Bhabatosh Kumar Basu Roy Vs. Bhajana Rani Roy [4 LNJ (2015) 450]

Case No: Civil Revision No. 1484 of 2012

Judge: Sheikh Abdul Awal,

Court: High Court Division,,

Advocate: Mr. Goutom Kumar Roy,,

Citation: 4 LNJ (2015) 450

Case Year: 2015

Appellant: Bhabatosh Kumar Basu Roy

Respondent: Bhajana Rani Roy

Subject: Hindu Law,

Delivery Date: 2014-09-17

 
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)

 
Sheikh Abdul Awal, J
 
Judgment on
17.09.2014
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Bhabatosh Kumar Basu Roy
. . . Petitioner
-Versus-
Bhajana Rani Roy
. . .Opposite party

Hindu Law
There was a marriage ceremony between the parties in the temple of the deity Kali in presence of many persons according to Hindu Shastra and thus, in the facts and circumstance of the case the plaintiff-opposite party is entitled to get maintenance from 1.7.2005 to till her death in accordance with  Hindu Shastra. . . . (12)

Mr. Goutom Kumar Roy, Advocate
...For the petitioner
No one appears
.... For the opposite party

Civil Revision No. 1484 of 2012
 
JUDGMENT
Sheikh Abdul Awal, J.
 
This Rule was issued calling upon the opposite party to show cause as to why the impugned judgment and decree dated 23.5.2010 (decree signed on 13.8.2008) passed by the learned Joint District Judge, 3rd Court, Faridpur in Family Appeal No. 20 of 2008 dismissing the appeal and affirming those dated 01.7.2008 (decree signed on 13.8.2008)     passed by the learned Assistant Judge and ex-officio Family Judge,  Boalmari, Faridpur in Family Suit No. 128 of 2005 decreeing the suit should not be set-aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

The brief fact relevant for disposal of this Rule is that the opposite party as plaintiff on 4.10.2005 instituted  the aforesaid Family Suit No.49 of 2005 before the Family Court, Boalmari, Faridpur claiming an amount of Taka 3000+2000+1500=6,500/= per month on account of maintenance for her and her mother and servant. The said suit was subsequently renumbered as Family Suit No.128 of 2005. The plaintiff’s case, in short, is that the defendant Bhabotosh Kumar Roy  after the death of his first wife married the plaintiff according to Hindu Law on 6.8.2000 and  on that day the defendant  took the plaintiff to his house and started living there  as husband and wife. Although, their conjugal life was not happy one as the defendant used to  maltreat with her claiming dowry and ultimately  plaintiff filed Nari-O-Shishu Case against the defendant,   who got an order of acquittal in the said criminal case and  after being acquitted the plaintiff on 13.7.2005 made a declaration by  executing an  affidavit being No. 186 cancelling such marriage and thereafter, finally on 30.09.2005 the defendant refused to give any maintenance to the plaintiff and hence, the suit.

That the defendant contested the suit by filing a written statement denying all the material allegation of the plaint and contended inter alia that there was no presentation of gold or  cloth on 17.02.2000 at the house of the plaintiff as precondition of marriage nor there was marriage solemnization on 6.8.2000 according to Hindu rites at Kathin Kalibari Temple and as such, the suit  is  liable to be dismissed with cost as being false, and fabricated one.
The learned Assistant Judge on the pleadings of the parties framed the following issues for determination:-
  1. Whether the suit is maintainable in its present form or not ?
  2. Whether marriage was solemnised  between the plaintiff and the defendant according to Hindu religious rites or not ?
  3. Whether the plaintiff is entitled to get relief, as prayed for ?
At the trial the plaintiff examined 4 witnesses and produced some documents which have been marked as exhibit 1 series and the defendant also examined 2 witnesses to prove their cases.

The learned Judge of the Family Court upon hearing both the parties  decreed the suit  on 01.7.2008, holding that the marriage was  solemnized between them on 6.8.2000 according to Hindu Law  and that plaintiff opposite party is legally entitled to get maintenance Tk. 2500/- per month during the period from October, 2005 to July, 2008 at a time along with a direction upon the defendant to pay Tk. 2500/- per month to the plaintiff for maintenance till her death within 1st 10 days  in each month . Against the said judgment and decree passed in Family suit No. 128 of 2005 the defendant petitioner preferred Family Appeal No. 20 of 2008 before the learned District Judge, Faridpur  which was heard by the learned Joint District Judge, 3rd Court, Faridpur,  who by the impugned judgment and decree dated 23.5.2010 ( decree signed on 26.5.2010)    dismissed  the appeal on contest  with a direction upon the defendant-petitioner  to pay Tk. 2500/- per month during the period from 1.7.2005 to 1.7.2008 amounting to Tk. 1,50,000/- at a time and also to pay Tk. 2500/- per month for maintenance to the plaintiff till her death.

Being aggrieved by the aforesaid impugned judgment and decree dated 23.5.2010 (decree signed on 26.5.2010), the petitioner moved this Court and obtained the present Rule.

