Court: High Court Of Calcutta
Bench: JUSTICE G.R. Bhattacharjee
Shibsankar Samanta Vs. Sobhana Samanta On 18 March 1992
Maintenance – Reversal of order – Section 125, Criminal Procedure Code, 1973 (Cr.P.C.) – Sessions Judge reversed findings of Magistrate and held that there was marriage between parties and they resided together as husband and wife and child was born to them in wedlock and accordingly granted maintenance – Whether, Sessions Judge rightly reversed findings of Magistrate – Held, Sessions Judge did not make any critical study of evidence at all and rather mechanically picked up some statements of PWs in support of case of Petitioner totally shutting his eyes to discrepancies – Therefore, judgment of Sessions Judge setting aside judgment of Magistrate without making any critical study of evidence and without adverting his attention to analysis of evidence could not be sustained and so Sessions Judge was not justified in setting aside same – Revisional Petition allowed.
1. This criminal revision is directed against the judgment and order dated the 14th February, 1990 passed by the Additional Sessions Judge, Midnapore in Criminal Motion No. 150 of 1989 whereby the learned Judge granted maintenance to the opposite party, Smt. Sobhana under Section 125, Cr.P.C. at the rate of Rs. 400/- per month for herself and a further sum of Rs. 400/- for her minor son from the date of filing of the _ application after setting aside the order of the learned Judicial Magistrate, 1st Court, Contai passed in Misc. Case No. 171 of 1987 dismissing the application under Section 125, Cr.P.C. The case of the opposite party is that she is the married wife of the petitioner Shibsankar Samanta and after marriage they resided together as husband and wife and a male child was born to them. It is alleged by her that Shibsankar used to ill treat her and even to assault her and ultimately she was driven away by him along with her son and since then she and her son are staying at the residence of her father. It is the further case of Sobhana that Shibsankar earns Rs. 5000/- to 6000/- per month from his bus business and landed property and is wilfully neglecting her and her minor child. The proceedings under Section 125, Cr.P.C. started by Sobhana was contested by the present petitioner Shibsankar. He denies that there was any marriage between him and the opposite party or that they resided together as husband and wife or any child was born to them or that he was the father of her child. The Learned Magistrate after hearing and after considering the evidence on record held that Smt. Sobhana failed to prove that there was any marriage as alleged or that they lived together as husband and wife or the child born to her was begotten by Shibsankar. Accordingly he dismissed the petition for maintenance. Against that a motion was filed before the Learned Sessions Judge, which was heard by the Learned Additional Sessions Judge. The Learned Additional Sessions Judge reversed the findings of the Learned Magistrate and held that there was marriage between the parties and they resided together as husband and wife and a child was born to them in the wedlock. Accordingly he granted maintenance to Smt. Sobhana both for herself and her minor son as stated above. Being aggrieved by the said order of the Learned Additional Sessions Judge, the present criminal revision has been filed by Shibsankar.
2. The Learned Additional Sessions Judge, I must say, has taken a wholly incorrect and untenable approach in deciding the criminal motion filed before him against the order of the Learned Magistrate. He has, I find, set aside the order of the Learned Magistrate by taking a very superficial approach. He has not only ignored the necessity of examining whether and where, if at all, the Learned Magistrate was wrong in his approach in dealing with the evidence on record, but he has also wholly avoided to embark upon any critical study of the evidence for testing the acceptability of the same. It is a cardinal principle of law that in a revision, the revisional court will not interfere with the order of the Court below, unless there is some compelling reason for doing so such as where the judgment or order of the Court below is vitiated by perversity or gross illegality. The Learned Additional Sessions Judge accepted the evidence of PW-1, Smt. Sobhana that she was married with Shibsankar on 28th Falgoon 1385 B.S. and at the time of marriage Horn and Saptapadi were performed and that PW-2 Durga Pada Ponda acted as priest in that marriage. He also relied upon her further evidence that after marriage she went to reside with Shibsankar in a room of the bus garage of Shibsankar and they lived there as husband and wife and a mala child was born of that weldlock on 5th Baisak 1388 B.S. and she had been staying in her father’s house since Baisak 1394 B.S. when Shibsankar drove her out. The Learned Additional Sessions Judge observed that she had been cross examined at length but had not been shaken in her cross-examination and there was nothing in her cross-examination which tended in any way to weaken her evidence. Such observation of the Learned Additional Sessions Judge, I must say, is very superficial and the Learned Additional Sessions Judge, it appears, even did not take the trouble of going through the judgment of the Learned Magistrate, far less dealing with the categorical analysis of the facts, circumstances and evidence by reason of which the Learned Magistrate found it difficult to believe or accept the case of Smt. Sobhana. The Learned Magistrate found that while in the petition Sobhana stated that her marriage with Shibsankar took place in a Shiva temple by exchanging garlands, in her evidence she wanted to state that besides exchange of garlands there was observance of essential ceremonies like Horn and Saptapadi in that marriage and the priest of the Shiva temple PW-2 acted as a priest in that marriage, although in the petition nothing was stated about such ceremonies of marriage or about priest. Again the Learned Magistrate also took note that even in her cross-examination Sabhana stated categorically that the marriage was performed by exchanging garlands at the temple and not by priest. These inconsistencies and discrepancies between the case stated in the petition and the deposition of PW-1 which were considered by the Learned Magistrate in detail while examining the credibility of the PW-1 and the acceptability of her case have been totally ignored by the Learned Additional Sessions Judge. The Learned Magistrate also took note of the fact that while in the petition no date of marriage was mentioned, in evidence the PW-1 stated specific date of the marriage. The Learned Magistrate was inclined to think that had there been really any marriage as alleged the date of the performance of the same would have been stated in the petition itself which, however, was not done in this case. Surely all those points noted by the Learned Magistrate are relevant for consideration in deciding whether a consistent and acceptable case has been made out by the petitioner before him.
