Smt. Shiramabai and others v. The Captain Record Officer for O.I.C. Records) in which facts involved were
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 760 of 2020 Seema Devi aged 60 years wife of Brinda Prasad, resident of Village- Shalimar, P.O.- Jealgora, P.S.- Jorapokhar, District- Dhanbad -Versus- … … Petitioner Brinda Prasad son of Raj Kishore Prasad, resident of Shalimar, P.O.- Jealgora, P.S.- Jorapokhar, District- Dhanbad … … Opp. Party --- CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Opp. Party Reserved on 25.09.2024 --- : Mr. Harsh Preet Singh, Amicus : Mr. Parambir Singh Bajaj, Advocate : Mr. Suraj Singh, Advocate --- Pronounced on 28.11.2024 1. 2. Heard learned counsel appearing for the parties at length. This criminal revision has been filed against the order dated 17.03.2020 passed by the learned Additional Principal Judge, Additional Family Court, Dhanbad in O.M. Case No.170 of 2018 whereby and whereunder the petition under Section 125 of Cr.P.C. filed by the petitioner claiming maintenance allowance from the opposite party has been dismissed on the ground that the petitioner has not been able to prove that she is legally wedded wife of the opposite party or they lived together as husband and wife. 3. The learned amicus appearing for the petitioner submitted that the impugned order reveals that the petitioner had filed an application for declaration of her earlier marriage as nullity, but ultimately a petition for divorce by mutual consent was filed which was decreed on 29.01.1999. The petitioner claimed to be living with the opposite party by performing marriage way back as in the year 1995 and had claimed to have continued living with the opposite party as his wife who refused to maintain her since 23.11.2012. Thus, even after the divorce on 29.01.1999 with regard to her earlier marriage, the petitioner continued to live with the opposite party who maintained her at least till 23.11.2012. The learned amicus has submitted that this case is squarely covered by the judgement passed by the the Hon’ble Supreme Court reported in 2023 Live Law (SC) 672 (Smt. Shiramabai and others vs. The Captain Record Officer for O.I.C. Records) in which facts involved were also similar to the present case. 4. Learned counsel for the opposite party submitted that the marriage said to have been performed in the year 1995 cannot be said to be valid as the petitioner was already married and divorce decree was granted only on 29.01.1999 by mutual consent and therefore, the impugned order does not call for any interference. He further submitted that once the divorce has been obtained by mutual consent with respect to the 1st marriage, the 1st marriage itself cannot be denied. Thus the 2nd marriage in 1995 was during subsistence of the 1st marriage and hence a nullity in the eyes of law. For this reliance has been placed on the judgement passed in the case reported in (1988) 1 SCC 530. He also submitted that it is the case of the petitioner that she was married to the opposite party in court, but no document has been produced in support of such a plea and she had stated in her cross- examination that no paper of any kind was prepared with respect to the marriage with the opposite party. It has also been submitted that so long as the marriage is irregular, the wife and children are entitled to maintenance till the irregular marriage terminates and in case of irregular marriage also, the wife and children are entitled to maintenance. He referred to the judgement passed in the case reported in (2008) 4 SCC 774. He submitted that the present case is not a case of irregular marriage, but is a case of void marriage. It is submitted that both pleas, one of court marriage and then of living in the capacity as husband and wife cannot be available to the same person. The judgement relied upon by the petitioner is on a different set of facts and does not apply to the facts and circumstances of this case. The said judgement is related to pensionary benefits and children were also born out of the relationship. 5. The case of the petitioner filed under Section 125 of Cr.P.C. on 10.04.2018 before the learned Principal Judge, Family Court at Dhanbad is that the petitioner and the opposite party are legally married wife and husband and they have been living together as wife 2 and husband at Shalimar, P.O.- Jealgora, P.S.- Jorapokhar, District- Dhanbad till 24.11.2012. The opposite party is a permanent employee of Tata Steel Limited and his monthly salary is more than Rs.50,000/- per month and other allowances. The opposite party has been living separately from the petitioner in the same house, but he is neglecting her and subjecting cruelty upon her and not taking care of her and he is not providing any maintenance to her since 24.11.2012. The petitioner further stated that she has got no source of income for her livelihood and therefore, she is passing her days pitiably. The opposite party is regularly threatening and harassing her by throwing her household articles and by asking her to leave the house. She prayed for an order directing the opposite party to pay Rs.15,000/- per month to her as maintenance allowance. 