SANTI BALA MONDAL Vs. SANTOSH MONDAL & OTHER

JUDGEMENT

(1.) This revisional application is directed against an order dated 27th July, 1998 passed by the learned Sessions Judge, Malda in criminal revision No. 29 of 1996 thereby setting aside the award of maintenance passed on 17th April, 1996 by the learned Judicial Magistrate, Malda in case No. 15M/93 thereby directing the opposite party to pay a sum of Rs. 200/- per month for the child and also a cost of Rs. 300/-. The learned trial Court had refused the prayer of the petitioner for maintenance on the ground that she was within the prohibited degree of relationship between the opposite party.

(2.) In this revisional application, the learned Advocate appearing for the petitioner has questioned the order passed by the learned Sessions Judge as also the order passed by the learned Sub-Divisional Judicial Magistrate, Malda refusing the prayer of the petitioner for maintenance. Various grounds on which the learned Advocate appearing for the petitioner relied on were that the marriage between the petitioner and the opposite party No. 1 was permitted according to the customs of the parties and that the learned Magistrate was not correct in refusing her prayer for maintenance. It was further submitted that the learned Sessions Judge had failed to consider that the finding of the Sub-Divisional Judicial Magistrate that the opposite party is the father of the child and in spite of the evidence on record, the learned Sessions Judge has set aside the order passed by the learned Magistrate. Learned Advocate appearing for the petitioner submits that the order of reversal passed by the learned Sessions Judge was not proper and that the marriage was totally legal and the evidence was not properly considered by the learned Courts below and the learned Courts below came to an erroneous finding.

(3.) Learned Advocate appearing for the petitioner relies on a recent decision of the Supreme Court in the case of Dwarika Prasad Satpathy v. Bidhyut Prava Disit and another, 2000 CrLJ 1 in support of his contention that in performance of marriage strict proof is not required and it would be sufficient if the claimant prima facie satisfies the Court that the parties have lived as husband and wife, the performance of the essential ceremonies need not also be proved. He has also referred to another decision of the Supreme Court in the case of Bakulbai and another v. Gangaram and another,1988 CalCriLR 73 , to show that even if the factum of marriage is ignored, the child born out of a null and void marriage shall be entitled to relief under Section 125 of the Code of Criminal Procedure as the Court provides for relief to an illegitimate child. He has further referred to another judgment of the Supreme Court in the case of Nanak Chand v. Chandra Kishore Agarwal and others, 1970 AIR(SC) 446 , in support of his case that Section 488 of the Criminal Procedure Code (presently Section 125, Cr PC) provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties.