Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.728 of 2007 In the matter of an application under Sections 397 and 401 of the Code of Criminal Procedure. =========================================================== Urmila Devi, wife of Hari Charan Das @ Pavan Das, resident of Vill. Papraur, P.S. Barauni, Distt. Begusarai. .... .... Petitioner/s Versus 1. State Of Bihar. 2. Hari Charan Das @ Pavan Das, son of Mahabir Das, resident of Vill. Papraur, P.S. Barauni, Distt. Begusarai. Presently posted in A.G. Office as Typist at Dorauba Ranchi, Distt. Ranchi (Jharkhand). .... .... Opp. Party/s =========================================================== Appearance : For the Petitioner : Mr. Pramod Manbansh, Advocate For the Opp. Party No. 2 : Mr. Sanjeev Kumar Jha, Advocate For the State : Mrs. Indu Bala Pandey, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date: 16-03-2012 Ahsanuddin Amanullah, J. Heard Mr. Pramod Manbansh, learned counsel for the petitioner, Mr. Sanjeev Kumar Jha, learned counsel for the opposite party no. 2 and Mrs. Indu Bala Pandey, learned A.P.P. for the State. 2. This Criminal Revision application is directed against the judgment and order dated 27.02.2007 passed by the Principal Judge, Family Court, Begusarai in Patna High Court CR. REV. No.728 of 2007 dt.16-03-2012 2 Maintenance Case No. 34M of 1999 by which the petition filed by the petitioner seeking maintenance for herself and her minor son under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) from the opposite party no. 2, has been dismissed. 3. Learned counsel for the petitioner submits that as per the petitioner she was married initially to one Ashok Das on 15.06.1991. Thereafter it is the case of the petitioner that she was called by the opposite party no. 2 on a false pretext that her mother was ill and finally taken to Deoghar where marriage was performed of the petitioner with the opposite party no. 2 on 25.06.1991 after which they started living together as husband and wife from 30.06.1991 in the matrimonial house. Learned counsel for the petitioner submits that a son was also born out of this wedlock on 20.11.1992 and initially things were going well but in the year 1996, the petitioner brought her to her naihhar and started demanding Rs. 20,000/- dowry to take her back. When the same was refused the opposite party no. 2 is said to have assured the petitioner and her father that he would take her back once he gets Government service as presently he could not afford to maintain her, being unemployed. The Patna High Court CR. REV. No.728 of 2007 dt.16-03-2012 3 opposite party no. 2 thereafter got a job in the Accountant General Office, Ranchi but refused to take the petitioner with him and the petitioner came to know that he was planning to get married and therefore, filed the maintenance case in the year 1999. 4. The case was earlier admitted on 06.04.2010 and the lower court records were called for. The same have since been received. 5. Learned counsel has taken the court through the deposition of the witnesses and has relied on Exhibits 1 and 2 which are the medical certificate and bill with regard to treatment of the petitioner at Nazerath Hospital, Mokama in which the opposite party no. 2 has been shown to be the husband of the petitioner. In cross-examination, the petitioner has stated that she had divorced her first husband i.e., Ashok Das. Altogether four witnesses have been examined by the petitioner including herself in which the facts stated and plea taken in the application filed for maintenance has been supported. On behalf of opposite party no. 2, 7 witnesses were examined who have variously said that the petitioner was married to two other persons and was currently residing with her brother-in-law (bahnoi), Patna High Court CR. REV. No.728 of 2007 dt.16-03-2012 4 namely, Asharfi Ram. 6. Learned counsel for the petitioner has assailed the order impugned submitting that the only ground for dismissal of the petition filed for maintenance by the court below was that the alleged marriage of the petitioner with the opposite party no. 2 was null and void from the very inception on account of the fact that at that time the first husband of the petitioner was alive and thus the petitioner was not legally competent to marry the opposite party no. 2. Learned counsel has assailed this ground stating that in a proceeding under Section 125 of the Code, the court cannot go behind the marriage and declare it to be null and void which has to be done in a separate proceeding. In a case under Section 125 of the Code, it is sufficient that there be a presumption of relationship of marriage between the parties. It is further submitted that the High Court in revision, where there is a negative finding of the court below on the point of marriage and parentage of the child, is empowered to re- evaluate evidence since negative finding has evil consequences on the life of both the child and the woman. It is further submitted that the burden and standard of proof for a plea of subsistence of an earlier marriage requires clear Patna High Court CR. REV. No.728 of 2007 dt.16-03-2012 5 and strict proof the onus for which lie on the husband to discharge by tendering satisfactory evidence. He submits that Section 125 of the Code proceeds on the basis of a de facto and not de jure marriage. The nature of proof of marriage required for a proceeding under Section 125 of the Code need not be so strong or conclusive as in a criminal proceeding to establish the offence under [STATUTE] , since the object of Section 125 of the Code is to afford a swift remedy and determination by the Magistrate as to the status of the parties which is subject to a final determination of the civil court. It is further submitted that when the husband denies that the applicant is not his w

Applicable IPC Section: 494

Statute Text:
Section 494 of the Indian Penal Code. Marrying again during the life-time of a husband or wife. Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.