Patna High Court - Orders
Pinki Devi & Anr vs State Of Bihar & Anr on 25 July, 2013
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.231 of 2010
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Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav, son of
Kisundeo Yadav, resident of village-Pirganj Asraha, P.S. Kursakanta,
District-Araria.
.... .... Petitioner/s
Versus
1. State Of Bihar &
2. Pinki Devi, wife of Bharat Yadav @ Bharat Prasad Yadav @ Bharat
Kumar Yadav, Daughter of Lajhi Yadav of village-Asraha Pirganj, P.S.
Kursakanta, District-Araia.
.... .... Respondent/s
======================================================
with
Criminal Revision No.589 of 2010
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1. Pinki Devi W/O Bharat Yadav,D/O Lakhi Yadav R/O Vill.-Pirganj
Asraha,P.S.-Kursakanta,Dist.-Araria.
2. Kanchan Kumari D/O Bharat Yadav,Under The Natural Guardian Of
Pinki Devi R/O Vill.-Pirganj Asraha,P.S.-Kursakanta,Dist.-Araria.
.... .... Petitioner/s
Versus
1. State Of Bihar &
2. Bharat Yadav @ Bharat Kumar Yadav, son of Sri Krishandeo Yadav,
resident of village-Ashraha, Tola-Pirganj, P.S.-Kursakata, District-
Araria.
.... .... Respondent/s
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Appearance :
(In CR. REV. No.231 of 2010)
For the Petitioner/s : Mr. Gajendra Prasad Yadav, Advocate.
For the Respondent/s : Mr. Atul Chandra, APP.
(In CR. REV. No.589 of 2010)
For the Petitioner/s : Mr. Gajendra Prasad Yadav, Advocate
For the Respondent/s : Mr. Atul Chandra, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR
TRIVEDI
CAV ORDER
12 25-07-2013Heard learned counsel for the petitioners as well as learned APP for the State.
2. Cr.Revision No.231 of 2010 wherein Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav happens to be the 2 petitioner and Cr.Revision No.589 of 2010 wherein Pinki Devi and Kanchan Kumari(minor) under the natural guardian of Pinki Devi happens to be the petitioners commonly originate against the order dated 18.01.2010 passed by learned Principal Judge, Family Court, Purnia in Case No.A.M. 71 of 2003, hence has been analogously heard and are being disposal of by a common order.
3. Pinki Devi filed a petition under Section 125 of the Cr.P.C. for herself as well as on behalf of Kanchan Kumari(minor) making an averment that she happens to be legally wedded wife of Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav on account of solemnization of marriage on 05.01.2009 according to Hindu Rituals and Customs and began to reside at her Sasural. She has begotten a daughter, namely, Kanchan Kumari. It has further been submitted that during her stay at her Sasural, her husband advanced illegal demand of Rs.50,000/- and as she failed to honour the same, on 09.04.2002 she was kicked out. Because of the fact that she happens to be illiterate and is dependent upon her parents having no source of income is at the stage of vagrancy. Therefore, she claimed Rs.3,000/- per month for herself as well as her daughter in lieu of maintenance. With regard to means of Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav, it has been disclosed that apart being hale and hearty he has 25 to 30 bighas of land and also engaged in seasonal business making 3 earning of Rs.55,000/- per annum.
4. Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav appeared on 20.02.2004 on which date he had filed rejoinder disowning the status of Pinki Devi to be his wife and Kankan Kumari to be his daughter. It has also been submitted that Pinki Devi had filed Complaint Case No.655 of 2002 against him including others wherein she narrated that on account of love affair and on the pretext of marriage, Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav developed physical intimacy and during said course, she was taken away by him at his house where she availed the status of wife. Subsequently, he developed ill motive and demanded Rs.50,000/- and said that he will marry with her only after payment of 50,000/-. Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav at the instance of his guardian left his house side by side she was also kicked out and in the aforesaid background, it has been submitted that no marriage was solemnized among the parties as per own version of the PInki Devi. It has further been disclosed that both the parties happens to be 18 years of age as well as both the parties happens to be cousin brother and sister. Hence, the marriage in between the parties was not at all permissible. It has also been submitted that in Complaint Case No.655 of 2002 cognizance was taken and Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav was 4 declared as juvenile. Hence, the applicant Pinki Devi was not all entitled by maintenance.