6. On publication of notice in the local newspaper, the opposite party appeared in the case on 31.08.2018 and filed his reply stating that the petitioner is not his wife, he has not solemnized marriage with her, he has no relation with her and she never lived with him as his wife. However, the opposite party admitted that he is an employee of TISCO. He further stated that the petitioner never lived with the opposite party in a house separately or jointly and he has no concern about the source of income of the petitioner. He further stated that the petitioner has no right to keep her articles at his house and he has never given any type of threatening to her and has never harassed her, as they have no relation of wife and husband. All of a sudden, he came to know that the petitioner is wife of Late Ramanand Dusadh and the petitioner cannot show a chit of paper that she is the wife of the opposite party. The opposite party contended that the petition filed by the petitioner under Section 125 of Cr.P.C. is not maintainable and is fit to be dismissed. 7. Thus, on face of the respective case of the parties, it is not in dispute that the petitioner and the opposite party were living in the same house and it was the grievance of the petitioner that since 24.11.2012, the opposite party has been living separately in the same house and has not been maintaining the petitioner. 3 8. The learned Family Court, Dhanbad framed the question for determination that “whether the petitioner is entitled to a monthly allowance under Section 125 of Cr.P.C. or not ?” 9. The petitioner examined seven witnesses to substantiate her case. PW-1 is Rajendra Paswan who is the cousin brother-in-law (Jija) of the opposite party. PW-2 Sabita Devi and PW-3 Namita Devi are neighbours of both parties. PW-4 is the petitioner herself. PW-5 is Kamlesh Kumar Paswan who is nephew (Bhagina) of the petitioner. PW-6 Manju Devi and PW-7 Fulan Devi are also neighbours of both parties. 10. PW-4 is the applicant herself. In her examination-in-chief, she deposed that her marriage with the opposite party was solemnised about 22-23 years ago at Asansol court and after the marriage, both lived together as husband and wife peacefully in the quarter of the opposite party, but for the last 6 years, the opposite party is not maintaining her. She has no issue from her marriage with the opposite party. The petitioner exhibited her original medical card issued in her name with photo as Exhibit-1. She stated that she used to get treatment and admission in hospital through her medical card. She further exhibited the original pay slip of the opposite party issued by Tata Steel Limited as Exhibit-2, photocopy of joint bank passbook issued in the name of the petitioner and opposite party having photographs of both parties as Exhibit-3. She further stated that the opposite party is working in Sijua Tata Colliery and is getting salary of Rs.50,000/- per month. She claimed Rs.15,000/- per month as maintenance from the opposite party. She further deposed that when she demanded maintenance allowance from the opposite party, he refused to give and thereafter, she filed the case. During cross-examination, the petitioner admitted that no paper was prepared at the time of their marriage at
Legal Reasoning
Asansol court. She further admitted that her first husband Late Ramanand Paswan had two wives and she had filed T.M.S. No.214/1997 against her first husband Late Ramanand Paswan before the learned Family Court, Dhanbad at the instance of the opposite party. She further stated that she has no source of income. She denied 4 the suggestion that she has sufficient income in the business of money lending. She also denied the suggestions that as per the agreements dated 09.01.2010, 28.06.2010 and 24.06.2010, she had given Rs.20,000/-, Rs.25,000/- and Rs.1.50 Lakh respectively. She also denied the suggestions that her marriage was never solemnised with the opposite party and she never lived with the opposite party as husband and wife. 11. PW-1 and PW-5 are the relatives of the opposite party who have supported the case of the petitioner. PW-1 is the cousin brother-in-law (Jija) of the opposite party and in his examination-in-chief, he stated that the marriage of the petitioner with the opposite party was solemnized in the year 1995 and after the marriage, both lived together as husband and wife in the rented quarter at Shalimar. The petitioner has no source of income, whereas the opposite party is working in Bhelatand Tata Sijua Colliery and his salary is Rs.50,000/- per month, but he is not maintaining the petitioner for the last 5-6 years. During cross-examination, he admitted that he has no knowledge about the date and place of marriage between the petitioner and the opposite party, nor he has any documentary proof with regard to their marriage. He stated that both parties had told him that they are husband and wife. He further admitted that the son-in-law of the petitioner is working in Mumbai and is maintaining the petitioner. He knows the petitioner since the year 1995. PW-5 in his examination-in-chief, stated that the opposite party and the petitioner are his Mama and Mami and he knows them since the year 1995 when he was