Decided on November 28,2003

STATE Respondents


P.N.Sinha, J. - (1.)This application under section 482 of the Code of Criminal Procedure (hereinafter called the Code) is for setting aside the judgment and order dated 23.6.2003 passed by the learned Sessions Judge, Bankura in Criminal Revision No. 64 of 2002 setting aside the judgment and order dated 18th July, 2002 passed by the learned Sub-Divisional Judicial Magistrate (hereinafter called S.D.J.M.), Khatra in Misc. Case No. 4 of 2001 under section 125 of the Code rejecting O.P. No. 2-wife's application for maintenance.
(2.)Learned advocate for the husband petitioner contended that in the instant matter marriage between petitioner and O.P. No. 2 is denied and the petitioner never married O.P. No. 2 and O.P. No. 2 is not the legally married wife of petitioner. The learned S.D.J.M. rightly discussed the evidence of the witnesses adduced by both the parties and came to the finding that the wife has failed to prove that she was married with this petitioner. The husband-petitioner who was opposite party before learned S.D.J.M. also examined five witnesses and O.P.W. 3 Sadananda Lohar in his evidence stated that Ashalata is his cousin sister and Ashalata was not married with Uttam, the present petitioner. From evidence it was not established that essential ceremonies of the marriage were performed and the evidence of the alleged priest P.W. 4 Amiya Chouni is unbelievable. There was no barber in the alleged marriage. But, the learned Sessions Judge in the revision proceeded on a different footing and without considering the evidence properly, allowed the application of the wife under section 125 of the Code. Learned Sessions Judge did not consider at all that in the instant case marriage between petitioner and O.P. No. 2 was not proved at all and O.P. No. 2 is not the wife of the petitioner. When O.P, No. 2 is not the legally married wife of petitioner she cannot claim any maintenance from petitioner. The order of the learned Sessions Judge being bad in law and improper should be set aside and O.P. No.2's application under section 125 of the Code should be dismissed and the order of the learned S.D.J.M. should be restored. In support of his contention he placed reliance on the decisions reported in 1985 Cri. L. J. 528, 2000 Cri. L. J. 1 and 2002 C Cr LR (Cal) 800.
(3.)I have duly considered the arguments canvassed before the learned advocates for the petitioner and perused the averments of the application and annexures made therein. In Sumitra Devi vs. Bhikan Choudhary, reported in 1985 Cri. L.J. 528, the Supreme Court observed that, in order that there may be a valid marriage according to Hindu Law, certain religious rites have to be performed. Invoking the fire and performing saptapadi around the sacred fire have been considered by the Supreme Court to be two of the basic requirements for a traditional marriage. It is equally true that there can be a marriage acceptable in law according to customs which do not insist on performance of such rites as referred to above and marriages of this type give rise to legal relationship which law accepts.

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