Smt. Shikha Majumdarand ANR. v. Anutosh Majumdar

CRIMINAL REVISION N0.

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PETITIONERS/ 1.

Smt. Shik Iamdan W/o. Anutos umdar, Aged about 28 ars, K Appcant ha §ju li h Maj ye nushka Majumar, ( d da /o. Anutosh Majumr, gd abou ears, Both R/o.

present C/o. Dieshwr Rao, Gitnjaly Rao, Nutan Chowk, Ae t y at la Ekta Naar, BhHai -3, istt. Durg g (C.G.)

VERSUS

/ g RESPDENT R.

Non Applicant Anutosh Mjumdar, ON E I S/o. Parith, g about 28 ars /o. C/o. Radhkrishna Mar, R os Aed ndi ye, Loarpara, Bai~3, istt. Durg h hil (C.G.) Civil '8:

NoNA Revenue _ District - -~ Durg (C.G.l '%';$.'QBhllal-3 Crime '

I:

V , DiSit'.DUr Crimih

HIGH URT OF CHHATTISGARH AT BILASPUR CO Criminal Revision No. 544 nf 9013 etitoners Pi Smt. Shikha Majumdar & Another Applicants

VERSUS

Respondent Non applicant Anutosh Majumdar Post for pronouncement judgment on 2L1"

day December, 2014 dl Sv Gou'tam Bhaduri Judge

Page No.2 parties became strained from the year 2011 onwards which led to report and counter report and subsequently when the applicant being the wife was deserted, an application was filed under Section 125 of Cr.P.C. for maintenance before the Family Court. The Family Court framed an issue that whether the applicant No.1 Smt. Shikha was a legally wedded wife of applicant and on that issue after marshaling the evidence, the Court has given finding that since the applicant Shikha Majumdar belonged to Muslim religion, therefore, marriage performed with Anutosh .

Majumdar cannot gsawid be é S legal marriage. On that premises the E\\ to be wife of the ld?"

bm revision, she wou it that 'd the relation started t o b that of applicant with her husband "?, '

i.e.

respondent in the which led to report vide Ex.AC/1 yf wherein after the initial romise was arrived at between the I:

parties by Ex.AC/4 plicant respondent admitted the p w fact that the applicant Nggtgglgéwedded wife. She therefore submits that in view of such admission, there was no occasion for the Court to go into validity marriage for purpose determining /'*7'

compensation payable under Section 125 of Cr.P.C. Further referring to the document and the photographs which are placed on record, the counsel referred to the birth certificate of the child which is marked as Ex.AC/7 and would submit that after the marriage out of the wedlock a daughter was born who was named Anuska Majumdar and in birth certificate too, the name of the father was shown that Anutosh Manumdar. She further relied on the document marked as Ex.C-17 and C118 which are voter l.D. Card and the Pass-port of the respondent and

qwk Page No.3 would submit that in such Pass-port on self disclosure of the respondent, applicant was shown as wife of the respondent. Further the LIC policy which is marked as Ex.C-21 and 0-22 while making reference counsel would submit that in such LIC policies which were issued in the year 2008, the name of the applicant was shown as nominee being the wife. She further referred to certain photographs and would submit that perusal of such photographs would clearlyrdemonstrate the fact that the applicant was married to the respondent.

th mily Court was deciding ,25 of Cr.P.C. and igd Satpathy v. Bidyut Prava Dixit s in AIR 1999 SC 3348 (r K and another), the cou n Hon'ble Supreme rded maintenance.

Similar I.

reliance was placed w (Badshah V. Urmila Badshah Godse and another) a @tgteed that Section 125 of Cr.P.C.

is a benevolent provision considering the long relationship of the parties as has been established by thewitness, which was clear before the Court to hold that presumption valid marriage exists and under evidence available applicant should have been held to legally wedded wife and maintenance should have been provided. 6.

