Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.322 of 2009 ====================================================== Sabita Devi W/o Parveen Kumar Gupta, R/o village- Shaukahara, Rajendra Road, P.S. Fulwaria, District- Begusarai .... .... Petitioner/s Versus Parveen Kumar Gupta S/o late Radhaballav Gupta, R/o village- Samsa (Mansur Chak), P.S.- Mansur chak, District- Begusarai, At present Address- Dress Sangam (Fainsi Dress Ki Dukan) in front of Papular Medical, Karpuri Market, Barauni Chauk, Begusarai. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Amresh Kumar Sinha, Advocate Mr. Anil Kumar Choudhry, Advocate For the Opp. Party : Mr. Pramod Manbansh, Advocate i ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 9 08-10-2012 Heard learned counsel for the petitioner and learned counsel appearing on behalf of the opposite party. By the impugned judgment and order dated 12th January, 2007 passed in Maintenance Case No. 16M/1999 by the learned Principal Judge, Family Court, Begusarai the claim of maintenance made on behalf of the petitioner in terms of section 125 Cr.P.C. has been rejected on the ground that the petitioner has not been able to prove that she was the legally wedded wife of the opposite party. In view of the aforesaid findings of fact recorded by the learned Principal Judge, Family Court, Begusarai, no other issues have been taken into consideration for disposal of the aforesaid proceeding under section 125 Cr.P.C. Patna High Court CR. REV. No.322 of 2009 (9) dt.08-10-2012 2/5 Learned counsel for the petitioner submits that the marriage between the petitioner and the opposite party was solemnised in the year 1991 in a temple at Deoghar (now in the State of Jharkhand). It is submitted that the petitioner had lodged a criminal case against the opposite party giving rise to Phulwaria P.S. Case No. 44 of 1994 under [STATUTE] ., and in that case, the opposite party is alleged to have committed rape upon the petitioner. The main thrust of argument is that there are certain statements made on behalf of the accused-opposite party in the aforesaid criminal case on the basis of which the learned Principal Judge, Family Court, Begusarai should have accepted the claim of the petitioner that she was/is the legally wedded wife of the opposite party, and should have allowed the claim of maintenance made on behalf of the petitioner. Learned counsel appearing on behalf of the opposite party has opposed the prayer and has supported the impugned judgment and order passed by the learned Principal Judge, Family Court, Begusarai. It is contended that if the marriage between the petitioner and the opposite party would have taken place in the year 1991, as claimed by the petitioner, then there was no occasion for her for filing a criminal case against the opposite party in the year 1994 for an offence under [STATUTE] . It is also Patna High Court CR. REV. No.322 of 2009 (9) dt.08-10-2012 3/5 submitted that if the marriage would have taken place in the year 1991, then the petitioner could have disclosed the fact of marriage in the aforesaid criminal case lodged in the year 1994, but this fact is completely absent from the F.I.R., lodged by the petitioner and, therefore, on the basis of the materials available on record the learned Principal Judge, Family Court, Begusarai has rightly come to a finding that the petitioner has not been able to prove her case that she was the legally wedded wife of the opposite party. In the aforesaid proceeding under section 125 Cr.P.C. the petitioner produced four witnesses in support of her case. The opposite party has also produced two witnesses in support of his case resisting the prayer for maintenance made on behalf of the petitioner and also for denying her claim that she was the legally wedded wife of the opposite party. After having heard the parties at great length and on examination of materials available on record as also on perusal of the impugned judgment and order, this Court finds that the learned Principal Judge, Family Court, Begusarai has meticulously scrutinised and considered the legal materials available on record, and, thereafter, has recorded a finding of fact that the petitioner has failed to prove that she was the legally wedded wife of the opposite party. The claim of the petitioner was disbelieved by the Patna High Court CR. REV. No.322 of 2009 (9) dt.08-10-2012 4/5 learned Principal Judge, Family Court, Begusarai primarily on the ground that she lodged a criminal case under [STATUTE] . in the year, 1994 against the opposite party, but she claims that the marriage between the petitioner and opposite party had been solemnised in the year, 1991, yet she has not whispered in her F.I.R lodged in the year 1994 that opposite party was her husband. It is relevant to note that the petitioner has shown her age in the present revision application filed in the year, 2007 to be 36 years. Therefore, in the year 1994 she was aged about 23 years. If the petitioner was major in the year 1994, aged about 23 years, as she has herself admitted in the present revision application, and, if the opposite party was her husband, as she claims, then there was no occasion for her for lodging the aforesaid criminal case under [STATUTE] . against her husband i.e. the opposite party. This goes to the root of the matter for disbelieving the entire claim made on behalf of the petitioner. For grant of maintenance under section 125 Cr.P.C. to a wife, the pre condition is that she must be the legally wedded wife of her husband. In the present case the pre condition to be the legally wedded wife of the opposite party has not been fulfilled by the petitioner. Therefore, other issues were not required to be gone into by the learned Principal Judge, Family Court, Begusarai. Patna High Court CR. REV. No.322

Applicable IPC Section: 376

Statute Text:
Section 376 of the Indian Penal Code. Rape. Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death.