ARATI MIRDHA Vs. SWAPAN MIRDHA

JUDGEMENT

(1.) HEARD Mr. Atanu Biswas, the Learned Counsel appearing on behalf of the petitioner as well as Mr. Debasish Roy, the Learned Counsel appearing on behalf of the opposite party no. 1. The power filed by Mr. Roy be kept with the records.

(2.) BY an order passed on March 22, 2007 in connection with a proceeding under Section 125 of the Code of Criminal Procedure, the Learned judicial Magistrate, 5th Court, Burdwan, awarded a sum of Rs. 1000/- to the petitioner and a sum of Rs. 500/- to her child as their monthly interim maintenance. The husband then challenged the said order of maintenance before the Learned Additional Sessions Judge, 4th Court, Burdwan and the learned Additional Sessions Judge, Burdwan, set aside the order of maintenance so far that relates to the wife/petitioner, but affirmed the said order as regard to the minor child.

(3.) HAVING gone through the impugned order, I find the only reason for which the Learned Judge interfered with the order of granting interim maintenance is this the husband claimed that the present petitioner is his second wife and therefore, she is not his legally married wife and not entitled to any maintenance. It appears from the impugned order in support of her claim that she is the legally married wife of the opposite party herein. The wife produced a Marriage Certificate issued by the Hindu Marriage Registrar whereas the opposite party/husband produced one Certificate issued by the Prodhan of gram Panchayat as well as the Voter Identity Card and the Ration Card. However, the Learned Judge having relied upon the documents produced by the husband came to a conclusion that he was already married before he married the petitioner. Therefore, the petitioner/wife being his second wife is not entitled to get any maintenance. In my opinion, the Learned Judge has committed a gross mistake in law in giving preference to the Certificate issued by the Gram Pradhan as well as the Voter Identity Card and the Ration Card over the Marriage certificate which is more authentic proof of any marriage. Thus, the impugned order cannot be sustained and accordingly, the same stands set aside. The order passed by the Learned Judicial Magistrate, 5th Court, burdwan awarding a sum of Rs. 1000/- to the petitioner and a sum of Rs. 500/-to her child as their monthly interim maintenance stands restored and it is directed that maintenance for this month, i. e. , August, 2009 must be sent to her within ten days from this date and, thereafter, by 7th of each succeeding month. So far as the arrear maintenance, if any, is concerned the same shall be liquidated in twenty equal monthly instalments and be paid along with the current maintenance. This criminal revisional application, thus, stands allowed. Needless to mention that any of the observations made hereinabove will not swayed the Learned Magistrate in deciding the issue pending before him. The Learned Magistrate is directed to dispose of the main maintenance proceeding within six months from the date of communication of this order. The learned Magistrate is further directed to proceed with the same on a continuous basis and not to grant any unnecessary adjournment to either of the parties unless the Learned Magistrate finds the same is necessary for ends of justice. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.