- (1.) Petitioner Muni Kumari @ Muniya Kumari has invoked the inherent jurisdiction of this Court under Section 482, Code of Criminal Procedure for quashment of the order impugned dated 8.12.2008, passed in Criminal Revision No. 8 of 2007, by the learned Sessions Judge. Lobardaga, wherein the order passed in Maintenance Case No. 14 of 2000, in a proceeding under Section 125, Code of Criminal Procedure, by the learned Additional Chief Judicial Magistrate, Lohardaga was reversed and the criminal revision was allowed.
(2.) The case of the petitioner in short was that he had filed a petition under Section 125 Code of Criminal Procedure claiming maintenance from the opposite party No. 2 Jogendar Gope on the basis of live in relationship and it was further alleged that on the pretext of marriage, opposite party No. 2 had emotionally and sexually exploited her and a daughter was also born to them. After recording the evidence, the learned Additional Chief Judicial Magistrate, Lohardaga in the final order granted maintenance to the tune of Rs. 500 per month to the petitioner Muni Kumari @ Muniya Kumari calling upon the opposite party No. 2 Jogendar Gope to pay such amount. Opposite party No. 2 then preferred Criminal Revision No. 8 of 2007 before the learned Sessions Judge, Lohardaga in which the opposite party No. 1 - petitioner appeared and contested the criminal revision and the learned Sessions Judge by the order impugned dated 8.12.2008 allowed the revision observing-- The first marriage of Muni Kumari (applicant) was performed with Rajendar Gope and she was not divorced, has come up in the testimony of none-other than the applicant witnesses. Nowhere in the application she has mentioned that she was married to Jogendar Gope. On the contrary she has stated in para-2 that the opposite party established sexual relationship with her on a false assurance of marriage. Evidence adduced contrary to this cannot be accepted. Moreover on the very same ground she lodged a criminal case and succeeded in getting the O.P. convicted for sexually exploiting her on a false promise of marriage. On the face of these incontrovertible evidence the marriage of the applicant to the opposite party cannot be accepted. 11. Nevertheless from the very admission of the opposite party in paras 40 and 41 and other evidence on record it can be safely inferred that the opposite party/revisionist had a living relationship for some time with the applicant from which the beget a child. From the above discussion we have seen that the applicant earlier was married to Rajendra Gope and was not divorced by him. The question that naturally arises as to whether an order of maintenance can be passed in favour of the applicant where she lived with the O.P. but without a formal marriage. Marriage is an essential ingredient of Section 125, Cr.P.C. and where it is clearly proved by unassailable evidence that there was no marriage, the order of maintenance cannot be passed. Under the circumstance the order of the learned Court below cannot be sustained and is, therefore, liable to be set aside. In the result the order of the learned Court below is set aside and revision is allowed.
(3.) Heard Mr. Atanu Banerjee the learned Counsel appearing on behalf of the petitioner as also. Mr. P.P.N. Roy, the learned Senior Counsel appearing for the opposite party No. 2.;