Details - Dhemaji District Judiciary

1
IN THE COURT OF THE JUDICIAL MAGISTRATE, FIRST CLASS,
DHEMAJI : : ASSAM
Misc. ( J ) Case No- 32/2010
A Petition U/S. 125 Cr.P.C.
Smti. Udishna Basumatary,
Wife of Sri. Suresh Basumatary, resident of
Village : No. 1 Kadamgurigaon,
P.S.:- Gogamukh,
District- Dhemaji, Assam. ……………. First Party.
Versus
Sri. Suresh Basumatary
Son of Late Kamal Basumatary,
Of village : Dewalkhonda,
P.S.- Majbhat,
District:- Udalguri, Assam.
( works as a Painter in Railway Deptt.,
Majbhat Railway Station, Udalguri, Assam)
…………… Second Party.
Present:- Md. M.H. Barbhuiya,
LL.M., A.J.S
Judicial Magistrate, First Class, Dhemaji.
Advocate for the state :- Mr. P.C.Baruah.
Advocate for the accused :- Mr. J.Dutta.
Date of evidence :- 16-09-10, 19-10-10 & 22-03-11.
Date of argument :– 29-03-2011.
Date of Judgment :– 05-04-2011.
Judgment and order
13. This is a case under Section 125 Cr.P.C. by which the first party above named
seeks a direction from this court to the second party to provide adequate
maintenance to her, who, according to her failed/neglected to provide maintenance.

2
2. Brief fact of the case : - The case of the first party, as revealed from the record, in
brief, is that since January, 2008 the second party used to come to her residence and
expressed his intention to the family members and villagers to marry her, and
accordingly, she agreed to marry him. It is the contention of the petitioner that
accordingly, as per the advice of the family members, on 31-12-2009, they got
married through the Notary at Sonitapur and started living as husband and wife at
Ward No.1, Rangapara in a rented house. It is the contention of the first party that
the society members recognized them as husband and wife. It is the contention of
the prosecution that she was to appear the B.A. final examination scheduled form
20-04-2010 and for which, on 16-04-2010 the second party brought her at
Gogamukh in the house of the elder sister of the first party and he returned back
from Gogamukh on 17-04-2010 by keeping her there. It is the contention of the
first party that since 17-04-2010 the second party did not come to take her back nor
paid any maintenance to her for her subsistence. It is the contention of the first
party that in doing so the second party cheated her. It is the contention of the first
party that the second party is an employee in the Railway Department and apart
from the movable and immovable properties, receives salary @ Rs. 18,000/- per
month. It is the contention of the first party that she has no source of income to
maintain herself and accordingly, she is before this court praying for a direction to
the Second Party to pay maintenance @ Rs. 5,000/- per month for her.
3. Written statement of the second party : It is the contention of the second party
that the case filed by the fist party is false, a made out story and has been filed
without any just reason. It is the contention of the second party that he is a married
man having wife and two children and he never married the first party through the
Notary, Sonitpaur and the fact that they lived as husband and wife are false. It is the
contention of the second party that the first party does not know her well and for
which, she designated him as a ‘Painter’ although he works in the Railway
Department as a ‘Trackman’. It is the contention of the second party that he
borrowed a sum of Rs. 5,000/- form the first party and at that time, as desired by
the first party, he put his signatures on a blank Non-Judicial Stamp Paper and he
cannot say if that paper was used by the first party before the Notary, Sonitpaur. It
is the contention of the second party that he never married the first party and as
such, he is not liable to pay any maintenance to her. In the premises, the second
party prays for exempting him from the case.

