Full Judgment
B.N. Dash, J.
1. This revision by the wife is directed against the order of the learned Judicial Magistrate First Class, G. Udayagiri, refusing to grant maintenance under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code').
2. Admittedly, the parties belong to Scheduled Tribe being of 'Kandha' community and whereas the parents' house of the petitioner is at Kanabagedi, a village in the district of Phulbani, the residence of the O.P. is in village Kumbarkupa in the same district. There is also no controversy that since 10th August, 1972 the parties remained as wife and husband for a period of about 12 years and during that period the petitioner gave birth to two sons and one daughter through the O.P. It is the case of the petitioner that she is the legally married wife of the O.P. and that after the birth of the last issue i.e., the daughter, the O. P. physically assaulted her and ultimately drove her out of his house on 6-1-1984. An amicable settlement through mediator having failed, the petitioner initiated a proceeding under Section 125 of the Code claiming maintenance at the rate of Rs. 300/- per month alleging that the O.P. was serving as a Surveyor in the Soil Conservation Office at Phulbani and getting a salary of Rs. 1000/- per month.
3. The O.P. has denied the marriage relationship. According to him, in the month of March, 1970 he had married Nirupama Pradhan of Kanabagedi village, who after a few months deserted him and thereafter he kept the petitioner as his concubine during the subsistence of his first marriage. It is also pleaded by him that the petitioner is able to maintain herself being in receipt of a salary of Rs, 200/- as a teacher appointed under the Anganbadi Scheme and that the petitioner had extra marital relationship with one Pratap Nayak, Physical assault and desertion have also been denied and it is pleaded that she voluntarily left the house of the O.P. being prompted by her desire for service and also for the said extra marital relationship. With these averments, the application for maintenance was resisted.
4. At the trial, the petitioner examined four witnesses including herself as PW 1. PWs. 2 and 3 are respectively the father of the petitioner and the co-villager who have testified about the marriage of the petitioner with the O.P. and also about the attempted amicable settlement. PW2 has further denied the marriage of the O.P. with Nirupama and has deposed that Nirupama is married to one Bijoy Pradhan of Kakamaha village for the last about 15 years and is the mother of four sons. PW4 is the father of Nirupama who, besides deposing about marriage between the parties, has, denied the marriage of Nirupama with the O.P. On the other hand, the O.P. has merely examined himself and has given evidence in support of his plea. A certificate describing the petitioner as belonging to 'Kandha' community purported to have been granted by the Tahasildar, G. Udayagiri (Ext. 1) was filed and therein the petitioner was described as the wife of the O.P. A certificate (Ext. B) purported to have been granted on 26-6-1984 by the 2/Lt.-cw-Asst. Record Officer on behalf of the OIC Records, Jabalpur describing that the next of the kin in respect of the petitioner is Nirupama Devi (wife) as per the records held by the office. On a consideration of all these oral and documentary evidence, the learned Magistrate recorded the findings that the petitioner had failed to prove that she was the legally married wife; that the petitioner had failed to establish that she was ill-treated and deserted; and that the allegation of adultery against the petitioner had not been proved. Accordingly, the claim for maintenance was disallowed. Being aggrieved by such order, the present revision has been filed.
5. It is contended by Miss Mira Ghose for the petitioner that the findings of the learned Magistrate as to the marriage relationship between the parties as also ill-treatment are perverse and are, therefore, liable to be set aside, being contrary to the evidence on record. According to the learned Counsel, the evidence led on behalf of the petitioner if considered in conjunction with the admitted facts that the parties remained as wife and husband for a very long period and during such period the petitioner gave birth to three children through the O.P., clearly indicate that the petitioner is the legally married wife of the O.P. It is also contended by the learned Counsel that the O.P. having failed to establish his claim of adultery the petitioner is entitled to claim separate residence and maintenance.
6. Mr. P.B. Das, on behalf of Mr. P.K. Patnaik for the O.P,, on the other hand, supports the impugned order and contends that the marriage of the O.P. with the petitioner, if there was any, was void ab initio according to Sec. 11 read with Sec. 5 of the Hindu Marriage Act, 1955, the same having been solemnised during the subsistence of the marriage of the O.P. with Nirupama Pradhan and as such the petitioner is not entitled to any maintenance and therefore, the impugned order of the learned Magistrate is not liable to be set aside.
