing of second appeal u/s 100 of Code of Civil Procedure. She further submits that judgments of learned Lower Courts amply show that they came to those findings of fact on the basis of evidence on record. According to her, the instant appeal having no force should be dismissed with costs.

In Mousumi Chakraborty''s case (ibid) as referred by learned counsel for the appellant /husband it was held by this Court that the burden of proof lies upon the party who substantially asserts that there was a valid Hindu marriage. It was further held in said case that Section 8 of the Hindu Marriage Act, 1955 provided for registration of Hindu marriages; and that said registration is not the sole proof of a Hindu marriage to render it a valid marriage. It was further held therein that Section 7 of the Hindu Marriage Act provides that the validity of a marriage will depend on observance of customary rites and ceremonies and that two essential ceremonies of a valid Hindu marriage are (a) invocation before the sacred fire and (b) ''Saptapadi and that absence of said ceremonies invalidates a marriage.

There is no denial that both the Courts came to concurrent findings of fact that there was a valid Hindu marriage in between the parties on 23.11.94 followed by registration of said marriage under Hindu Marriage Registrar Office at Malda on 24th of November, 1994. This finding of fact can only be interfered during hearing of the second appeal if it can be shown that those were based on no evidence or were based on assumptions and conjectures and perverse.

The priest (D.W.3) deposed that he performed the marriage ceremony in between the parties of the suit on 23rd of November, 1994 and that essential ceremonies like ''Saptapadi'' and ''Jogga'' were performed. In spite of lengthy cross-examination his evidence on this point remained unshaken. He was corroborated amply on this point by other D.W.s.

There was specific allegation on the part of the appellant/plaintiff that he was forcibly taken to the Office of Hindu Marriage Registrar at Maldah and his signatures were obtained on some blank papers which were later on converted to a marriage registration certificate but it is strange to find that he did not care to file not only any specific criminal case but also any G. D. in the police station on that score. His conduct belied his aforesaid assertion which was taken note by learned Courts below. It is true that there were some discrepancies in the evidence of D.W.s. in the matter of marriage between the parties, here and there, but those discrepancies were not at all glaring to disbelieve their version. Most of the D.W.s. including priest stated about the rites performed during said marriage between the parties and it came out that there were ''Saptapadi'' and ''Jogga'' and other rites as per Hindu custom. Learned Lower Courts did not disbelieve their evidence and I also find no infirmity in the aforesaid act of learned Lower Courts. To sum up there was sufficient evidence of performing Hindu marriage between the parties according to Hindu rites and customs by performing ''Saptapadi'' and ''Jogga'' etc. followed by registration of said marriage in the office of Hindu Marriage Registrar. There was allegation of taking plaintiff forcibly to the office of Marriage Registrar and obtaining his signatures again forcibly on some blank papers but same was not supported by any logical subsequent act of plaintiff namely lodging of criminal case and / or lodging a G. D. at police station. Considering the entire evidence on record, the conduct of the parties and the circumstances learned Trial Courts came to concurrent findings of fact that there was a valid Hindu marriage between the parties followed by registration of said Hindu marriage according to law.

I do not find any infirmity not to speak of any perversity in the aforesaid concurrent findings of fact of learned Lower Courts.

As a result, the appeal fails.

However, I pass no order as to costs.

Send down Lower Court record along with a copy of this judgment to Lower Court expeditiously.

Urgent xerox certified copy of this judgment be supplied to learned Counsels of the parties, if applied for.

CRR No.149 of 2011 CRAN No.1674 of 2011

This revisional application was directed against order dated 27th of December, 2010 passed by learned Chief Judicial Magistrate, Maldah in Case No.292 M / 2000 filed by O. P. wife Rakhi Das. By the order impugned learned Trial Court granted an order of maintenance at the rate of Rs.1500/- per month payable by present petitioner /husband to the O. P. /wife Rakhi Das.

Being aggrieved with said order the instant revisional application has been filed together with application being CRAN No.1674 of 2011 praying for stay of the M. execution case being No.2 of 2011 pending in the Court of learned Chief Judicial Magistrate, Malda.

