Calcutta High Court (Appellete Side)
Kuran Nandi vs Smt. Kamana Nandi & Anr on 16 February, 2018
Author: Shivakant Prasad
Bench: Shivakant Prasad
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S/L.23
16.02.2018. C.R.R. No. 2381 of 2017
rc.
In the matter of: Kuran Nandi
...Petitioner.
-Versus
Smt. Kamana Nandi & Anr.
Mr. Malay Bhattacharjee
Mr. Soumyajit Das Mahapatra
Mr. S. Ghosh ... for the Petitioner
Mr. Soumik Ganguly ...for the O.P.
Mrs. Faria Hossain ....for the State
This application under section 482 read with section 401 of the Code of
Criminal Procedure, 1973 is directed against the judgment and order dated May
31, 2017 passed by the learned Sessions Judge, Bankura in Criminal Appeal
No. 18 of 2016 thereby reversing the order dated July 25, 2016 passed by the
learned Judicial Magistrate, 3rd Court, Bankura in Misc. Case No. 93 of 2015
under section 23 of the Protection of Women from Domestic Violence Act, 2005
(hereinafter referred to as the "said Act") , inter alia, on the grounds that the
learned Appeal Court failed to consider that neither the relationship between
the parties is one of the marriage nor in the nature of marriage has been
established from any of the evidence from which the appeal court below is
empowered to pass such an order and accordingly the petitioner has assailed
the order impugned not sustainable in the eye of law as it would appear from
the claim made by the Opposite Party no. 1, alleged 'aggrieved person' that she
claimed herself to be the wife of the petitioner and prayed for relief to the tune
of Rs. 5000/- per month and further pointed out that the petitioner got married
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with the Opposite Party No. 1 and that marriage was solemnized on September
26, 2012 as per the Hindu rites and customs and they started living in the
rented premises at the house of Swapan Das and thereafter shifted to Smt.
Sefali Dey and lastly they started living at the house of Monoranjan Pal.
Having received the summons the petitioner filed a suit for negative
declaration before the court of Civil Judge (Jr. Divn.) 1st Court at Bankura being
Title Suit No. 18 of 2016 which is still pending. On 25.07.2016 the petition
under section 23 of the said Act came up for hearing for passing the order for
interim monetary relief and on contested hearing, the learned Judicial
Magistrate, 3rd Court, Bankura rejected the application by passing a reasoned
order. The order of the learned Magistrate was assailed before the learned
appeal court below and the appeal court by the impugned judgment and order
dated 31.05.2017 allowed the application under section 23 of the said Act
whereby the learned judge directed the petitioner to pay Rs. 3000/- per month
as interim monetary relief.
It is submitted that the learned Judge has committed an error in not
considering the fact that there was no relationship between the parties as they
are not married couple nor they are living in the nature of marriage and no such
evidence has been adduced to establish the said fact. Accordingly, the
petitioner has prayed for setting aside the order as bad in law.
It would appear from the order of the learned Magistrate that the learned
Magistrate was of the view that the fact stated by the petitioner in his written
objection is a total denial of the allegation leveled against him by the Opposite
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Party No. 1 as there is no matrimonial relationship between them. Whereas the
positive case of the respondent/ present petitioner was that the petitioner is not
his wife and no matrimonial relationship between them exist and that she was a married lady being wife of one Pradip Dey who is stated to be missing and she could not trace him out inspite of her best effort.
The petitioner made out a prima facie case before the Magistrate that he being a businessman used to visit Bankura Sadar Court in connection with a case on regular basis and the Opposite Party No. 1 being a law clerk of the Bankura Judges' Court requested her to do his court work and to help her, and considering her helplessness the respondent agreed to do so and on 18.05.2015 the petitioner/opposite party no. 1 asked for a sum of Rs. 50,000/- from the respondent/present petitioner for her husband's treatment as loan but the present petitioner/ respondent refused to give such amount which resulted in altercation between them and claimed relief as such in this application that she happens to be wife of the present petitioner. The petitioner has already filed a suit for declaration of no marriage between the parties and the husband of the Opposite Party No. 1 is still alive and for squeezing money from the present petitioner filed a false case. All these factual aspects by and between the parties led to misgiving in the mind of the learned Judicial Magistrate although he has taken into consideration the domestic incidence report which prima facie goes in favour of the Opposite Party No. 1 but the learned Magistrate in his wisdom was of the view that the respondent/ present petitioner having two children and wife and the husband of the Opposite Party No. 1 still 4 alive and the marriage between the respondent/petitioner and his wife is still in existence, the Opposite Party No. 1 cannot claim to be wife of the petitioner. After considering the decision in the case reported in AIR 2013 SC 346, 2013(3) CHN (SC) 189, 2016 Cr.L.J. 1052(Cal(A) and 2015(3) CLJ (Cal)23 (DB), the learned Judge came to a conclusion that there is no document before the Court from which it can be held that the parties had lived together in shared household and domestic relationship existed between them. At that stage, he was of the view that the marriage between the parties was a valid one and the respondent/ present petitioner will be prejudiced and with this view in mind the application for interim monetary relief was refused and rejected.
