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Chhattisgarh High Court · body

2008 DIGILAW 167 (CHH)

LAXMAN SHRIVASTAVA v. CHAMPA SAI

2008-07-02

T.P.SHARMA

body2008
ORDER 1. Criminal Revision Nos. 272/2005 and 489 of 2005 have been preferred against the order dated 19.4.2005 passed by the Principal Judge, Family Court, Raipur in Criminal M.J.C. No. 25312005, therefore, they are being disposed of by this common order. 2. Criminal Revision No. 27212005 has been preferred by the applicant! husband of the non-applicant No. 1 and father of the non-applicant No.2 for quashment of the order awarding maintenance to the non-applicants and Criminal Revision No. 489/2005 has been preferred by wife and son against the husband for adequate maintenance. 3. The applicant/husband has challenged the order on the ground that factum of relationship of husband, wife and son between the applicant and the non-applicants has not been proved and therefore, the non-applicants are not entitled for any maintenance from the applicant. The trial court has exceeded the jurisdiction vested on it by awarding maintenance in favour of the non-applicants. Wife and son have challenged the order on the ground that trial court has failed to consider the fact that the amount awarded to them is not sufficient to meet out their livelihood. 4. Heard learned counsel for the parties, perused the order impugned and record of the trial court. 5. According to record of the trial court, the applicants in Criminal Revision No. 48912005 had filed a petition for maintenance under section 125 of the Code for maintenance on the ground that the applicants are wife and son of the non-applicant. Earlier they had entered into a compromise in maintenance proceeding in Criminal M.J.C. No. 2/86 pending before Judicial Magistrate First Class, Raipur which was filed on 24.6.2006 on the basis of a compromise. Afterwards when the non-applicants were ousted by the applicant from his house, then they have filed petition for maintenance. 6. Factum of relationship has been denied by the non-applicant. He has alleged that advocate of the applicant and their relatives compelled to put his signature in a compromise application and succeeded to compound the case by misleading the court. The applicant No. 1 is working in a biscuit factory and is earning Rs. 2000/- per month whereas the monthly income of the non-applicant is Rs. 6000/- per month only. 7. The applicant No. 1 is working in a biscuit factory and is earning Rs. 2000/- per month whereas the monthly income of the non-applicant is Rs. 6000/- per month only. 7. After affording an opportunity of hearing to the parties, learned Principal Judge, Family Court, Raipur has held that applicant No. 1 is the wife and applicant No.2 is the son of the non-applicant and awarded Rs. 500/- per month as maintenance to the applicant No. 1/wife and Rs. 1000/- to the applicant No. 2/son, 8. Learned counsel for the applicants/wife and son argued that maintenance awarded is insufficient. The Principal Judge, Family Court has awarded Rs. 500/-per month as maintenance to the applicant No. l/wife and Rs 1000/- to the applicant No. 2/son. Considering the present cost of living, Rs. 500/- per month to the applicant No. 1/wife and Rs. 1000/- per month to the applicant No. 2/son, who is aged about 17 years, is insufficient. 9. Learned counsel for the applicants/wife and son placed reliance on the case of Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit and another, wherein the Apex Court has held that strict proof of marriage is not required in summary proceeding under section 125 of the Code of Criminal Procedure and if man and woman have lived together as husband and wife, the Court can presume that they are legally wedded spouse, and in such a situation, the party who denies the marital status can rebut the presumption. 10. Learned counsel for the applicants/wife and son further placed reliance on the case of Ranganath Parmeshwar Panditrao Mali and another Vs. Eknath Gajanan Kulkarni and another, wherein the Apex Court has held that staying together as husband and wife for continuous and long period gives presumption of valid marriage. They also placed reliance on the case Shyamlal Vs. Mansha Bai, wherein the High Court of Rajasthan has held that income of railway employee is a fact which was within his knowledge and ifhe fails to produce any evidence, then inference can be drawn that he was hidden the truth They also placed reliance on the case of Neelavva Somanath Tarapur Vs. Divisional Controller, K.S.R. T.C., Bijapur and another, wherein the High Court of Karnataka has held that proof of Saptapadi is not an essential requirement for every Hindu marriage. 