Mr. Narayan Chandra Das, learned counsel for the revisionist husband, submits that O. P. Rakhi Das filed said case u/s 125 of Code of Criminal Procedure falsely claiming present revisionist Uttam Das as her legally married husband though actually there was no legal or valid marriage between the parties according to Hindu rites and customs and that revisionist husband already filed a Suit being No. O.C.212 of 1995 in the appropriate Civil Court for declaring that there was no valid Hindu marriage in between the parties and that the certificate of marriage issued by Hindu Marriage Registrar was a document having no force as signatures of husband were obtained on some blank papers by applying force. Mr. Das further submits that on 21st December, 2010, the date fixed for adducing evidence from the side of husband, there was a prayer for adjournment of hearing of the matter as husband was posted at Jammu and Kashmir in connection with his service and could not come to Court but the same was rejected fixing 24th of December, 2010 for hearing of argument. According to him, revisionist husband was not given any opportunity to highlight his case by adducing evidence and that on that ground the impugned order of maintenance should be set aside and should be remanded back to the learned Trial Court for retrial after giving opportunities to the revisionist husband to adduce evidence.

His next contention is that there was specific averment in the written objection that there was no valid marriage in between the parties according to Hindu rites and customs and that civil suit was also pending on that score. According to him under those facts and circumstances learned Trial Court was not justified in passing the order of maintenance in favour of wife when there was no proof that there was valid marriage between the parties according to Hindu rites and customs. According to him, in order to get an order of maintenance it has to be shown by the wife that there was a valid marriage between the parties according to their custom. In this connection he has referred a case law reported in (2011) 2 SCC (Cri) 666 Chanmuniya versus Virendra Kumar Singh Kushwaha and another wherein it was held that the law as it stood as on date, was that in order to get an order of maintenance u/s 125 of Code of Criminal Procedure it has to be shown that the petitioner was legally married wife to O. P. husband against whom the claim was preferred. However, Hon''ble Judges of Supreme Court were of the opinion that in view of changing scenario of the society the term ''wife'' in Section 125 may be interpreted liberally and accordingly Hon''ble Judges referred the matter to the Hon''ble Chief Justice of Supreme Court for constituting a larger bench to decide as to whether even in absence of valid legal marriage a lady may get maintenance u/s 125 of Code of Criminal Procedure from the person with whom she was living for long as husband and wife and whether strict proof of marriage is essential for a claim of maintenance u/s 125 of Code of Criminal Procedure.

In spite of service of notice none appeared from the side of O. P. / State to oppose this revisional application.

However, Ms. Sharda Parmar, learned counsel for the wife, has submitted that the judgment impugned was passed after contested hearing and that at the time of disposing an application u/s 125 of Code of Criminal Procedure the Court was required to see whether there were prima facie materials to show that the claimant was legally married wife of O. P / husband. According to her no strict proof of marriage as per custom was required for deciding a case u/s 125 of Code of Criminal Procedure as said provision was brought into the statute book to stop vagrancy of wife on account of neglect on the part of her husband. She, however, submits that by this time Civil Courts have decided that there was a valid marriage between the parties according to Hindu rites and ceremonies followed by registration of said marriage by a Registrar of Hindu marriage. Accordingly, she had prayed for dismissal of this revisional application.

It appears that learned Trial Court rejected the petition for adjournment for adducing evidence from the side of O. P. by a reasoned order dated 21st of December, 2010. Learned Trial Court rightly observed that it was an old case of 2000 and that adjournment should not be granted to linger the case. Apart from that against said order of rejection the husband did not move any higher forum. Rather it appears from the order impugned that learned counsel of the husband made arguments before the learned Trial Court and after contested hearing the order impugned was passed. Admittedly, there was a certificate of registration of marriage between the parties issued by the Registrar of Hindu marriage at Malda. During hearing it came out that the Civil Suit filed by the revisionist husband praying for declaring that O. P. was not his legally married wife was dismissed on contest and has since been affirmed up to the level of this Court vide judgment passed today in second appeal No.60 of 2007.

It came out that revisionist husband was a constable of CRPF and was drawing a salary of around Rs.6000/- per month. Accordingly, learned Trial Court passed order of maintenance to the tune of Rs.1500/- per month. The amount so awarded under the order impugned cannot be said to be excessive by any stretch of imagination.

Considering all these aspects I am of opinion that this revisional application has no merit. Hence revisional application stands dismissed on contest.

In view of dismissal of the revisional application pending application being CRAN No.1674 of 2011 stands dismissed.

However, I pass no order as to costs.

Let a copy of the order be forwarded to the Criminal Court concerned along with Lower Court record.

Urgent xerox certified copy of this order be supplied to learned counsels of the parties, if applied for.