Learned advocate for the Opposite Party No. 1 has concurred with the observation and finding made by the learned Sessions Judge who has given observation that though the petitioner/ opposite party is a married wife of one Pradip Dey, the marriage between her and her missing husband is still subsisting as there is no order of any Court declaring that Pradip Dey who have not been seen for more than 7 years, is presumed to be dead. However, from the fact of the Title Suit No. 18 of 2016 for declaration of no marriage by the respondent/ petitioner herein against the petitioner opposite party no. 1 herein the inference was taken that there was some kind of relationship between the petitioner and the respondent, otherwise, he would not have taken trouble to file such suit against a stranger unknown woman or with a woman with whom he had not shared any kind of relationship. Such observation made by the learned Appeal Court below is without any basis. The learned Judge has taken into 5 consideration the domestic incidence report and was of the view that the parties lived together as husband and wife and petitioner was subjected to sexual abuse, physical abuse and economical abuse in the hands of the respondent/petitioner herein and thus, allowed the appeal directing the respondent/present petitioner to pay interim monetary relief of Rs. 3000/- per month till the disposal of misc. case no. 93 of 2015 relying on a decision of the Hon'ble Supreme Court in AIR 2013 SC 346 in the case of Deok Panjhiyara V. Shashi Bhushan Narayan Azad & Anr. wherein it has been observed that when appellant wife has disputed the fact of her first marriage in the absence of any valid decree of nullity or the necessary declaration the Court will have to proceed on the footing that the relationship between the parties is one of marriage and not in the nature of marriage. Any determination of the validity of the marriage between the parties could be made only by a competent Court in an appropriate proceeding by and between the parties and n 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 wife was not sufficient for any of the Courts, to render a complete and effective decision with regard to the maritial status of the parties and that too in a collateral proceeding for maintenance. As such until the invalidation of the marriage between the parties is made by a competent Court it would only be correct to proceed on the basis that the appellant continues to be the wife of the respondent so as to entitle her to claim all benefit and protection available under the DV Act, 2005."
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Such observation was made on a finding that the marriage between the parties was solemnised on 04.12.2016 by performance of rituals in accordance with Hindu Law but that was disputed and alleged to be void only on the ground of a previous marriage between the appellant that one Rohit Kr. Mishra and a marriage certificate under section 13 of the Special Marriage Act, 1954 was placed in service and a suit for declaration of the marriage as nullity was filed and in that set of fact it was held that till the marriage between the parties is annulled by a competent court the effect of the law is that the marriage between the parties is still subsists and the appellant will continue to be legally married wife of the respondent as to be entitled to claim maintenance and other benefits under Protection of Women from Domestic Violence Act, 2005. This fact is quite distinguishable from the facts of the instant case and the learned appellate court below has not been able to marshal out the facts that the observation made paragraph 11 of the cited decision that from the marriage certificate dated 18.04.2003 it is clear that the appellant was already married to one Rohit Kumar Mishra which fact was known to her but not to the respondent. The second marriage which is void and also gives rise to a bigamous relationship was voluntarily entered into by the appellant without the knowledge of the husband. Therefore, the appellant is not entitled to any of the benefits under the Protection of Women from Domestic Violence Act, 2005. In fact, grant of maintenance in the present case would amount to conferment of benefit and protection to the wrong doer which would go against the avowed object of the Act.
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A decision of coordinate bench of this Hon'ble Court in Priti Dey (Chandra) Vs. Subhasish Dey & Anr. reported in 2016(3)CCr.L.R(Cal) 266 has also been relied on and the appeal was allowed granting monetary relief to the present Opposite Party No. 1. This decision in my considered opinion has also not been well applied and well read by the learned Judge because in the said cited decision it has transpired from the materials on record that the marriage was solemnised between the petitioner and the Opposite Party No. 1 on 27.04.2008 and they lived together as married couple in the residence of the Opposite Party No. 1 and continued for a long time and out of their such living a son was born on 17.08.2010 at Purulia Sadar Hospital. Therefore, learned Judge proceeded to grant the interim monetary relief in absence of any evidence on record bearing in mind the domestic incident report which is no doubt a prima facie document which may be relied for the aid of the issue to applying a discretion by the Magistrate in grant of such relief. The Judicial Magistrate to the best of his wisdom made a judicial discretion in not allowing the interim relief without deciding the controversial issue which can very well be decided on the evidence to be adduced by the parties to the suit.
In my considered view, the grant of interim relief in such a controversial issue should be discouraged otherwise it would amount to prejudging the issue without evidence on record and it would obviously amount to conferment of benefit and protection to a wrong doer against the object and reason behind the Act.
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For the reasons stated above, the order impugned is liable to be assailed.
In the result, the revisional application being CRR No. 2381 of 2017 is allowed. I set aside the order impugned and restore the order passed by the Judicial Magistrate, however, without any order as to costs.
Learned Magistrate will proceed to take evidence of the parties and dispose of the application under the Protection of Women from Domestic Violence Act, 2005 in accordance with law without being influenced by any observation so made by this Court within two months from the date of communication of this order.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Shivakant Prasad, J.)