ASIT KUMAR BARMAN Vs. RADHA BARMAN ALIAS BAURI

JUDGEMENT

(1.) This revisional application is directed against the order and judgment dated the 6th July, 1991 passed by the learned Sessions Judge, Purulia in Criminal Revision No. 8 of 1991 whereby he reversed the order of the Judicial Magistrate, Raghunathpur by which the learned Magistrate dismissed an application under section 125 of the Code of Criminal Procedure for maintenance. By his impugned order the learned Sessions Judge granted maintenance of Rs. 250/- per month in favour of the opposite party herein. The Opposite Party herein Smt. Radha filed an application under section 125 Cr. P.C. on 20th June, 1987 alleging inter alia that she was married to the petitioner herein Asit Kumar Barman more than 20 years back and thereafter they stayed together as husband and wife, but during sometime past the petitioner herein started ill-treating her and ultimately on 17th June, 1987 she was abused, assaulted and driven away from his residence and she was thereafter residing with neighbour Smt. Santi Biswas. The petitioner herein contested the said application under section 125 Cr. P.C. denying the allegations of marriage and staying together. The parties adduced evidence before the learned Magistrate and the learned Magistrate after considering the facts, circumstances and evidence disbelieved the allegations of marriage, staying together and torture. Accordingly he dismissed the application under section 125 Cr. P.C.

(2.) The opposite party herein examined 4 witnesses including herself before the learned Magistrate and the petitioner herein examined two witnesses including himself. The learned Magistrate found that PW-1 and PW-3 had no knowledge about marriage. PW-2 is the brother of the PW-4 who is the opposite party herein. The learned Magistrate elaborately analysed all the evidence and the discrepancies appearing therein. If the marriage was held 20 years back as is the averment in the application then it would come to this that the marriage took place in or around 1967. But in their evidence both the PWs-2 and 4 stated in 1990 that the marriage took place about 20 years ago which would indicate that the marriage took place in or around 1970. Therefore the learned Magistrate found discrepancy between the evidence and the original case about the time when the alleged marriage took place. This discrepancy along with the other discrepancies in the evidence as to where the negotiation of marriage took place, the rituals observed at the alleged marriage, etc. were also considered by the learned Magistrate. No independent witness to the alleged marriage was also forthcoming. The opposite party herein belongs to Bauri community. The petitioner herein is originally a resident of Diamond Harbour Sub-Division, 24-Parganas and he passed the Pre-University examination from Diamond Harbour Fakirchand College in 1967. In November, 1977 he got appointment in South Eastern Railway at Adra in the district of Purulia as junior clerk in Accounts Department. He has stated that prior to that he never visited Adra. The opposite party herein is a resident of Adra locality. It is the case of the petitioner herein that she works as maidservant in different houses. PW-1 has admitted that Radha works as maidservant in some houses at Adra. PW-3 has also stated that Radha works as maidservant. In view of the difference in social and educational levels of the parties the evidence on record about the negotiated marriage should be cautiously considered. The contention that the parties were married more than 20 years before the application under section 125 Cr.P.C. was filed, as is the case of the opposite party herein, is however not sustained by the very fact that the petitioner herein who is originally a resident of Diamond Harbour for the first time came to Adra in 1977 on getting an appointment and posting at Adra under the South-Eastern Railway.

(3.) The learned Sessions Judge in his impugned judgement observed that the learned Magistrate had rightly discarded the evidence of PW-1 on the ground that he was not born at the time of alleged marriage of the parties. He also observed that the learned Magistrate also discarded the evidence of PW-3 as he was not present at the time of marriage. The learned Sessions Judge however observed that the learned Magistrate should not have been totally discarded the evidence of PWs-1 and 3 and that part of their evidence which would go to show that the parties lived as husband and wife could be believed. This approach of the learned Sessions Judge is also not a correct one. In revisional jurisdiction the court has to consider not what could be believed by the trial court but whether or not the view taken by the trial court is on a question of fact also a possible view on the basis of the materials on record. If two views are possible then the mere fact that the trial court took one of the two possible views which the revisional court would not have preferred to take is by itself no ground for replacing the view taken by the trial court by the alternative view which the revisional court would feel inclined to take. The learned Magistrate has considered the evidence elaborately and he did not find the evidence convincing as to prove that the parties lived as husband and wife. PW-1 is a boy of 21 years. The opposite party herein is his Pisi (aunt). He said that he went to the house of the parties on different occasions but did not spend night there. He could not tell what kind of furniture was there in the room of the petitioner herein. If he really had gone to his house he was expected to have been acquainted with the nature of furniture the petitioner was having in his house. PW-3 in his cross-examination unequivocally stated that he never went to the house of the parties and he was not able to say where and how Radha lived with Kumar Barman (meaning, the petitioner herein) or where and how they used to reside for the last 20 years. In view of such state of deposition of the PWs-1 and 3. I find it extremely difficult to concur with the observation of the learned Sessions Judge that the part of the evidence of those two witnesses which would go to show that the parties lived as husband and wife could be believed by the learned Magistrate. On the other hand, I am clearly of the opinion that there was no impropriety on the part of the learned Magistrate in declining to rely on the evidence of those two witnesses or for that matter the evidence on record adduced on behalf of the opposite party herein.