Rajni v. Mahavir

SB: Hon'ble Shri Goutam Bhaduri. J. Present: Shri H.S.Patel, Advocates for the petitioner. Shri Varun Sharma, Advopate for the respondent. (Passed on 27'" day of September, 2013) ORb ER This jsa petition under Section 482 of Cr.P.C., whereby the petitioner has sought to challenge the order dated 25.01.2002 passed by the Additional Sessions Judge, Sakti.in Criminal Revision No.165/2001. The said criminal revision arose out of a case bearing criminal proceeding No.74/1988 filea by Rajni Bai against Mahavir under Section 125 of Cr.P.C. wherein the application was rejected vide order 11.10.2000 bythe learned Court below. The petitioner's case, in short, is that the petitioner is the married wife of respondent and marriage was solemnized before 30 years of filing the application under Section 125 of Cr.P.C. before the Court below. The application for maintenance under Section 125 of Cr.P.C. was filed on

14.11.1996 before the Judicial Magistrate First Class, Sakti. Further, the petitioner states that after marriage of the petitioner with the respondent, she went to village Akplijamora with the respondent Mahavir and out of the said wedlock, a baby was born later on who died. It is the case of the petitioner that the respondent again married with Noni Bai of village Dodai and lived with her in the village Dodai. The respondent thereafter tii.tiri ^ u. sold the property of village Akoljamora and did not returned back to the village. The petitioner during trial under Section 125 of Cr.P.C. had filed a certificate from Sarpanch to show that she was/is married wife of respondent. The witnesses Jagdev Prasad, Nanhuram and Mohan Singh were also examined and according to the petitioner they supported the case of the petitioner. The petitioner submits that she has no source of income and therefore, she may be given an amount of Rs. 5000/- per month. ' . The respondent refytedth'^ allegations before the learned Court below and the marriage itselfwas denied. The respondent submitted that the name of married wife of the respondent is Rajni andshe is living with her and the petitioner falsely personified the false name of his wife showing her to be Rajni. And therefore has filed the petition under Section 125 of Cr.P.C. The marriage was completely denied and further all averments were also denied during the course of proceeding under Section'125 of Cr.P.C. Both the parties had adduced theevidence so as to prove their respective cases. The learned Additional Chief Judicial Magistrate on

11.10.2000 dismissed the application filed by the petitioner and came to a finding after examination of the witness that marriage has not been proved; as such, the petitioner was not entitled to any maintenance. This order was assailed before the Additional Sessions Judge, Sakti, wherein, the Court after hearing the parties came to a finding that the marriage was not proved and the petitioner is not the wedded wife of respondent and therefore, the petition was dismissed. This order is assailed by the petitioner before this Court. .-'\ ^-^--'/- ^ l^^^yaKaj^ Wy^^ l E::;'iife, Kin.«'1i18 i n^.^' ~"^,.^..dr

5. Learned counsel for the petitioner relies on a case Ghurava Bai v. Vishnuram1 and referring to para 46 of the said judgment, wherein, it is laid down that in order to examine the correctness, legality or propriety of any finding, sentence or order of all inferior criminal Courts, the High Court under Section 482 haS the inherent powers and it is very wide. Such power can be exercisedwhen the High Court notices that there has been failure of justice or misuse of justice or judicial mechanism or procedure, sentence or order is not correct, it is but the statutory diity of the High Court to prevent th? abuse of process or miscarriage ofjustice i. to correct irregularities/ incorrectness committed by subordinate criminal Court in its juridical process or illegality of sentence or order.

6. The aforesaid proposition is not in conflict at any point of time, however, this fact remains, as held by the Hon'ble Supreme Court in Monica Kumar (Dr.) & Another v. State of Uttar Pradesh & Others2 at para 33, that it is a well-settled principle of law that while exercising power under Section 482 of Cr.P.C., the High Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which courts exist. Such balance principles, as laid down by the Supreme Court, the finding arrived at by both the Courts below are examined.