studying in Class-V and all his relatives know that the petitioner and the opposite party are wife and husband. He further stated that the petitioner has no source of income, but the opposite party is not maintaining her. The opposite party is working in Tata Company and his salary is Rs.45-50 thousand per month. When the petitioner had fallen sick, she was treated at Tata Hospital and at present, she is 5 living in the quarter of Tata Company which was allotted to the opposite party. During cross-examination, he admitted that the opposite party is not his own Mama. He further admitted that he has no documentary proof with regard to the fact that the petitioner and opposite party are wife and husband. He further admitted that he resides at a distance of about 1.00 KM from the quarter of the petitioner and opposite party and he knows the petitioner since the year 1995. 12. PW-2, 3, 6 and 7 are the neighbours of the petitioner and the opposite party who have supported the case of the petitioner. PW-2 is a neighbour of both parties and in her examination-in- chief, she deposed that she knows both parties for the last 20-25 years as husband and wife and both used to go in the locality during marriage parties as husband and wife. She further stated that the opposite party is not maintaining the petitioner for the last 6-7 years, rather she is being maintained by her son-in-law. She further stated that the opposite party is working in Tata Colliery and getting salary of Rs.45-50 thousand per month. During cross-examination, she admitted that she knows both the parties for the last 20-25 years and since the year 1994-95. She also admitted that she had not participated in the marriage of the petitioner and opposite party, but both parties used to live together in a rented house at their locality. PW-3 is also a neighbour of both parties and in her examination-in-chief, she deposed that she knows both parties for the last 20-22 years as husband and wife and the people of the locality know them as husband and wife. She further stated that the opposite party is not maintaining the petitioner for the last 5-6 years, rather she is being maintained by her son-in-law. she further stated that the opposite party is working in Tata Colliery. During cross-examination, she admitted that She was not present at the time of marriage between the parties and she cannot say the day and month of their marriage, but both have husband and wife relation. 6 PW-6 is a neighbour of both parties and in his examination-in- chief, she deposed that he knows both parties for the last 20-22 years and both live in the quarter allotted by Tata. She further stated that the petitioner has no source of income and the opposite party is working in Tata Colliery and his salary is Rs.50-60 thousand per month and the opposite party is not maintaining the petitioner. During her cross-examination, she admitted that she has not seen the paper of marriage between the petitioner and the opposite party. She had seen a baby with the petitioner, but she has no knowledge as to whether the said child belongs to the opposite party or not. She further stated that the petitioner has no source of income and she is being maintained by her neighbour. PW-7 is also a neighbour of both parties and in her examination-in-chief, she deposed that after their marriage, both parties had come to reside in the locality 25 years ago. She further stated that the opposite party is not maintaining the petitioner for the last 6 years and the petitioner has no source of income. She further stated that the opposite party is working in Tata Colliery and his salary is Rs.50-60 thousand per month. She knows both the parties and both parties were known in the locality as husband and wife. Both were residing in the locality as husband and wife. During cross-examination, she admitted that she had seen the petitioner and the opposite party as wife and husband, but she had not seen any paper. She further stated that the relatives of the petitioner regularly visit her house. The petitioner has no source of income. 13. The opposite party examined three witnesses in his defence. DW-1 is the opposite party himself. DW-2 is Lal Babu Dusad who is Samdhi of the father of opposite party. DW-3 is Ayub who is a colleague of the opposite party. 14. DW-1 is the opposite party himself. In his examination-in- chief, he deposed that he is working in Tata Colliery and a quarter has been allotted to him by the company. At the time of marriage of 7 daughter of petitioner, he had given his quarter to her at the request of neighbours and he was also present in the marriage. After marriage, he had requested the petitioner to vacate his quarter, but she refused to vacate the quarter and thereafter, he had taken help from his department as well as from the administration for vacating his quarter. He had also sent written complaints to the D.C. and S.P. through Speed Post. After capture of the quarter by the petitioner, he had not spent even a single night in his quarter and he was living with his nephew at Bhelatand. He further deposed that he had never performed marriage with the petitioner either in temple or anywhere and he had never