Rupesh Kumar Das v. The State Of Bihar

of the parties. It is to be declared by a competent court only. In a 4 criminal case the manner of consideration is quite different. There is presumption of innocence in favour of accused and any flaw appearing during conduction of trial is to be taken in favour of accused. By a catena of decisions it has been held that when there is two views coming out from the evidence then the view leaning in support of accused has to be accepted. Therefore, finding of the criminal court during course of acquittal of petitioner/husband is not going jeopardize interest of Opposite Party No.2/applicant. It has also been submitted that out of ignorance certain documents could not have been filed during course of criminal trial which has been filed and is exhibit of the record and the same are affidavit sworn by the respective parties, the joint photograph as well as voter identity card which, prima facie, are sufficient to recognize the status of O.P. No.2 to be wife of Rupesh Kumar Das.

6. In a decision, in the case of Pyla Mutyalamma @ Satyavathi v. Pyla Suri Demudu reported in (2011) 12 SCC 189 under para 14, 15 and 16 it has been held as follows:-

14. In fact, we also find sufficient substance in the plea that the High Court in its revisional jurisdiction ought not to have entered into a scrutiny of the finding recorded by the Magistrate that the appellant was a married wife of the respondent, before allowing an application determining maintenance as it is well-settled that the revisional court can interfere only if there is 5 any illegality in the order or there is any material irregularity in the procedure or there is an error of jurisdiction.

15. The High Court under its revisional series jurisdiction is not required to enter into re- appreciation of evidence recorded in the order granting maintenance; at the most it could correct a patent error of jurisdiction. It has been laid down in a including Suresh Mandal vs. State of Jharkhand ((2006) 1 AIR Jhar R 153) that in a case where the learned Magistrate has granted maintenance holding that the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the revisional court is very limited. The revisional court would not substitute its own finding and upset the maintenance order recorded by the Magistrate. decisions

16. In revision against the maintenance order passed in proceedings under Section 125, Cr.P.C., the revisional court has no power to re-assess evidence and substitute its own findings. Under revisional jurisdiction, the questions whether the applicant is a married wife, the children are legitimate/illegitimate, being pre-eminently questions of fact, cannot be reopened and the revisional court cannot substitute its own views. The High Court, therefore, is not required in revision to interfere with the positive finding in favour of the marriage and patronage of a child. But where finding is a negative one, the High Court would entertain the revision, re-evaluate the evidence and come to a conclusion whether the findings or conclusions reached by the Magistrate are legally sustainable or not as negative finding has evil consequences on the life of both child and the woman. This was the view expressed by the Supreme Court in the matter of Santosh vs. Naresh Pal ((1998) 8 SCC 447) , as also in the case of Parvati Rani Sahoo vs. Bishnu Sahoo ((2002)10 SCC 510). Thus, the ratio decidendi which emerges out of a catena of authorities on the efficacy and value of the order passed by the Magistrate while determining maintenance under Section 125, Cr.P.C. 6 is that it should not be disturbed while exercising revisional jurisdiction.

7. In the said decision itself at para-20, 21 and 22 it has further been held which are as follows:-

20. We may further take note of an important legal aspect as laid down by the Supreme Court in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav ((1988) 1 SCC 530) that the nature of the proof of marriage required for a proceeding under Section 125 Cr.P.C. need not be so strong or conclusive as in a criminal proceeding for an offence under Section 494 IPC since, the jurisdiction of the Magistrate under Section 125 Cr.P.C. being preventive in nature, the Magistrate cannot usurp the jurisdiction in matrimonial dispute possessed by the civil court. The object of the section being to afford a swift remedy, and the determination by the Magistrate as to the status of the parties being subject to a final determination of the civil court, when the husband denies that the applicant is not his wife, all that the Magistrate has to find, in a proceeding under Section 125 Cr.P.C., is whether there was some marriage ceremony between the parties, whether they have lived as husband and wife in the eyes of their neighbours, whether children were borne out of the union.

21. It was still further laid down in the case of Dolly Sethurathinam (( 1970 1 SCWR 589) that if there was affirmative evidence on the aforesaid points, the Magistrate would not enter into complicated questions of law as to the validity of the marriage according to the sacrament element or personal law and the like, which are questions for determination by the civil court. If the evidence led in a proceeding under Section 125 Cr.P.C. raises a presumption that the applicant was the wife of the respondent, it would be sufficient for the Magistrate to pass an 7 order granting maintenance under the proceeding. But if the husband wishes to impeach the validity of the marriage, he will have to bring a declaratory suit in the civil court where the whole questions may be gone into wherein he can contend that the marriage was not a valid marriage or was a fraud or coercion practiced upon him.

22. Fortifying this view, it was further laid down by the Supreme Court in Rajathi v. C. Ganesan ((1999) 6 SCC 326 also, that in a case under Section 125 Cr.P.C., the Magistrate has to take prima facie view of the matter and it is not necessary for matrimonial disparity between the parties in detail in order to deny maintenance to the claimant wife. Section 125, Cr.P.C. proceeds on de facto marriage and not marriage de jure. Thus, validity of the marriage will not be a ground for refusal of maintenance if other requirements of Section 125 Cr.P.C. are fulfilled. the Magistrate to go

8. Thus, I do not see any cogent reason to interfere with the finding recorded by the learned lower court. Hence, the revision petition is rejected. However, parties are free to get their status properly determined by a competent court duly constituted in terms of 7 of the Family Court Act. (Aditya Kumar Trivedi, J) Patna High Court October 31st 2013 Perwez/AFR