5. Subsequently thereof, show cause was filed on behalf of Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav on 28.07.2006 denying the marriage on account of coming under prohibited decree. To support the same, a genealogical table has been furnished. It has further been submitted that as there happens to be land dispute amongst the Pattidar that means to say father of Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav at one side and Lakhi Chandra Yadav at other side, instant case has been filed. In para-10 of the show cause, it has also been incorporated that petitioner is not legally wedded wife of Opposite Party on account of which she is not at all entitled for claiming maintenance.
6. Altogether three witnesses have been examined on behalf of Pinki Devi while six witnesses have been examined on behalf of Opposite Party. After analyzing their evidence, the learned Principal Judge rejected the claim of the applicant/wife Pinki Devi. However, granted maintenance to the tune of Rs.1,000/- per month from the date of order till she attains age of majority and this cause grievances to both sides resulting filing of two independent revision petitions as referred above.
7. In Pyla Mutyalamma v. Pyla Suri Demudu (2011) 5 12 SCC 189, it has been observed relevant paras 15 and 16:-
―15. The High Court under its revisional jurisdiction is not required to enter into reappreciation of evidence recorded in the order granting maintenance; at the most it could correct a patent error of jurisdiction. It has been laid down in a series of decisions including Suresh Mandal v. State of Jharkhand that in a case where the learned Magistrate has granted maintenance holding that the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the Revisional Court is very limited. The Revisional Court would not substitute its own finding and upset the maintenance order recorded by the Magistrate.
16. In a revision against the maintenance order passed in proceedings under Section 125 CrPC, the Revisional Court has no power to reassess evidence and substitute its own findings. Under revisional jurisdiction, the questions whether the applicant is a married wife, the children are legitimate/illegitimate, being pre-eminently questions of fact, cannot be reopened and the Revisional Court cannot substitute its own views. The High Court, therefore, is not required in revision to interfere with the positive finding in favour of the marriage and patronage of a child. But where finding is a negative one, the High Court would entertain the revision, re-evaluate the evidence and come to a conclusion whether the findings or conclusions reached by the Magistrate are legally sustainable or not as negative finding has evil consequences on the life of both the child and the woman. This was the view expressed by the Supreme Court in Santosh v. Naresh Pal, as also in Pravati Rani Sahoo v. Bishnupada Sahoo. Thus, the ratio decidendi which emerges out of a catena of authorities on the efficacy and value of the order passed by the Magistrate while determining maintenance under Section 125 CrPC is that it should not be disturbed while exercising revisional jurisdiction.‖
8. Therefore, the scope of entertaining prayer made on behalf of the petitioner Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav through Revision No.231 of 2010 is found to be out of revisional jurisdiction in the back drop of settle 6 principle of law as referred above questioning authenticity of the order in granting maintenance in favour of Kanchan Kumari, a minor having its effectiveness from the date of passing of order till she attains majority.
9. As Hon'ble Apex Court kept open the field in case there happens to be adverse order relating to interest of wife, as such, the plea raised on behalf of wife Pinki Devi is to be taken into consideration. Section 5 of the Hindu Marriage Act, 1955 laid down the condition whereunder two Hindus are found competent relating to solemnization of marriage. For better appreciation Section 5 is quoted below:-
―5. Conditions for a Hindu marriage.--A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of marriage, neither party--
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity
(iii) the bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage 7 governing each of them permits of a marriage between the two;
10. From Sub-Clause-III and 5, it is apparent that the age of bridegroom has been identified to be of 21 years while the age of bride has been identified as 18 years that means to say that both the parties must have attained the age of 21 years as well as 18 years respectively at the time of the marriage.