established physical relationship with her. The petitioner is much elder than him. He has neither prepared any medical paper for treatment of the petitioner at Tata company, nor he has given any undertaking that petitioner is his wife. He has no knowledge that the petitioner has made her Adhar Card and Bank Pass Book showing him as her husband. The name of the husband of the petitioner is Ramanand Paswan and he filed the photocopies of Voter Card, Aadhaar Card, Bank Pass Book and other documents in the court. He further stated that the petitioner deals with money lending and he has filed three agreements in which, without his knowledge, the petitioner has mentioned his name as her husband with an intention to implicate him. He exhibited the agreement dated 09.01.2010 executed between
Legal Reasoning
Seema Devi and Vijay Kumar Tiwary and notarized by M.P. Keshri as Exhibit-A, agreement dated 28.06.2010 executed between Seema Devi and Sampatiya Devi and notarized by Kamlesh Jha as Exhibit-B and the agreement dated 24.06.2010 executed between Seema Devi and Khemraj Turi and notarized by M.P. Keshri as Exhibit-C. He also exhibited the order, Plaint and depositions of witnesses in TMS No.214/1997 as Exhibits- D, E and F respectively. He further deposed that he has not entered the name of the petitioner as nominee in his movable and immovable properties. On 23.03.2019, he had gone to Disha Hospital, Kolkata and on 25.03.2019, when he returned and went to his quarter, he found that his all articles were missing and his quarter was locked and his quarter is still locked by the petitioner and 8 she had taken away all his articles as per the writing of the councillor. During his cross-examination, he admitted that when he had returned after his treatment at Disha Hospital, Kolkata, he had not found the door locked, rather Seema Devi (petitioner) was residing in the quarter. He further admitted that he was residing in the quarter alone alongwith his belongings and when he had handed over his quarter to the petitioner for marriage, he has not got the list of his belongings received from the petitioner. He denied the suggestion that he had solemnized marriage with the petitioner at Asansol Court in the year 1995 and since then, both are living in the same quarter as husband and wife. He also denied the suggestion that he had lived with the petitioner till 24.11.2012 and he has stopped to maintain her since 24.11.2012. He further admitted that he has never given anything in writing to Tata Company to the effect that his name is mentioned as husband in the Aadhaar Card of the petitioner and her name is mentioned as his wife in his Medical Service Book of the Tata Company, as he had no knowledge about the same. He stated that the Medical Service Book bears his signature and also bears the signature of the authority of the colliery. He stated that his signature was obtained after administering intoxicating substance to him, but he had never made any complaint. The Medical Service bears the date 10.04.1996. He further admitted that the agreement dated 09.01.2010 does not bear signature of the petitioner or witnesses and the same was found by him in course of searching paper in his house and he had taken away the same without informing the petitioner. He denied the suggestion that he had given money after mentioning the name of the petitioner. He further admitted that the second agreement dated 28.06.2010 which does not bear either signature or thumb impression of the petitioner on its first page, but on the second page, it bears the signature of the petitioner, but it does not bear the signature of the witness. He further admitted that the third agreement dated 24.06.2010 does not bear either signature or thumb impression of the petitioner on its first page and on the second page, the name of the petitioner is written in English, but he cannot say as to whether it was written by 9 the petitioner and it bears signature of only one witness. He admitted that he had found all the three agreements in his quarter. He identified himself on the seven photographs shown to him taken and admitted his presence at the time of the marriage of the daughter of the petitioner and he also admitted that he had performed the marriage as husband of the petitioner. All the seven photographs were exhibited as Exhibits- 4, 4/1, 4/2, 4/3, 4/4, 4/5 and 4/6 respectively on behalf of the petitioner. He further admitted that the marriage of petitioner and Ramanand Paswan has been dissolved by TMS No. 214/1997. He further admitted that when he had returned from Kolkata, he had found his belongings missing from his quarter, but he had not filed any complain before any authority. He denied the suggestion that he had not filed any complaint before any authority because he was living with the petitioner as husband and wife in his quarter. He further stated that he had filed complaint before the court and Administrative Officer for vacating his quarter and he has filed the documents in court. He denied the suggestion that he was living with the petitioner as husband and wife and maintaining her and now he is refusing to maintain her. He admitted that his present salary is Rs.40,000/- per month, but he has not filed any document in connection with his salary. 