K J B DAVID Vs. NILAMONI DEVI

JUDGEMENT

(1.) THIS revision is against an order passed by the Subdivisional Magistrate of Berhampur under Section 438, Cr. P. C. directing the petitioner to pay Rs. 35/ - per month towards maintenance of the opposite party who was said to be his legally married wife.

(2.) THE parties are residents of Berhampur town and the petitioner is a Government servant employed as an Inspector of Co -operative Societies. He is an Oriya Christian. The opposite party also claimed to be a Christian though she admitted that she was not baptised. She is the daughter of one Shyamsundar Mohanty (deceased), an Advocate of Berhampur Bar, through one Krishnabeni (P. W. 2) who is the daughter of one Chintala Ramaswami Naidu. The religion of the parents of the opposite party was not brought out in evidence; but there is evidence to show that two elder sisters of the opposite party were married under Christian rites in the local Church. It was further alleged that the opposite party (Nilamom) was married to the petitioner according to Christian rites in the house of her mother Krishnabeni (P. W. 2) in Berhampur town. A pastor of a Church witnessed the ceremony and blessed the couple. Soon after marriage the petnr. gave a declaration in writing on a stamped paper (Ext. 1) acknowledging Nilamoni to be his married wife. The relevant passage from that document may be quoted: 'Ajadina 13 October 48 re Swargiya Shyamsundar Mohanty B.A. B.L., Advocate, ankar kanistha kanya Srimati Nilamoni Mohanty nku tankar matamata noi mora bibahita bharijya rupe grahana karuchhi.' (To -day,the 13th Oct., 1948, I am accepting Nilamoni Mohanty (with her consent), the youngest daughter of late Shyamsundar Mohanty, B.A. B.L., Advocate, as my married wife). It was signed both by the petitioner and by the opposite party. Soon after the marriage the couple left for their honeymoon and after it was over they lived as husband and wife at several stations such as Puri and Jatni (Khurda) where the petitioner was transferred. At Puri the opposite party gave birth to a daughter who subsequently died. In the first year of the marriage the couple were on affectionate terms and the petitioner wrote to her two letters (Ext. 3 dated the 2nd May, 1949 and Ext. 2 dated the 16th July, 1949) - -the former from Bonaigarh and the latter from Puri. Both the letters contained very endearing terms and the petitioner while signing them subscribed himself as her 'Swami' which expression ordinarily means a 'husband'. Moreover, in Ext. 3 he used the following words : 'Jahara adeshare dina rati gadha hoichhi - -je ki tumara O mora bahaghara deichhanti - -sei - -sei eka jananti mu sukhara kimba dukhara jibana katuchhi.' (Under whose order day and night have been created, who has brought about our 'marriage', it is he and he alone who knows whether I am passing time in happiness or sorrow.) The expression 'Bahaghara' clearly implies that he was addressing her as his wedded wife. Subsequently the couple quarrelled & it was alleged that eventually the petitioner severely assaulted the opposite party and drove her out of the house and also refused to maintain her.

(3.) IN view of the denial of marriage the main question for consideration by the lower Court was whether the opposite party was the legally wedded wife of the petitioner. To prove the marriage the opposite party relied on - -(i) the testimony of herself, her mother (P. W. 2), her sister Brundabati (P. W. 6) and another Christian of Berhampur town named Anand Rao (P. W. 7) who claimed to have witnessed the performance of the marriage; (ii) the unambiguous admission made by the petitioner himself in the document (Ext. 1) executed on the data of the marriage; (iii) the subsequent conduct of the petitioner as evidenced by his two letters (Exts. 2 and 3) in which he styled himself as her 'Swami', wrote in very endearing terms and also used the expression 'Bahaghara' in Ext. 3 implying marriage; (iv) the evidence of a domestic servant Pothi Appalaswarni (P. W. 4) who worked in the house of the petitioner and the opposite party for about a month at Jatni (Khurda) and that of one T. Appalaswami (P. W. 5) who is a co -villager of the petitioner; and (v) the admission of marriage made by the petitioner in the presence of Sri P. Dutt (P. W. 8), the Asst. Health Officer, Berhampur town.