11. In likewise manner Clause-IV and Clause-V speak that the parties should not be coming under prohibited degree or sapindas unless by custom so permitted. Section-3(f) defines the supenda while 3(G) defines the prohibited degree. The same are quoted below:-
―(f) (i) ―sapinda relationship‖ with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation;
(ii) two persons are said to be ―sapindas‖ of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;
(g) ― degrees of prohibited relationship‖--two persons are said to be within the ‗degrees of prohibited relationship‖--
(i) if one is a lineal ascendant of the other; or
(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or
(iii) if one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other; or
(iv) if the two are brother and sister, uncle and niece, 8 aunt and nephew, or children of brother and sister or of two brothers or of two sisters;
12. Section 7 of the Act prescribes the rituals and ceremony which are necessary to be performed for valid marriage by recognizing the customary right and ceremonies of either party thereto. In case, the such rituals attracts Saptpadi, the marriage will be found completed only having performance of Saptpadi in terms of Sub-section-2. Section 11 prescribes the methodology whereunder marriage could be declared null and void on the presentation of petition by either parties on the ground that the marriage has been solemnized in contravention of Section 5(i), iv, v. That means to say, though the marriage in contravention of Section 5(i), iv, v happens to be void, but that could be only enforced after having a decree of nullity passed by a competent court. While Section 12 deals with voidable marriage, having solemnized amongst the parties fulfilling the criteria so specified under clause (a), (b), (c), (d). Taking into account plea of husband, it appears to be a marriage attracting Section 11 of the Act.
13. From the order of the learned Principal Judge, it is apparent from para-16 that detailed discussion has been made over Section 11 of the Hindu Marriage Act and also considered the requirement of filing a petition by either of the party for nullifying their marriage. No such petition has been brought up on record at 9 the end of Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav.
14. From the show cause dated 28.08.2006, it is apparent that Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav had reiterated that on account of coming under prohibited degrees, the marriage was not at all permissible and recognizable.
15. While examining as O.P.No.6, Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav had deposed detailing the genealogical table that the Pinki Devi happens to be his cousin sister. He has further asserted that he happens to be unmarried. On account of land dispute, he has been falsely implicated in this case. In para-6 of his cross-examination, he has admitted that Pinki Devi has filed a case under Section 498A of the IPC against which he has filed Cr.Revision before the learned Sessions Judge which has already been dismissed. In para-8 there happens to be cross-examination over his means.
16. At the other hand, petitioner Pinki Devi had examined herself as witness no.3 wherein she had asserted that she was married with Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav on account of which she had gone to her Sasural where Kanchan Kumari had begotten. As she failed to bring Rs.50,000/- from her Maika, she has been kicked out. She 10 had also stated that she has got no source of income. At the other hand, she had disclosed source of means of Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav. She had also denied his statement as cousin sister of Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav. She also denied her status as Gotiya. During her cross-examination at para-6 genealogical table has been brought into existence but only to the extent of grand-father having no link in between. She had also stated that in between house of her Maika as well as Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav five or six houses lie but she is unable to say the names of the house owner. In para-7 she had also accepted that there happens to be dispute with regard to land in between her brother Shambhu Yadav with the elder brother of the Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav. In para-8 of her cross-examination she had detailed the customs which were performed but failed to disclose names of Pandit and Hazam. She also stated that she had not gone to the house of Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav before marriage. There was no talk amongst them before marriage. Then had denied the suggestion.
