FULA SAHU AND ANOTHER Vs. GOBINDA SAHU

JUDGEMENT

(1.) The claim for maintenance by the petitioner No. 1 for herself as the legally married wife of the opposite party on the ground of cruelty, desertion and neglect and for her minor son born through their wedlock staying with her and unable to maintain himself has been rejected by the learned Sub-divisional Judicial Magistrate, Bhadrak, accepting the case of the opposite party that the petitioner No. I was not his married wife and had been kept by him as Seva dasi only to look after his comforts because of his old age. It was also held by the leap ned Magistrate that the petitioner No. I was disentitled to maintenance because she had been living in adultery and in addition, she was able to maintain herself. The learned Magistrate referred to some discrepancies in the evidence adduced from the side of the petitioner No. 1 with regard to her marriage with the opposite party in the year 1968 and observed that the entries of her name as the wife of the opposite party in the agreement Ext. 1), the voters' list (Ext. 2) and the records-of. rights (Ext. 3 series) would not conclusively establish the factum of marriage. Relying on (Ext. A, the Panchnam i, purported to be containing the left thumb impression of the petitioner N, 1, it was held by the learned Magistrate that the petitioner No. 1 had been living in adultery with Rama Chandra Sahu of the same village which had been detected by the villagers as mentioned in Ext.A. As some properties had been transferred in favour of the petitioner No. 1 by the opposite party and had been recorded in her name as per Ext. 3 series, it was held that the petitioner No. 1 was in a position to maintain herself and the minor son. The application for maintenance under Sec. 125 of the Code of Criminal Procedure (for short, the 'Code') was thus rejected.

(2.) After hearing the learned counsel for both the sides, I am of the view that the matter should be remitted to the court of the learned Magistrate for disposal in accordance with law as the learned Magistrate has not properly applied his mind to many aspects to which reference will be made hereinafter.

(3.) As would be evident from the findings recorded by the court below, importance has been attached to the fact that it had not been established by clear and cogent evidence that the petitioner No. 1 was the legally married wife of the opposite party and while recording this finding, notice has been taken of some discrepancies as to where exactly the marriage had taken place, who was the priest, who attended the marriage function and who, in fact, had given the petitioner No. 1 in marriage. The evidence with regard to the entries in the name of the petitioner No. 1 referred to above had not duly been considered. This Court has ruled in the cases of Basanta Kumari Mohanty Vs. Sarat Kumar Mohanti, 53 (1982) C.L.T. 53) , Saudamini Dei Vs. Bhagirathi Raj, 53 (1982) C.L.T. 93 and Srimati Ghati Dei Vs. Hemanta Kumar Sahu, 54 (1982) C.L.T. 36 that Sec. 125 of the Code provides a swift and summary remedy for giving maintenance to neglected wives, parents and children by compelling the man to perform his moral obligation and in such a summary proceeding, it is not necessary to go into the intricacies of law. It has been held that where a man and woman live together as husband and wife and are treated as such by the Society, it may be inferred that there has been marriage between the two for the limited purpose of Sec. 125 of the Code. An order under Sec. 125 can be passed if a person, having sufficient means, neglects or refuses to maintain his wife, child, parents etc. This aspect should have been but has not properly been examined by the learned Magistrate on the basis of the evidence on record.