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2006 DIGILAW 644 (KER)

Muhammed Sageer v. Fathima

2006-10-03

R.BASANT

body2006
Judgment :- The petitioner in this revision petition assails a direction under Section 125 Cr.P.C. directing him to pay maintenance to his wife and minor child. 2. Marriage, paternity and separate residence of the spouses are all admitted. That the petitioner has married again is also not disputed. That the claimants are unable to maintain themselves is not seriously challenged. The learned Judge of the Family Court, on an anxious consideration of the rival contentions in the light of the evidence adduced, came to the conclusion that the petitioner is liable to pay maintenance to the claimants. Accordingly the court proceeded to pass the impugned order. 3. It is admitted that in the counter statement filed to the claim under Section 125 Cr.P.C. no contention whatsoever was adduced that there is no subsistence of the marriage between the petitioner and the first claimant wife. In the absence of such a contention it would appear that an attempt was made during the pendency of the proceedings to raise a contention that there is an anterior divorce. Reliance was sought to be placed on Exts.B1 and B2 in an attempt to contend that there was no such subsistence of matrimony. 4. The learned Judge of the Family Court took note of the fact that there is no specific contention that the marriage has been dissolved by any process known to law. In these circumstances the learned Judge of the Family Court was not persuaded to hold that there is no subsisting matrimony as to justify the plea raised - not in the counter statement, but later - that there was no subsisting valid matrimony. It is accordingly that the court below proceeded to pass the impugned direction for payment of maintenance. I am unable to find any inadequacy or vice vitiating the impugned order, which would justify the invocation of the revisional jurisdiction of superintendence and correction by this Court. In the total absence of a plea raised that there was any valid divorce, the court below, according to me, committed no error in not adverting to that plea in great detail and in not recording a finding in favour of the petitioner herein. 5. The quantum of maintenance fixed does also appear to be absolutely reasonable. In the total absence of a plea raised that there was any valid divorce, the court below, according to me, committed no error in not adverting to that plea in great detail and in not recording a finding in favour of the petitioner herein. 5. The quantum of maintenance fixed does also appear to be absolutely reasonable. Needless to say, if the petitioner has a case that the impugned order is liable to be vacated by reason of any subsequent divorce, it shall be open to the petitioner to move the court below to invoke the powers under Section 127 Cr.P.C. to modify/vacate the impugned order passed under Section 125 Cr.P.C. 6. With the above observations, this revision petition is dismissed.