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Anupama Pradhan Petitioner. v. Sultan Pradhan Opp. Party.
Summary of Judicial Opinion
Factual and Procedural Background
This revision was filed by the wife (petitioner) against an order of the learned Judicial Magistrate First Class, G. Udayagiri, which refused to grant maintenance under section 125 of the Code of Criminal Procedure, 1973.
The parties are members of the Scheduled Tribe (Kandha community). The petitioner’s parents' house is at Kanabagedi village and the opposite party's (o. p.) residence is at Kumbarkupa, both in the district of Phulbani. The parties lived together as husband and wife from about 10th August 1972 for approximately 12 years. During that period the petitioner bore two sons and one daughter from the o. p.
The petitioner alleged that after the birth of the daughter the o. p. physically assaulted her and drove her out of his house on 6-1-1984. After failure of an amicable settlement, she instituted proceedings under section 125 CrPC claiming maintenance of Rs. 300 per month, alleging that the o. p. was serving as a Surveyer in the Soil Conservation at Phulbani and earning Rs. 1000 per month.
The o. p. denied the marriage relationship and claimed he had earlier married Nirupama Pradhan in March 1970 and that the petitioner was his concubine. He also pleaded that the petitioner received salary as a teacher under the Anganbadi Scheme (about Rs. 200) and alleged the petitioner had an extramarital relationship with one Pratap Nayak. The learned Magistrate, after trial, found that the petitioner failed to prove legal marriage, ill-treatment and desertion, and disallowed maintenance. The petitioner filed the present revision against that order.
Legal Issues Presented
- Whether there was a marriage between the o. p. and Nirupama Pradhan in 1970 as alleged by the o. p., and if so whether such marriage would render any marriage between the petitioner and the o. p. void and disentitle the petitioner to maintenance;
- Whether the petitioner is the legally married wife of the o. p.;
- Whether the petitioner is entitled to any maintenance.
Arguments of the Parties
Petitioner's Arguments (Miss Mira Ghose)
- The Magistrate's findings that there was no marriage between the parties and that the petitioner was not ill-treated are perverse and contrary to the evidence.
- The parties lived together for about 12 years and the petitioner gave birth to three children by the o. p., which, taken with other evidence, clearly indicate that the petitioner is the legally married wife of the o. p.
- The o. p. failed to establish the allegation of adultery; therefore the petitioner is entitled to separate residence and maintenance.
Opposite Party's Arguments (Mr. G.B. Das for Mr. P.K. Patnaik)
- Supports the Magistrate's order denying maintenance.
- Contends that if the o. p. married Nirupama Pradhan in 1970, any subsequent marriage with the petitioner would be void ab initio under section 11 read with section 5 of the Hindu Marriage Act, 1955, and thus the petitioner is not entitled to maintenance.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Saudamini Dei v. Bhagirathi Raj… Opp. Party, 53 (1982) C.L.T. 93 | Where a man and woman lived together as husband and wife and were treated as such by the community, marriage may be inferred for the limited purpose of section 125 CrPC; summary nature of section 125 proceedings does not require technical proof of marriage rituals. | The court relied on this authority to hold that, given the parties' long cohabitation, community recognition and children, marriage between the petitioner and the o. p. must be inferred for the purpose of section 125, and that the Magistrate's demand for proof of caste marriage procedure, priest and barber testimony was inappropriate. |
| Pramila Dei v. Sanatan Jena, 67 (1989) C.L.T. 391 | Where allegation of unchastity against the wife is made to avoid maintenance but the allegation fails, the unsuccessful plea of adultery permits the wife to live apart and to claim maintenance. | The court cited and accepted this principle, holding that because the o. p. failed to prove adultery, the petitioner was entitled to remain apart and claim maintenance. |
Court's Reasoning and Analysis
The court addressed each of the three points sequentially:
- On whether the o. p. had earlier married Nirupama Pradhan: The o. p. gave uncorroborated oral evidence and relied on two documents — Ext. B (a certificate from the Record Office describing Nirupama Devi as "wife" in service records) and Ext. A (an undated letter by the o. p. asserting he had married Nirupama). The court held Ext. B could not be given weight because the author of the certificate was not examined and the underlying service records were not produced; Ext. A was of little value because it was undated. By contrast, the court found oral evidence from P.W.2 (father of the petitioner) and P.W.4 (father of Nirupama) that Nirupama had never been given in marriage to the o. p. and, in fact, Nirupama had been married to another man for about 15 years and had four sons. On this balance, the court concluded the o. p. had not married Nirupama. The court further noted that even if such a marriage had occurred, the Hindu Marriage Act, 1955 does not apply to the parties (who are members of a Scheduled Tribe) by reason of section 2(2) of that Act; accordingly the o. p.'s argument that any subsequent marriage would be void under sections 5 and 11 of the Act would not apply to disentitle the petitioner to maintenance.
