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Allahabad High Court · body

2008 DIGILAW 380 (ALL)

RAMA SHANKER CHAUHAN v. STATE OF UTTAR PRADESH

2008-02-20

R.K.RASTOGI

body2008
JUDGMENT Hon’ble R.K. Rastogi, J.—This is a revision against the judgments and orders dated 20.2.2001 and 30.9.2005 passed by the Judge Family Court, Azamgarh in Criminal Case No. 123 of 1998, Haushala Devi v. Rama Shanker Chauhan and Misc. Application No. 94 of 2003, Rama Shankar Chauhan v. Haushala Devi, respectively. 2. The facts relevant for disposal of this revision are that the opposite party No. 2 Haushla Devi had filed an application under Section 125, Cr.P.C. against the revisionist which was registered as Criminal Case No. 123 of 1998, in the Family Court, Azamgarh alleging therein that she is legally wedded wife of the revisionist Rama Shankar Chauhan, who was not maintaining her and had deserted her and so she had claimed maintenance from him under Section 125, Cr.P.C. The revisionist filed written statement in the above case in which he denied his marriage with Haushla Devi alleging that he is not liable to pay any amount as maintenance because she is not his wife. 3. At the stage of evidence the revisionist did not appear before the trial Court and so the case was heard ex parte and it was decided ex parte on 20.2.2001 whereby maintenance at the rate of Rs. 300/- per month was awarded in favour of opposite party No. 2 from the date of the application. 4. Aggrieved with that judgment and order the revisionist moved an application before the Judge Family Court for setting it aside. This application was rejected by the learned Judge Family Court vide order dated 30.9.2005. Aggrieved with both these orders, revisionist Rama Shankar Chauhan filed this revision. 5. Learned Counsel for the revisionist submitted before me that the first marriage of Smt. Haushla Devi had taken place with Sri Ravindra Prasad and no divorce had taken place between them and as such, she could not legally marry the revisionist Rama Shankar Chauhan, and so the revisionist should not be held liable for payment of maintenance to her. Revisionist has filed certified copy of the judgment passed by Sri K.K. Singh, learned A.C.J.M. Court No. 12, Azamgarh in Criminal Case No. 119/2004, Haushla Devi v. Rama Shankar, his brother Mukhnath Chauhan and Smt. Mukhali Devi under Sections 498-A, 323, 504 and 506, I.P.C. P.S. Ronapar District Azamgarh. Revisionist has filed certified copy of the judgment passed by Sri K.K. Singh, learned A.C.J.M. Court No. 12, Azamgarh in Criminal Case No. 119/2004, Haushla Devi v. Rama Shankar, his brother Mukhnath Chauhan and Smt. Mukhali Devi under Sections 498-A, 323, 504 and 506, I.P.C. P.S. Ronapar District Azamgarh. He submitted that this complaint was filed by Haushla Devi with these allegations that her marriage had taken place with Ramashankar but Rama Shankar and his family members were not satisfied with the dowry given at the time of marriage and so they were committing atrocities upon her. This complaint was dismissed by the learned A.C.J.M. vide order dated 30.5.2005. A certified copy of the judgment and order dated 30.5.2005 has been filed as Annexure 4 of the affidavit filed in support of the stay application and its perusal goes to show that the learned Magistrate held in this judgment that the first marriage of Haushla Devi had taken place with Ravindra Prasad and thereafter no divorce had taken place between them and so Haushla Devi could not perform her second marriage with Rama Shankar before taking divorce from Ravindra Prasad. Hence, the complaint of Haushla Devi was dismissed by the learned A.C.J.M. 6. It was submitted by the learned Counsel for the revisionist that the first and foremost condition for award of maintenance under Section 125, Cr.P.C. is that there must be relationship of husband and wife on the basis of a valid marriage. In the present case the learned Judge Family Court has recorded a finding in the impugned judgment that Smt. Haushla Devi was the legally wedded wife of Rama Shankar but it is to be seen that it is an ex parte finding as no evidence had been led by the revisionist Rama Shankar to refute the allegation of marriage with her. His application for setting aside the ex parte order was also dismissed by the learned Judge Family Court but it is an essential condition for award of maintenance under Section 125, Cr.P.C. that the claimant must be the legally wedded wife and since no finding on this point has been recorded on merits by the learned Judge, Family Court, as has been discussed above, I am of the view that it would be more appropriate to remand the matter to the learned Judge, Family Court, Azamgarh to decide the application under Section 125, Cr.P.C. afresh after recording a finding regarding marital position of the parties. 7. The revision is, therefore, allowed. The judgments and orders dated 20.2.2001 and 30.9.2005 passed by the Judge Family Court, Azamgarh in Criminal Case No. 123 of 1998 and Misc. Application No. 94 of 2003 are hereby set aside and the matter is remanded to the Judge, Family Court, Azamgarh for rehearing in the light of the observations made in the body of the judgment. The parties shall appear in his Court on 25.3.2008 and then the learned Judge Family Court, after providing opportunity to lead evidence to the parties in support of their contentions, shall decide the application under Section 125, Cr.P.C. afresh. ————