3
4. Points for determination:- 1. Whether the second party being the husband of the
first party neglected or refused to maintain his wife ( first party) ?
2. Whether the first party is entitled to any relief as claimed for ?
3. To what relief or reliefs the parties are entitled to in the facts and
circumstances of the case ?
In support of the case, the parties have adduced evidence such as :
P.W.1 :
P.W. 2:
P.W. 3 :
P.W. 4 :
Smti. Udeshna Basumatary.
Sri. Dipali Basumatary.
Sri. Ganesh Swargiyari.
Sri. Swargoshree Basumatary.
Ext. 1 : Affidavit sworn before the Notary
Ext. 2 : Petn. No. 49 dated 05-01-11.
D.W.1: Sri. Sruresh Basumatary.
D.W.2:Smti. Rumi Basumatary.
Exts. ‘Ka; & ‘Kha’ : Birth certificates.
Ext. ‘Gha’ : Family Declaration.
5. Discussion, Decision and reasons therefor :- I have heard Mr. P.C.Baruah,
the learned counsel appearing for the first party. Also heard Mr. J. Dutta, the
learned counsel appearing for the second party. Upon hearing the learned counsel
for the parties and on perusal of the records, I am of the considered opinion to hold
the following :-
6. The learned counsel appearing for the first party submits that the second party
although contended that he is married man, never disclosed the same before the
first party, and thereupon induced the first party to marry him, and accordingly on
bonafide belief the first party married him before the Notary, Sonitpaur. He submits
that that the second party is already a married man has not been proved by the
second party before the court through any cogent materials. He submits that the
provision of Section 125 Cr.P.C. is meant for providing justice to the distress
woman who are neglected by their husbands and in such a case the interpretation
which benefits the petitioner be construed. He submits that the second party kept
the first party at Gogoamukh for her examination but from 17-04-2011 he never

4
came to take her back. He submits that the second party is having sufficient means
to pay the maintenance in as much as he is receiving a sum of Rs. 18,000/- per
month from the Railway Department, while, the second party has no source of
income on her own. He submits that the parents of the first party are also poor
fellow and as a result of which, the first party is suffering a lot in maintaining her
livelihood. He submits that the first party being the wife of the second party is
legally entitled to the maintenance as provided under Section 125 Cr.P.C. and the
court may be pleased to grant the same as prayed for. Apart from the oral
submission, he has relied upon the decision reported in 2000 Crl.L.J. 1.
7. The learned counsel for the second party, on the other hand, submits that the first
party filed the instant case without any reason whatsoever. He submits that the
second party never married the first party and as such the question of providing
maintenance to the first party does not arise. He submits that the second party is a
married man and in this regard he has submitted the Exts. ‘Ka’ to ‘Gha’ wherein it
is very much clear that the second party is having wife and children, and therefore,
the contention of the first party that she is the wife of the second party is a made
out story. He submits that the second party borrowed a sum of Rs. 5,000/- and
perhaps, the blank paper with his signature which was taken by the first party as a
security was made as the affidavit marked as Ext. 1, which also could not be proved
by the first party in accordance with law. In the premises aforesaid, he submits that
the case of the petitioner is liable to be dismissed.
8. Let us put the evidence on record so that it would be convenient to decide the
points framed herein above. In this regard, the P.W.1 Smti. Udihsna Bsuamtary in
her evidence stated that she and the second party was in love with each other and
thereupon they married socially and since 28-12-2009 started living as husband and
wife at Ward No.1, Rongapara in the rented house of one Chabi Rani since the
second party stated her that he has no house of his own. She stated that on 31-12-
2009 an agreement was made in between them before the Notary of Sonitpur court
having their joint photos in the presence of the witness Dipali Bausmatary. She
stated that for conducting ‘mitir’ two persons from the family of the second party
came to her house. She stated that since she was to appear B.A. examination, on
16-04-2010 the second party kept her in the house of her sister at Gogamukh and
went away. She stated that till date the second party did not take her back on one
pretext to the other. She stated that the second party earns a sum of Rs. 17,000/- per
month and has also movable/immovable properties but she has no personal income

