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Madhya Pradesh High Court · body

2003 DIGILAW 27 (MP)

Imlabai v. Manoj Kumar

2003-01-06

NARAIN SINGH AZAD

body2003
ORDER 1. Additional Chief Judicial Magistrate, Waraseoni, rejected the petitioners' maintenance application filed under section 125 Cr. PC which was registered as Criminal case No. 3/92, by order dated 24.1.1996 and petitioners' challenge to the aforesaid order in their Criminal Revision No. 34/96 also stood negatived by II ASJ, Waraseoni, on 30.10.1998, therefore, the petitioners seek exercise of inherent powers for quashment of both the aforesaid orders and acceptance of their application for grant of maintenance. 2. According to the petitioners, petitioner No.1 Smt. Imlabai was wedded to non-applicant in 1989 at waraseoni and gave birth to non-applicant's son Amit Kumar (petitioner No.2) on 21.5.1991. Thereafter, the non-applicant started treating petitioner No.1 with cruelty and ultimately, left her at her parental house in August, 1991. In a period of 5-6 months, the petitioner No.1 made attempts to contact non-applicant, yet he could not be contacted in spite of an application been submitted in the office of Executive Engineer, telecommunication, where non-applicant is an employee, and another application to the S P, Balaghat. On remaining unsuccessful to contact the non-applicant, the petitioners, who have no source of income of their own, have started living with old mother of petitioner No.1. Thus, non applicant who is earning Rs.1200/- per month as salary, being permanent labour in the department of telecommunication, has deliberately neglected to maintain the petitioners, therefore the petitioners claimed maintenance at the rate of Rs.400/- and 200/- per month respectively. 3. Denying the facts of petitioner No.1 being the wife and petitioner No.2 being the son, it is pleaded by non-applicant that he has no relations with petitioners and as such not liable to pay any amount of maintenance to them. It is also pleaded on behalf the non-applicant that according to his information, petitioner No. 1 is the legally wedded wife of Vishwanath Sharma, and is leading a suspicious life. 4. Earlier, on 4.8.1992, an ex parte maintenance order was passed in favour of the petitioners, by JMFC Waraseoni, because the non-applicant did not appear in the Court on 23.3.1992, in spite of service of notice, and hence, he was ordered to be proceeded ex parte. As per order dated 28.7.1993, passed in Criminal Case No. 9/92, the ex parte order was set aside in Misc. Criminal Case No. 65/93. Thereafter, on 19.8.1993, non-applicant submitted his reply to the petitioners' application. As per order dated 28.7.1993, passed in Criminal Case No. 9/92, the ex parte order was set aside in Misc. Criminal Case No. 65/93. Thereafter, on 19.8.1993, non-applicant submitted his reply to the petitioners' application. The petitioners examined petitioner No.1 Smt. lmlabai by herself (PW 4), Basant Raghunathji, a telephone operator (PW 1) working in the department of non-applicant, Premlal (PW 2), Supervisor in the department of non-applicant, Kishore Kumar (contractor), residing at Madanpur, who has stated to have attended the marriage of non-applicant and petitioner No.1, and one Shaligram (PW 5), tailor, who has also stated to have attended the aforesaid marriage between non-applicant and the petitioner No.1. Supporting the statement of petitioner lmlabai on the fact of aforesaid marriage, it is further stated by Kishore Kumar and Shaligram that for deli very purposes, lmlabai was admitted at Waraseoni Hospital, where she gave birth to petitioner No.2. It is also stated by Kishore Kumar and Shaligram that non-applicant himself got lmlabai admitted at Waraseoni Hospital, for delivery purposes. 5. Then, Basant Raghunathji (PW 1) has also supported the case of the petitioners by stating that non-applicant was wedded to petitioner No. 1 and on his marriage, non-applicant offered sweets to him. It is further stated by Basant Kumar that till 1991, non-applicant Manoj Kumar had been residing with Imlabai at Balaghat, who gave birth to a son. Premlal (PW 2) is stated to have been introduced to Imlabai as wife by non-applicant when these two were residing in a rented house at Balaghat. It is further stated by Premlal that for delivery purposes, Smt. Imlabai was left at Waraseoni and again she was brought to Balaghat. Petitioners have filed the birth certificate of petitioner No.2, which is marked as Ex.P-l, and is obtained from Nagar Palika, Waraseoni. In this certificate (Ex. P-l), the son is certified to have been born to non-applicant at Waraseoni Government Hospital on 21.5.1991, Lastly, joint photograph of petitioner No. 1 and non-applicant is also produced on behalf of the petitioners, which is marked as Ex. P-2. 