AYTUN Vs. RAMZAN KHALIFA

JUDGEMENT

(1.) THE applicant, claiming herself to be the married wife of non-applicant, had initiated proceedings under Section 125 Cr. P. C. before the Judicial Magistrate Class I, Manendragarh. The learned Magistrate by his order dated 18. 1. 85 granted her maintenance at the rate of Rs. 175/- per month. The non-applicant challenged the said order in revision before the Addl. Sessions Judge, Sarguja who has been pleased to set aside the same on a finding that the marriage between the parties is not established by evidence on record. It is this order which is impugned in the present application.

(2.) IT is beyond doubt that before the applicant could obtain an order for maintenance, she has to establish that she was the legally married wife of the non-applicant. In her application before the learned Magistrate she claimed that she was married to the non-applicant about 25 years back. The non-applicant denied the said allegation and submitted that be had his legally married wife who was staying with him and that the applicant had no relationship with him. The applicant in her sworn testimony submitted that Nikah was performed 20 years before and she stayed with the non-applicant for 20 years and gave birth to three children and died. In her cross-examination she stated that she had the documentary proof of her Nikah. The said document was not filed. Meen Hajuddin (PW 2) deposed that he had seen the applicant and non-applicant living as husband and wife since last about 20 years. In cross-examination he admitted that the non-applicant was living with another wife Akhtari Begum, and has children from her. He also admitted that the non-applicant and Akhtari Begum were living as husband and wife since last five-six years. He however did not have any knowledge about the Nikah of the applicant with non-applicant and denied having any paper witnessing the same. Witness Sirajuddin (PW 3) claims to have seen the applicant and non-applicant living as husband and wife since 1959. According to him, the non-applicant had taken Akhtari Begum as a second wife and was staying with him. He further deposes that about 5 years before, a caste Panchayat had fixed Rs. 50/- per month as maintenance for the applicant which the non-applicant had paid only for two months and stopped thereafter. He however, in his cross-examination, denied any personal knowledge of marriage between the parties. As regards Panchayat he stated that the decision was reduced to writing but he does not know where the said writing is. Rafiuddin (PW 4) also claims to have seen applicant and non-applicant living as husband and wife. He deposed that children were burn to the applicant from the non-applicant but they unfortunately died. According to him, non-applicant did not have any children and therefore he took second wife named Akhtari Begum. He also deposes that the Panchayat had fixed Maintenance for the non-applicant and the applicant has paid the same for sometime He however, denied that the decision of the Panchayat was reduced to writing. Gulam Gousa (PW 5) is the Kazi and claims to have got the parties married at Aurangabad (Bihar) on 11. 7. 03, He however was not able to produce any document as according to him, marriages in village are not recorded anywhere.

(3.) THIS is the total evidence adduced by the applicant. If applicant's evidence is to be believed, it would appear that some document about her marriage with the non-applicant exists. But Gulam Gousa (PW 5) has deposed that there is no such document. It is not understood as to how Gulam Gousa remembers the date of Nikah of the parties even when there is no document about it. Not even the applicant recollects the date of her marriage. Be that as it may. Since the applicant claims to have the document in her possession, It was her obligation to produce the same for perusal of the Court. There is nothing on record to explain this omission. Apparently therefore she has failed to produce the best evidence of her Nikah with the non-applicant even though the said document is with her. Similar is the situation with regard to the Panchayat which had earlier awarded maintenance to the applicant. Applicant has neither alleged nor deposed about the village Panchayat. She also does not claim that she has received any amount of maintenance from the non-applicant any time before. Her witnesses however speak about Panchayat. Meen Hajuddin denies any record of the said Panchayat; but Sirajuddin admits that the decision was written down though he has not been able to state as to where the said record was. Rafiuddin has only stated that the written record of the Panchayat was not passed on to Anjuman. Now if the community Panchayat had really awarded maintenance to the applicant, there was no reason why the Panchayat should not have been stated in the application or deposed by the applicant. Be that as it may. There is absolutely no justification for not producing the said record. Under the circumstances, except for the statement of the applicant and his witness Gulam Gousa, there is nothing to prove the marriage. Gulam Gousa does not appear to be a honest witness. It is difficult to believe that he would remember the date of Nikah for such a long period. Then, there is apparent discrepancy between his statement and the applicant's statement about the approximate period during which the alleged marriage lasted. Apparently therefore the evidence is not sufficient to record any finding in favour of the applicant.