Excerpt
The single bench of Justice SG Chattopadhyay gave the verdict in Crl. Rev. P. No. 07 of 2019. The court ordered maintenance for a deaf and dumb lady and her daughter.
Facts
Smt. Pritilata Majumder, the petitioner was deaf and dumb. She got married to her husband in Laxminarayan Temple at Kumarghat in 2017. She had been ill-treated by her husband and in-laws in her matrimonial home and further, ousted from there on 15.10.2017 while she was pregnant. She was sheltered by her parents and gave birth in her parent’s home. After her daughter was born neither her husband nor his family came to see her. She approached the family court in 2018 claiming 5000 maintenance for herself and 3000 for her daughter under section 125 of CRPC. The court was unable to interpret her evidence even with expert help. The petitioner indicated that her mother was aware of her entire married life. Her mother testified on her behalf. The family court refused to grant her maintenance on the ground that she had failed to prove her marriage and the paternity of her daughter. The mother’s evidence was rejected as she was not present at the time of the marriage. Aggrieved, the petitioner appealed to the high court.
Arguments of the Petitioner
The counsels of the petitioner argued that the trial court did not consider the joint affidavit sworn by the petitioner and her husband during their marriage. The court also had not taken into account the evidence provided by the petitioner. Further, it was contended that strict proof of marriage is not necessary under Section 125. Also, the counsels highlighted the poor financial condition of the petitioner.
The husband of the petitioner or his counsels had not turned up. So the case was heard ex parte.
Analysis of the Court
The court observed that the object of section 125 is to ensure the supply of necessities to the wife. It had been held by several verdicts that strict proof of marriage was not a precondition for that. In Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit & Anr( (1999) 7 SCC 675) the Supreme Court of India said that for the purpose of section 125 courts would presume the existence of valid marriage if a couple had cohabited together. The burden of proof was on the party denying the marriage. Also, the mother of the petitioner was best suited to understand her. Her evidence was also corroborated by another witness. The burden was on the respondent to rebut the evidence and show no marriage existed. But the husband did not turn up to discharge his burden. Also, the court observed that under section 119 of the Evidence Act the family court has the power to ask a dumb witness to give evidence in writing. But that option was not exercised.
Judgement
The court ordered maintenance of 5000 for the petitioner and 3000 for her daughter from the date of filing of the petition (12.06.2018). The Family Judge was instructed to enforce the order.
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