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Madhya Pradesh High Court · body

2000 DIGILAW 1182 (MP)

Smt. Pushpabai v. Pratap Singh

2000-11-01

A.K.GOHIL

body2000
ORDER A.K. Gohil, J. 1. Petitioner wife has filed this revision under Section 397, Cr.P.C. against the judgment and order dated 15.4.1997 passed by A.S.J., Kukshi, Dist. Dhar in Cri. Revision No. 37/97 setting aside the order passed by Judicial Magistrate, First Glass, Kukshi in Cri. Case No. 44/94 granting maintenance allowance @ Rs. 50/-per month to the petitioner-wife. 2. Briefly stated that on 7.10.1994 petitioner filed an application under Section 125, Cr.P.C. for claiming maintenance from the respondent Pratapsingh. In this application the petitioner claimed that she is married wife of the respondent. After solemnizing the marriage, petitioner resided with the respondent but on 4th August, 1992 the respondent removed the applicant from his house. She is not having any independent source of income. The respondent is a teacher, earning around Rs. 4,000/- per month, besides this also earning some amount from tuitions. In reply the respondent denied all the allegations including the fact of marriage and has submitted that petitioner is not his legally married wife. The Trial Court after recording evidence of both the parties by order dated 26.12.1996 found that the applicant is the legally wedded wife of the respondent. She is not having any means to maintain herself, therefore, Court directed for the payment of Rs. 500/- p.m. as maintenance from the date of his application elated 7.10.1994 against which the husband preferred the revision before the Court below. In the revision memo the submission of the respondent was that the petitioner was earlier married with one Bhanwarlal and she has not taken any divorce and she has not proved that any divorce has taken place, therefore, it cannot be presumed that she is the legally married wife of the respondent because without divorce she cannot re-marry again. The respondent further submitted in this memo of revision that though the petitioner wanted to marry with the respondent and for that the respondent has no objection but since the respondent is in Government service he cannot take the risk of keeping her with him. The further submission of respondent in this memo of revision is that in the Court on 26.5.1995, respondent had made a proposal that if the petitioner shall bring an affidavit of her earlier husband Bhanwarlal about the fact of divorce then he will accept this petitioner as his wife, because still Bhanwarlal is treating the petitioner as his married wife. The further submission of respondent in this memo of revision is that in the Court on 26.5.1995, respondent had made a proposal that if the petitioner shall bring an affidavit of her earlier husband Bhanwarlal about the fact of divorce then he will accept this petitioner as his wife, because still Bhanwarlal is treating the petitioner as his married wife. On these facts the lower Revisional Court accepted the submissions of the respondent and allowed the revision and set aside the impugned order for grant of maintenance. 3. I have heard the learned Counsel for parties and perused the record and also gone through the judgments and orders of both the Courts below. 4. The sole question in this case is whether the applicant is legally married wife of Bhanwarlal and whether before Gona ceremony, there was divorce between them as the customs prevailing in their community and whether later on she has performed the marriage with the respondents. The petitioner examined herself. She stated on oath before the Trial Court that in 1992 she was legally married with the respondent. The respondent had come with Barat and marriage was performed as per Hindu rites and thereafter they lived together as husband and wife. But thereafter on 4.8.1993 the respondent removed her from the house after keeping all the ornaments. In the examination-in-chief petitioner herself stated that in the childhood she was married with one Bhanwarlal and according to her caste customs Bhanwarlal had already taken divorce from her before Gona and had executed a document Ex. P-3 about divorce. She has further examined another witness Ramaji s/o Bhikaji (PW-2) who is the ex-Sarpanch of Gram Panchayat, Konda who has supported the fact of marriage with the respondent. PW-3 Dewaji s/o Herraji who is presently Sarpanch of Gram Panchayat, Konda, has also supported the fact that she was married with the respondent and the marriage had taken place in his presence and the respondent had come with Barat to her village. She further examined PW-4 Loona s/o Doodh who stated that the Barat had come from Rajasthan and had stayed in his house. She has also filed the copy of the notice Ex. P-l which she had sent before filing the application for maintenance and the