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2005 DIGILAW 1187 (RAJ)

Kailash v. Prabhu Lal

2005-04-21

S.P.PATHAK

body2005
Judgment S.P. Pathak, J.-This revision petition under Section 397 read with Section 401 of the CrPC has been filed against the Judgment & Order dated 21.02.1995 passed by the learned Additional District Judge, Bundi in Criminal Revision No. 12/94 titled Prabhulal vs. Kailash where by the order dated 22.01.1994 passed by the learned Munsiff & Judicial Magistrate, Ist Class, Lakheri in Case No. 308/92 (209/90) was partly set aside and modified to the extent that the order of maintenance in relation to the daughter is maintained and the order in relation to the maintenance of petitioner scands set aside. 2. Briefly, the relevant facts of the case are that an application under Section 125 of the CrPC was made by the petitioner against non-petitioner/respondent in the Court of learned Munsiff & Judicial Magistrate, Ist Class, Lakheri on 11.06.1990 with the averments that her marriage in accordance with the Hindu Customs took place with the non-petitioner prior 7 years of filing the application. She thereafter started living with the non-petitioner as his wife and she gave birth to a daughter namely Shakuntla. For some time the relations were cordial between them, but after some time the relations between the petitioner and the non-petitioner became strained as the non-petitioner started dealing with her with cruelty and also the family members of the non-petitioner started mal-treating her and a demand of dowry was also raised for a sum of Rs. 15,000/-. It is further averred that the she was forcibly turned out of the house 3 to 4 times. It is further averred that before one year of filing of the application the non-petitioner brought with him a lady namely Mathari in the house and the non-petitioner started living with the lady Mathari as his wife. It was further averred that non-petitioner was running a cloth shop at Itawa and his income from that source was about Rs. 8,000/-per month. 3. The application was contested by the non-petitioner, who denied the averments made in the petition and also denied that petitioner never lived with him as his wife. 4. The non-petitioner further denied the alleged fact that Skakuntla was born out of the relations between the petitioner and the non-petitioner. It was also stated by the non-petitioner that infact the husband of petitioner namely Ram Kalyan was alive. 5. 4. The non-petitioner further denied the alleged fact that Skakuntla was born out of the relations between the petitioner and the non-petitioner. It was also stated by the non-petitioner that infact the husband of petitioner namely Ram Kalyan was alive. 5. The learned Munsiff & Judicial Magistrate, Lakheri after recording evidence of both the sides, allowed the application and in his order dated 22.01.1994 he has held that non-petitioner lived with the petitioner as his wife. The daughter-Shakuntla was of non-petitioner. The non-petitioner had sufficient income source from the agricultural lands and other source of income. The learned Magistrate thus passed an order to the effect that the non-petitioner shall make the payment of Rs. 300/-and Rs. 200/-per month for maintenance respectively to the petitioner and his daughter-Shakuntla. 6. On a revision filed by the non-petitioner the learned Additional District Judge in Revision Petition No. 12/94 vide order dated 21.02.1995 partly accepted the revision petition and set aside the order in relation to maintenance awarded in favour of the petitioner, but upheld the order of maintenance in relation to the daughter. Hence, the present revision petition has been filed. 7. Heard learned Counsel for the petitioner. The contention of the learned Counsel for the petitioner is that for years together the petitioner and the non-petitioner had lived together and out of their marital relation a daughter namely Shakuntla was born. It was also contended that it is the bounded duty of the petitioner to maintain the wife and the daughter. The learned Counsel submits that in their custom Nata system is prevailing and both the Courts have come to the conclusion that the petitioner and the non-petitioner were living as husband and wife, therefore, to say that since no divorce was obtained therefore, she was not entitled for maintenance, is of no sequence. 8. I have considered the above submissions made before me. It is to be seen that the learned trial Court after recording the evidence of both the sides came to the conclusion that the petitioner and non-petitioner were living as husband and wife. After some time of their living together as husband and wife, relations became strained and ultimately she was forced to leave house. It is also a finding of the trial Court that a daughter was born out of their relations as husband and wife namely Shakuntla. After some time of their living together as husband and wife, relations became strained and ultimately she was forced to leave house. It is also a finding of the trial Court that a daughter was born out of their relations as husband and wife namely Shakuntla. In the above background the learned trial Court passed an order whereby maintenance was awarded. The learned Additional District Judge, Bundi, though in para 6 of the order admits that the petitioner was living as wife of the non-petitioner, but since it was only a Nata as per the affidavit filed during the course of proceedings and there was no divorce and further that the petitioner was not legally wedded wife, hence partly set aside the order of the learned trial Court. 