Jharkhand High Court
JUSTICE H.C. Mishra
Satrughan Baske Vs. Silsia Kerketta & Anr. On 25 March 2014
Law Point:
That OP No. 2 is son born to petitioner and OP No. 1 — No cogent evidence that petitioner is biological father of OP No. 2 — Impugned order passed by Courts below directing petitioner to make payment of maintenance to OPs unsustainable in eyes of law and set aside.
JUDGEMENT
Heard learned Counsel for the petitioner and the learned Counsel for the opposite parties.
2. The petitioner is aggrieved by the order dated 30.8.1997 passed by Sri Gajendra Prasad, learned Judicial Magistrate, Bermo at Tenughat, in Maintenance Case No. 37 of 1993, whereby in a proceeding under Section 125 of the Cr.P.C., the petitioner has been directed to make the payment of Rs. 300 per month for maintenance of his deserted wife and Rs. 300 per month to the minor son living with her mother.
3. The record shows that the application under Section 125 of the Cr.P.C., was filed by the opposite parties herein, wherein O.P. No. 1 claiming herself to be the legally wedded wife of the petitioner, stated that she was married to the petitioner about seven years ago and on 9.12.1988 a son was born to them out of the wedlock. In the year 1990 the petitioner married another lady and drove her away from her matrimonial home along with her child. Thereafter, she was living with her parents. Claiming that she had no means to maintain herself and her child, where as the petitioner had sufficient means to maintain them, the application under Section 125 of the Cr.P.C., was filed by the opposite parties in the Court below.
4. The impugned order shows that upon notice the petitioner appeared in the Court below and filed his show-cause, in which the case of the petitioner is the complete denial of the marriage and birth of any child from any such wedlock. The petitioner has also denied any relationship with the opposite parties and has claimed that he had married one Anita Baske, who is his legally wedded wife and there was no relationship between the petitioner and the opposite parties, who belonged to different religions.
5. It appears from the impugned order that both the parties entered into evidence, and eight witnesses were examined on behalf of the applicants, who are the opposite parties in this Court, including both the applicants. The Court below has discussed the evidence of the witnesses examined on behalf of the opposite parties in detail in the impugned order, which shows that the witnesses including the applicant opposite party No. 1, stated that the opposite party No. 1 is Christian, whereas the petitioner is a Hindu. All the witnesses have stated that there was only a function in the house of the opposite party which was attended only by the family members of the opposite party and only the petitioner attended the said function. No one else from the petitioner’s side attended the function. Some witnesses have, stated that there was exchange of garlands and some of them have also stated that there was exchange of rings. It is also stated that thereafter the petitioner put vermilion In the head of the opposite party and thereafter they started living as husband and wife and out of the wedlock a son was also born. These witnesses have also stated that after getting the job the petitioner married another lady and left the opposite parties. The applicant opposite party No. 1, who was examined as A.W.-5, has stated only about the exchange of garlands and ring and thereafter her husband put vermilion In her head. Similar statement has been made by the father of the opposite party No. 1, who was examined as A.W.-2. All the other witnesses examined by the opposite parties on this point have stated that the opposite party No. 1 is a Christian, whereas the petitioner is a Hindu. All these witnesses have stated that there was no marriage in the Church according to the Christian religion, nor have they proved any marriage in accordance with Hindu Marriage Act. Though the applicant opposite party No. 1 in her evidence has stated that her marriage was registered before the competent authority, but no certificate of registration of marriage has either been produced or proved. A.W.-8 is the opposite party No. 2, who has claimed to be the son of the petitioner, and he has only identified one photograph of both the parties.
6. From the petitioner’s side four witnesses were examined including the petitioner, who was examined as O.PW. No. 4. All these witnesses have denied any marriage between the petitioner and the opposite party and they have stated about the marriage of the petitioner with Anita Baske. These witnesses, including the petitioner, were cross-examined at length, but nothing could be taken from them to discredit their testimony. O.PW. No. 4, who is the petitioner has also identified himself and the opposite party No. 1 in the photograph, but he has stated that he had no knowledge about the photograph.
