SRIMATI CHATI DEI Vs. HEMANTA KUMAR SAHU

JUDGEMENT

(1.) LOVED by the opposite party and made to conceive for his sexual lust and then subjected by him to a forced abortion on the false pretext that she would be cured of the hysteric fits she was suffering from by the application of tablets and the forlorn by him, having fixed his eyes on another lady but ultimately married to the opposite party on February 1, 1979, the Sri Panchami Day, according to law and customs governing the parties and deserted about a fortnight thereafter and left alone in the house of her husband who, with his father, left the house with the belongings and stayed elsewhere for which the Petitioner, unable to maintain herself, took shelter in the house of her parents, the Petitioner has now come to this Court for relief against the judicial order passed by the Sub -divisional Judicial Magistrate, Angul, dismissing her claim for maintenance under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') as the married and deserted wife having no means to maintain herself on the ground of lack of legal and technical proof of marriage and the ceremonies thereto required by Hindu Law and in particular, for failure to prove the rites and ceremonies including Saptapadi as required by the proviso (2) to Section 7 of the Hindu Marriage Act. While Mr. B.B. Ratha, the learned Counsel for the Petitioner, has urged that strict proof of the marriage, which had been established on the evidence, was not to be, but had been insisted upon in a summary proceeding of this nature, Mr. P.K. Misra, the learned Counsel for the opposite party, has submitted that in the absence of proof of marriage with the ceremonies thereto and desertion the learned Magistrate was not legally wrong in dismissing the claim.

(2.) SITTING as I do in a Court of revision, normally the jurisdiction of this Court is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice, as laid down by the Supreme Court in the case of State of Orissa v. Nakula Sahu and Ors. 47 (1979) C.L.T 624 (S.C.), referring to and relying on the principles laid down in two earlier decisions in the case of Amarchand Agarwala v. Shanti Bose and Anr. : : A.I.R. 1973 S.C. 799 and Akalu Ahir and Ors. v. Kamdeo Ram, 1973 S.C.D. 639, but having heard the learned Counsel for both the sides and perused the evidence, oral and documentary, on which reliance had been placed by the parties to the proceeding, I find, for the reasons to follow, that it would be just, legal, reasonable and proper to interfere with the impugned order based on technicalities and founded on inconsequential discrepancies in the testimony of the Petitioner and her witnesses including the priest, the barber and the drummer, besides the relations, as according to me, to maintain the order in the face of the clear and consistent evidence from the side of the Petitioner regarding her marriage to and desertion and neglect by the opposite party would amount to failure of justice.

(3.) THE Petitioner's case that she is the legally married wife of the opposite party had been supported by P.W. 2, the priest, who had testified about the ceremonies to the marriage including Saptapadi and he had not only performed the marriage, but also the Chauthi ceremony. P.W. 3 was the barber and P.W. 1 was the drummer at the marriage who had also deposed about the ceremonies to the marriage. Nothing had been brought out as to how and why these witnesses should be hands -in -glove with the Petitioner and support a false cause against the opposite party. P.W. 4, the Secretary of the Village Committee, had proved Exts. 1 to 3 and had testified about the complaint of the Petitioner, the decision of the Committee and the undertaking by the father of the opposite party to which reference has already been made. He had also witnessed the marriage and had deposed about the ceremonies of Homa, Hastaganthi and had also testified that the bride and the bride -groom had moved round the alter. P.Ws. 5 and 6 had testified about the undertaking given by the father of the opposite party that his son would marry the Petitioner. P.W. 6 had also spoken about the marriage ceremony. P.W. 8 was the scribe of Ext. 1 and had accompanied the Petitioner to the police station at Jarpada when she made the report. He had also testified about the marriage of the Petitioner with the opposite party. P.W. 9 had deposed about the meeting of the village committee styled by this witness as Panchayat where the opposite party had been asked to marry the Petitioner having earlier fallen in love with her. P.W. 10 had proved the station diary entry (Ext. 4) recorded on the basis of the report of the Petitioner at the Jarpada Police Station.