5
and inspite of that the second party did not provide any maintenance to her. She
clarified that from the written statement of the second party she came to know that
the second party is having a wife and children, which was not disclosed to her by
the second party. She stated that Ext. 1 is the marriage agreement in between them
wherein Exts. 1 (1) to 1 (3) are her signatures and Exts. 1 (4) to 1(6) are the
signatures of the second party. She stated that Ext. 1 (7) is her photo and Ext. 1 (8)
is the photo of her husband Suresh Basuamtary.
In her cross-examination she stated that as the second party told him that he
works as a Painter, she wrote the same in the petition filed in the court. The second
party suggested that the second party never married her, to the effect that the Ext. 1
is not an admissible document, to the effect that they never lived together as
husband and wife, to the effect that the second party put his signature on a blank
paper for the money borrowed by him and to the effect that he is not bound to pay
any maintenance to her, but, all these suggestions have been denied by the witness.
9. The P.W.2 Smti. Dipali Basumatary in her evidence stated that she knows both the
parties. She stated that the parties stayed in the house of one Rajesh Mandal as
husband and wife for a period of one month, which is near to her house. She stated
that one day the parties went to Tezpur and performed the marriage in the court in
which she was also present and put her thumb impression. She stated that as per her
information the second party kept the first party in her house and did not take her
back.
In her cross-examination she had clarified that the first party is not related
to her. The defence suggested that the second party did not stay in the rented house,
to the effect that Suresh did not take her to the court nor executed the marriage
agreement and to the effect that the first party and the second party are not
husband-wife, but all these suggestions are denied by the witness.
10. The P.W.3 Sri. Ganesh Swargiyari in his evidence stated that he knows the parties
in the case as husband and wife. He stated that on 28-12-2009 the parties after
being married socially, stayed in a rented house and thereafter there was ‘mitir’ in
between the parties in which he was present but at that time he was not aware about
the other wife of the second party. He stated that later on, he came to know that the
second party is having another wife. He stated that the family condition of the first
party is not good and she presently resides with her parents. He stated that the
second party is an employee of the railway department.

6
In his cross-examination he stated that about 4/5 weeks prior to his
adducing evidence on 16-09-10, the first party, having known that the second party
is having another wife, came back to her house. The defence suggested that the
second party did not marry the first party, to the effect that no ‘mitir’ took place in
between the parties and to the effect that he has been adducing false evidence, but
the suggestions were denied by the witness.
11. The P.W.4 namely Smti. Swargosree Basumatary who is the mother of the
petitioner in her evidence stated that about one year ago the second party came to
their house and introducing himself as an unmarried, proposed to marry Udeshna
Basumatary, for which they agreed on his proposal. She stated that after few days,
since they are not financially sound, in a small ceremony, they handed over
Udishna with the second party, by burning the ‘chaki’ miching social rites’. She
stated that the second party stayed with the first party in a rented house and also
married her in the court, and thereafter by sending two persons, performed the
‘mitir’. She stated that after filing of the case she came to know that the second
party is having another wife. She stated that one day the second party brought her
at Gogamukh for her examination, who appeared before the examination but the
second party did not come to take her back, nor provided any maintenance to her,
and for which, the first party stays with them. She stated that their financial
condition is not sound, nor the first party have any income of her own, while the
second party is an employee.
In her cross-examination the defence suggested that the second party did not
marry her, to the effect that they knew about the earlier marriage and children of
the second party, to the effect that no ‘mitir’ took place for the marriage, but all the
suggestions were denied by the witness.
12. To the contrary, the D.W.1 namely Sri. Suresh Basuamtary, in his evidence stated
that he did not performe court marriage with Udishna Basuamtary nor lived
together as husband and wife with her. He stated that he married Rumi Basumatary
in 1997 and presently has two children named Pranjal and Chatrajit. He stated that
he receives a sum of Rs. 8,000/- per month and since Udishna is not his wife he is
not liable to pay maintenance to her. He stated that the Exts. ‘K’ and ‘Kha’ are the
birth certificates of his sons and Ext. ‘Ga’ is the declaration given before the
departmental authority about the family status.