17. From the evidence of O.P.No.6 it is apparent that he had not denied staying of Pinki Devi at his house and so the evidence of Pinki Devi on this score is found to be unrebutted. 11
18. Now the debatable question in the aforesaid background remains that having marriage in spite of having falling under prohibited degrees will automatically identify the marriage as void ab initio or in terms of Section 11 of the Hindu of the Marriage Act a suit was to be brought up for declaration of marriage being void. This issue has been properly answer by the Apex Court in Deoki Panjhiyara v. Shashi Bhushan Narayan Azad and Ar. Reported in (2013) 2 SCC 137 relevant paras- 20 21, 22 and 23.
―20. In the present case, however, the appellant in her pleadings had clearly categorically and consistently denied that she was married to any person known as Rohit Kumar Mishra. The legitimacy, authenticity and genuineness of the marriage certificate dated 18-4-2003 has also been questioned by the appellant. Though Section 11 of the aforesaid Act gives an option to either of the parties to a void marriage to seek a declaration of invalidity/nullity of such marriage, the exercise of such option cannot be understood to be in all situations voluntarily. Situations may arise when recourse to a court for a declaration regarding the nullity of a marriage claimed by one of the spouses to be a void marriage, will have to be insisted upon in departure to the normal rule. This, in our view, is the correct ratio of the decision of this Court in Yamunabai and M.M.Malhotra reported in (2005) 8 SCC 351.
21. In this regard, we may take note of a recent decision rendered by this Court in A.Subash Babu v. State of A.P.(2011)7 SCC 616 dealing with the question whether the wife of a second marriage contracted during the validity of the first marriage of the husband would be a ―person aggrieved‖ under Section 198(1)(c) of the Code of Criminal Procedure to maintain a complaint alleging commission of offences under Sections 494 and 495 IPC by the husband. The passage extracted below effectively illuminates the issue:(A. Subash Babu case (2011) 7 SCC 616, SCC p.628, para 24) 12 ―24... Though the law specifically does not cast obligation on either party to seek declaration of nullity of marriage and it may be open to the parties even without recourse to the court to treat the marriage as a nullity, such a course is neither prudent nor intended and a declaration in terms of Section 11 of the Hindu Marriage Act will have to be asked for, for the purpose of precaution and/or record. Therefore, until the declaration contemplated by Section 11 of the Hindu Marriage Act is made by a competent court, the woman with whom second marriage is solemnized continues to be the wife within the meaning of Section 494 IPC and would be entitled to maintain a complaint against her husband.‖
22. In the present case, if according to the respondent, the marriage between him and the appellant was void on account of the previous marriage between the appellant and Rohit Kumar Mishra the respondent ought to have obtained the necessary declaration from the competent court in view of the highly contentious questions raised by the appellant on the aforesaid score. It is only upon a declaration of nullity or annulment of the marriage between the parties by a competent court that any consideration of the question whether the parties had lived in a ―relationship in the nature of marriage‖ would be justified. In the absence of any valid decree of nullity or the necessary declaration the court will have to proceed on the footing that relationship between the parties is one of marriage and not in the nature of marriage.
23. We would also like to emphasise that any determination of the validity of the marriage between the parties could have been made only by a competent court in an appropriate proceeding by and between the parties and in compliance with all other requirements of law. Mere production of a marriage certificate issued under Section 13 of the Special Marriage Act, 1954 in support of the claimed first marriage of the appellant with Rohit Kumar Mishra was not sufficient for any of the courts, including the High Court, to render a complete and effective decision with regard to the marital status of the parties and that too in a collateral proceeding for maintenance. Consequently, we hold that in the present case until the invalidation of the marriage between the appellant and the respondent is made by a competent court it would only be correct to proceed on the basis 13 that the appellant continues to be the wife of the respondent so as to entitle her to claim all benefits and protection available under the DV Act, 2005.‖
19. In Nagendrappa Natikar v. Neelamma reported in 2013 Cr.L.J 2060, it has been held in para 10:-
―10. Section 125, Cr.P.C. is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children. Section 125 is not intended to provide for a full and final determination of the status and personal rights of parties, which is in the nature of a civil proceeding, though are governed by the provisions of the Cr.P.C. and the order made under Section 125, Cr.P.C. is tentative and is subject to final determination of the rights in a civil court.‖ Thus the point in issue is found to be fully answered that for having the marriage void the parties are expected to have a declaration to this effect by a court of competent jurisdiction. Till then, the status of the party shall continue.