- On whether the petitioner was the legally married wife: The petitioner’s claim was corroborated by her own testimony (P.W.1), her father (P.W.2) and co-villagers/caste men (P.Ws.3 and 4). Additionally, there was an admission that the parties lived as husband and wife for about 12 years and that the petitioner bore three children to the o. p. The Magistrate had disbelieved the petitioner because there was no evidence of the specific marriage procedure of the petitioner’s caste and due to non-examination of a priest and barber. The revisional court found that requiring such technical proof was inappropriate in a summary proceeding under section 125 CrPC. Relying on jurisprudence (Saudamini Dei), the court concluded that where cohabitation, community treatment and the man's conduct indicate a marital relationship, marriage may be inferred for the limited purpose of section 125. The court therefore held the Magistrate’s finding was perverse and set it aside, holding that the petitioner was the legally married wife of the o. p. for purposes of the maintenance claim.
- On entitlement to maintenance: The o. p.'s allegation that the petitioner was unchaste (illicit relationship with Pratap Nayak) was not substantiated. The court applied the principle from Pramila Dei v. Sanatan Jena that a failed allegation of adultery allows the wife to live apart and still claim maintenance. The court thus held the petitioner entitled to maintenance.
- On quantum of maintenance: The court considered the parties' living standard and incomes. The petitioner had asserted the o. p. earned Rs. 1000 per month — this was not denied by the o. p. The o. p. alleged the petitioner earned about Rs. 200 as an Anganbadi teacher, but the petitioner and her father stated she had given up that job (after 7 months to one year) and by the time of evidence (1987) she had no income; the o. p. did not contradict this. Dependents on the o. p.’s income were the o. p. himself and his two sons. Balancing these factors, the court fixed maintenance at Rs. 200 per month.
Holding and Implications
Core Ruling: Revision allowed; impugned order set aside.
Direct consequences for the parties:
- The petitioner is held to be the legally married wife of the opposite party for the purposes of section 125 CrPC.
- The petitioner is entitled to maintenance from the opposite party at the rate of Rs. 200 per month, payable from the date of the revisional order.
- The revision court set aside the Magistrate's order which had refused maintenance.
Broader implications: The opinion applies established authority regarding the summary nature of section 125 CrPC proceedings and the inference of marriage from cohabitation and community recognition (as cited). The opinion does not claim to establish a new legal precedent beyond its application of existing principles; its effect is to correct the Magistrate's factual-error-based refusal to grant maintenance and to grant maintenance to the petitioner.
Revision allowed.
B.N Dash, J.:— This revision by the wife is directed against the order of the learned Judicial Magistrate first Glass, G. Udayagiri, refusing to grant maintenance under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’)
2. Admittedly, the parties belong to Scheduled Tribe being of ‘Kandha’ community and whereas the parents' house of the petitioner is at Kanabagedi, a village in the district of Phulbani, the residence of the o. p. is in village Kumbarkupa in the same district. There is also no controversy that since lOch August, 1972 the parties remained as wife and husband for a period of about 12 years and during that period the petitioner gave birth to two sons and one daughter through the o. p.. It is the case of the petitioner that she is the legally married wife of the o. p. and that after the birth of the last issue i.e, the daughter, the o. p. physically assaulted her and ultimately drove her out of his house on 6-1-1984. An amicable settlement through mediator having failed, the petitioner initiated a proceeding under section 125 of the Code claiming maintenance at the rate of Rs. 300/- per month alleging that the o. p. was serving as a Surveyer in the Soil Conservation Gff e??? at Phulbani and getting a salary of Rs. 1000/- per month.