It was further contended in the likewise case reported in 2011

(1) SCC 141 (Chanmuniya v. Virendra Kumar Singh Kushwaha and another), (4) SCC & (12) SCC 189- (Pyla Mutyalamma Alias Satyavathi v. Pyla Suri Demudu and another), it is stated that before [the Court below since the Court was exercising the power under Section

ifS Page No.4 125 of Cr.P.C., as such it was not within the jurisdiction ofthe Court to go into the validity of marriage even othen/vise also the valid marriage was established that applicant had converted from Muslim to Hindu religion. Therefore it is stated that such finding arrived at by the learned Court below is misconceived and misreading ofthe evidence. Per contra, the learned counsel appearing on behalf of the respondent advanced his arguments on the case law reported in AIR 1988 SC 644 and submit that in order to get maintenance under Section 125 of Cr.P.C. ' one fact has is a legally wedded wife.

t nt the caSe of the applica stated that no such conversation had taken place.

Mea on date of marriage, applicant nt » belong to other religion herefore the marriage even if have been said to have s t be said to be valid marriage as i o per Hindu law.

swan Gm c The learned. counsel for the respondent/non-applicant further placed his reliance in the case law reported in AIR 1995 SC 895, (2005) 3 SCC 636 ( Savita Ben Somabhai Bhatiya Vs. State of Gujrat and others), and 1988 Criminal Law Journal 1206 (P.P. Puthiyanal Attakoya Thangal and another Vs. Union Territory of Lakshadweep and another) and . would submit that in this case, the applicant never converted into Hindu before marriage, therefore, the marriage itself was not valid as the nonapplicant was Hindu at time marriage and applicant was Muslim.

Therefore, she can not be treated to be Hindu without conversion.

It is further submitted that unless and until conversion

Fage No.5 according to Hindu law is done she will remained to be a Muslim so the marriage in between applicant and non-applicant can not be treated to be valid marriage so as to treat the applicant as legally wedded wife.

l have heard the learned counsel for the parties and perused the entire documents.

\\x 10.

Since the matter pertains to denial of maintenance on the ground that no valid marriage was found, it will be necessary to refer the law laid down in '

<'ax'w\\ 'h '

Vs. Bidyut Prava Dixit).

r gt o eme Court while interpretin f Section 125 of .

held that procee 'n 25 Cr.P.C.

is to be d on the :C g d;

e basis of the evidence bythe parties which _ summary in nature. The standar riage in such proceedings is not as strict as is required in ence under Section 494 IPC.

If the claimant in proceedin .....

"on ofthe Code succeeds in showing that she and 'n ve lived together as husband and wife, the 'court can presWEW§y are legally wedded spouses, and in such situation, party who denies the marital status can rebut the presumption with evidence once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the said procedure was complete as per the Hindu rites in the proceedings under Section 125 of Cr.P.C., The same view is also reiterated by the Hon'ble Supreme Court in recent case law reported in

(1) SCC 188, Badshah Vs.

Urmila Badshah Godse and another, Court in this case has followed the principles laid down in Dwarita Prasad Satpathhy's case.

lt is further held that it is to be remembered that the order passed in application U/s.125 of Cr.P.C. does not finally determine the rights and the obligations of the parties and the said section is enacted with a view to

@ Page No.6 provide summary remedy for providing maintenance to the wife, children and parents. Herein the paternity ofthe child has not disputed. 11.

The Court also reiterated the View taken in case S. Sethurathinam Pillai Vs. Barbara, reported in (1971) (3) SCC 923, wherein it was heid that the maintenance to the wife can not be denied where there was some evidence on which conclusion for grant of maintenance could be reached. Therefore, series judgment has evolved that prima-facie '

evidence to be considered as to whether the maintenance can be granted '

fr fore, the defence is further 'en laid down by the "dbTX.

were placed by the'app'licant in a proceedings U/s.125 udes report made by her on p 17.11.2012, wherein a made to the police station Purani c s Bhilai alleging that th married to the respondent 10 years e back and thereafter relations were cordial and very fir good and further it \ h that relations started deteriorating thereafter. The said document was marked as Ex.AC-1. lt further makes a reference that in the year 2008 an agreement was entered in between the /lu'

'

applicant and the respondent, wherein the respondent admitted the fact that the applicant is the wife and further under took that he will not further enter into any dispute and will perform second marriage during her life time i.e. the applicant. The said documents was marked as Ex.AC-4 and contains signatures both applicant and non-applicant.