The Learned Additional Sessions Judge in his revisional jurisdiction could have shown where the Learned Magistrate had gone wrong or perverse in his assessment of the evidence. But instead of doing that the Learned Additional Sessions Judge, totally ignored those points as well as the discussion made by the Learned Magistrate on those points. The observation of the Learned Additional Sessions Judge that PW-1 had not been shaken in her cross-examination, without taking notice of the points which, according to the Learned Magistrate, had shaken the credibility of PW-1 is worse than mere window dressing.
3. PW-2 Durgapada Ponda claimed to be the priest of the marriage and also the priest of the temple in which the alleged marriage had taken place. He said that marriage had been solemnized according to Hindu rites and customs, and Hom, Saptapadi and Mala badal (exchange of garlands) had been observed in that marriage. As regards the evidence of PW-2 the Learned Additional Sessions Judge observed that there was nothing in his cross-examination to put it at a discount what he had testified in his examination-in-chief. The Learned Magistrate, however, had discussed the evidence of the PW-2 and found that this witness had no idea as to what Mantras are required to be uttered in a marriage ceremony. Along with the discrepancies between the petition and the evidence as to whether essential ceremonies were at all performed the Learned Magistrate had also taken into consideration the ignorance of the PW-2 about the required Mantras in considering the reliability of this witness who claimed to have acted as priest in that marriage. The learned Additional Sessions Judge did not at all care to take even a note of the analysis of the evidence made by the Learned Magistrate and instead observed mechanically that the PW-2 had not been shaken in his cross-examination. PW-3 claimed to be a witness to the alleged marriage. The Learned Additional Sessions Judge observed that it transpired from his evidence that after marriage the petitioner went to live with the O.P. in his garage and thereafter she was driven out by the O.P. with her child who was born of the wedlock. The Learned Magistrate took note of the fact that while PW-3 stated in his examination-in-chief that PW-2 Durgapada Ponda acted as priest yet in his cross-examination he stated that the priest of that temple acted as priest in that marriage and also gave the name of that priest of the temple as Dukhishyam Ponda. The evidence of PW-3 thus casts a very serious doubt as to whether PW-2 Durgapada Ponda at all acted as priest in the alleged marriage. These aspects which were considered by the Learned Magistrate with appropriate seriousness were totally ignored by the Learned Additional Sessions Judge, not to speak at showing how the assessment of the Learned Magistrate was wrong. PW-3 stated that he had seen PW-1 giving birth to a male child at the garage house of the O.P. and he had also stated that he had seen her there with the O.P. But PW-1 stated in her cross-examination that she delivered the child at her father’s house and since then she did not go back to the O.P.’s house. This is also a discrepancy which the learned Magistrate took note of but the Learned Additional Sessions Judge totally ignored the same without any discussion whatsoever. PW-4 claimed to be a witness to the marriage and also said in cross-examination that 2/3 years after marriage O.P. drove out PW-1. But PW-1 stated that she was driven out about 8 years after marriage. While considering the evidence of PW-4 the Learned Magistrate took note of the said discrepancy but the Learned Additional Sessions Judge did not at all take any note of the same in assessing the credibility of the concerned witness.
