Parul Rani Das vs Bimal Das

Amitabha Dutta, J.—This revisional application is directed against the order of the learned Session Judge Midnapore passed in Criminal Motion No. 116 of 1979 by which he has set aside the order of the learned Judicial Magistrate, Jhargram in a proceeding u/s 125 of the. Code of Criminal procedure awarding monthly allowance of Rs. 60|- for maintenance of the petitioner. The petitioner's case is that she was married to the opposite party about 4 years before the filing of her application u/s 125 of the Code (filed on 17. 11. 78 according to Hindu rites that the parties lived as husband and wife; for about 31/2 years and that the opposite party ill treated the petitioner regularly and ultimately drove her out of his house after assault in May, 1978 (Jaistha 1385 B. S.). Her further case is that she has no means to maintain herself and that the opposite party earns Rs. 10|15 per day as a cobbler.

The opposite party has denied the factum of his marriage with the petitioner and also its validity as the petitioner is the daughter of the opposite parties father's sister. He has further alleged that the petitioner was earlier married to one Harilal who is alive.

The learned Magistrate after considering the evidence adduced by the parties has found that there was in fact a ceremonial marriage according to Hindu rites between the parties who belong, to cobbler community and are governed by Hindu law, that they lived as husband and wife for several years after marriage and that the opposite party ill treated the petitioner and drove her out of his house and thereafter neglected or refused to maintain the petitioner. He has further found that the petitioner has no means to maintain herself while the opposite party has sufficient earning as a cobbler to pay her monthly maintenance allowance of Rs. 60|. The learned Magistrate has found on evidence that in the community of the parties marriage between cousins is permissible. He has disbelieved the evidence of the witness examined on the side of the opposite party who have denied the factum of marriage between the parties and spoken to earlier marriage between the petitioner and one Harilal who was admittedly alive. In revision against the order of the learned Magistrate the learned Sessions Judge has set aside that order on the ground that the alleged marriage between the parties is invalid in Law as no custom has been proved to validate the marriage between the parties who are cousins and within the degree of prohibited relationship in view of Section 5 (IV) of the Hindu Marriage Act and that previous marriage of the petitioner with Harilal who is alive hap been proved.

After hearing the submissions made by the learned advocate appearing for the parties and considering the materials, in record, I am of the view that the learned Session Judge is not justified in interfering with the decision of the learned Magistrate. There is ample and acceptable evidence of P.W.s. 3 and 3, two independent witnesses apart from the priest P.W. and P.W. 4 a common relation of the parties corroborating the evidence P.W. 1 the petitioner which has been relied upon by the learned magistrate to establish that marriage between the parties was duly celebrated according to Hindu rites and that they lived together as husband and wife for several years. The learned Sessions Judge has not differed from the learned Magistrate on this point. Regarding the usage of marriage between the parties prevalent in the Community of cobblers to which the parties belong there is acceptable evidence of P.W. 1 the petitioner that the opposite party was previously married to one Renuka who was his mother's sister's daughter. Her testimony that the opposite party's father married his father's sister's daughter has not been challenged. P.W. 4 Rabindra is uncle of the opposite party and a common relation. He has corroborated the testimony of P. W. 1 on the point that there is usage of marriage between cousins, that is, children of two sisters or a brother and a sister in the community to which the parties belong. Both have denied the suggestions to the contrary in their cross-examination.

Their cogent evidence gives rise to a rebuttable presumption of the existence of a custom sanctioning such marriages in the community of the parties. In a summary proceeding u/s 125 of the Code, the Criminal Court should not go into the complicated question of law regarding the validity of marriage and strict proof of existence of custom contrary to the provisions of the statute. The order passed in an application u/s 125 of the Code is a Summary order which does not finally determine the rights and obligations of the parties thereto. The said provision which has been enacted to provide Summary remedy for preventing vagrancy and protecting destitute women, should be viewed with humane and broad perspective. The decision of the criminal Court upto the stage of this Court will not operate as conclusive in a civil proceeding between the parties.

So, the learned Sessions Judge is not right in insisting on the strict proof of all the legal ingredients of custom in a summary proceeding u/s 125 of the Code. He is also not justified in relying on the evidence of O.P.W. 2 Nemai Das said to be a headman that marriage between cousins is prohibited in his community, in the face of acceptable evidence of the practice of such marriages followed in the family of the opposite party. Moreover O.P.W. 2 who has denied the very factum of celebration of marriage between the parties, which has been proved by cogent evidence appears to be a portion witness. O.P.W. 3 is his near relation. O.P.W. 4 is said to have acted as a priest in the alleged marriage of the petitioner with one Harilal or Hariram is a man of different district and his testimony has been shaken cross examination. Harilal who could easily be examined was withheld. The learned Magistrate who has seen and heard those witnesses has disbelieved their version on adequate grounds after pointing out the discrepancies, and improbabilities in their evidence. So, the learned Sessions judge is not justified to come to a different conclusion after re-assessing their evidence when the findings of fact arrived at by the learned Magistrate are reasonable and worthy of acceptance.

In the result, I find that this application should succeed. The revisional application is allowed and the Rule is made absolute. The impugned order of the learned Sessions Judge is set aside and the order of the learned Magistrate is restored. Let the records be sent down to the court below within a month.