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Himachal Pradesh High Court · body

2008 DIGILAW 244 (HP)

Baldev Singh v. Raj Kumari

2008-05-23

V.K.AHUJA

body2008
JUDGMENT V.K. Ahuja, J. 1. A petition under Section 125 Cr.P.C. was filed by the respondent for the maintenance as against the petitioner before the learned trial Court. In reply, the respondent denied the factum of marriage. During the pendency of the petition, a petition under Section 125(1) Cr.PC. was filed by the respondent for grant of interim maintenance. Learned trial Court after taking reply from the petitioner and hearing the parties, dismissed the petition for grant of interim maintenance mainly by observing that the present petitioner has denied that the applicant was his legally wedded wife. C5n revision, those findings were set aside by the learned Sessions Judge who granted interim maintenance at the rate of Rs. 5,000/- RM. in favour of Mrs. Raj Kumari. Being aggrieved, the present petition has been filed by the petitioner. 2. I have heard the learned Counsel for the parties and have gone through the record. 3. The learned Counsel for the petitioner has submitted that there are no specific assertions as to how marriage was performed, what was the reasons for the marriage and that the respondent/petitioner has not pleaded that she was unable to maintain herself. It was also submitted that the respondent/petitioner was having property at three places, including Shimla and Una and the fact that she owns these properties clearly proves that she cannot claim that she is unable to maintain herself. To substantiate his points that the respondent was not legally wedded wife of the petitioner and he was not entitled to maintain her, the learned Counsel for the petitioner has relied upon the following decisions: 4. The decision in Savitaben Somabhai Bhatiya v. Slate of Gujarat and Ors. 2005 CriLJ 2141 , shows that term 'wife' cannot be enlarged to include woman not lawfully married. 5. The decision in Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. 1988 CriLJ 793 , was relied upon, wherein it was held that the term 'wife' includes legally wedded wife. 6. The decision in Bhagwan Dutt v. Smt. Kamla Devi and Anr. 1975 CriLJ 40 , was relied upon in which it was observed by the Apex Court that in determining amount, Magistrate is competent to take into consideration the separate income and means, of wife. 7. A perusal of the reply filed by the present petitioner to the petition under Section 125 Cr.PC. 1975 CriLJ 40 , was relied upon in which it was observed by the Apex Court that in determining amount, Magistrate is competent to take into consideration the separate income and means, of wife. 7. A perusal of the reply filed by the present petitioner to the petition under Section 125 Cr.PC. shows that there were no specific assertions that the respondent was having any monthly income. He also took up the plea in his reply that the applicant is not legally wife of the respondent. In reply, the respondent/present petitioner pleaded that he had been called by the petitioner to pay visit to her at Una, where the respondent was taken to a temple and the petitioner was accompanied by few of her relations whereas no relation from the side of the respondent was present and no ceremony in accordance with law or Hindu Religion was performed. 8. The present petition under Section 125(1) Cr.PC. for the grant of interim maintenance has to be decided on the basis of the allegations made in the petition, the reply filed and whatever documents are placed on record. Insofar as the contention made by the learned Counsel for the petitioner is concerned that there were no allegations made in the petition that the petitioner was unable to maintain herself, these allegations do find mention in the petition filed by the applicant. In reply to petition under Section 125 Cr.PC., there were no allegations specifically made by the present petitioner in regard to the applicant's income except the assertions made during the course of arguments that she owns property at three places. The allegations made by the applicant are yet to be proved and the applicant's evidence has also been recorded. The learned Sessions Judge decided the interim application on the basis of the martial placed on record and keeping in view the reply and petition filed by the respondent, the said order cannot be said to be illegal calling for an interference by this Court and accordingly, there is no merit in the petition, which is dismissed accordingly. 9. The case is pending since long. The learned trial Court shall try to dispose of the case within three months from today and the date for respondent's evidence be fixed on day-to-day basis. A copy of the order be sent to the learned trial Court for information. 9. The case is pending since long. The learned trial Court shall try to dispose of the case within three months from today and the date for respondent's evidence be fixed on day-to-day basis. A copy of the order be sent to the learned trial Court for information. Record be sent to the Court(s) concerned. Parties to appear before the learned trial Court on 7th June, 2008. 10. The observations made above are relevant for disposal of the present petition only. These shall not be construed as an opinion on the merits of the case. 11. In view of the final disposal of the main petition, all the pending Cr. Misc. Applications, if any, shall stand disposed of and stay order dated 2.11.2007 passed in Cr.M.P. No. 518 of 2007, shall also stand vacated.