Calcutta High Court (Appellete Side)
Smt. Sukumoni Murmu vs Sri Dhirendranath Murmu & Anr on 6 August, 2018
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In The High Court At Calcutta
Criminal Revisional Jurisdiction
06.08.18
CRR 515 of 2018
Smt. Sukumoni Murmu
-Vs-
Sri Dhirendranath Murmu & Anr.
Mr. Saurav Chatterjee
Ms. Tannistha Bandopadhyay
... for the petitioner.
Ms. Debjani Sahu
... for the State.
Mr. Pravas Bhattacharya
Ms. Rituparna Ghosh
... for the opposite parties.
In this revisional application the petitioner has sought for setting aside the
order dated August 30, 2017 passed by the learned A.D.J 1st Court, Jhargram,
Paschim Medinipur in Criminal Revision No. 289 of 2014 by allowing the prayer
of the opposite party no. 1 after setting aside the judgement and order dated
April 17, 2014 passed in M.R. 26 of 2008 and T.R. 292 of 2008 by the learned
Judicial Magistrate, Jhargram Court, Paschim Medinipur under Section 125 of
the Code of Criminal Procedure, 1973, inter alia, on the grounds that the learned
Additional District & Sessions Judge, 1st Court, Jhargram, Paschim Medinipur
should have considered the deposition of the independent witnesses and
documentary evidences produced by the petitioner in support of her case before
the learned Judicial Magistrate, Jhargram Court, Paschim Medinipur.
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It appears that the learned Judicial Magistrate allowed the misc. case
under Section 125 CrPC granting maintenance awarded to the petitioner at the
rate of Rs.5,000/- per from the date of filing of the application under Section 125
CrPC.
The learned Magistrate has taken into consideration the evidence on record
and concluded that the petitioner is a legally wedded wife of the opposite party by
taking note of the fact that in Santal marriage, a boy and a girl live publicly
together and are known as man and wife.
Being aggrieved the opposite party preferred a Criminal Motion being No.
289 of 2014 and by order impugned, the learned Additional District Judge, 1st
Court, Jhargram, Paschim Medinipur allowed the criminal motion on contest and
judgement dated April 17, 2014 passed by the learned Judicial Magistrate in
connection with M. R.Case No. 26 of 2008 was set aside with a direction to hear
the matter afresh after comparing all documentary evidence adduced from the
side of both parties with their original one and the translated copy of the letters
dated 20.04.04 and 22.08.05 and also for considering the result of civil suit
pending before the learned Civil Judge, (Jr. Division) 2nd Court, Chandannagar
on factual aspect on the basis of evidence so adduced by both parties in course of
their trial.
Such order was passed with the observation that the standard of proof of
marriage in a proceeding u/s 125 of Cr.P.C. succeeds in showing that she and
respondent lived together as husband and wife, the Court can presume that they
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are legally wedded and in such situation partly denying the marital status can rebut the presumption.
It appears that finding in body of the judgement impugned is contrary to the decision taken by the learned revisional Court for having sent back the case for decision afresh on the evidence already on record.
Learned advocate for the petitioner relied on a decision in the case of Dwarika Prasad Satpathy -Vs- Bidyut Prava Dixit & Anr., reported in (1999) 7 Supreme Court Cases 675 to argue that standard of proof in respect of marriage is not as strict as is required in a trial for offence of bigamy u/s 494 I.P.C.
I do agree that once it is admitted that a marriage procedure was followed, it is necessary to prove that procedure was completed as per the rites and customs. When the petitioner's marriage with the opposite party has been established that she lived with the opposite party together as husband and wife, presumption is that they are married wife and husband subject to rebuttal.
It is alleged that the opposite party has filed a suit for declaration that the present petitioner is not a legally wedded wife. I am of the view that the opposite party has no legal right to maintain such a suit for negative declaration of marriage under the provisions of Section 34 of the Specific Relief Act. Negative declaration in a suit is generally declined.
Without any doubt the petitioner and opposite party are members of Santhal Community.
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In Santhal Adivasi, the opposite party cannot maintain an application u/s 13 of the Hindu Marriage Act, 1955 as the Santhal Adivasi being Scheduled Tribe within the meaning of Clause 25 of Article 366 of the Constitution of India.
In the case of Dr. Surajmani Stella Kujur -Vs- Durga Charan Hansdah (AIR 2001 SC 939) it has been held that though the parties are tribals and profess Hinduism, nevertheless their marriage are out of the purview of Hindu Marriage Act, 1955 in view of Section 2(2) of the Act, are only governed by their Santhal customs and usage.
This is why, the opposite party has attempted to nullify his marriage with the petitioner by filing a suit for negative declaration of marriage, which in my opinion is not an impediment to grant of maintenance u/s 125 Cr.P.C.
Having perused the judgements of the learned Courts below, I find that the learned Magistrate has clearly found marital status between the petitioner and the opposite party/husband and wife having lived together based on the evidence. It was not expedient on the part of the revisional Court to have reassessed the evidence and substitute his own findings since the question that the petitioner is a married wife is a question of fact which has already been dealt with by the learned Magistrate while allowing the application under Section 125 Cr.P.C.
For the reasons stated above, the judgement impugned dated August 30, 2017 passed by the learned Additional District & Sessions Judge, 1st Court, Jhargram, Paschim Medinipur in Criminal Motion No. 289 of 2014 is hereby set aside and the order dated April 17, 2014 passed in M.R. 26 of 2008 ( T.R. 292 of 5 2008) under Section 125 Cr.P.C. passed by the learned Judicial Magistrate, Jhargram, Paschim Medinipur is revived.
With the above direction CRR 515 of 2018 is disposed of. Urgent xerox certified copy of this order, if applied for, be given to the parties after completion of all legal formalities.
sh ( Shivakant Prasad, J.)