7
12(i).
In his cross-examination he admitted that the Exts. 1 (4) to 1 (6) in Ext. 1 are his
signatures wherein it is written ‘agreement of marriage in between Udishna and
Suresh’ and the joint photograph pasted on that is the photographs of Udinshna
and himself. He stated that he did not file any suit praying for a declaration that the
Ext. 1 was not execute d by him. He stated that on 05-01-2011 he filed a petition
before this court proposing a compromise of the matter but he did not take the first
party nor provided any maintenance to her.
12(ii).
In his cross-examination the first party suggested that he put his signatures before
the Notary but deposed falsely to the negative, to the effect that he married Udishna
at Tezpur after having love with her since 2008 and led conjugal life with her, to
the effect that ‘mitir’’ was performed in between them, to the effect that on 16-04-
2010 he kept the first party at Gogamukh for her examination with promise to take
her back after examination but did not take her back and to the effect that he
receives a sum of Rs. 20,000/- per month as salary, but all these suggestions were
denied by the witness.
13. The D.W.2 namely Smti. Rumi Basumatary in her evidence stated that she was
married with the second party in 1997, and, now they are having two sons and also
have been passing their days happily. She stated that as per her information her
husband did not marry Udishna, otherwise, he would have got the information. She
stated that the case field by Udishna is totally false.
In her cross-examination she stated that she does not know how Suresh met
Udishna and married her. The petitioner side suggested this witness to the effect
that she is not the wife of Suresh, to the effect that Suresh Basuamtary married
Udishna telling that he is not a married man and to the effect that since he did not
forbade him, he married Udishna but all the suggestions have been denied by the
witness.
14. I have heard the submissions advanced on behalf of the parties. Also perused the
records. Section 125 Cr..P.C. provides that when a husband neglects or refuses to
maintain his wife who is unable to maintain herself then the husband is duty bound
to provide maintenance to his wife although she stays elsewhere on just ground.
Admittedly, it is a part of the social legislations in our country for providing
minimum safeguard to the women community who become vagrant for the
negligence of the community of men. It is intended to secure the basic human right
that no woman passes the life in starvation and in humility.

8
15. In the case in hand, coming on the POINT NO.1 and ITS RELATED ASPECTS,
it appears that the second party disputed the marital status of the first party with
him. Let us see whether the petitioner is a ‘wife’ in view of Section 125 Cr.P.C. or
not. From the unrebutted evidence of the P.W’s it is clear that on 28-12-2009, the
second party, who was in love with first party took the first party with him and
thereafter on 31-12-2009 executed an agreement for marriage marked as Ext. 1
before the Notary at Sonitpur district, Assam. The content of the said agreement
speaks that the parties herein voluntarily and out of their free will married each
other and they recognized themselves as ‘husband’ and ‘wife’ for all purposes.
Generally, an agreement of marriage, does not ipso facto constitute a marriage
unless the same is supported by other materials in as much as there are separate
provisions for registration of marriage before the Register of marriage and Divorce,
which nowadays, is compulsory. But, let us see as to whether the parties really
translated their agreement into action i.e. whether the parties passed their lives as
husband and wife or not ?
16. The learned counsel for the petitioner, during the course of argument submitted that
although the parties to the case fall under the category ‘Hindu’, yet they, being the
tribal persons, are having their own customs in which when a man and woman of
adult age lives together as husband and wife, and, the members of their respective
families sit together and recognize the relationship of that man and woman as
husband and wife, it is known as ‘mitir’. He submits that in the case in hand ‘mitir’
was performed in between the family members of the parties and therefore, it is
clear that the parties are husband and wife. Mr. J. Dutta, the ld. counsel for the
second party, although admitted the concept of ‘mitir’, however does not admit the
‘mitir’ in between the parties. First of all, from the Ext. 1 it appears that the same
bears the signatures of both the parties in the presence of the witness. That the
Exts. 1 (4) to 1(6) and the photo appearing in the joint photographs are the
signatures and photo of the second party in Ext. 1 has not been denied by the
second party in his evidence. Moreover, the P.W.2 Dipali Basumatary who is an
independent witness, categorically stated that the parties took her to Tezpur court
wherein the parties executed a marriage agreement in her presence and she put her
thumb impression in the said agreement. The P.W.4 Swargashree Basumatary in
her evidence stated that when the second party came to their house, he told that he
would marry the first party in the court and from Udishna Basumatary she came to
know that he did court marriage with her. The evidence of theses witnesses to the

9
effect that the second party executed the marriage agreement marrying the first
party has remained unrebutted by the second party. The defence suggested to the
witnesses that no such document was executed, but, the suggestion were denied by
the witnesses, and it is the established principle of law that by putting suggestions
the evidence of the witnesses which are otherwise creditworthy cannot be thrown
away.
17. Secondly, the second party took the plea that he borrowed a sum of Rs. 5,000/-
from the first party and at that time he put his signatures on blank non-judicial
stamp paper. When a person denies a particular fact and desires that the court
should believe his version, in view of Section 103 of the Indian Evidence Act,
1872, the burden to prove the fact lies on him. In the case in hand, the second party
in his cross-examination as D.W.1 admitted that he did not file any suit praying for
a declaration that the Ext. 1 was not executed by him. If at all, the Ext. 1 was not
executed by the second party he ought to have bring any declaration from the
competent court to that effect, but, he did not do so. Moreover, the fact that he put
his signatures on a blank stamp paper is also not believable in view of the fact that
admittedly, the first party hails from Gogamukh of Dhemaji district and the stamp
paper on which the content of the marriage agreement is written, was purchased
from Tezpur court campus. The second party did not explain as to how he became
so intimated so as to create a relation of lending/borrowing money; when he
borrowed the money from the first party and why he brought the first party at
Tezpur for the alleged money which was taken at Gogamukh, Dhemaji. Situated
thus, it is clear that the stand taken by the second party to the effect that he did not
execute the Ext.1 has no footing, rather, these are being after thought cannot hit the
case of the first party in any manner. thirdly, from the unrebutted evidence of the
P.W’s 1, 3 and 4 it is clear that ‘mitir’ was performed in between the family
members of the parties. The P.W.’s 1 and 4 in their evidence stated that two
persons came from the side of the second party for ‘mitir’. The P.W.3 Ganesh
Swargiyari who is an independent witness categorically stated that when two
persons came for ‘mitir’ he was present there. The evidence of these witnesses to
the above aspect has also remained unshakend by the second party.
18. Now, coming to the other aspect, from the stand of the second party including the
evidence of the D.W’s it appears that the second party is already married man
having two sons. Exts. ‘ka’ to ‘Ga’ which are the birth certificates and declaration
submitted to the Railway Department proves the same. The first party contended

1
that in such a case the second party is required to prove the earlier marriage strictly,
which, according to the first party, could not be proved. In this connection, the wife
of the second party Smti. Rumi Basumatary personally appeared before this court
and as D.W.2 categorically stated that she is the married wife of the second party
Suresh Basumatray and they are having two sons. The marital tie is supported by
the birth certificates and declaration aforesaid. But, the question which hit the mind
of this court is as to whether the first party married the second party knowing that
he is already a married man or not ?. From the evidence of the P.W’s it is clear that
the second party introduced himself as an unmarried one and only then the first
party agreed to marry with her. The first party in her evidence stated that only from
the written statement of the second party she came to know that he is already a
married man. The same gets support form the evidence of the P.W.3 who stated
that at the time of ‘mitir’ he was not aware of the fact that the second party was
already having a wife. Same is the version of the P.W.4 who also stated that only
after filing of the case she came to know that the second party is a married man.
From the above position, it is clear that if at all, the second party was having a wife
at the time of marrying the first party, he did not disclose the same to the first party
or her family members. The P.W.1 stated that she lived with the second party in a
rented house at Rangapara, Udalguri since the second party stated to her that he has
no house etc. This aspect is supported by the other P.W.’s. The P.W. 2 who is a
resident of Rangapara categorically stated that the parties lives as husband and wife
in the rented house near to her residence. This aspect also leads to take the
inference that the second party concealed the fact that he was already a married
man. In view of the above discussion, it is clear that the second party did not
disclose the fact to the first party that he was already having a married wife and for
this reason, in the facts and circumstances, the first party, who married the second
party, on good faith cannot be disregarded as the ‘wife’ of the second party.
19. From the unrebutted evidence of the P.W’s it is clear that on 16-04-10 the second
party brought the first party to the residence of her sister at Gogamukh as she was
to appear the B.A. examination. It has also come to light that on 17- 04-11 the
second party went away by keeping the first party at Gogmukh and never came
back to bring her back. From the evidence of all the P.W’s it has been proved that
the first party, at present, resides with her parents at Gogmukh, Dhemaji. This
aspect makes it clear that the second party neglected and/or refuses to maintain the
first party Udishna Basumatary. Besides, from the Petn. No. 49/11 dated 05-01-
2011 filed by the parties jointly in this court, it appears that the second party agreed

