Calcutta High Court (Appellete Side)
Smt. Arati Samata vs Sri Biswajit Samanta & Anr on 24 November, 2017
Author: Md. Mumtaz Khan
Bench: Md. Mumtaz Khan
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present:
The Hon'ble Justice Md. Mumtaz Khan
CRR No. 1722 of 2017
Smt. Arati Samata
Vs.
Sri Biswajit Samanta & anr.
For the petitioner : Mr. Tarapada Das,
Mr. P.M. Chakraborty
: Mr. Kollol Mondal
For the Opposite Party Mr. S.N. Arefin,
Mr. Kishan Ray,
Mr. Ratul Singh,
Ms. Vidita Ghosh
Heard on : 10.11.2017
Judgment on : 24.11.2017
Md. Mumtaz Khan, J. :
The Instant revision has been preferred by the petitioner assailing the order dated February 28, 2017 passed by the learned Judicial Magistrate 1st Court, Contai, District Purba Medinipur in Misc. Case No. 81/2016 whereby the petitioner's prayer for interim maintenance was rejected.
The facts relating to the instant revision is that the petitioner filed an application under Section 125 of the Code of Criminal Procedure (hereinafter referred to Cr.P.C.) before the court of learned Additional Chief Judicial Magistrate 1st Court, Contai praying for her maintenance allowance @ Rs. 20,000/- per month from the opposite party No. 1 stating therein that her marriage with the opposite party No. 1 took place on August 14, 2013 according to Hindu rites and customs and a declaration of such marriage to that effect was also made before the Notary Public at Contai. After marriage she then went to the matrimonial home and started leading her conjugal right but during her stay there she was subjected to cruelty by the opposite party and his family members on the ground of further dowry and finally she was driven away from the matrimonial home on April 15, 2016. She then finding no other alternative she took shelter at her father's house. She also started a criminal case against the opposite party and her in-laws. She has no income of her own and is unable to maintain herself whereas opposite party no.1 is a B.Tech Electrical Engineer and is employed under "Ray International Energy LLC" Mascat, Oman and getting salary of Rs. 100000/- per month but inspite of his such means he is not providing any maintenance to her. She also filed another application praying for interim maintenance allowance. Opposite party no. 1 appeared and contested the application by filing a written objection whereby denied that the petitioner is his legally married wife and also denied the allegations made by the petitioner in her application for maintenance contending inter alia though there was a love affairs between him and this petitioner but the said relation never developed into marriage and no form of marriage either legal or social was performed between them. He also pleaded that a suit for declaration that petitioner is not his legally married wife has been filed before the Civil Judge, Junior Division, 1st Court, Contai being O.S. No. 143/2016 which is now pending. Learned Magistrate after hearing both the parties rejected the prayer for interim maintenance by the impugned order holding that in view of such scenario with regard to the denial of marriage and in the absence of any evidence adduced by the parties, it will not be proper to pass any order regarding maintenance in a haste merely relying on the copy of the affidavit sworn before a Notary Public as to the joint declaration of Marriage and the xerox copy of the ration card, joint photograph etc. Being aggrieved by and dissatisfied with the same petitioner has preferred the instant revision questioning the propriety of the impugned order on the ground that the learned court below erred in ignoring the affidavit before the Notary Public with regard to the joint declaration of marriage between the parties, medical papers including pregnancy test report, the ration card, LIC paper, joint photographs etc. and has accordingly prayed for setting aside the impugned order.
It was submitted by the learned advocate for the petitioner that the marriage of the petitioner with opposite party no. 1 took place according to Hindu rites and customs and to that effect there was also a joint declaration of marriage by the parties before the Notary Public and the opposite party no. 1 has not denied his signature appearing therein. He also submitted that the joint photographs of the petitioner with the O.P. no.1,copy of insurance policy, medical as also pregnancy test report, copy of the ration card prima facie show that this petitioner is the wife of opposite party no. 1. He further submitted that petitioner was subjected to cruelty by her husband and her in-laws at the matrimonial home for which she had to lodge a complaint at the Contai P.S. and the same has ended in charge sheet after completion of investigation which also fortifies the claim of the petitioner as being wife of the opposite party no.1.
He relied upon the decision in the matter of B.L. Sreedhar and ors. Vs. K.M. Munireddy (dead) and Ors. reported in (2003) 2 Supreme Court Cases 355 and in the matter of Dalip Singh Vs. State of Uttar Pradesh and ors. reported in (2010) 2 Supreme Court Cases 114 in support of his submissions.
It was submitted by the learned advocate for the opposite party no. 1 that no such marriage took place between the petitioner and the opposite party no.1 nor she every resided with the opposite party no.1 at his house. He also submitted that though there was love affairs between the petitioner and the opposite party no. 1 but the said love affair did not materialize in marriage. He further submitted that opposite party no. 1 has filed a civil suit for declaration that this petitioner is not his legally married wife nor she has any legal right to claim herself as the wife of the opposite party no. 1 and the said suit is pending for disposal. According to learned advocate for the opposite party no. 1, the documents produced by the petitioner had been created only for the purpose of the case and those documents are yet to be contested in trial. He also submitted that the opposite party no. 1 has already filed written objection to the main application under Section 125 Cr.P.C. and the case is at the stage of evidence and the next date is fixed on 2nd January, 2018 and that it is the petitioner who is taking time to adduce evidence and not interested for early disposal of her main application.
I have considered the submissions of leaned counsels for both the parties and also gone through the impugned order and the documents annexed with the instant revision.
It is evident from the documents on record that there is a dispute between the parties with regard to the matrimonial relation between the petitioner and the opposite party no.1 though admittedly there was love affairs between them. The authenticity of the documents produced by the petitioner in support of her claim of marriage with the opposite party no. 1 has been questioned by the opposite party no.1 on the plea that those have been created only for the purpose of this case and have not been tested in trial. It is true that proceeding under Section 125 of Cr.P.C. do not require the factum of marriage to be proved strictly but at the same time claimant must establish factum of marriage or living together for sustaining her claim of maintenance. In the instant case the factum of marriage between the parties has been denied by the opposite party no. 1 and as such under the circumstances in the absence of any evidence of the parties it will be very difficult to draw any such inference on the basis of the documents which have not been tested in trial. Learned court below taking into account the above circumstances was of the opinion that in the absence of any evidence it will not be proper to pass any order of interim maintenance in a haste as there will be chance of causing prejudice to the party. Taking into account the above situation there appears no illegality or irregularity in the order impugned. Admittedly, case is at the stage of evidence and as such I am the view in order to set the controversy at rest evidence is required and for this reason learned Magistrate be requested to expedite the hearing of the main application under Section 125 Cr.P.C. and dispose of the same within a stipulated period and this will also not cause any prejudice to either of the parties.
Accordingly, I dispose of the revisional requesting the learned Magistrate to expedite the hearing of the application under Section 125 Cr.P.C. and dispose of the same at the earliest preferably within a period of 03 months from the date of communication of this order without granting any unnecessary adjournment to either of the parties. Both parties are directed to assist the trial court for early disposal of the application under section 125 Cr.P.C.
A copy of this order be communicated to the learned court below for information and necessary action. Parties are also directed to communicate this order to the learned court below.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
(Md. Mumtaz Khan, J.)