7. From perusal of the record, I find that there is one photograph marked as Exhibit-1. which is stated to be of the petitioner and of the opposite party No. 1. It is apparent from the record that this photograph has also not been proved in accordance with law, nor can this photograph prove the marriage between the parties. There is one certified copy of Form-1. under the signature of the Special Marriage Officer, Bermo at Tenughat, which contains the names of the petitioner and the opposite party No. 1, but this is not the certificate of marriage, nor this certified copy has been proved and marked Exhibit.
8. On the basis of the materials on record the Court below has found that opposite party No. 1 is the legally wedded wife of the petitioner and the opposite party No. 2 is their son, who have been deserted by the petitioner, and has directed the petitioner to make the payment of Rs. 300 per month to each of them, i.e., Rs. 600 per month for their maintenance.
9. Learned Counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal and cannot be sustained in the eyes of law. It is submitted that the evidence brought on record clearly shows that there was no marriage between the parties, either in accordance with the Christian Marriage Act, or in accordance with the Hindu Marriage Act, or in accordance with the Special Marriage Act. It is admitted in the evidence that opposite party No. 1 is a Christian whereas the petitioner is a Hindu, but there was no marriage between the parties in the Church. Learned Counsel for the petitioner has submitted that since it is admitted that the petitioner is a Hindu and opposite party No. 1 is a Christian, the marriage between them could be performed only in accordance with the Special Marriage Act and the Special Marriage Act clearly prescribes about the registration of the marriage which has not at all been proved by the witnesses examined on behalf of the opposite parties. Learned Counsel, accordingly, submitted that since the applicant opposite parties failed to prove the fact that there was valid marriage between the parties, the impugned order cannot be sustained in the eyes of law.
10. Learned Counsel for the opposite parties on the other hand has submitted that the witnesses examined on behalf of the applicants opposite parties in the Court below have clearly stated that the marriage was performed in the house of the opposite party No. 1, which, was attended by the petitioner in which there was exchange of garlands and rings and the petitioner also put vermilion in the head of the opposite party No. 1. Thereafter, both of them were living together as husband and wife and the son was also born out of the wedlock, but subsequently the petitioner married another lady and drove out the applicant from his house. Learned Counsel for the opposite parties submitted that there is no illegality in the impugned order passed by the Court below.
11. After having heard learned Counsel for both sides and upon going through the record, 1 find that admittedly the petitioner and the opposite party No. 1 belong to two different religions. The petitioner Is Hindu and the opposite party No. 1 is a Christian and the marriage between the parties had to be performed under the Special Marriage Act, but the applicants opposite parties have tried to prove the marriage only by exchange of garlands and rings and the alleged act of putting vermilion on the head of O.P. No. 1. No certificate of the registration of marriage has been proved and in that view of the matter, I am of the considered view that the opposite party No. 1, has failed to prove any marriage between the petitioner and herself. The photograph which has been marked as Exhibit-1, has also not been proved in accordance with law and even otherwise this photograph is not the proof of marriage between the parties. The very marriage between the parties is not proved in this case, nor could it be proved by the opposite parties by way of any cogent evidence that the petitioner is the biological father of the opposite party No. 2.
12. In view of the aforementioned discussions, 1 am of the considered view that the applicants opposite parties have failed to prove the marriage between the parties and they have also failed to prove that the opposite party No. 2 is the son born to the petitioner and the opposite party No. 1. Accordingly, the impugned order passed by the Court below directing the petitioner to make the payment of maintenance to the opposite parties cannot be sustained in the eyes of law.
13. In view of the aforementioned discussions, the impugned order dated 30.8.1997 passed by Mr. Gajendra Prasad, learned Judicial Magistrate, Bermo at Tenughat, in Maintenance Case No. 37 of 1993, is hereby, set aside. This application is, accordingly, allowed. Let the Lower Court Records be sent back forthwith. Application allowed.
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