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Sadhu Mondal Vs. Sarathi Bala Mondal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1985CriLJ979
AppellantSadhu Mondal
RespondentSarathi Bala Mondal
Cases ReferredJagir Singh v. Ranbir Singh
Excerpt:
- .....in criminal motion no. 86 of 1980, affirming an order of maintenance passed by sri p. k. biswas, learned judicial magistrate, first class, berhampore in m. r. case no. 272 of 1979 (t. r. 45 of 1980), though reducing the quantum of maintenance per month from rs. 1007-to rs. 75a.2. the opposite party, sarathi bafe mandal filed a case under section 125, cr. p.c. against the petitioner, sadhu mandal, claiming maintenance at the rate of rs. 250a per month on alleging that she was the legally married wife of the petitioner and had been driven out by the petitioner from his house before about seven years. it was further alleged by the opposite party in that petition under section 125 cr. p.c. that the petitioner was living with one buchirani as husband and wife.3. that petition under section.....
Judgment:
ORDER

S.P. Das Ghosh, J.

1. This revisional application under Article 227 of the Constitution is directed against an order passed by the learned Additional Sessions Judge, Third Court, Murshidabad in Criminal Motion No. 86 of 1980, affirming an order of maintenance passed by Sri P. K. Biswas, learned Judicial Magistrate, First Class, Berhampore in M. R. Case No. 272 of 1979 (T. R. 45 of 1980), though reducing the quantum of maintenance per month from Rs. 1007-to Rs. 75A.

2. The opposite party, Sarathi Bafe Mandal filed a case under Section 125, Cr. P.C. against the petitioner, Sadhu Mandal, claiming maintenance at the rate of Rs. 250A per month on alleging that she was the legally married wife of the petitioner and had been driven out by the petitioner from his house before about seven years. It was further alleged by the opposite party in that petition under Section 125 Cr. P.C. that the petitioner was living with one Buchirani as husband and wife.

3. That petition under Section 125, Cr. P.C., registered as M. R. Case No. 272 of 1979, was resisted by the petitioner by filing a written objection. The case of the petitioner in that written objection was that the opposite party was not his wife and that there was no marriage between them.

4. The opposite party examined five witnesses including herself and her father, Bamapada Mandal (P.W.2). The petitioner examined three witnesses. On a consideration of the evidences of these witnesses and the materials on record, the learned Judicial Magistrate passed an order for monthly allowance to the extent of Rs. 1007- per month in favour of the opposite party with effect from 15-9-79 on holding that the opposite party was the married wife of the petitioner and holding further that the opposite party had failed to prove the alleged second marriage of the petitioner with Buchirani. It is to be stated in this connection that prior to the filing of the case for maintenance by the opposite party against the petitioner, the opposite party had filed a criminal case, being case No. C.R. 639 of 1975, against the petitioner under Section 494 I.P.C. on alleging marriage of the petitioner with Buchirani during the subsistence of her marriage with the petitioner and that that case under Section 494 I.P.C. ended in acquittal of the petitioner. The acquittal of the petitioner in that C.R. Case No. 639 of 1975 was also considered by the learned Judicial Magistrate at the time of disposing of the case under Section 125, Cr. P.C. on a Motion being preferred by the petitioner against the order of the learned Judicial Magistrate, the learned Additional Sessions Judge, Third Court, Murshidabad dismissed the Criminal Motion (Criminal Motion No. 86 of 1980) on affirming the findings of the learned Magistrate, though he was pleased to reduce the amount of monthly maintenance from Rs. 100A to Rs. 75/-. Being aggrieved by this order of the learned Additional Sessions Judge, Third Court, Murshidabad, the present revisional application has been filed by the petitioner.

5. Mr. Roy, appearing for the petitioner, has argued that there is an error apparent on the face of the record, entitling the High Court to interfere under Article 227 of the Constitution, inasmuch as there is no evidence to prove all the necessary formalities of a valid Hindu marriage specially Sampradan and Saptapadi. The contention is that in the absence of evidence about these formalities of a valid Hindu marriage, it cannot be at all stated that the opposite party is the legally married wife of the petitioner. Mr. Roy has in this connection referred to the case of Savithramma v. Ramanarasimhaiah 1963 (1) Cri LJ 131 (Mys). The second branch of argument of Mr. Roy is that in the absence of any finding by the learned Magistrate or the learned Additional Sessions Judge regarding alleged torture on or driving out of the opposite party by the petitioner, it cannot be stated that there was any refusal or neglect by the petitioner to maintain the opposite party.

