IN THE COURT OF LD.

JUDICIAL MAGISTRATE 1st CLASS

KAMALPUR, DHALAI TRIPURA

CASE NO.Misc Case 22 of 2022

IN THE MATTER OF: A memorandum of written arguments on behalf of

the petitioner u/s. 314 of cr.p.c.

IN THE MATTER OF: SMTI SOMA RANI PAUL ……….. Petitioner

VS

SRI BIJAN KANTI PAUL ……….. Respondent.

That on behalf of the Petitioner above named it is most respectfully

submitted as under:
1. That the brief of the case is that the marriage between the parties

was solemanized and on 22/04/2004 and out of web block one

male child Master Saptajit Paul was born 23/03/2016.

2. That the petitioner in the complained petition that the respondent

used to torture physically and mentally and the petitioner also

alleged that the respondent was having illicite relation with a

lady. For that reason the petitioner moved out to the matrimonial
 home with her son. And the petitioner filled the instant case for

grant of maintenance under u/s. 125 of cr.p.c.

3. That thereafter the respondent filled written statement denying all

the allegations leveled against him.

4. That thereafter 7 witnesses including prosecution and with

defense witness they have examined by the LD. Court. After

conclusion of all the witness the respondent herein is submitting

the written argument before the LD. Court.

WRITTEN ARGUMENT BY RESPONDENT:

i) That, from the petition filed by the petitioner

u/s.125 of cr.p.c the petitioner failed to establish are

allegations that she made against the respondent

therefore the entire petition suffer from vague and

ambiguity.

(ii) That, on perusal of the entire petition and

deposition of PW 1 and PW 2 who are the petitioner and

his father. From their deposition it is very much clear

that they failed to establish cruelty in any nature.

Neither, they could establish that the respondent was

having any sort of ilicit relationship with any women.

The petitioner failed to produce any evidence that

supports the petitioner to prove that the respondent was

having any illicite relationship or the petitioner was

subjected to cruelty.

(iii) That, the petitioner in the petition stated that the

respondent has assaulted her physically by first and

blow and contended that she was tortured both

physically and mentally but she failed to produce in any

evidence or witness against her such allegations. Such

allegations are vague because she enjoyed her

matrimonial right with the respondent for a period of 6

yrs in the respondence residence but she could not

produce even a single witness who could support her

statement. Nither she made any complaint to the

neighbor not to police or any local authority not even to

any relatives.

It is also a fact that The

petitioner had two other sisters (one elder and one

youngman) both are married. The younger one is the

resident of Kamalpur and elder are is the resident of

Khowai. The sister nor the husband came before the

court to dispose any incident that there sister subject to

cruelty

(iv) That, it is very much surprising from the petition

that the petitioner has mentioned nothing about her

MOTHER in the petition nor the mother was brought as

a witness before the court. Neither the petitioner PWD 1

Soma Rani Paul nor PWD 2 Prabha Chandra Paul had

ever made any complain or any allegation during the

said period of 6 years when the petitioner was in the

matrimonial home all allegations were brought after the

almost 2 years of leaving the matrimonial home.

CASE LAW:

There is no evidence to suggest that in view of their

strained relationship any effort was made by the

parents or other relatives to settle their dispute and to

effect a conciliation. It appeared that the father had no

say in the matter, and he was not even examined as a

witness to support the case of the respondent.

(Deb Narayan Halder v. Anushree Halder (Smt)., AIR

2003 SC 3174)

iv) That the petitioner in the entire petition failed

disclose any chronology of events of any nature because

she state in the matrimonial home for almost 6 years but

her petition failed to describe events of cruelty in any

form.

(vi) That the petitioner left the matrimonial home

without informing any one and also took the minor child

with her even she did not inform the school authority

and took the child at Kamalpur which will adversely

affect the education of the child and it clearly it is

proved that she was very much reluctant of the future of

the child.