9. After carefully considering the material available on record there remains no doubt about the fact that the petitioner and the non-petitioner lived together as husband and wife and out of their relations petitioner gave birth to Shakuntla. In the above factually aspect, only question which remains to be considered as to whether the petitioner is entitled for maintenance or not? 10. In case of Mani Ram vs. Smt. Bhori reported in CrLR (Rajasthan) 1987, 673 it has been held that the petitioner lived with the non-petitioner and both were known as husband and wife in the community. Six children were born who are known as sons of the petitioner are such circumstances that these facts raise, a presumption that the non-petitioner is the wife of the petitioner and an order under Section 125 CrPC has been rightly made. In this case in para 4 it has been observed that: "The learned Judge referred to the case of Gopi Krishna Kasaudhar vs. Mst. Jagge AIR 136 UC 198 wherein the Privy Council held that the abandonment by the husband was treated as amounting to divorce. It was further held that the authority cannot be said to have laid down law that abandonment by the husband per-se should operate as a divorce. In my opinion, the case of Manna Lal vs. State (Supra) is not applicable in the instant case. It was further held that the authority cannot be said to have laid down law that abandonment by the husband per-se should operate as a divorce. In my opinion, the case of Manna Lal vs. State (Supra) is not applicable in the instant case. The very fact that the first husband Chotelal though alive in 1947 did not take any steps to bring the non-petitioner from the house of the petitioner for the purpose of the disposal of this miscellaneous application under Section 482 CrPC may be taken as act of abandonment by the husband. So far as the fact that the first wife of the petitioner was alive till the year 1956 and therefore, in the year 1947 she was alive when the re-marriage of the non-petitioner is said to have been took place is concerned it will not make any difference as under the law then applicable there were as bar for keeping more than one wife. In the case of Bewa Ram Balwant Khatai & Anr. vs. Ramratan Balwant Khatai & Ors. AIR 1963 M.P. 160 suit had been filed for declaration that Ramratan, Jagannath and Bapu are not the legitimate sons of their father Balwant. An argument was advanced in para 4 before the learned Judge that in view of the clear proof of the circumstance that Kanwarbais former husband was alive when she began to live with Balwant, presumption as to validity of marriage between them could not have been drawn. This contention was not accepted and referring to the Mullas Hindu Law at page 616 wherein it has been stated as under:-Similarly the fact that a women was living under the control and protection of a man who generally lived with her and acknowledged her children raises a strong presumption that she is the wife of that man. But, this presumption may be rebutted by proof of facts showing that as marriage could have taken place". The Court said that:-"Long cohabitation between a man and a woman raises a clear presumption of marriage particularly where they lived as husband and wife and the children were born and where these children were treated as the children of the man by the community. The Court said that:-"Long cohabitation between a man and a woman raises a clear presumption of marriage particularly where they lived as husband and wife and the children were born and where these children were treated as the children of the man by the community. The presumption, no doubt is rebuttable one but the evidence of rebutting that presumption must be clear and specific and ought to indicate that no valid marriage could have taken place between them." 11. In view of the discussed factual position, it has been amply proved that the petitioner and non-petitioner were living together as husband and wife therefore, on account of Nata and long association of the petitioner with the non-petitioner in the capacity of husband and wife entitles the petitioner to claim maintenance. The Munsiff and Judicial Magistrate, Lakheri has rightly came to the conclusion that the petitioner and her daughter both were entitled for the maintenance. The learned Additional District Judge, Bundi has not properly appreciated the matter and only for the reason that there was no divorce and further that the non-petitioner-husband was alive, therefore, she was not entitled for maintenance is not the correct finding in view of the decision rendered by the Honble High Court in the case referred to above. 12. In view of the foregoing discussions, the revision is allowed. The Judgment and order of the learned Additional District & Sessions Judge, Bundi dated 21.02.1995 passed in Criminal Revision No. 12/94 is hereby set aside and that of the order passed by the learned Munsiff and Judicial Magistrate, Ist Class, Lakheri District Bundi dated 22.01.1994 passed in case No. 308/92 (209/90) is hereby restored.