15. DW-2 in his examination-in-chief deposed that he knows both parties and Qr. No. BZ-02 of TISCO company was earlier allotted in his name after retirement, he had handed over the same and it was allotted in the name of opposite party. He further stated that the opposite party had given the said quarter to the petitioner for marriage purpose at the time of marriage of daughter of the petitioner. He further stated that at the time of marriage of the daughter of petitioner, her husband was alive, but he was sick and therefore, the opposite party had performed the ritual of Kanyadan. But after the marriage, the petitioner did not hand over vacant possession of the quarter to the opposite party and due to which, dispute arose between them. He further stated that no marriage was solemnized between the opposite party and the petitioner and they have never lived together as husband 10 and wife. During cross-examination, after seeing the photographs (Exhibits- 4, 4/1, 4/2, 4/3, 4/4, 4/5 and 4/6), he admitted that the opposite party and the petitioner are present as husband and wife. After seeing Exhibit-3, he admitted that the Pass Book of Bank of India bears the photographs of the petitioner and the opposite party and the Pass Book is jointly in their names. He further admitted that the Medical Book issued by the company to the petitioner bears the photograph of the petitioner and the name of her husband is mentioned as Brinda Prasad in the Medical Book. 16. DW-3 is a colleague of the opposite party and in his examination-in-chief, he deposed that he knows both parties and he was present at the time of marriage of the daughter of the petitioner, which was performed at the BCCL quarter at Nichitpur. He further stated that the opposite party had given the quarter to the petitioner for the marriage. He further stated that the husband of petitioner was not present in the marriage of the daughter of the petitioner and the opposite party had performed the Kanyadan. But after the marriage, the petitioner did not vacate the quarter and dispute arose between them. He further stated that the petitioner is not the wife of the opposite party and he has no knowledge as to whether both have solemnised marriage. During cross-examination, he admitted that he and the opposite party used to work together in the colliery and he knows the petitioner for about 10-12 years. After seeing the photographs (Exhibits- 4, 4/1, 4/2, 4/3, 4/4, 4/5 and 4/6), he admitted that the opposite party and the petitioner are present as husband and wife. He also identified the photographs of the opposite party and the petitioner in the Bank Pass Book (Exhibit-3). 17. The opposite party exhibited the original agreement dated 09.01.2010 as Exhibit-A, original agreement dated 28.06.2010 as Exhibit-B, original agreement dated 24.06.2010 as Exhibit-C, C.C. of order passed in T.M.S. No.214/1997 as Exhibit-D, C.C. of Plaint of T.M.S. No.214/1997 as Exhibit-E and C.C. of deposition of the petitioner and Ramanand Paswan in TMS No.214/1997. 11 18. The learned Family Court considered the materials on record and recorded its findings at Paragraph-16 which reads as under: “16. I have heard the submission advanced on behalf of both sides and scrutinized the evidences available on record. It appears that petitioner Seema Devi has filed this case for getting maintenance for herself by claiming that she is legally married wife of respondent and their marriage was solemnized in the year 1995 at Anansol Court. In support of her case, petitioner has examined altogether seven witnesses including herself as PW-4 and during her evidence she has supported that her marriage was solemnized with respondent about 22-23 years ago at Asansol Court and after marriage, they lived together at the quarter of respondent as husband and wife but from last 6 years respondent is not maintaining her. She has stated that her respondent is an employee in TATA Colliery and having sufficient means whereas she is having no source of income but her husband refused to maintain her from last six years. In support of her pleas, she has also filed original medical card (Exhibit-1) issued in her favour by TISCO, Jamadoba showing name of her husband as Brinda Prasad, Original Pay Slip of respondent Brinda Prasad (Exhibit-2). photocopy of pass book issued in the name of Brinda Prasad and Seema Devi (Exhibit-3) and seven photographs of herself and respondent (Exhibit-4 series). But in her cross-examination petitioner has admitted that earlier she was married with Ramanand Paswan and against him, she has also filed TMS No.214/97 before the Family Court, Dhanbad. PW-2 to PW-4, PW-6 and PW-7 are alleged to be the neighbours of petitioner and they have commonly stated that petitioner and respondent are living in the company's quarter from 20-22 years as husband and wife but from 5-6 years, Brinda Prasad was not living with the petitioner and not maintaining her but in their cross examination they have stated that they have not seen any paper regarding marriage of the parties. PW-1 Rajendra Paswan is alleged to be cousin brother-in-law of respondent and