6. Mr. Basu, appearing for the opposite party, has challenged the maintainability of the application under Article 227 of the Constitution by referring to the case of Jagir Singh v. Ranbir Singh : 1979CriLJ318 . He has also referred me to the provisions of Section 50 of the Evidence Act for the purpose of showing that even though there is no evidence regarding Saptapadi and Sampradan, the evidences of the P.Ws, regarding relationship of the petitioner and the opposite party as husband and wife are to be acted on.

7. After hearing the submissions of the learned Advocates for both the parties, it appears that the present revisional application under Article 227 of the Constitution is incompetent. Against the order passed by the learned Judicial Magistrate, Berhampore, the petitioner moved the learned Sessions Judge, Murshidabad. After the dismissal of the Criminal Motion No. 86 of 1980 by the learned Additional Sessions Judge, Third Court, Murshidabad, the petitioner has in fact asked the High Court to exercise its revisional powers, though this is barred by Section 397(3) Cr. P.C. The power under Article 227 is a discretionary power. When the provisions of Section 397(3) Cr. P.C. ban the exercise of revisional powers by the High Court in a case like this wherein the petitioner had already moved the learned Sessions Judge, Murshidabad in revision against the order of the learned Judicial Magistrate, Berhampore, it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution, as the power of superintendence was not meant to circumvent the statutory law.

8. As regards the submissions of Mr. Roy, it is to be stated that the High Court does not embark on the task of re-appreciation of evidence in exercising its powers under 'Art. 227 of the Constitution. There are evidences by the opposite party (P.W.1) and her father (P.W.2) about the marriage of the opposite party with the petitioner. There are also evidences by the other P.Ws. about the living of the petitioner with the opposite party as husband and wife. It is no doubt true that maintenance is to be claimed by a legitimate wife, as per the decision in the case reported in 1963(1) Cri LJ 131, referred to by Mr. Roy. The absence of evidence regarding performance of Sampradan and Saptapadi in the evidences of the P.Ws. is merely a mistake on the part of the learned Advocate for the opposite party, at the time of examining the P.Ws. for the opposite party, at the time of examining the P.Ws. for the purpose of proving marriage of the opposite party with the petitioner. This is not a case wherein there is no evidence of marriage of the petitioner with the opposite party. This is a case wherein, though there is evidence of marriage between the petitioner and the opposite party, there is no evidence regarding performance of Sampradan and Saptapadi, two vital ceremonies of a Hindu marriage. The absence of evidence regarding Sampradan and Saptapadi is not an error apparent on the face of the record so as to lead to the conclusion that there was no marriage at all between the petitioner and the opposite party, if one keeps in view the provisions of Section 50 of the Evidence Act. As regards the submission of Mr. Roy regarding the absence of any finding of the learned Judicial Magistrate regarding torture of the opposite party or driving out of the opposite party by the petitioner, it is no doubt true that neither the learned Judicial Magistrate nor the learned Additional Sessions Judge has dealt with this matter in their judgments, though there is evidence by the opposite party (P.W.I) that previously her husband used to behave properly with her and that for the last seven years she had been residing in her father's house as her husband had driven her out after assault. The failure of the learned Judicial Magistrate or the learned Additional Sessions Judge to deal with these evidences of assault and driving out of the opposite party by the petitioner cannot, however, lead to the inference that there was no neglect or refusal by the husband to maintain his wife as there was no ill-treatment or driving out of the wife by the husband. Had this been a case for judicial separation on the ground of cruelty, the failure of the learned Judge to discuss the evidences of torture or driving out would have been a relevant fact. When the present case is, however, a case for maintenance under Section 125 Cr. P.C., the failure of the learned Judicial Magistrate or the learned Judge to discuss these evidences of P.W.I about assault and driving out cannot be stated to be such an error apparent on the face of the record as to justify the High Court to interfere under Article 227 of the Constitution with the order of maintenance passed by the learned Judge.

9. In short, the application under Article 227 of the Constitution is incompetent. There is also no error apparent on the face of the record to justify any interference by the High Court under Article 227 of the Constitution.

10. The ad interim stay granted on 30-11-81 is accordingly vacated. The Rule is discharged.


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