1
to take the first party by giving due recognition of ‘wife’ and also undertook to
provide maintenance to her. The contents of the said Petn. Is not denied by the
second party. This fact further makes the contention of the first party clear that the
second party married the first party but he is not providing any maintenance to her.
20. I have also bowfully perused the copy of the judgment relied upon by the ld.
counsel for the first party. In the case of Dwarika Prashad Satpathy v. Bidyut
Probha Dixit reported in 2000 CRI. L.J. 1 the Hon’ble supreme court of India in
para 6 held ‘in our view, validity of the marriage for the purpose of summery
proceeding under Section 125 Cr.P.C. is to be determined on the basis of the
evidence brought on record by the parties. the standard of proof of marriage in
such proceeding is not as strict as is required in a trial of offence under Section
494 I.P.C. .if the claimant in proceedings under Section 125 Cr.PC.. secedes in
showing that she and the respondent have lived together as husband and wife, the
court can presume that they are legally wedded spouses, and in such a situation,
the party who denies the marital status can rebut the presumption.’
21. Therefore, considering the background and spirit of Section 125 Cr.P.C.,
considering the guiding principle expounded by the Hon’ble Supreme Court of
India in the above referred case as well as considering the evidence on record it is
clear that the first party Udishna Basumatary is the ‘wife’ of the Second party
Suresh Basumatary and he, being the husband refuses/neglects to provide
maintenance to her.
22. Now, coming to the POINTS NO. 2 and 3, taking together, from the evidence of
the P.W’s 1 and 4 coupled with the admission of the D.W.1 it has been established
that the second party is a trackman in the Railway Department. Although the first
party asserted that the second party receives salary worth Rs. 17/18,000/-, yet she
could not produce any statements of salary meant for the second party. Similarly,
the second party also could not produce any document containing the quantum of
his salary but he admitted that he receives a sum of Rs. 8,000/- per month as salary
from the Department. Simultaneously, it is undeniable fact that the first party is an
unemployed lady. It has been asserted and established through the evidence of the
P.W’s that the first party hail from a poor family. The second party could not bring
anything to the effect that the first party is having any means of livelihood.
23. In such a situation, I am of the humble opinion to hold that the first party is entitled
to receive maintenance and the second party is liable to pay maintenance to the first
party.

1
24. Considering the family condition of the first party, second party and that of
the personal income of the second party, it is directed that the second party
shall pay a sum of Rs. 2,000/- (two thousands) per month to the first party as
her maintenance until the order is modified otherwise. The order of
maintenance is effective from the date of filing the case i.e. from 18-06-2010.
The amount of maintenance which stood as arrear shall be paid within a
period of two months from today and the current maintenance shall be paid to
the first party on or before the tenth day of each succeeding month.
25. The amount of maintenance may be paid either in the court or in the present
residence of the first party and in this regard, the parties are to submit a declaration
before this court.
14. This disposed of the case on contest.
15. Furnish a copy of this judgement to the second party free of cost.
Given under my hand and seal of this court on this the 5 th day of April,
2011 at Dhemaji, Assam.
Md. M.H.Barbhuiya )
Judicial Magistrate, 1 st Class
Dhemaji, Assam.

1
APPENDIX
The witnesses examined and the documents exhibited by the first Party are :
P.W.1 :
P.W. 2:
P.W. 3 :
P.W. 4 :
Smti. Udeshna Basumatary.
Sri. Dipali Basumatary.
Sri. Ganesh Swargiyari.
Sri. Swargoshree Basumatary.
Ext. 1 :
Affidavit sworn before the Notary
Ext. 2 : Petn. No. 41 dated 05-01-11.
The witnesses examined and the documents exhibited by the Second Party are :
D.W.1: Sri. Sruresh Basumatary.
D.W.2: Smti. Rumi Basumatary.
Exts. ‘Ka; & ‘Kha’ : Birth certificates.
Ext. ‘Gha’ : Family Declaration.
( Md. M.H.Barbhuiya )
Judicial Magistrate, 1 st Class
Dhemaji, Assam.