7. On the aforesaid pleadings the following points arise for consideration :
(i) Whether there was any marriage between the O.P. and Nirupama Pradhan in the year 1970 as alleged by the O.P. and if so whether the marriage of the petitioner with the O.P. if any, is void disentitling the petitioner to claim maintenance;
(ii) Whether the petitioner is the legally married wife of the O.P.; and
(iii) Whether the petitioner is entitled to any maintenance.
8. As regards the first point, it is seen that except examining himself, the O.P. has not led any oral evidence in support of his marriage with Nirupama. The only corroborating evidence sought to be pressed into service are the certificate Ext. B and, the letter, Ext. A. As already stated above, it is there in Ext. B that while the O.P. was serving in the Military, in his service record one Nirupama Devi (wife) has been described as the next kin of the O.P. in the absence of the service records, on importance can be attached to this certificate because its author has not been examined to prove it. Similarly, although in the letter (Ext. A) the O.P. has asserted that he had married Nirupama, the same is also devoid of merit being undated. As against the uncorroborated testimony of the O.P., it is seen that there is the evidence of the father of Nirupama and also the father of the petitioner who is admittedly related to Nirupama to show that Nirupama had never been given in marriage with the O.P. under these circumstances, it is liable to hold that the O.P. had never married Nirupama. Even assuming for the sake of argument that there was any such marriage, the petitioner will not be disentitled to maintenance in asmuch as the Hindu Marriage Act, 1955 does not apply to the parties who are admittedly members of the S.T. in view of Sec. 2(2) of the said Act and the ancient Hindu Law does not forbid a Hindu to marry another wife during the subsistence of any prior marriage.
9. So far as the second point is concerned, it is seen that the assertion of the petitioner that she is the legally married wife of the O.P. has been corroborated not only by her father (PW 2) but also by her caste men (PWs 3 and 4). That apart, parties have admitted, as already stated above, that they lived as wife and husband for a long period of 12 years and that the petitioner has given birth to three children through the O.P. during that period. As against all these evidence, the denial evidence of the O.P. does not find corroboration. In the face of all these evidence, the learned Magistrate has recorded a finding that the petitioner is not the legally married wife of the 0. P. merely because there was no evidence from the side of the petitioner as to the procedure of the marriage prevalent in her caste and also for non-examination of the priest and barber. It has been laid down in a number of decisions by this Court that a proceeding under Section 125 of the Code is of summary nature and that the intricacies of the law are not required to be gone into and that where the man and woman lived together as husband and wife and treated as such by the community and the man treated the woman as his wife, marriage between them has to be inferred for the limited purpose of Section 125 of the Code. To cite one of them is Saudamini Dei v. Bhqgirathi Raj, 53 (1982) CLT 93=1 (1982) DMC 333. In view of such decision, I hold, on the basis of aforesaid evidence, that the petitioner is the legally married wife of the O.P. and the finding of the learned Magistrate being perverse is set aside.
10. As for the third point, it is seen that the O.P. had although alleged that the petitioner was unchaste being in illicit connection with one Pralap Nayak, has failed to substantiate the same. In Pramila Dei v. Sanatan Jena, 67 (1989) CLT 391=1 (1989) DMC 397, it has been held by this Court that it an allegation of unchastity is made against the wife and payment of maintenance is sought to be avoided on the ground of her living in adultery but the plea fails such plea by itself is sufficient to entitle her to remain apart from her husband and also to claim maintenance. I am in respectful agreement with that decision and accordingly, I hold that the petitioner is entitled to maintenance from the O.P.
11. In fixing the quantum of maintenance, the living standard of the parties and the income of the petitioner and the number of persons liable to be maintained out of that income are to be considered. The assertion of the petitioner in her application under Section 125 of the Code that the O.P. gets a salary Rs. 1000/- per month has not been denied. It is merely pleaded by the O.P. that the petitioner herself gets a salary of about Rs. 200/- as a teacher under the Angabadi Scheme. The petitioner, in her evidence, has stated that she was in fact serving as a teacher but she has given up that job after serving for one year. Her father (PW 2) has also deposed that she gave up the job after serving for 7 months. Thus, it is seen that both the witnesses are unanimous that by 1987 when they were examined the petitioner was not having any income. The O.P. has not denied such evidence. The persons who are dependant on the income of the O.P. are the O.P. himself and his two sons. Taking all these factors into consideration and also the income of the O.P., the quantum of maintenance can be reasonably fixed at Rs. 200/- per month.
12. In the result, the revision is allowed and the impugned order is set aside. The petitioner shall be entitled to maintenance at the rate of Rs. 200/- per month from the opposite party from the date of this order.