The said documents is preceded by document Ex.AC-3 declaration given by applicant that she do not want any further action on her report provided she is kept with honour and prestige. The document AC-5 pertains to the birth certificate of the applicant No.2, wherein the mother's name is shown

Page No.7 as Shikha Majumdar and father is shown as Anutosh Majumdar.

The photographs Ex.A-11 is also placed on record, wherein the applicant and non-applicant have been shown together with their daughter.

All these documents have not been specifically questioned by the non-applicant and prima-facie the documents are not in dispute which leads to form opinion that applicant and non-applicant lived as husband and wife. 13.

The ocument AC-15 is the report of the police department, which was in d response to some report made by applicant and matter was returned with t and non-applicant have n age and due to th daughter was also e '

e d report purports t was dispute betwe and wife e h < no further action?"

".

non-cognizable d g reading all the do emerges out that on primary c t"

t enquiry it was found tha and non-applicant got married. The facts are further fortifie rs l.D.

Card Ex.

C-17 of applicant, d e o s wherein the name hown as Anutosh Majumdar. The other document importw Wss-port of the non-applicant marked as Ex.C-18.

ln the document, the applicant has been shown as the wife of Anutosh Majumdar, and copy of the passport'also contains the name the father and mother of the non-applicant. The document Ex.C-19 is the copy of ration card, wherein the name of the applicant, non-applicant and the daughter are recorded as unit ofthe family. 14.

The document Ex.C-21 and C- 22 are the copies of LIC policies.

Such policies project that non-applicant Anutosh Majumdar was proposer, wherein the name of the applicant is recorded as wife Shikha Majumdar to be the nominee and is vice-a-versa. The record also contains the copy of an affidavit of Shikha Majumdar, wherein she had stated that \\\ after marriage she had changed her religion and has adopted Hindu \

'23 Page No.8 religion. The list of documents which was proved by the non-applicant also contains certain documents, which is Ex.NA-60, which was a report to the police by the father of the non-applicant namely Paritosh Majumdar' and in such report certain allegations of theft was made and the charges were l also attributed to the non-applicant Shabina Begum @ Shikha Majumdar clamping allegations of theft. The document Ex. NA-8C was also placed i which was with respect to some dispute in between the applicant and nonapplicant respondent.

Therefore, examination these documents referred above s pe WW facie it .....

\h e witness of non-applicant i.e.

D.W.

identity was disclos er-in-law by mot er none t applicant. So prima-fa ts and admissions on record shows c n that applicant wastrecog f e ofthe non-applicant.

gn 15.

Section 5O of the for opinion on relationship s which reads as under :- , "50.- Opinion on relationship, when relevant. - When the Q'

x Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means knowledge on the subject, is a relevant fact:

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, (4 of 1869) orkin prosecution under Section 494, 495, 497 or l 498 ofthe Indian Penal Code (45 of 1860)."

Further reading Section Evidence Act would reveal that Section 125 (488) earlier is not covered within the proviso. Therefore, the opinion expressed by the conduct of the person herein the non-applicant

Page No.9 who had special means of knowledge of the subject may be held sufficient to prove the fact of marriage in a proceeding U/s.125 of Cr.P.C. The admission made by the non-applicant at various stage in the different documents shows the fact of existence of state of mind and the intention and knowledge of the persons, who has executed such documents. There is no plausible explanation existing on the face of the record except the fact that the non-applicant had stated that the marriage itself is void. The Court ignored the fact that the Court was deciding the proceeding under to the opinion of this Court Section f to validity , in re, in view of the admission by the non-applicant husba nd, e ly presumed that applicant was the wife for thepurpose wh the jurisdiction U/s.125 of Cr.P.C..

18.

Further in case law Pyla Mutyalamm @ Satyavathi d Vs. Pyla Suri Demudu amagojl \A, reported in (201 1) 12 SCC 189, the Supreme Court had interpreted the word wife and has laid down that law presumes favour of marriage and against concubinage when a man and women have cohabited continuously for a long number of years and when the man and women are proved to have lived together as a man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage and not in a state concubinage.

