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Durjyodhan Pradhan Vs. Bengabati Dei - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 2 of 1975
Judge
Reported inAIR1977Ori36; 42(1976)CLT974
ActsHindu Marriage Act, 1955 - Sections 5, 11 and 18
AppellantDurjyodhan Pradhan
RespondentBengabati Dei
Appellant AdvocateD.K. Mohapatra, Adv.
Respondent AdvocateP.K. Misra, Adv.
DispositionAppeal dismissed
Cases Referred(Rayudu Palamsetti v. Dommeti Sriramulu
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........for maintenance has preferred with appeal.2. the plaintiffs case, in short, is that she is the legally married wife of the defendant; after her marriage in april, 1967, she stayed with the defendant for two years; thereafter the defendant ill-treated and assaulted her; and at last drove her away from his house in 1969and never allowed her to stay in his house in march, 1972, the defendant again married another woman named sashi alias jibani dei, with whom the defendant is still staying as husband and wife in his house.3. the defendant's case is that he never married the plaintiff nor lived with her in his house for any time. according to him, after the death of his first wife nayana alias gouri dei, his mother, on the persuasion of the plaintiff's mother and sister, insisted on him.....
Judgment:

S. Acharya, J.

1. The defendant in a suit for maintenance has preferred with appeal.

2. The plaintiffs case, in short, is that she is the legally married wife of the defendant; after her marriage in April, 1967, she stayed with the defendant for two years; thereafter the defendant ill-treated and assaulted her; and at last drove her away from his house in 1969and never allowed her to stay in his house In March, 1972, the defendant again married another woman named Sashi alias Jibani Dei, with whom the defendant is still staying as husband and wife in his house.

3. The defendant's case is that he never married the plaintiff nor lived with her in his house for any time. According to him, after the death of his first wife Nayana alias Gouri Dei, his mother, on the persuasion of the plaintiff's mother and sister, insisted on him to marry the plaintiff, but as he did not agree to the said proposal and married Sashi Dei. His mother and sister were displeased and annoyed with him and so his mother left his house and since that time she is staying in the house of her daughter.

4. The court below on a discussion and consideration of the evidence on record has arrived at the finding that the plaintiff is the legally married wife of the defendant and after marriage she stayed in the house of the defendant for a few years. On that finding and on the defendant's admission that he has married one Sashi Dei and is living with her as husband and wife, the court holds that the plaintiff is entitled to get maintenance and reasonable expenses for her separate residence from the defendant. On a consideration of the plaintiff's financial condition as disclosed in the evidence on record, the court below has ordered that the defendant has to pay Rs. 40/- per month towards the maintenance of the plaintiff and Rs. 10/- per month towards her separate resident.

5-6. Mr. D. K. Mohapatra, the learned counsel for the defendant-appellant, urges that the finding of the court that the plaintiff is the legally married wife of the defendant is incorrect and is against the weight of the evidence on record.

(After discussing evidence of marriage adduced on behalf of the plaintiff and defendant in this para and para 6, the judgment proceeded:)

7. On a careful assessment of the evidence on record I find that the evidence of marriage adduced on behalf of the plaintiff is more convincing than that adduced by the defendant to rebut that fact. I, therefore, agree with the finding of the court below that the plaintiff has been able to establish that she was legally married to the defendant prior to the defendant's marriage with Sashi Dei, who now admittedly is living with the defendant as his wife.

8. Mr. Mohapatra contends that on the admitted case of the plaintiff that she married the defendant when she was only 12 years old, the said alleged marriage cannot be treated as a legal marriage as it contravenes one of the conditions for valid marriage laid down in Section 5 of the Hindu Marriage Act, Mr. Mohapatra contends that as the plaintiff had not attained the age of 15 years as provided under Section 5(iii) of the said Act, the alleged marriage is not a valid marriage, and so the plaintiff is not entitled to any maintenance from the defendant. Contravention of Clause (iii) of Section 5 does not vitiate the marriage as that is not one of the conditions on which a marriage becomes null and void as provided under Section 11 of the said Act. The contravention of the provision of Clause (iii) of Section 5 of the Act may only result in the punishment of the marrying spouses as prescribed in Section 18 thereof, but the marriage between them below the age mentioned in Section 5(iii) will continue to be valid in law and enforceable in court, and will not become null and void, as contended by Mr. Mohapatra. In a case for maintenance under Section 488, Criminal Procedure Code (ILR (1970) Cut 1215, Budhi Sahu v. Lohurani Sahuani) I have taken the same view. My view was referred to with approval in the Division Bench decision reported in AIR 1976 Madh Pra 83 (Gindan v. Barelal). The same view on this point has been taken in the decisions reported in AIR 1965 Him Pra 15 (Mst. Premi v. Daya Ram); AIR 1963 Him Pra 15 (Smt. Naumi v. Narotam); (1970) 72 Pun LR 377 (Mohinder Kaur v. Major Singh) and 1969 All LJ 623 (Mst. Mahari v. Director of Consolidation).

With respect I am unable to agree with the contrary view taken in the decisions reported in AIR 1975 Andh Pra 193 (P. A. Suramma v. G. Ganapatlu) and AIR 1968 Andh Pra 375 (Rayudu Palamsetti v. Dommeti Sriramulu) cited by Mr. Mohapatra, as in the said decisions the provisions of Sections 11 and 12 of the Hindu Marriage Act were not taken into consideration. The learned Judges, who decided the case reported in AIR 1976 Madh Pra 83 (supra), have expressly dissented from the above-mentioned two decisions of the Andhra Pradesh High Court.

9-11. On my above finding that the plaintiff was the legally married wife of the defendant and on the admitted fact that the defendant has again married one Sashi Dei and she is at present living with him, the plaintiff is entitled to get maintenance and expenses for her separate residence from the defendant.

(On considering the facts and circumstances of the case (in paras 10 and 11), it was held that the maintenance of Rs. 40/-p. m. and Rs. 10/- p.m. on account of separate residence of the plaintiff was reasonable and justified, and the judgment proceeded:)

12. The impugned judgment could not be assailed on any other ground.

13. The decision of the court below is confirmed in toto. There is, therefore, no merit in this appeal, and it is accordingly dismissed, but in the circumstances both the parties will bear their own costs of this Court.


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