he has stated that marriage of petitioner was solemnized with respondent in the year 1995 and since then, they are living as husband and wife. But in his cross-examination, he has admitted that Seema Devi get divorce from her first husband but he could not file any proof in this regard. He has also not able to state the ate of marriage of petitioner and respondent. P-5 Kamlesh Kunar Paswan is alleged to be maternal nephew of respondent and he has stated that they know petitioner and respondent since 1995 and both ed to come in his house in matrimonial ceremonies and they are living as husband and wife. But in his cross-examination, he has admitted that respondent is not his own maternal uncle. He has also stated that he had not seen any paper regarding the marriage of petitioner and respondent. He has stated that he has come to depose in this case at the instance of petitioner. On the other hand, respondent in his Show Cause as well as in his evidence has categorically stated that 12 petitioner is not his wife and he has specifically stated that he has neither solemnized marriage with petitioner nor living with her at any point of time as husband and wife and he had never established physical relation with her. Respondent has also stated that he is working in Tata Colliery and a quarter was allotted to him by the company and on the request of neighbours and petitioner, he had given his quarter to petitioner for performing marriage of her daughter but after marriage, petitioner refused to vacate the quarter thereafter, he had taken help from his department as well as from the administration to vacate his quarter and also made written complaint to D.C and S.P, Dhanbad through Speed Post but petitioner did not vacate his quarter and she filed this false and fabricated case only to grab money from him. Respondent has also stated that petitioner was earlier married with one Late Ramanand Paswan with whom she got divorce. In support of her contention, respondent has also filed CC of order sheet passed in TMS No.214/97 (Exhibit-D), CC of plaint of TMS No. No. 214/97 (Exhibit-E), CC of deposition of Seema Devi and Ramanand Paswan in TMS No. No. 214/97 (Exhibit-F). On going through said documents, it appears that TMS No.214/97 was filed by plaintiff Seema Devi against defendant Ramanand Paswan and others U/s 11 of the Hindu Marriage Act, 1955 for decree of nullity of marriage between Seema Devi and Ramanand Paswan which later on converted U/S 13(8) of the Hindu Marriage Act on mutual petition of the parties and by the order dtd. 29/01/1999 the marriage of the plaintiff Seema Devi with the defendant Ramanand Paswan was dissolved U/S 13(B) of the Hindu Marriage Act by a decree of divorce. It appears that during her cross-examination, petitioner also admitted her marriage with Ramanand Paswan and filing of TMS No.214/97 against him but it appears that petitioner neither in her petition nor in her examination in chief has even whispered about solemnization of her marriage with Ramanand Paswan and she filed the instant case by concealing and suppressing the actual fact. Thus, from material on record, it is evident that petitioner was legally married wife of Ramanand Paswan and their marriage was dissolved on 29/01/1999 through decree of divorce by the competent court. It appears that in her petition, petitioner has claimed that her marriage was solemnized with Brinda Prasad in the year 1995 however, in her evidence before the court recorded on 17/01/2019, she has stated that their marriage was solemnized before 22-23 years ago. Thus, if calculation is done then, as per evidence of petitioner, their marriage was solemnized in the year 1996-97 but as discussed above, the marriage of petitioner and Ramanand Paswan was dissolved on 29/01/1999 through decree of divorce thus, it is clear that the marriage of petitioner Seema Devi with her husband Ramanand Paswan was still in existence during the period (in the year 1995 or 1996-97) when the petitioner claimed to solemnized her 13 marriage with respondent Brinda Prasad. Thus, the plea of petitioner that she is the legally wedded wife of respondent is not sustainable in the eye of law as it itself in contravention of Section 5(1) of the Hindu Marriage Act 1955. Besides it, petitioner has also not filed any chit of paper to show that her marriage was solemnized with respondent though she is claiming that their marriage was solemnized through Asansol Court. It appears that petitioner has filed medical card (Exhibit-1), photocopy of joint pass book in the name of Brinda Prasad and Seema Paswan (Exhibit-3) showing that medical card was issued by TISCO, Jamadoba Colliery showing name of her husband as Brinda Prasad and joint account opened in Bank of India in the name of Brinda Prasad and Seema Devi, but it appears that Exhibit-1 was alleged to-be issued in the year 1996 when still the marriage of petitioner with her husband Ramanand Paswan was in existence and Exhibit-3 is not properly proved by the petitioner to show that the same was opened at the instance and with filed seven the consent of respondent. Petitioner has also photographs of herself and respondent (Exhibit-4 series) to show that they were jointly performed the marriage ceremony of daughter of petitioner but it appears that the same was not properly proved as petitioner has neither filed Negatives of the said photographs, nor the Camera or Mobile by which the said photographs were taken has been produced before the court hence, the said photographs has not been proved by the petitioner as per the provision contained U/s 65 B of The Indian Evidence Act hence, no reliance can be placed upon it. Thus, from the perusal of the evidences available on record it appears that petitioner has not been able to prove that she is legally wedded wife of respondent or they lived together as husband and wife. Thus, there is sufficient ground to decline the claim of maintenance of petitioner.” 