4. PW-5 claimed to have seen the performance of Saptapadi, Mala Badal and the other ceremonies of the alleged marriage. The learned Additional Sessions Judge observed that this witness had not been shaken in his cross-examination. But it appears that the Learned Magistrate took note of the statement of this witness that he stayed there at the place of the alleged marriage only for 4 or 5 minutes. The Learned Magistrate wondered how the witness could have seen all those ceremonies of the marriage during his stay there only for 4 or 5 minutes. This is undoubtedly a point which raises doubt about the credibility of the witness and the Learned Magistrate rightly took note of the same but the Learned Additional Sessions Judge, it seems totally ignored the same and rather went to observe in a mechanical way that this witness had not been shaken in the cross-examination. The Learned Additional Sessions Judge observed that there was nothing on record to show that the witnesses, PWs 2, 3, 4 and 5 had any ill feeling or grudge against the O.P. for which they could depose falsely against him. The Learned Magistrate, however, in his judgment elaborately discussed what could have been their motive for deposing falsely against the petitioner. They belong to rival political parties and there are documentary evidence which have been discussed by the Learned Magistrate to show that the O.P. as under constant trouble from the members of the rival political party. Totally ignoring the elaborate discussion of the Learned Magistrate on this point which rather indicates the plausible motive why the witnesses might have deposed against the O.P. the Learned Additional Sessions Judge mechanically observed that there was nothing on record to show any motive for the witnesses to depose against the O.P.
5. The Learned Magistrate also considered the fact that in the Voters’ list relating to the village of the father of Smt. Sobhana her name has been shown as Sobhana Rani Patra. Her father’s name is Atul Patra. The surname in the Voters’ list thus indicates that Sobhana maintained her father’s surname, which would not have been the case had her surname been changed by marriage with the O.P. Shibsankar Samanta. Again, the Learned Magistrate had taken note that Sobhana’s name did not at all appear in the Voters’ list relating to the village of the O.P. Shibsankar Samanta. Had really Sobhana stayed with Shibsankar in the latter’s village as his wife for about 8/10 years as alleged, it was only expected that her name also would have found place in the Voters’ list of that village which however was not the case. The Learned Additional Sessions Judge silently ignored these aspects which were taken note of and discussed by the Learned Magistrate. Then again the Learned Magistrate took note that the birth certificate of Sobhana’s child showed that the child was born on 20-4-81 at the village of Sobhana’s father and the certificate did not describe Shibsankar as the father of that child. The certificate thus not only belied the case of Sobhana that while they were residing together as husband and wife in the house of Shibsankar in the latter’s village she gave birth to a male child but the same also did not lend support to her case that Shibsankar was the father of her child. If really Shibsankar had been the father of the child that fact should have been mentioned in the birth certificate of the child. The Learned Magistrate took note of those circumstances but the Learned Additional Sessions Judge silently ignored all these things. The Learned Magistrate also observed that although it transpired from the cross-examination of PW-1 that her son previously used to go to school yet no school certificate was forthcoming to show that the O.P. was the father of that child. This is also a relevant circumstance which has been taken note of the Learned Magistrate but which has been silently ignored by the Learned Additional Sessions Judge. Of the witnesses examined on behalf of the O.P. Shibsankar O.P.W. Nos. 4 and 5 claimed that Sobhana was their student but their evidence exposed the character of Sobhana to question. The Learned Additional Sessions Judge observed that if actually Sobhana was their student they would not have stated that their student was a lady of questionable character. The logic of this observation is also not quite understandable. If a teacher knows a fact or cherishes a bona fide opinion in respect of his student, how is it expected that even then he should speak falsely on oath. The Learned Magistrate took note of the fact that while it was the case in the petition that Sobhana stayed in the house of Shibsankar after marriage for so many years, in her evidence the case on the point had been totally changed and a new case was sought to be made out that after marriage they lived as husband and wife in the garage of Shibsankar which is quite at some distance from his paternal house where his other family members used to reside. If really Sobhana and Shibsankar had married without the consent of their respective families and that is why they had to stay in a separate place after marriage, it is only expected that the said fact would have been stated in the petition instead of stating that after marriage Sobhana lived in the house of Shibsankar as married couple. The Learned Additional Sessions Judge, as I have mentioned, did not make any critical study of the evidence at all and rather mechanically picked up some statements of the PWs in support of the case of the petitioner totally shutting his eyes to the discrepancies and other circumstances which would expose the acceptability of such evidence to serious question while considered in the background of the relevant facts and circumstances which the Learned Magistrate so elaborately discussed and dealt with in his judgment. The judgment of the Learned Additional Sessions Judge setting aside the judgment of the Learned Magistrate without making any critical study of the evidence and without adverting his attention to the analysis of the evidence as made by the Learned Magistrate in arriving at his findings on different vital aspects of the case, I find, can not be sustained as the same is vitiated by lack of proper appreciation, in assessing the evidence on record. On the other hand, I find, the assessment as made by the Learned Magistrate on the basis of a comprehensive and reasonably balanced appreciation of evidence sustains his decision as an acceptable view on the matter. The Learned Additional Sessions Judge was not justified in setting aside the same. In the result the Revisional application is allowed and the impugned judgment and order passed by the Learned Additional Sessions Judge is hereby set aside.
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