Mr. Goutom Kumar Roy, the learned Advocate appearing for the petitioner, submits that the learned Joint District Judge erred in law in passing the impugned judgment arbitrarily and the same has occasioned failure of justice. The learned Advocate further submits that  both the courts below  erred in law in decreeing  the suit  without properly considering the facts of the case and the case made out by the petitioner that no  marriage took place  between the parties  according to Hindu Law  and the same has occasioned failure of justice.

I have considered the submission of the learned Advocate for the petitioner and perused the record. The only material question for consideration in this case is, whether the Court of appeal  below has  committed any illegality  in affirming the judgment of the trial court on the finding that the marriage between the parties taken place according to Hindu Law.

For an answer to the question raised in this Rule it is necessary to examine the evidence on record. It appears that plaintiff herself was examined as PW-1, who in her evidence clearly stated that defendant Bhabotosh Kumar Roy after the death of his first wife married the plaintiff according to Hindu Law on 6.8.2000 and  on that date  the defendant  took the plaintiff to his house and lived  thereon as husband and wife. This witness to prove her marriage with the defendant in accordance with the Hindu Shastra exhibited a series of document including joint photographs. PW-2, PW-3 and  PW-4 in their respective evidence corroborated the evidence of PW-1 in respect of all material particulars.  On perusal of the  entire evidence on record  it is found that  in the instant case there is evidence enough on record both oral and documentary  to show that the marriage between the parties taken place and they lived together as married spouse.

It appears  that final court of fact, the appellate court has come to the conclusion that  the trial court rightly decided the suit in favour of the plaintiff  . In coming to this conclusion the said Court has  observed that : “বিবাদীপক্ষের জেরার জবা­ব বাদিনী সুস্পষ্টভা­ব বলিয়া­ছন যে, বিগত ০৬/০৮/২০০৮খ্রিঃ তারিখ হই­ত তিনি স্বামী-স»ী হিসা­ব  বিবাদীর বাড়ি­ত বসবাস করি­ত থা­কন এবং বিগত ১৭/০২/২০০৫ খ্রিঃ তারি­খর পূ­র্ব তাহা­দর ম­ধ্য হিন্দু শাস ম­ত বিবাহ না হই­লও বাদিনী প­ক্ষর দাখিলী প্রদর্শনী-১ হই­ত প্রদর্শনী ১(১২) চিহ্রিত ফ­টাগ্রাফগুলি ­কানরুপ আপত্তি ব্যতি­র­ক প্রমাণ ব্যবহূত হওয়ায় উক্ত ফ­টাগ্রাফগুলি পর্যা­লাচনায় দৃষ্ট হয় যে, বাদিনী ও বিবাদী পরস্পর অগ্নি সাক্ষী করিয়া ও সাতপাক ঘুরিয়া হিন্দু বিবা­হর ~~বধতা নিরুপ­নর আবশ্যকীয় শর্ত  পালন করিয়া­ছন এবং সেই­হতু বাদিনী ও বিবাদীর ম­ধ্য হিন্দু দায়ভাগ আইন অনুযায়ী ~~বধ বিবাহ সম্পন্ন হইয়া­ছ এবং বিবাদী প্রদর্শনী-২ চিহ্রিত এফি­ডভিট মূ­ল বিবাহ বন্ধন ছিন্ন করিবার ঘোষনা প্রদান করি­লও হিন্দু  দায়ভাগ আইনানুযায়ী তাহা­দর বিবাহ বি­চ্ছদ অনু­মাদিত না হওয়ায় তাহারা পরস্পর স্বামী-সী এবং সে­ক্ষ­ত্র বাদিনী পৃথক বসবাস করিয়াও আজীবন বিবাদীর নিকট হই­ত খোর­পাষ পাই­ত হকদার”  This being purely a finding of fact based on assessment of the  evidence on record.  It is needless to say that this Court normally does not interfere into the  question of fact arrived at by the appellate Court on consideration of the evidence on record.

Taking into  consideration of all these evidences on record including the exhibited photographs,  I am of the clear view that  there was a marriage ceremony between the parties in the temple of the deity kali in presence of many persons  according to Hindu Shastra and thus,  in the facts and circumstance of the case the plaintiff-opposite party is entitled to get maintenance from  1.7.2005 to till her death in accordance with Hindu Shastra. Therefore, I find no difficulty whatever in holding that in defending the Rule the plea as canvassed by Mr. Goutom Kumar Roy that no marriage was solemnised between the parties according to Hindu Law is fallacious as well as misconceived.

Both the Courts below on the facts of the case and on consideration of the legal position rightly settled the fact that there was a marriage ceremony between the parties in the temple of the deity kali in presence of many persons  according to Hindu Shastra.  The judgments of both the courts below are  found to be well-reasoned and well-supported by the materials on record. I, therefore, do not find any illegality or legal infirmity in the impugned  judgment occasioning failure of justice so as to justify interference by this Court exercising revisional power under section 115(1) of the Code of Civil Procedure.  As marriage in fact has been proved in this case, the plaintiff-opposite party is entitled to get maintenance  till her death in accordance with Hindu Shastra.

In the result, the Rule is discharged without any order as to costs.

The order of stay granted earlier by this Court stands vacated.

Let a copy of this judgment be communicated to the Courts concerned at once.

Ed.