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1988 Supreme(All) 646
IN THE HIGH COURT OF ALLAHABAD
A. N. DIKSHITA
PHIRARI SINGH - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
CRI. MISC. APPLN. 6433 Of 1983
Decided On : 12/22/1988
Sidharth Shukla
The burden of proof lies on the party who asserts the existence of a fact, and in the absence of legal evidence to establish the same, the court cannot make a finding in favor of the party who has the burden of proof.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 482 - QUASHING OF ORDERS - MAINTENANCE - FACTUM OF MARRIAGE - BURDEN OF PROOF - INHERENT JURISDICTION OF HIGH COURT.
Fact of the Case:
An application was filed under Section 125 of the Criminal Procedure Code (CrPC) by the respondent, claiming maintenance from the applicant, alleging that she was married to him and that he had turned her out of the house. The applicant denied the marriage and filed an application under Section 482 of the CrPC to quash the impugned orders passed by the trial court and the revisional court, allowing maintenance to the respondent.
Finding of the Court:
The court found that there was no evidence, much less legal evidence, to establish the factum of marriage between the applicant and the respondent. The court also found that the evidence adduced by the respondent and her witnesses was contradictory and unreliable.
Issues: 1. Whether the respondent was the legally wedded wife of the applicant. 2. Whether the burden of proof lay on the respondent to establish the factum of marriage. 3. Whether the impugned orders passed by the trial court and the revisional court were sustainable in law.
Ratio Decidendi: 1. The court held that the burden of proof lay on the respondent to establish the factum of marriage, as the applicant had categorically denied the same. 2. The court held that the evidence adduced by the respondent and her witnesses was contradictory and unreliable, and did not establish the factum of marriage. 3. The court held that the impugned orders passed by the trial court and the revisional court were not sustainable in law, as there was no evidence to support the finding of marriage.
Final Decision: The court allowed the application under Section 482 of the CrPC and quashed the impugned orders passed by the trial court and the revisional court. The case was remanded back to the Munsif Magistrate for retrial according to law.
( 1 ) THE applicant has filed this application under S. 482, Cr. P. C. praying for quashing the impugned orders dated 21-12-1982 and 12-7-1983 passed by X Additional Munsif Magistrate, Gorakhpur and VII Addl. Sessions Judge, Gorakhpur, respectively and also for dismissing the application filed by the Opp. Party 2 under S. 125, Cr. P. C.
( 2 ) THE facts in a narrow compass are that there is a long standing enmity between the applicant on the one side and the father and uncle of the opp. party 2 Smt. Ramawati Devi (daughter of Ram Samujh) on the other so much so that criminal cases and civil suits were filed by either of the parties since the year 1975. Sri Udai Raj Singh, nephew of the applicant was successfully elected Block Pramukh in successive elections since long, though father and uncle of opp. party 2 had supported rival candidate against Udairaj Singh. Panchoo alias Prem Narain, uncle of opp. party 2 was a notorious person and had been dismissed from the U. P. Police Service on serious charges.
( 3 ) ON account of strained relationship and bitter feud between the parties Ram Samujh, father of opp. party 2 and Panehoo alias Prem Narain got an application filed under S. 125, Cr. P. C. by opp. party 2 against the applicant. It was alleged that about 2 years back opp. party 2 was married with the applicant and she became pregnant but on her refusal to get an abortion done she was turned out of the house by the applicant.
( 4 ) THE said application was contested by the applicant on the ground that it is the outcome of the long standing enmity between the applicant and the father and uncle of the opp. party and more so to lower down the applicant in esteem before the persons in the village. It was stated that the applicant is about 65 years of age while the opp. party 2 is only about 20 years. The applicant was married about 40 years back with the daughter of one Jang Bahadur Singh and has born children from this wedlock.
( 5 ) THE applicant has categorically stated that he was never married to opp. party 2.
( 6 ) THE trial court allowed the application of the opp. party 2 by its order dated 21-12-1982 allowing the maintenance of Rs. 400/- per month to opp. party 2 and Rs. 100/- to opp. party 3 from the date of the presentation of the application i. e. 13-6-1979. The maintenance has been allowed in favour of the child, which was born later than the date of the presentation of the application, i. e. 13-6-1979.
( 7 ) AGGRIEVED against the order dated 21-12-82 passed by the learned Munsif Magistrate, a revision was preferred by the applicant, but it was rejected by 7th Addl. Sessions Judge, Gorakhpur.
( 8 ) IT has been alleged in the affidavit that the factum of marriage was in dispute but the trial Court gave the finding of marriage in the absence of any evidence as regards the performance of marriage within the postulates of S. 7 of the Hindu Marriage Act. No documents were put forward to support the claim of the opp. party 2 that she was married to the applicant. Only oral evidence of the opp. party 2, her father Ram Samujh, and Chabiraj of the village was adduced.
( 9 ) THE applicant besides filing documentary evidence examined himself and one Girdhari. However, Girdhari was not subjected to cross-examination for his absence and no steps were taken much less coercive to compel his attendance. It is thus urged that the order allowing the maintenance is perverse, ignoring a cardinal admission that there is a long standing civil as well as criminal litigation going on between the Uncle and Father of the opp. party 2 and the applicant and more so this solitary fact has been ignored that the application being a motivated one has been filed at the instance of Panchoo alias Prem Narain uncle of opp. party 2, who had intended to usurp the agricultural land of the applicant.
( 10 ) IT is alleged that the learned Sessions Judge did not, decide all the questions raised before him, particularly the averments as contain
