SRIMATI TILATOMA DAS Vs. RABINDRA KUMAR DAS

JUDGEMENT

(1.) PETITIONER in this application under section 482 of the Code of Criminal Procedure has challenged the order passed by the Judicial Magistrate First Class, Balasore rejecting her prayer for grant of maintenance under section 125 of the Cr, P. C. as well as the order passed in revision by the learned Sessions Judge, Balasore dismissing the same.

(2.) CASE of the petitioner is that her marriage with the opposite party was performed as per Hindu rites and customes in the year 1991 in her father's house and after the said marriage the petitioner lived with the opposite party as husband and wife. At the time of marriage, father of the petitioner had given Rs. 6000/ in cash, one cycle, gold ring etc. to the opposite party apart from other gold ornaments. After marriage opposite patty and his family members illtreated the petitioner, assaulted her and at times did not give her food as the petitioner could not fulfil the demand. Apart from other allegations with regard to ill treatment it is stated that she was driven out from the house in 1992. There was a village punch and the matter was compromised and the petitioner was taken to the house of the opposite party. Even there after the opposite party continued to ill treat the petitioner and on 5 10 1992 the petitioner was finally driven out from the house of the opposite party whereafter the opposite party not only deserted her but also neglected in maintaining her. Accordingly, an application under section 125, Cr. P. C. was filed for maintenance @ Rs 500/ per month.

(3.) MR . J. R. Dash, learned counsel for the petitioner submitted that even though the petitioner and the opposite party were minors at the time of marriage, under section 11 of the Hindu Marriage Act, 1955 the marriage does not come null and void. He has relied upon a decision of this Court reported in A. I. R. 1977 Orissa 36 (Duryodhan Pradhan v. Bhagabati Dei) and submits that an application under section 125. Cr. P. C. is an independent proceeding and merely because a suit is pending challenging validity of the marriage, the petitioner under section 125, Cr.P.C. cannot be rejected on the ground of maintainability. Shri Dhal, learned counsel for the opposite party submitted that since the marriage was void, as admittedly both parties were minors at the time of marriage, question of payment of maintenance does not arise and under section 125, Cr. P. C. maintenance can be granted only when there is a valid marriage and the husband neglects or refuses to maintain his wife.