7. Before goiog.into such finding prima facie the findings were examined, despite the fact that there is concurrent finding by both the Courts below. Examination of the complainant itself makes the position clear. The -l2001(2)C.G.L.J.283 .2(2Q08) 8 SCC781 /• '"<i i.».:ag H- / -'\ :'v\./ perusal of the document shows that application under Section 125 of Cr.P.C. was filed in the year 1996, which is supported by an affidavit, wherein the age of Rajni Bai is shown to be 40 years. The said Rajni Bai has placed the document Ex.P-2, which is a certificate issued by the Sarpanch, which purports Smt. Peela Bai @ Rajni Bai, wife of Mahavir, resident of village Akoljamora, and was married to Mahavir and the certificate says that thereafter, the second marriage was performed. In para 6 of the cross exammation, this witness has denied that her name is Peela Bai, whereas.'certificate shows the word Peela Bai. This witness 4 in her further statement cecorded on 14.06.1999 has said that she was married to respondent Mahavir before 30 years, therefore, if the solitary evidence is taken of this witness, she deposes that her marriage was performed 30 years back, which comes to an age of 10 years. This witness further deposes that after 3 years of marriage, a Boy was born who died and thereafter again a Boy was born after 2 years that he also died.

8. In this respect, the other witness of applicant Jagdev in his examiriation in chief recorded on 14.06.1999 stated that marriage of the applicant with respondent was performed in the year 1959. This witness has stated that after 3 years of marriage a Boy was born thereafter, again 2 years another Boy was born and subsequently after 4-5 years the respondent performed another marriage. In its continuation, another witness of the appplicant Nanhuram who was also examined on 14.06.1999 stated that marriage was performed 27-28 years back, In respect of second marriage, this witness in para 4 of the statement says that the second wife was known as Noni Bai was living with the petitioner at village Akoljamora, whichis 32-33 years back. Therefore, both the Court below [l,'i; lilK' ilj!1' ;!:';:i^% -\y' ..i" came to correct finding of fact that when the respondent was already marriage 32-33 years back and which has been proved by the witnesses of the applicant, there is no chance to disbelieve them.

9. I am afraid that even this statement are taken to be correct, the marriage performed at the age of 10 years of the applicant will not fall within the category of valid marriage in th? eyes of law.

10. Learned counsel for the respondent relies on a case Dharampal & Others v. Ramshri (Smt) &0(/iere3. He further extends his arguments on the facts of the case that in tjie instant case after dismissal of the petition by the learned trial Court, a revision was preferred before the Sessions Court. The Sessions Court too has dismissed the revision petition. The submission therefore advanced isonce such revision petition has been dismissed, the petitioner cannot be allowed to canvas his claim by way of second revision before this Court under the garb of Section 482 of Cr.P.C. unless and until the finding was/is completely adverse and contrary to law.

11. I have examined the witness and the documents produced by the parties. After careful scrutiny and view of the discussion in the foregoing paras, 1 am of the opinion that the learned Court below has not committed any error to come to a finding about the marriage of the applicant. It was for the applicant to prove the valid marriage. The evidence adduced by her along with the statement of witnesses do not cloth her with the capacity ofwife and to claim maintenance under Section 125 of Cr.P.C.

12. This Court, however, has prima facie examined the evidence adduced, so as to evaluate the finding of both the Courts below and on careful Sxamination, the fact emerges thatthe finding is not adverse or patently 3(1993) 1 SCC 435 *;^'fa: ^ illegal on the face of it, which requires interference by this Court under Section 482 of Cr.P.C.

13. Learned counsel the applicant has placed reliance on a case Minakshi Gaur v. Chitranjan Gaur & Anr4. and further has placed reliance on Dwarika Prasad Satpathy v. Bidyut Prava Dixit and another5 and lastly placed reliance Smt. Rudramma v. H.R. Puttaveerabhadrappae. In all the cases, the Hon'ble Court was decided the payment of maintenance with respect of Section 125 of Cr.P.C. and the time limit for filing^uch ^pplication. The evidence adduced by the applicant in the instant case do not fall in line with the law laid down by all the three dictums and therefore they are not applicable in this case.

14. In view of foregoing, there is no merit in this petition and is, accordingly, dismissed. —•-———-—--—— asfioh Sd/- Goutam Bhaduri Judge 42009AIRSCW813 5i999AIRSCW3844 '1987 CRI.L.d.677 ••j: