A petitioner seeking maintenance under Section 125 Cr.P.C. must prove a marital relationship, albeit with a less strict standard of proof.

JUDGMENT

S.G. Chattopadhyay, J. - By means of filing this criminal revision petition under section 397 read with section 401 of the Code of Criminal Procedure, 1973 (Cr.P.C hereunder), Petitioner Smt. Rabia Begam has challenged the impugned judgment and order dated 05.04.2021 passed by the Family Court, Kailashahar in Crl. Misc. (125)-04 of 2020 declining to grant maintenance allowance to the petitioner in a proceeding under section 125 Cr.P.C.

2. Factual background of the case is as under:

Petitioner Rabia Begam filed a petition under section 125 Cr.P.C in Family Court, Kailashahar alleging that she was married to the respondent on 20.02.2009 in accordance with rites of Muslim marriage. After marriage, she accompanied her husband to his place. A Kabinnama was also executed on 15.06.2016. She claimed that she was married to the respondent during the subsistence of his first marriage. Six months after her marriage, her respondent husband demanded a sum of Rs. 1,00,000/- from her. Since she failed to fulfill his demand, her husband committed physical torture on her. For redress she lodged a complaint in the court of the Chief Judicial Magistrate which was registered as CR 223 of 2016. During pendency of the case matter was settled between them at the intervention of the neighbours. Thereafter, she returned to her husband. Few months thereafter her husband left home to find out a job in a country in the Middle East from where her husband used to send money for her maintenance. At that time she fell seriously ill. She required huge amount of money for treatment. When She met her in-laws for assistance, they assaulted her and ousted her from her matrimonial home. She then filed PRC 73 of 2019 under section 498A, 325 and 34 IPC against her husband and in-laws. She also filed a separate petition in the Family Court seeking maintenance allowance under section 125 Cr.P.C which was registered as Crl. Misc. (125) 52 of 2019 but the said case was dismissed for default since she could not appear in the Family Court on a day fixed for hearing on account of her illness. Thereafter, her husband returned from abroad and met the petitioner along with his relatives. He terrorized the petitioner by saying that unless she withdraws all cases lodged by her against her husband and in-laws she would face serious consequence. Petitioner then approached the Family Court by filing a fresh petition under section 125 Cr.P.C. claiming a monthly maintenance allowance of a sum of Rs.8,000/-. She stated in her petition that her husband was a driver. Moreover, he is the owner of about 20 kani of land having various kinds of plantation from which he earns Rs.35,000/- per month.

3. Respondent contested the case by filing written objection in the Family court wherein he denied the marriage with the petitioner. He claimed that petitioner filed several cases against him and his relatives which were all dismissed after trial. Even in the earlier petition filed under section 125 Cr.P.C. petitioner could not prove her marriage with the respondent as a result of which court declined to grant maintenance allowance to her. Respondent further contended in his written objection that meeting was also held at the Panchayet level to examine the claim of the petitioner and it was resolved by the local Panchayet that there was no proof of marriage between the petitioner and the respondent. The respondent, therefore, wanted the Family Court to reject the claim of the petitioner.

4. In the course of trial, petitioner examined herself as PW- 1, one Sayad Khan as PW-2 and her neighbour Hamza Begam as PW-3.

5. The respondent on the other hand examined himself as O