MAYA RANI ROY Vs. MONORANJAN BARAI

JUDGEMENT

(1.) This application under Sec. 401 read with Sec. 397 of the Code of Criminal Procedure for short, 'the Code' has been filed against the judgment and order dated 12.6.85 passed by the learned Sub -Divisional Judicial Magistrate, Marigaon in M.R. Case No. 37 of 1982.

(2.) The Petitioner approached the learned trial Court under Sec. 125 of the Code for directing the Opposite party to pay a maintenance of Rs. 150/ - per month for her son. In the petition before the trial Court the present Petitioner alleged, inter alia, that they were married in Gandharva form and that thereafter there was a co -habitation as husband and wife as a result the son was born. The opposite party left the Petitioner during five months of pregnancy and thereafter there was a 'mel' (meeting of the villagers) where witnesses were examined and on 22.3.82 the villagers gave the verdict that the opposite party should accept the present Petitioner as his wife. According to the Petitioner there was exchange of garlands, but after some time the opposite party was taken away from the meeting by his supporters. The Petitioner also filed a criminal case against the opposite party under Sec. 493 Indian Penal Code. In the present petition the Petitioner has claimed maintenance of Rs. 150/ - per month for her son. The opposite party has opposed the petition and has denied all the allegations. According to him the present petition has been filed to harass and defame him at the instigation of his co -villagers Ramakanta, Jagadish and others as he did not invite the first party to his marriage, as she was a woman of ill repute. The Petitioner examined herself and four other witnesses. The opposite party also examined three witnesses including himself.

(3.) Shri Hom Choudhury, learned Counsel for the Petitioner has contended that the judgment and order of the Court is liable to be set aside as the learned trial Court did not consider the material evidence on record. He has further urged that there is a glaring difference between the objection filed by the opposite party and the evidence adduced by him. The learned Counsel has particularly drawn my attention to the fact that the trial Court did not consider at all the evidence of P.Ws. 1, 2 and 3 and also Ext. 1. In support of his contention Shri Hom Choudhury has placed before me the decision of the Apex Court in Ayadhya Dube v/s. Ram Sumer Singh : A.I.R. 1981 SC 1415. In that case Supreme Court held that when the Sessions Judge acquitted the accused by ignoring the probative value of F.I.R. and reliable testimony of eye witness and without considering material evidence on record and his judgment was full of inconsistencies and consisted of faulty reasoning, the order of the High Court in revision directing re -trial by setting aside the acquittal would be justified. Keeping in view the above principles laid down by the Supreme Court I propose to examine the findings of the trial Court on the basis of the evidence on record. Shri Barua, learned Counsel for the opposite party, has drawn my attention to the evidence to show that the trial Court arrived at the findings after considering the entire evidence on record and as such the judgment is not liable to be set aside. Mr Barua has also submitted that Ext. 1 is a suspicious document produced by the first party in the Court and as such it is not at all reliable.