Ex. P-2 is the original envelope which was received unserved. Ex. She further examined PW-4 Loona s/o Doodh who stated that the Barat had come from Rajasthan and had stayed in his house. She has also filed the copy of the notice Ex. P-l which she had sent before filing the application for maintenance and the Ex. P-2 is the original envelope which was received unserved. Ex. P-3 is the document executed by so-called Bhanwartal, earlier husband, in which fact of broken all relations with petitioner is mentioned. It has also come in evidence that before marriage with respondent the fact that divorce has taken place and all relations had broken from Bhanwarlal was disclosed to the respondent and document Ex. P-3 was also shown to him. Exs. P-4, P-5 and P-6 are the letters written by the respondent to one Ramesh Chandra and Exs. P-7 and P-8 are the greeting cards sent by respondent. In defence the respondent took plea that there were only talks of marriage and he had asked that he can only marry when there is divorce from the previous husband. The respondent came into the witness box and prior to that in reply to application for interim maintenance respondent had admitted that the petitioner had lived with the respondent for a period of 15 days as mistress. Subsequently, during his cross-examination he tried to twist the facts saying that he had not signed that reply and modified his statement that she had come only for one or two days and he had also gone to meet her once or twice. It is admitted by him that he had engaged Mr. Pyarelal Maheshwari, Advocate who had filed the reply on his behalf. 5. From the aforesaid evidence it is very much clear from record that the present applicant was married with the respondent. Subsequently after keeping her in the house he removed her and tried to make out a case that there was no marriage between them and he tried to disown the fact of marriage by changing the statements. The facts stated in memo of revision and also in reply to the application of interim maintenance and the evidence on record clearly proves this fact that the respondent and the petitioner both resided together as husband and wife. The facts stated in memo of revision and also in reply to the application of interim maintenance and the evidence on record clearly proves this fact that the respondent and the petitioner both resided together as husband and wife. In the memo of revision the respondent clearly admitted that he is prepared to keep her but he wanted an affidavit of Bhanwarlal who was her previous husband, then how such a statement can be made without performing marriage. From the evidence on record it can be believed that this document Ex. P-3 was shown to the respondent before marriage. All the contentions of the respondent are false and it is held that the petitioner is the legally wedded wife of the respondent and respondent is liable to maintain her and cannot avoid the liability on one or the other grounds. 6. In view of the aforesaid factual position and evidence on record, I am of the view that in the light of the Ex. P-3 the divorce had taken place and thereafter the petitioner and respondent both were married on 17.4.1992 and they lived together as husband and wife and on 4.8.1993 she was thrown out from the house. For the purposes of Section 125, Cr.P.C. the marriage of the petitioner with the respondent is found proved. The Trial Court was justified in properly appreciating the overall evidence and to grant maintenance @ Rs. 500/- per month to the petitioner but the First Revisional Court was not justified in reversing the said finding and recording a contrary finding. The Revisional Court has wrongly appreciated the evidence and committed an illegality in examining the scope of revision where appreciation of evidence is not permitted. In view of the evidence on record the order of the Trial Court is proper, legal and justified. Accordingly this revision is allowed and the order passed by the First Revisional Court on 15.4.1997 reversing the judgment and order passed by the Trial Court is hereby set aside and the order passed by the Judicial Magistrate, First Class dated 26.12.1996 is restored and maintained. It is directed that the petitioner shall be entitled for a sum of Rs. 500/- per month from the respondent towards the maintenance from the date of application dated 10.4.1994. It is directed that the petitioner shall be entitled for a sum of Rs. 500/- per month from the respondent towards the maintenance from the date of application dated 10.4.1994. The respondent shall deposit the said amount within a period of two months and thereafter shall regularly deposit the amount from month-to-month otherwise the petitioner shall have liberty to recover the same in accordance with law. The respondent shall also pay cost of this revision as Rs. 1,000/- to the petitioner.