11. Divisional Controller, K.S.R. T.C., Bijapur and another, wherein the High Court of Karnataka has held that proof of Saptapadi is not an essential requirement for every Hindu marriage. 11. Learned counsel for the applicants/wife and son also placed reliance on the case of Smt. Parvatevva and others Vs. Shivayya, wherein the High Court of Karnataka has held that in absence of any satisfactory and concrete proof of earlier marriage, wife is entitled for maintenance. 12. Learned counsel for the non-applicant/husband argued that factum of relationship has not been proved and in absence of any relationship, the applicants are not entitled for any maintenance. The non-applicant has not voluntarily executed any agreement/document, which are sufficient to infer that the non-applicant is husband of the applicant No. 1 and father of the applicant No.2. 13. Learned counsel for the non-applicant/husband placed reliance on the case of Savitaben Somabhai Bhatiya Vs. State of Gujarat and others, wherein the Apex Court has held that only legally wedded wife is entitled for maintenance and in expression "wife" does not include a woman who is not lawfully married. 14. In the instant case, applicant of Criminal Revision No. 27212005, namely Laxman Shrivastava has not admitted the factum of marriage and alleged that he was compelled to sign on the Agreement paper in Criminal M.J.C. 2/86 filed on behalf of the non-applicants for maintenance, but in his statement he has not stated anything that how the same was executed. Only he has admitted his signature on document EX.P/2 which is signed by him which reveals that he and Champa Bai are husband and wife. According to EX.P/1 and certified copy of the order dated 24.6.86 (Criminal M.J.C. No. 2/86), both the parties had entered into a compromise that applicant Laxman will take the non-applicants with him to his house. 15. Champa Bai has stated that she is wife of Laxman. Earlier she had filed an application for maintenance. but with the passage of time they had entered into a compromise. She is having photograph (Ex.P/2) with Laxman. Photograph has been admitted by Laxman and explained that at the request of the applicant, she has consented for photograph. 16. The order dated 24.6.86 (Ex.P/1) of earlier maintenance application, document EX.P/2 and photograph are sufficient to infer that the applicant Laxman is husband of Champa bai and father of Sharad Chand. She is having photograph (Ex.P/2) with Laxman. Photograph has been admitted by Laxman and explained that at the request of the applicant, she has consented for photograph. 16. The order dated 24.6.86 (Ex.P/1) of earlier maintenance application, document EX.P/2 and photograph are sufficient to infer that the applicant Laxman is husband of Champa bai and father of Sharad Chand. It is not disputed that he is not maintaining Champa Bai and Sharad Chand. He him self has alleged in his reply that his monthly income is Rs. 6000/- per month and also alleged that the applicant No. 1/Champa Bai is working in a biscuit factory and is earning Rs. 2000/- per month. Nothing has been suggested to Laxman on behalf of Champa Bai that she is not earning Rs. 2000/- per month. 17. After taking into consideration the income of the parties and claim for maintenance of Rs. 3000/-, learned Principal Judge, Family Court has awarded maintenance of Rs. 500/- to Champa Bai and Rs. 1000/- to Sharad Chand. 18. According to order sheet EX.P/1 order dated 24.6.2006, at that time Sharad Chand was aged about 19 year and 3 months means today his age is more than 22 years. The applicant has not adduced any evidence to the fact that the applicant Sharad Chand is not able to maintain himself by physical or mental abnormality. In absence of such material, the applicant No.2 Sharad Chand is not entitled for maintenance after attaining his age of majority. 19. Taking into consideration the relationship and income of the parties, I do not find any illegality or infirnity in the order impugned, except that the applicant No.2 Sharad Chand is entitled for maintenance till he attains the age of majority, therefore, he is not entitled for future maintenance. 20. For the foregoing reasons, Criminal Revision No. 272/2005 is partly allowed and future maintenance of Sharad Chand is quashed and Criminal Revision No. 489/2005 filed on behalf of Champa Bai and Sharad Chand is dismissed. 21. Copy of the order be placed on record in Criminal Revision No. 4891 2005. Revision Partly Allowed.