Ajit Nag vs Rubi Pal

Heard Mr. H. K. Bhowmik, learned counsel appearing for the petitioner as well as Mr. S. Bhattacharjee, learned counsel appearing for the sole respondent.

This is a petition under Section 19(4) of the Family Courts Act, 1984 from the judgment and order dated 16.03.2016 delivered in Crl. Misc.(125)48 of 2015 by the Judge, Family Court, Kailashahar, Unakoti. By the said judgment and order, the petitioner herein has been directed to pay a sum of Rs.5,000/- per month to the respondent for her maintenance inasmuch as the petitioner had refused to maintain the respondent who has claimed to be his legally married wife.

Mr. H. K. Bhowmik, learned counsel appearing for the petitioner has raised the solitary ground that from the stage of filing the written objection, the petitioner herein had categorically taken a stand that the respondent, the petitioner in the proceeding under Section 125 of the Cr.P.C., is not his legally married wife and the respondent is a stranger to his life. For purpose of reference, the petitioner has asserted in para 4 in his written objection as follows:

"That, it is not a fact that on 13.03.2012 A.D. there was a valid marriage between the petitioner, Smt. Rubi Pal and the Opp. Party Sri Ajit Nag. In fact the Opp. Party was already married to Smt. Shilpi Das (Nag) daughter of Nikunja Behari Das of Village-Manughat, P.S. Manu under Dhalai District, Tripura on 27 Baisakha 1402 BC as per rites of Hindu Shastra. So the question of marriage for the second time to the petitioner on 13.03.2012 as alleged in the petition of the petitioner does not arise where his past marriage existed."

Even the statement that the petitioner and the respondent are living together as husband and wife at Noagaon has been seriously disputed by the present petitioner. Further, the other statements, relating to the marital status and obligation therefrom made in the petition filed under Section 125 of the Cr.P.C. have been contested seriously as imaginary, concocted and ill-motivated and according to the petitioner, there exists a diabolical design behind it as the petitioner is known in her locality as a lady of questionable character. Even in the proceeding, the petitioner has stated that he never married the respondent herein. One Shilpi Das (Nag) was his wife and a divorce proceeding was pending between himself and that Shilpi Das (Nag) and later on, the said proceeding has ended by issuing the decree of divorce in his favour. In the divorce proceeding, he was directed to give maintenance to his former wife at Rs.2,500/-. Even in the cross- examination, he has denied the fact that he married the respondent herein. But one of the witnesses adduced by the petitioner namely Abhijit Roy, OPW-2 has denied to have any knowledge of marriage between the petitioner and the respondent. The other witness namely Habul Chowdhury, OPW-3 has followed the same suit. It implies that his own witnesses did not support his case.

Mr. Bhowmik, learned counsel has severely criticized the judgment when the priest namely Biswanath Bhattacharjee, who had solemnized the marriage as per the rites and customs was withheld how in the impugned judgment it has been observed that the marriage was solemnized between the petitioner and the respondent.

From the other side, Mr. Samarjit Bhattacharjee, learned counsel appearing for the respondent, the petitioner in the proceeding under Section 125 of the Cr.P.C., has submitted that if the evidence of the respondent (PW-1), Smt. Anita Pal (PW-2), Smt. Sabitri Pal (PW-3) and Tapash Ch. Das (PW-4) are cumulatively appreciated, it would be apparent that there was a marriage as per Hindu rites and customs on 13.03.2012 at Siddheshwari Kalimandir, Kamalpur. It would be further apparent that the respondent lived the conjugal life at the house of the respondent at Noagaon, Kamalpur for one and half year continuously.

Since the respondent was subjected to harassment, both physical and mental, she was compelled to leave the matrimonial home on 24.04.2013 and as she was refused the maintenance, she had instituted the proceeding under Section 125 of the Cr.P.C. PW-2 is the mother of the respondent. She has admitted the incidence of marriage and of harassment of the respondent. Similarly, PW-3 had elaborately stated that she was the witness of the marriage at Siddheshwari Kalimandir, Kamalpur and the marriage was performed by one Bishwanath Bhattacharjee, the priest of the said temple. Thereafter, the marriage was consummated at the house of the petitioner, the respondent herein. PW-4 is an interesting witness as he is the brother of the former wife of the petitioner. He has stated that he came to know that the petitioner had married the respondent and for the matrimonial dispute the respondent has been living away from the matrimonial home. Even though, his statement does not hold any evidentiary material, but his appearance in the court and his assertion has given some credence.

Mr. Bhattacharjee, learned counsel has relied on two decisions of this court in Nitya Gopal Shukla Das Vs. Anjali Nag Nath alias Shukla Das reported in 2014(2)TLR263 where it has been observed that "the fact of marriage even may not be legal cannot be denied when such living together itself provides the basis to presume that there has been a de facto marriage with or without solemnization of the formal marriage". Though fact and circumstances of that case are entirely different but the crux of the case that semblance of marriage is adequate enough to grant the maintenance if it is found that the woman who has become the victim of the circumstances is unable to maintain herself. Another decision in Manik Debbarma (Singha) Vs. Soumendra Debbarma reported in (2015)2TLR983 has been pressed into, for driving home the plea of subsistence of marriage. In the deposition, the petitioner, the respondent herein, has categorically stated that she had no knowledge of the previous marriage of the respondent. Thereafter, no endeavour even though the respondent has deposed in the proceeding was made to debunk the statement. The marriage was solemnized in a place where concealment of the former marriage could conveniently be made. The respondent subsequently found herself in the distress. Thus, the reports as relied by Mr. Bhattacharjee, learned counsel do not have any bearing in the circumstances, but some proposition may have impact over the understanding in respect of the degree of proof as required for purpose of determining the existence of marriage to be within the meaning of the legally married wife as appearing below Section 125 of the Cr.P.C. It is well settled that the criminal court cannot under Section 125 of the Cr.P.C. determine the legality of the marriage. They would only search for the semblance of marriage for passing the order of maintenance. The legality or the existence of the marriage by way of declaration can only be made by the competent civil court or by the other court authorized by any statute.

Having regard to this, this court is of the view that there is a sufficient evidence to draw satisfaction as regards the marriage from the evidentiary materials and as such this court is not inclined to interfere with the impugned judgment and order. However, the petitioner shall be at liberty to approach the appropriate court, if he is so inclined, to have the declaration about his marital status set aside.

In the result, this petition fails and accordingly the same is dismissed, subject to the observation made above.