19.

Here the paternity of the child has not been questioned and the series of admission goes to show that the applicant and non-applicant were J""\xk living together, wherein the applicant was given the status of wife. ln the

Page No.10 case law decided Supra, Supreme Court further held that in revisional jurisdiction if the finding is negative like the nature in case in hand, revisional Court can re-evaluate the evidence since negative finding has evil consequence on life of both the child and woman. 20.

Here in this case under consideration sufficient evidence in the form admission is present by the non-applicant husband that the applicant was given status of wife.

Apart from document, photographs which were filed clearly demonstrate the fact about such cordial relation between the parties e finding arrived at b w h y mxmre was not a wife nt rformed according to the rituals that the marriage was Hindu law.

k'

21.

The matter can be loo the other angle. According to defence raised by t t the applicant was not converted h into Hindu before the mafeggg wgherefore, the marriage was invalid. If in this context, the provisions of Section 4 of Special Marriage Act, N_UA are examined.

Section in Chapter-ll Special Marriage Act, prescribes with non-obstinate clause that marriage between two persons'may be solemnized under the Special Marriage Act, if neither § party has spouse living for incapable giving consent to it in consequence of unsoundness of mind or though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children and subject to recurrent attacks of insanity and if the male has completed the age of twenty-one years and theafemale the age of eighteen years, or

Page No.11 when the parties are not within the degrees of prohibited relationship, then the marriage can be solemnized.

22.

Herein this case, admittedly there was no shadow of such restrictions between parties to solemnize marriage.

Oniy factor pleaded by the non-applicant that religion were different i.e.

Hindu and Muslim.

Though the applicant has stated to have solemnized the marriage after conversion even if such statements are sidelined, the provisions of the Special Marriage Act, 1954 will govern the parties.

Meaning thereby the defence rais f marriage is held to be mandatory, non-registration and If .

é the object of the Speci t, 1954 would be defeated. So under adings of non-applicant is admitted, e the given set of facts, e, i.e. one Hindu and one Muslim, that parties belong e w e"

Ied that of wife.

the status of applicant ca ear w 23.

According to opinion of this Court, sufficient material has been placed on record to prima-facie form an opinion that the applicant was legally married wife of the non-applicant. There is no plausible explanation why such admissions were made. Therefore, in the opinion of this Court, the applicant was able to prove by cogent and strong evidence that applicant and the respondent had married to each other. 24.

Further as has been reiterated principles by Hon'ble Supreme Court in case between Badshah Vs. Urmila Badshah Godse, reported in (2014) 1 SCC 188 that purposive interpretation needs to be given to the provisions of Section 125 Cr,P.C: While dealing with the application of a

Page No.12 destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve 'social justice' which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, la equality and fraternity.

lt is specincally highlights achieving their social g justice. Therefore, it becomes the bounden duty of the courts to advance X'Ef'w"t the cause of the iving interpretation to a particular s , g .

';-C be claimed U/s.1 ., now coming to ques maintenance, at para tl g p d statement, the non-ap has denied the suggestion that he was still working as an a was getting Rs.30,000/~ per month.

c d He further admitted t in between first July, to October, 2011 there had g I aks of transactions were entered into aag account and volunteered with an statement that those amounts belonged to his friends.

Such statement of the non-applicant, that bank account of non-applicant was being used by the friends wherein the lacks transaction were held is difficult to admit and untrustworthy as no friends were examined.

Therefore, considering various documents which were placed before the Court below and taking into statement and the considerations of the price index which is prevailing at market l deem it proper to grant an amount of Rs.5000/- per month to the applicant wife from date application filed U/s.125 Cr.P.C., before Court below. Therefore, it is directed that the non-applicant shall pay an amount Rs.

5000/- to applicant apart from maintenance which has

Cbq/ Page No.13 already granted to the children.

Further a litigation cost of Rs.5,000/- is awarded.

With such above direction, the revision stands allowed. The non-applicant shall pay the accumulated arrears within a period of 6 months in six equal installments. The current amount of maintenance shall be paid by 10th of l every months.

SdlGou'tam B'naduri Judge e'

Ask/balram A';

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