19. Thus, the learned court has held that the plea of petitioner that she is the legally wedded wife of respondent is not sustainable in the eye of law as it is itself in contravention of Section 5(1) of the Hindu Marriage Act 1955 and the petitioner has not been able to prove that the petitioner and the opposite party lived together as husband and wife. Both the points are considered as under. Consideration with regard to finding of the learned Family Court that marriage of the petitioner-Seema Devi with the opposite party itself was in contravention of Section 5(1) of the Hindu Marriage Act, 1955 20. In order to prove that in the year 1995 the petitioner was already married to one Ramanand Paswan and obtained divorce from 14 him only in the year 1999, the opposite party filed certified copy of order-sheet passed in TMS Case No. 214 of 1997 (Exhibit-D), certified copy of Plaint of TMS Case No. 214 of 1997 (Exhibit-E) and certified copy of depositions of Seema Devi and Ramanand Paswan in TMS Case No. 214 of 1997 (Exhibit-F) and submitted that the petitioner ultimately obtained divorce from her husband Ramanand Paswan under Section 13 B of the Hindu Marriage Act vide order dated 29.01.1999 in TMS Case No. 214 of 1997. 21. The learned Family Court recorded that perusal of TMS Case No. 214 of 1997 revealed that the applicant Seema Devi had filed TMS Case No. 214 of 1997 against Ramanand Paswan under Section 11 of Hindu Marriage Act, 1955 seeking a decree of nullity of the marriage which was later converted into a mutual petition under Section 13B of the Hindu Marriage Act and the decree of divorce was granted vide order dated 29.01.1999. On the basis of the aforesaid documents and the Plaint of TMS Case No. 214 of 1997, the learned Family Court recorded a finding that petitioner was the legally married wife of Ramanand Paswan and their marriage was dissolved only on 29.01.1999 through decree of divorce by competent court and held that the marriage of petitioner with the opposite party itself was in contravention of Section 5(1) of the Hindu Marriage Act, 1955. 22. This Court finds that though the learned Family Court has recorded by referring to Exhibit-D filed by the opposite party that the ground for seeking divorce in Matrimonial Case TMS No. 214 of 1997 was that the marriage of the petitioner with Ramanand Paswan was a nullity and it ended into divorce by mutual consent, but the learned court failed to consider that from perusal of Certified Copy of the Plaint of TMS Case No. 214 of 1997 (Exhibit-D) itself, it is apparent that the reason for claiming that the marriage was a nullity and null & void was that Ramanand Paswan was already married prior to his marriage with Seema Devi. Further, the other wife of Ramanand Paswan was also a party in the TMS Case No. 214 of 1997 as Opposite Party No.2. This Court is of the considered view that merely because TMS Case No. 214 of 1997 ended into divorce by mutual 15 consent, the same by itself cannot be a ground to record a finding that in the year 1995, the petitioner was legally wedded wife of Ramanand Paswan and her marriage with the opposite party was in violation of Section 5 of Hindu Marriage Act, 1955. The learned Family Court has failed to consider the true import of Certified Copy of the plaint of TMS Case No. 214 of 1997 (Exhibit-D) where the petitioner claimed that her marriage with Ramanand Paswan was a nullity as he was already married. Seema Devi in her cross examination before the learned family court in this case also stated that Ramanand Paswan had two wives. 23. This Court is of the considered view that the issue whether the petitioner was a legally married wife of Ramanand Paswan or her marriage with Ramanand Paswan was a nullity as claimed by her on the ground that Ramanand Paswan was already married to Mula Devi requires adjudication through evidence. This Court is of the considered view that merely because the TMS Case No. 214 of 1997 ended in divorce by mutual consent does not automatically lead to a conclusion that the marriage between petitioner and opposite party was in contravention of Section 5(1) of the Hindu Marriage Act,1955. 24. It is a fact that no documentary evidence has been produced by the petitioner to substantiate her marriage with the opposite party in the court and no eye witness to the marriage has been produced, but the relation between the parties has to be examined on the basis of the conduct of the parties as discussed below. Consideration with regard to claim of Seema Devi that the parties have been living as husband and wife in the quarter allotted to the opposite party since last 20 to 22 years and have shown themselves to be husband and wife even before the society at large. 