(vii) That the respondent on the other hand in his written

statement clearly points out that the petitioner was

having illicit relationship with one Bipul Rudra Paul for

which she tactfully sflifting the blame on the respondent

left the matrimonial home. That the respondent also

produce evidence as DW No.2 Rupali Sutradhar who is

the wife of Bipul Rudra Paul and she has deposed before

the court that her husband is having illicit relation with

the petitioner and she also had identified the petitioner

in the court which is sufficient to prove that it’s not the

respondent but the petitioner who to continue her illicit

relation left the matrimonial home and labeled the

respondent with false change of cruelty.

viii) That the respondent also tried his best to bring the

petitioner back to the matrimonial home for which

approach a local panchayat at Kamalpur inspite of talk

and direction by the panchayat and other local

authorities. The petitioner did not written back .Even the

petitioner approach the women P.S East Agartala and

the concern officer also tried their best to communicate

to the petitioner and bring her back but the petitioner

giving reason adanently refused to come back to the

matrimonial home.

(ix) The respondent file one RCR case marked case no.

63 (2022) before the family court Agartala to bring back

the petitioner but the respondent had withdrawn the case

because later on the respondent came to learn that the

petitioner was married earlier and she didnot obtaining

any legal divorce from that person had married that

respondent and the petitioner had suppressed the entire

fact of the petitioners earlier marriage from the

respondent and his family members. Therefore, the

petitioner is not liable to get any maintenance.

CASE LAW:

The marriage of a woman in accordance with the

Hindu rites with a man having legal spouse, after

coming into force of the Hindu Marriage Act, 1955

is a complete nullity in the eye of law and she is not

entitled to the benefit of Sec. 125 of the Criminal

Procedure Code, 1973.

Clause (1)(i) of s. 5 of the Hindu Marriage Act, lays

down, for a lawful marriage, the necessary condition

that neither party should have a spouse living at the

time of the marriage, and therefore a marriage in

contravention of this condition is null and void, under

section 11 of the Act…………………….

3.4 The word "wife" is not defined in the Cr. P.C.

except indicating in the Explanation to s. 125 its

inclusive character so as to cover a divorcee. A

woman cannot be a divorcee, unless there was a

marriage in the eye of law preceding

that status. The expression must, therefore, be

given the meaning in which it is understood in

law applicable to the parties, subject to the

Explanation (b). A divorcee is included in the section

on account of cl. (b) of the Explanation. [815D-E]

3.5 Principle of estoppel cannot be relied

upon to defeat the provisions of the Act. So far as

the first respondent treating her as wife is

concerned, it is of no avail, as the issue has to be

settled under the law. It is the intention of the

legislature, which is relevant, and not the attitude of

the parties. The prayer of the appellant for

maintenance cannot, therefore, be allowed even if

the appellant was not informed, at the time of her

marriage to the respondent, about his earlier marriage.

(Smt. Yamunabai Anantrao Adhav A vs Ranantrao

Shivram Adhav And others 1988 AIR 644, 1988 SCR

(2) 809)

(x) That the LD. Court most humbly should take into

account the fact that the petitioner had continued her

conjugal right for a period of 6 years and she left the

matrimonial home and filled the instant case on

14.06.2022 that is after 2 years of living her matrimonial

home. The respondent on the other hand filled a case of

RCR 17.05.2022 and just after the wife had registered

the maintenance. It is pertinent to mentioned that from

2015 till 2022 the petitioner had a made a single whisper

 of any cruelty in nature by the respondent neither any

allegation of illicit relation by the respondent. Therefore

it is very much clear that it is the adamant nature of the

petitioner not to continue her conjugal right with the

respondent as she was having a illicite relation with one

Bipul Rudra Paul and the respondent filled a case of

RCR to back her matrimonial home and to escape the

situation the petitioner filled the instant the case against

the respondent.

In the light of written arguments

mentioned above the respondent humbly prayed before the

Ld.Court to be pleased enough to accept the same and dismiss

the said case against the respondent.

AND

For this act of kindness your appellants, as in duty bound,

Shall Ever Pray