SUSHIL MONDAL Vs. STATE OF W B

JUDGEMENT

(1.) BY this application dated 27. 09. 2006, the petitioner against whom an order of maintenance was passed by the learned judicial Magistrate, Baruipur in Case No. M-579 of 2003 (T. R. No. 38 of 2006)in the sum of Rs. 1,000/- per month for the O. P. No. 2 and Rs. 500/- for the child has challenged the said impugned judgment and order on the grounds inter alia that no marriage under the Hindu law or under the Special Marriages Act was ever solemnized between the parties to the case and signature of the petitioner was obtained in the Marriage Registration Form by force and coercion and prior to the said alleged registration of marriage a child was born to the opposite party No. 2, that the learned Magistrate committed illegality in finding the petitioner to be legally married husband of the O. P. No. 2 when, in fact, there was no solemnization of marriage and the petitioner was not the cause of child and that the learned Magistrate granted the maintenance without considering the means of the petitioners.

(2.) THE only question that calls for consideration is whether the learned judicial Magistrate, Baruipur was legally justified in holding that the parties had gone into a form of marriage as solemnization of marriage would be the sine qua non of making an order of maintenance. The law is well settled, as the provision of section 125 (1) of the Cr. PC enjoins, the wife claiming maintenance under the said statute has to be a legally married wife but the standard of proof of marriage undoubtedly must not be as high and as rigorous as that of in any other proceeding like a proceeding for declaration of marriage or in any criminal proceeding under section 494 of the IPC. But then some amount of proof of legal character has to be adduced by a wife claiming maintenance with respect to solemnization of marriage when the marriage is in dispute or a fact in issue. The petitioner before the learned Magistrate told on oath that on 23. 04. 2002 her marriage was solemnized according to Hindu law and it was registered and a certificate has been marked as Exhibit- 1. In the marriage, presentations like ornaments, utensils and a cash of Rs. 3,000/- were given and also cohabited with the petitioner in his house, as a result of which a child was born who was on the date of her evidence (her evidence was recorded on 20. 7. 2005) was 1 year 2 months old. She was subjected to ill treatment and torture, denied food on the ground that he could not be able to fetch Rs. 10,000/-from her father's house and she was driven out of the matrimonial home whereafter she lodged a GDE with Bhangore P. S. and informed the incident to panchayat member. Her husband is possessed of means while she was unable to maintain herself. Against this piece of evidence in examination-in-chief she has stated in her cross-examination that she could not tell the date of registration of marriage. Her child was according to her evidence born on 3rd of the month of chaitra but her memory betrayed as to the year of the birth of the child who was on the date of her cross-examination 2 years 4 months old. She could not tell the name of the barbar who was present in the marriage. She does not know what was called 'saptapadi'. She claims that her marriage was solemnized at 'godhulilagna' which is a twilight of evening and night and at the same time according to her the said hour was 11 p. m. in the night. According to her, her father Sanatan Mondal, one Gopal Mondal, Sanjib Mondal were present. But these persons did not include the priest of barbar. Marriage was completed at 02-03 a. m. in the night. It was suggested to her which she denied that out of pressure of the Panchayat people she was claiming the petitioner to be her husband and that her husband was forced to sign in marriage registration application form for registration of marriage by the member of the village panchayat and that the child was not fathered by the petitioner. According to p. W. 2 Sanatan Mondal her daughter was given in marriage on 23. 04. 2002 and a child was born to them. Her daughter was driven out from the matrimonial home as she failed to fetch money from him. In cross-examination, this witness fails to say that date of registration of the marriage but says that in the marriage certificate the date of solemnization has been mentioned as 23. 04. 2002. He fails to say the date of birth of the child. According to him one Arun Chatterjee was the priest of the marriage and one Kalo officiated as barbar. In her cross-examination he said that one year after the solemnization of marriage, the child was born. He further said that there was a gap of one year between the date of solemnization of marriage under the Hindu religious rites and ceremonies and the date of registration of marriage. According to him, he pressed for maintenance for her daughter on the basis of the registration of her marriage.

(3.) AS against the above testimonies the petitioner told the learned Magistrate that he was forced to put his signature on the marriage application form for registration of marriage and that no marriage was at all solemnized.