Orissa High Court
Dhruba Charan Sena vs Hemalata Dei on 19 September, 1989
Equivalent citations: I(1990)DMC162
JUDGMENT K.P. Mohapatra, J.
1. This revision Is directed against an order passed by the learned Judicial Magistrate, Kujang granting maintenance to the opposite party at the rate of Rs. 150/- per month under Section 123 of the Code of Criminal Procedure.
2. The case of the opposite party, who was the petitioner before the learned Judicial Magistrate, is that she was married to the petitioner on 20-6-1931 as a Tolakanya according to the religious rites and customs. After marriage both parties led a happy conjugal life. After a year of marriage the petitioner with the intention of marrying another girl ill-treated and assaulted her and ultimately she was driven out of the house on 24-5-1982. Subsequently, the petitioner married another girl named, Jharana Mohanty for the second time. In the above circumstances, she claimed maintenance at the rate of Rs. 300/- per month.
3. The petitioner in his objection denied the marriage altogether. According to him, he did not marry .the opposite party as Tolakanya, She did not live with him for a year to be ultimately illtreated, assaulted and driven out. He did not also marry Jharana for the second time.
4. The opposite party examined herself (P.W. 1), the barber who had attended the marriage (P.W. 2), her uncle who acted as the Kanya Pita at the marriage ceremony (P.W. 3), her own brother (P.W.4) and another person of the village of the petitioner (P.W. 5). The petitioner examined three witnesses including himself. On a fair appraisal of their evidence, the learned Judicial Magistrate held that the opposite party successfully proved the marriage between herself and the petitioner. He further found that she was illtreated and ultimately driven out. Therefore, he allowed maintenance of Rs. 150/- per month which in these days of soaring prices is bare sustenance.
5. No point of law is involved in this case. It is based purely on facts. P.Ws. 1, 2 and 3 have uniformly stated that the marriage of the opposite party (P.W. 1) was performed as Tolakanya with the petitioner in the village of the latter according to the religious rites and custom. There was Homa and Saptapadi. A Brahmin officiated as priest. P.W. 4 stated that although he was absent at the time of marriage he subsequently visited the house of the petitioner and found the parties leading a happy married life. He was also treated well by the petitioner and members of his family. There may be some minor and unimportant discrepancies in the evidence of these witnesses, but broadly speaking they seem to be witnesses of truth and their evidence cannot be disbelieved. The evidence adduced by the petitioner partially supports the case of the opposite party. Although all the witnesses have denied the marriage between the parties yet, they consistently stated that there had been a proposal for marriage of the petitioner with the opposite party, but it did not materialise. Thus the story of marriage put forth by the opposite party cannot be straightaway disbelieved as a myth.
6. The learned Judicial Magistrate relied upon AIR 1985 SC 765, Sumitra Devi v. Bhikan Chaudhary and 64 (1987) CLT 380, Mina Kumari Devi v. Sahadeb Mallik, and in view of the evidence on record held that the marriage between the parties had been well established. A married woman will never voluntarily leave the house of her husband unless she has been compelled to do so. In this case the evidence of P.W. 1 of illtreatment and assault amounting to cruelty cannot be thrown over board. If, as a matter of fact, the opposite party would not have been compelled to leave the matrimonial home, she would not have done so. In any event, her statement of cruelty should be given due weightage.
7. The petitioner is a young man and is bound to maintain his legally married wife whether he has immovable property or not. The sum of Rs. 150/- per month is not a princely amount now a days. With it the opposite party will get bare necessities of life.
8. For the reasons stated above, I do not find that this is a fit case for interference in any manner. Therefore, the criminal revision is dismissed.