20. The second aspect is visualizing on account of presence of Section 26 Protection of Women from Domestic Violence Act, 2005(for brevity D.V.Act). For better appreciation, the Section is quoted below.
―26. Relief in other suits and legal proceedings.--(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil Court, family Court or a criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.
(2) Any relief referred to in sub-section (1) may be sought for in addition to and alongwith any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal Court. 14
(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief, This clause provides that any relief available under the proposed legislation may also be sought in any legal proceeding before a civil Court, family Court or a criminal Court and that any relief which may be granted under the proposed legislation may be sought for in addition to and alongwith reliefs sought for in a suit or legal proceeding before a civil or criminal Court. Sub- clause(3) lays down that the aggrieved person shall be bound to inform the Magistrate of the reliefs obtained by her in any proceeding other than proceedings under the proposed legislation.(Notes on Clauses).
21. By having Section 26, the application of D.V.Act will apply with regard to the cases launched under Section 125 of the Cr.P.C. pending before Family Court and as per sub-Section-2, and order can also be passed in addition to relief so sort for under sub-Section-1. The scope of D.V.Act has been extended having the same defined under Section-2(f) of the D.V.Act which runs as follows:
(f) ―domestic relationship‖ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;‖
22. At the present juncture, one should not lost sight of Section 3 of D.V.Act which has defined the domestic violence:-
―3.Definition of domestic violence.--For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it--15
(a) harms or injuries or endangers the health, safety, life, limp or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause(a) or clause(b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I. - For the purposes of this section,--
(i) ―physical abuse‖ means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimation and criminal force;
(ii) ―sexual abuse‖ includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) ―verbal and emotional abuse‖ includes--
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
(iv) ―economic abuse‖ includes--
(a) deprivation of all or any economic or financial resources to which the aggrieved person in entitled under any law or custom whether payable under an order of a Court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or 16 separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
Explanation II.--For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes ―domestic violence‖ under this section, the overall facts and circumstances of the case shall be taken into consideration.‖
23. As per definition, economic abuse is found including the deprivation of financial resources, which could be found essential as a source of livelihood. Thus taking into account Section 26 of the Act, the consideration over deprivation of economic resources is found legally maintainable during course of proceeding with 125 Cr.P.C. proceeding taking into account explanation of D.V.Act.
24. Because of the fact that there happens to be complete silence on behalf of husband Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav with regard to the disclosure made by Pinki Devi regarding her stay at his house and discharging the obligation of marital life or under the banner of marital life, then in that event as per Section 26(1) of the D.V.Act, the status of Pinki Devi is found to be well recognized having fallen under category of domestic relationship and as such she is found to be entitled for maintenance.
25. After having perusal of para-8 of cross-
17
examination of Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav, it is apparent that joint family properly himself possesses 15 bigahas of land. He had also admitted presence of flour mill as well as rice mill run by joint family. In the aforesaid eventuality PInki Devi is found entitled for getting Rs.1500/- per month in lieu of maintenance which would be paid by Bharat Yadav @ Bharat Prasad Yadav @ Bharat Kumar Yadav in the Ist week of every month. The order is made operative from its date of delivery of instant judgment till Pinki Devi re-marriages. As such, the order of the learned Lower Court is set aside to the extent of interest of Pinki Devi. Consequent thereupon, Cr.Revision No.231 of 2010 is dismissed while Cr.Revision No.589 of 2010 is allowed.
(Aditya Kumar Trivedi, J) Patna High Court, Dated, 25th July, 2013, Brajesh Kumar/AFR.