6. Non-applicant has examined himself and three witnesses, namely, Lakhanlal, Jagdish Prasad and Ramkrishna. It is admitted by Lakhanlal (NA W 2) that non-applicant Manoj is the son of his brother-in-law. Similarly, Jagdish Prasad (NA W 3) has also admitted that non-applicant Manoj Kumar is the son of his brother-in-law. P-2. 6. Non-applicant has examined himself and three witnesses, namely, Lakhanlal, Jagdish Prasad and Ramkrishna. It is admitted by Lakhanlal (NA W 2) that non-applicant Manoj is the son of his brother-in-law. Similarly, Jagdish Prasad (NA W 3) has also admitted that non-applicant Manoj Kumar is the son of his brother-in-law. Ramkrishna (NA W 1) who is maternal uncle of petitioner No.1, of course has denied the information and fact of Imlabai being wedded to Manoj Kumar but in cross-examination itself it is suggested to this witness that his father gave his house to petitioner No.1 in writing, and hence he is at inimical terms with her. 7. The learned, ACJM, so also the revisional Court are found to have discarded the petitioner's reliable evidence on whimsical ground, without taking into account as to why after all a semi-litrate Indian wife, and a minor son, have claimed maintenance under section 125 of the Cr. P.C., from this applicant Manoj Kumar only. Secondly, no reason 1 by any of the Courts below is accorded as to how the false birth certificate of petitioner No. 2 is secured and a joint photograph of petitioner No. 1 and non-applicant is managed. Thirdly, it is again not explained by any of the Courts below that why Basant, Raghunathji and Premlal, the employees of the Department of non-applicant have falsely supported the case of the petitioners on the facts of petitioner No. 1 been wedded to non-applicant and petitioner No.2 being their son. Lastly, I do not find any reason \ to disbelieve statements of Kishore Kumar (A W 3) and Shaligram (A W 5) who have supported the petitioners case on the fact of marriage of petitioner No. 1 with non-applicant and the birth of their son Amit Kumar at Waraseoni Hospital. Thus, the findings recorded by both the Courts below on the fact of matrimonial relationship of petitioner No.1 and non-applicant, so also on the fact of paternity of petitioner No.2, are perverse which are liable to be set aside in exercise of inherent powers. 8. In result, the order dated 24.1.1996, passed by ACJM, Waraseoni, in Misc. Criminal Case No. 3/92, so also the order dated 30.10.1997, passed by II ASJ, Waraseoni, in Criminal Revision No.34/97, are set aside in exercise of inherent powers. 8. In result, the order dated 24.1.1996, passed by ACJM, Waraseoni, in Misc. Criminal Case No. 3/92, so also the order dated 30.10.1997, passed by II ASJ, Waraseoni, in Criminal Revision No.34/97, are set aside in exercise of inherent powers. Relying on petitioners' evidence, it is opined that petitioner No. 1 is the legally wedded wife of non-applicant and petitioner No.2 is their Son. On the basis of statements of Imlabai, petitioner No.1 and her witnesses, it is further opined that petitioners have no source of income of their own, whereas non-applicant is a permanent employee of the Telecommunication Department, whose monthly pay was Rs.1500/- in the year 1993 (Para No.2 of the statement of A W 3). It is lastly opined that being capable non-applicant has deliberately neglected to maintain the petitioners. Under the specific dircumstances of this case detailed in maintenance application, it is ordered that petitioners are entitled to receive maintenance from non-applicant since the date of filing the maintenance application. The non-applicant shall pay maintenance at the rate of Rs.400/- per month to the petitioner No.1, and Rs.200/- per month to the petitioner No.2, till he attains the age of majority, since the date of filing the maintenance application.