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CHHATTISGARH HIGH COURT
Goutam Bhaduri, J.
Smt. Shikha Majumdar & Anr. —Petitioners
versus
Anutosh Majumdar —Respondent
Cri. Revision No.544 of 2013
Decided on 24.12.2014
Counsel for the Parties:
For the Petitioners: Ms. Fouzia Mirza
For the Respondent: Ganesh Ahuja with Raja Sharma
IMPORTANT POINT
Proceedings under Section 125 Cr.P.C. is to be determined on the basis the evidence brought on record by the parties which are summary in nature. The standard of proof of marriage in such proceeding is not as strict as is required in a trial of offence under Section 494, I.P.C.
Headnote:Criminal Procedure Code, 1973—Section 125—Maintenance declined in favour of applicant wife on ground that she was not legally wedded wife of the non-applicant—Non-applicant had contested maintenance petition on plea that applicant was Hindu and he was Muslim—Revision—Standard of proof of marriage in maintenance proceedings was not as strict as required in a trial for offence under Section 494 IPC—Documents on record to show that non-applicant had admitted applicant to be his wife—Non-applicant had not denied paternity of girl child born to them—Law presumed favour of marriage and against concubinage when a man and women had cohabited continuously for long number of years unless contrary was clearly proved—Provisions of Special Marriage Act could be considered for valid marriage even if non-applicant pleaded that he was Muslim—Applicant revisionist was entitled to maintenance and considering that non-applicant was earning Rs.30,000 p.m., Rs.5,000 p.m. awarded in favour of petitioner from date of application for maintenance.
Result: Revision allowed.
JUDGMENT
Goutam Bhaduri, J.—Challenge in this revision petition is to the order dated 1.7.2013 passed by the First Additional Principal Judge, Family Court. Durg, in a Criminal M.J.C. No. 62/2012 wherein the maintenance claimed by the applicant Smt. Shikha Majumdar was reused by the Family Court. By the said order, the maintenance to the daughter Anushka Majumdar was granted of Rs.2,000 per month. The refusal to grant maintenance to the applicant Smt. Shikha Majumdar was on the ground that she was not the legally wedded wife of non-applicant Anutosh Majumdar and the finding of such order is under challenge before this Court.
2. Ms. Fouzia Mirza, learned Counsel vehemently attacked the findings on the ground that the learned Court below while exercising the power under Section 125 of Cr.P.C. exceeded its jurisdiction and further was denuded to go into the legality of the marriage in the teeth of the evidence which was existing. She would submit that in the instant case the marriage was solemnized in the year 2003 and out of wedlock a daughter was born in the year 2004. It is further contended that the relation between the 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 a finding that since the applicant Shikha Majumdar belonged to Muslim religion, therefore, the marriage performed with Anutosh Majumdar cannot be said to be a legal marriage. On that premises the learned Court had denied the status of the applicant to be wife of the respondent.
3. Referring to the document placed in this revision, she would submit that the relation started to become strained that of applicant with her husband i.e. respondent in the year 20l1-12 which led to/report vide Ex.AC1 wherein after the initial report a compromise was arrived at between the parties by Ex. AC4 wherein the non-applicant respondent admitted the fact that the applicant No.1 is legally wedded wife. She therefore submits that in view of such admission, there was no occasion for the Court to go into the Validity of the marriage for the purpose of determining the compensation payable under Section 125 of Cr.P.C.
4. 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. AC7 and would submit that after the marriage out of the wedlock a daughter was born who was named Anuska Majumdar and in the birth certificate too, the name of the father was shown that Anutosh Majumdar. She further relied on the document marked as Ex. C17 and C18 which are voter I.D. Card and the Pass-port of the respondent and 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. C21 and C22 while making reference the 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 clearly demonstrate the fact that the applicant was married to the respondent.
5. Learned Counsel would submit that since the Family Court was deciding the question of maintenance to be paid under Section 125 of Cr.P.C. and in the facts in this case since the paternity of the child was accepted, the presumption of valid marriage follows. Relying on the case law in Dwarika Prasad Satpathy v. Bidyut Prava Dixit and another, AIR 1999 SC 3348 the Counsel would submit that under the same principle, the Hon’ble Supreme Court has awarded the maintenance. Similar relian