25. The relationship between the petitioner and opposite party has to be seen in the light of the claim of the petitioner that the petitioner and the opposite party have been throughout living together as wife and husband in the quarter allotted to the opposite party for last 20 to 25 years and the opposite party had also performed Kanyadaan of her 16 daughter and the case of the petitioner was supported not only by the persons living in the neighbourhood of the quarter, but also by the relatives of the opposite party who deposed from the side of the petitioner and the petitioner also filed some documentary evidences in support of such claim. However, the learned Family Court rejected the plea without considering the oral evidences and even the photographs regarding Kanyadaan performed by the opposite party in the marriage ceremony of the daughter of the petitioner were rejected by stating that the same were not supported by certificate under Section 65B of the evidence act and the negatives were also not produced, without considering the fact that participation in the ceremony and the photographs were admitted by the opposite party in his evidence although he tried to explain the circumstances in which he performed the ceremony. 26. The four neighbours of the petitioner and the opposite party i.e. PWs- 2, 3, 6 and 7 have clearly stated in their evidence that Seema Devi and the opposite party were living in the company’s quarter and projected themselves as husband and wife to the society at large for more than 20 to 22 years and for the last 5 to 6 years, the opposite party was not maintaining her. 27. The opposite party tried to explain the stay of the petitioner in his quarter by stating that she was given the quarter for the purposes of marriage of her daughter, but she did not vacate his quarter and in the year 2019, when he came back from Kolkata, he found his belongings missing and Seema Devi had locked the quarter. It has also come on record through oral and documentary evidence and in fact stood admitted by the opposite party during his evidence that he had participated as father of the daughter of the petitioner during the Kanyadaan ceremony of the daughter of the petitioner and the photographs produced and exhibited by the petitioner with respect to the ceremony performed were admitted by the opposite party in his evidence. 28. Even the two relatives of the opposite party examined as PW-1 and P.W.5 deposed in favour of the petitioner. 17 29. While considering the documentary evidence produced by Seema Devi to show that she lived as wife of the opposite party even in the society, the learned Family Court considered Joint Bank Pass Book (Exhibit-3) and recorded that the bank account in the joint name was opened, but refused to consider it by observing that it was not properly proved that it was opened at the instance and with the consent of the opposite party although there is no cross-examination of Seema Devi with respect to Exhibit-3. Original medical card (Exhibit-1) was issued in the year 1996 wherein the petitioner was shown as the wife of the opposite party, but the same was rejected by stating that the marriage of Seema Devi with Ramanand Paswan was existing in the year 1996. 30. The learned Family Court while considering the evidence regarding the participation of the opposite party in Kanyadan of the marriage of the daughter of Seema Devi has discarded the photographs by observing that the negatives of the photographs were not exhibited and the photographs were not supported by certification under Section 65B of the Evidence Act, but has completely failed to consider the oral evidences in this regard as recorded in Paragraph-26 of cross-examination of the opposite party where the opposite party has admitted the photographs and has accepted that during the marriage of the daughter of Seema Devi, he had performed the ceremony as the husband of the petitioner . 31. This Court finds that there is enough evidence on record, both oral and Documentary, which establishes that Seema Devi was living with the opposite party in his quarter and she was shown to be his wife even before the society at large for more than 20 to 22 years. This status continued at least till December, 2012 when the petitioner claimed that the opposite party refused to maintain her, but she continued to live in the quarter of the petitioner and even as per the evidence of the opposite party, the petitioner continued to live in the quarter till the year 2019 when he found that the petitioner had locked his quarter. The petitioner got divorce from Ramanand Paswan through mutual consent way back in the year 1999. 18 32. The learned court while giving a finding that the petitioner has not been able to prove that petitioner and the opposite party lived together as husband and wife has completely ignored the oral evidences and wrongly discarded the documentary evidences placed