PARUL RANI DAS Vs. BIMAL DAS

JUDGEMENT

(1.) 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 under section 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 under section 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.

(2.) 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.

(3.) 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.