3. The o. p. has denied the marriage relationship. According to him, in the month of March, 1970 he had married Nirupama Pradhan of Kanabagedi village, who after a few months deserted him and thereafter he kept the petitioner as his concubine during the subsistence of his first marriage. It is also pleaded by him that the petitioner is able to maintain herself being in receipt of a salary of Rs. 200/- as a teacher appointed under the Anganbadi Scheme and that the petitioner had extra merital relationship with one Pratap Nayak. Physical assault and desertion have also been denied and it is pleaded that she voluntarily left the house of the o. p. being prompted by her desire for service and also for the said extra merital relationship. With these averments, the application for maintenance was registed.
4. At the trial, the petitioner examined four witnesses including herself as p.w 1. P.ws 2 and 3 are respectively the father of the petitioner and the co-villager who have testified about the marriage of the petitioner with the o. p. and also about the attempted amicable settlement. P.w 2 has further denied the marriage of the o. p. with Nirupama and has deposed that Nirupama is married to one Bijoy Pradhan of Kakamaha village for the last about 15 years and is the mother of four sons. P.w 4 is the father of Nirupama who, besides deposing about marriage between the parties, has denied the marriage of Nirupama with the o. p., On the other hand, the o. p. has merely examined himself and has given evidence in support of his plea. A certificate describing the petitioner as belonging to ‘Kandha’ community purported to have been granted by the Tahsildar, G. Udayagiri (Ext. 1) was filed and therein the petitioner was described as the wife of the o. p.. A copy of the letter not bearing any date purported to have been sent to the petitioner by the o. p. (Ext. A) was also filed on behalf of the o. p., besides a certificate (Ext. B) purported to have been granted on 26-6-1984 by the 2.Lt cum-Asst. Record Officer on behalf of the O.I.C Records, Jabalpur describing that the next of the kin in respect of the petitioner is Nirupama Devi (wife) as per the records held by the office. On a consideration of all these oral and documentary evidence, the learned Magistrate recorded the findings that the petitioner had failed to prove that she was the legally married wife; that the petitioner had failed to establish that she was ill-treated and deserted; and that the allegation of adultery against the petitioner had not been proved. Accordingly, the claim for maintenance was disallowed. Being aggrieved by such orders the present revision has been filed.
5. It is contended by Miss Mira Ghose for the petitioner that the findings of the learned Magistrate as to the marriage relationship between the parties as also ill-treatment are perverse and are, therefore, liable to be set aside, being contrary to the evidence on record. According to the learned counsel, the evidence led on behalf of the petitioner if considered in conjunction with the admitted facts that the parties remained as wife and husband for a very long period and during such period the petitioner gave birth to three children through the o. p. clearly indicate that the petitioner is the legally married wife of the o. p. . It is also contended by the learned counsel that the o. p. having failed to establish his claim of adultory the petitioner is entitled to claim separate residence and maintenance
6. Mr. G.B Das, on behalf or Mr. P.K Patnaik for the o. p., on the other hand, supports the impugned order and contends that the marriage of the o. p. with the petitioner, if there was any, was void ab initio according to section 11 read with section 5 of the Hindu Marriage Act, 1955, the same having been solemnised during the subsistence of the marriage of the o. p. with Nirupama Pradhan and as such the petitioner is not entitled to any maintenance and therefore, the impugned order of the learned Magistrate is not liable to be set aside.
7. On the aforesaid pleadings the following points arise for consideration :—
(i) Whether there was any marriage between the o. p. and Nirupama Pradhan in the year 1970 as alleged by the o. p. and if so whether the marriage of the petitioner with the o. p. if any, is void disentitling the petitioner to claim maintenance;
(ii) Whether the petitioner is the legally married wife of the o. p; and
(iii) Whether the petitioner in entitled to any maintenance.
8. As regards the first point, it is seen that except examining himself, the o. p. has not led any oral evidence in support of his marriage with Nirupama. The only corroborating evidence sought to be pressed into service are the certificate Ext. B and the letter, Ext. A. As already stated above, it is there in Ext. B that while the o. p. was serving in the Military, in his service record one Nirupama Devi (wife) has been described as the next kin of the o. p. . In the absence of the service records, no importance can be attached to this certificate because its author has not been examined to prove it. Similarly, although in the letter (Ext. A) the o. p. has asserted that he had married Nirupama, the same is also devoid of merit, being undated. As against the uncorroborated testimony of the o. p., it is seen that there is the evidence of the father of Nirupama and also the father of the petitioner who is admittedly related to Nirupama to show that Nirupama had never been given in marriage with the o. p. under these circumstances, it is liable to held that the o. p. had never married Nirupama. Even assuming for the sake of argument that there was any such marriage, the petitioner will not be disentitled to maintenance in asmuch as the Hindu Marriage Act, 1955 does not apply to the parties who are admittedly members of the S.T in view of section 2(2) of the said Act and the ancient Hindu Law does not forbid a Hindu to marry another wife during the subsistence of any prior marriage.
9. So fat as the second point is concerned, it is seen that the assertion of the petitioner that she is the legally married wife of the o. p. has been corroborated not only by her father (p.w 2) but also by her caste men (p. ws. 3 and 4). That apart, parties have admitted, as already stated above, that they lived as wife and husband for a long period of 12 years and that the petitioner has given birth to three children through the o. p. during that period. As against all these evidence, the denial evidence of the o. p. does not find corroboration. In the face of all these evidence, the learned Magistrate has recorded a finding that the petitioner is not the legally married wife of the o. p. merely because there was no evidence from the side of the petitioner as to the procedure of the marriage prevalent in her caste and also for non-examination of the priest and barber. It has been laid down in a number of decisions by this Court that a proceeding under section 125 of the Code is of summary nature and that the intricacies of the law are not required to be gone into and that where the man and woman lived together as husband and wife and treated as such by the community and the man treated the woman as his wife, marriage between them has to be inferred for the limited purpose of section 125 of the Code. To cite one of them is Saudamini Dei… v. Bhagirathi Raj…Opp. Party., 53(1982) C.L.T 93. In view of such decision, I hold, on the basis of aforesaid evidence, that the petitioner is the legally married wife of the o. p. and the finding of the learned Magistrate being perverse is set aside.
10. As for the third point, it is seen that the o. p. had although alleged that the petitioner was unchaste being in illicit connection with one Pratap Nayak, has failed to substantiate the same. In Pramila Dei v. Sanatan Jena, 67 (1989) C.L.T 391, it has been held by this Court that if an allegation of unchastity is made against the wife and payment of maintenance is sought to be avoided on the ground of her living in adultery but the plea fails such plea by itself is sufficient to entitle her to remain apart from her husband and also to claim maintenance. I am in respectful agreement with that decision and accordingly, I hold that the petitioner is entitled to maintenance from the o. p..
11. In fixing the quantum of maintenance, the living standard of the parties and the income of the petitioner and the number of persons liable to be maintained out of that income are to be considered. The assertion of the petitioner in her application under section 125 of the Code that the o. p. gets a salary of Rs. 1000/- per month has not been denied. It is merely pleaded by the o. p. that the petitioner herself gets a salary of about Rs. 200/- as a teacher under the Anganbadi Scheme. The petitioner, in her evidence, has stated that he was in fact serving as a teacher but she has given up that job after serving for one year. Her father (p.w 2) has also deposed that she gave up the job after serving for 7 months. Thus, it is seen that both the witnesses are unanimous that by 1987 when they were examined the petitioner was not having any income. The o. p. has not denied such evidence. The persons who are dependant on the income of the o. p. are the o. p. himself and his two sons. Taking all these factors into consideration and also the income of the o. p., the quantum of maintenance can be reasonably fixed at Rs. 200/- per month.
12. In the result, the revision is allowed and the impugned order is set aside. The petitioner shall be entitled to maintenance at the rate of Rs. 200/- per month from the opposite party from the date of this order.
Revision allowed.
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