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Chakradhar Pradhan Vs. Asali Dei and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 66 of 1983
Judge
Reported in1985(I)OLR589
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125
AppellantChakradhar Pradhan
RespondentAsali Dei and anr.
Appellant AdvocateR. Mohanty, Adv.
Respondent AdvocateU.C. Panda, Adv.
DispositionRevision dismissed
Cases ReferredKunhiraman Nair v. Annakutty
Excerpt:
.....act, 1951. [air 2002 orissa 130 overruled]. - ' in the latter case, the kerala high, court observed :the nature of evidence in a proceeding under section 485, criminal procedure code, regarding proof of marriage need not be so strong or conclusive as in the case under section 494, indian penal code. the substance of the evidence adduced on behalf of the wife is to the effect that being a neighbour, she fell in love with the petitioner and petitioner taking advantage of the same mace her pregnant. 1 has been well established for the purpose of the proceeding under section 125 of the code......magistrate directed that the petitioner should pay a monthly maintenace of rs. 100/- to the wife opposite party no. 1 and rs. 60/- to the son (opposite party no. 2). 4. mr. mohanty, the learned counsel for the petitioner only raises one contention, that is, on the evidence adduced in this case, it cannot be said that the opposite party no. 1 is the legally married wife of the petitioner and, therefore, the order of maintenance so far as the wife-opposite party no. 1 is concerned must be set aside. mr. mohanty, however, does not challenge the order of maintenance granted in favour of the son (opposite party no. 2), the learned counsel for the opposite parties on the other hand submits that the scheme under chapter-ix of the code of criminal procedure providing section 125 for.....
Judgment:

G.B. Pattnaik, J.

1. Petitioner challenges the order of the learned Sub-divisional Judicial Magistrate, Rairakhole, dated 8th of November, 1982, in Criminal Misc. Case No .1 of 1979 by which order the learned Magistrate, has directed the petitioner to pay a monthly maintenance of Rs. 100/-to opposite party No 1 and Rs. 60/- to opposite party No. 2.

2 . Opposite parties 1 and 2 filed an application under Section 125 Of the Code of Criminal Procedure (hereinafter referred to as the 'Code') alleging that they are the wife and son respectively of the petitioner, petitioner having married opposite party No. 1 in Gandhary from by exchange of garlands in temple and out of their wedlock the son (opposite party No. 2) is born. It was further alleged that the petitioner-husband refused to maintain the wife and the minor child who have no source of maintenance where as the petitioner has sufficient means.

3. In support of the case, five witnesses were examined on behalf of the wife. The husband denying the marriage also examined seven witnesses. The learned Magistrate after discussing the evidence on record came to hold that petitioner had married the opposite party No. 1 in Gandhary from by exchange of garlands, as alleged and opposite party No. 2 was their son. The learned Magistrate further found that the petitioner neglected to maintain the wife and child and the wife and the child were unable to maintain themselves. Having considered the means of the petitioner, the learned Magistrate directed that the petitioner should pay a monthly maintenace of Rs. 100/- to the wife opposite party No. 1 and Rs. 60/- to the son (opposite party No. 2).

4. Mr. Mohanty, the learned counsel for the petitioner only raises one contention, that is, on the evidence adduced in this case, it cannot be said that the opposite party No. 1 is the legally married wife of the petitioner and, therefore, the order of maintenance so far as the wife-opposite party No. 1 is concerned must be set aside. Mr. Mohanty, however, does not challenge the order of maintenance granted in favour of the son (opposite party No. 2), The learned counsel for the opposite parties on the other hand submits that the scheme under Chapter-IX of the Code of Criminal Procedure providing Section 125 for speedy and summary remedy of maintenance to the neglected wife and children does not require strict proof of all the formalities of a valid marriage as contemplated under the Hindu Law and for the purpose of Section 125 of the Code, it would be sufficient if it is proved that the man and woman lived as husband and wife. This point came up for consideration in the case of Soudamini Dei v. Bhagirathi Raj, 53 (1982) CLT, 93. In that case, the learned Judge held :

'...The facts and circumstances of this case indicate that the man and the woman lived together as husband and wife and were treated as such by the community and the man treated the woman as his wife. The Panchayati Patra is his unequivocal declaration For the limited purpose of Section 125, it may be inf erred that there was marriage...'

The learned Judge quoted with approval a decision of the Kerala High Court in the case of Kunhiraman Nair v. Annakutty, 1967 KLT, 24 and another decision of the said High Court reported in 1972 KLP., 734. In the former case, the Kerala High Court observed :

'Under this section it is sufficient if the wife proves that she has been treated as wife by the person from whom maintenance is claimed. It is not material how the marriage was solemnized.'

In the latter case, the Kerala High, Court observed :

'The nature of evidence in a proceeding under Section 485, Criminal Procedure Code, regarding proof of marriage need not be so strong or conclusive as in the case under Section 494, Indian Penal Code.'

and further stated :

'...The magistrate is not expected to go into complicated questions relating to validity of the marriage. Living as husband and wife and being treated by the public as such, is quite sufficient for the award of maintenance.'

Keeping in mind the aforesaid principles of law, I have examined the evidence and in my opinion, the learned Magistrate has not committed any illegality in giving the finding that opposite party No. 1 is the legally married wife of the petitioner. The substance of the evidence adduced on behalf of the wife is to the effect that being a neighbour, she fell in love with the petitioner and petitioner taking advantage of the same mace her pregnant. There after a Panchayati was held where the petitioner agreed to marry opposite party No. 1 and then both of them proceeded to the temple where they married each other by exchange of garlands and the marriage was consumated by the husband and wife remaining together in the house in the night and then the petitioner tried to evade the issue by concealing himself somewhere. This being the state of evidence, in my opinion, at must be held that the marriage between the petitioner and opposite party No. 1 has been well established for the purpose of the proceeding under Section 125 of the Code. Accordingly, I reject the submission of Mr. Mohanty, the learned counsel for the petitioner. No other point having been raised by Mr. Mohanty, the revision is devoid of merits and is accordingly dismissed.


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