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Himachal Pradesh High Court · body

2008 DIGILAW 503 (HP)

CHATTER KALA v. CHET RAM

2008-10-01

R.B.MISRA

body2008
JUDGMENT : R.B. Misra, J. 1. Heard learned counsel for the parties. The present revision petition has been preferred under section 397 of Cr.P.C. against the order dated 11.1.2007 passed by learned Addl. Sessions Judge, Mandi, District Mandi, HP in Cr. Revision No. 9/2006 titled as Chet Ram vs. Chatter Kala, whereby the judgment dated 28.2.2006 passed by learned Addl. Chief Judicial Magistrate, Karsog, District Mandi, HP in case No. 159-IV of 2004, has been set aside. 2. The petitioner Chatter Kala preferred a petition under section 125 of Cr.P.C before Addl. Chief Judicial Magistrate, Karsog, District Mandi for awarding maintenance for sum of Rs. 300/- whereby learned Addl. Chief Judicial Magistrate vide its order dated 28.2.2006 awarded maintenance of Rs. 500/- per month to the petitioner, from the date of filing of application. Being aggrieved, respondent Sh. Chet Ram, preferred a criminal revision No. 9.2006 before learned Additional Sessions Judge, Mandi, HP and on adjudication, the said revision was allowed vide order dated 11.1.2007 by learned Addl. Sessions Judge, Mandi District, thereby setting aside the order dated 28.2.2006 passed by learned Addl. Chief Judicial Magistrate, Karsog, District Mandi. 3. Being aggrieved against the order dated 11.1.2007, petitioner has preferred the present revision petition. In order to adjudicate the present controversy, it is necessary to refer the factual background of the case. 4. According to the petitioner, her marriage was solemnized on 14.10.1987 and in the beginning she remained comfortable with respondent, but after some time, she was badly treated by the respondent and was ousted from her matrimonial house. However, for a couple of months, she was again brought by the respondent but again was given bad treatment and was ousted by the respondent from her matrimonial house and from 1991 she had been residing with her parents as there is no issue from the wedlock. According to the petitioner, respondent had earlier married with one Churamani as his first wife and a child was born from the first wife on 24.1.1978, who is serving now in Army. However, according to the petitioner, respondent divorced his first wife and had again married with the petitioner. In order to adjudicate the petition preferred under section 125 Cr.P.C. learned Addl. Chief Judicial Magistrate framed as many four issues which are as under: 1. Whether the petitioner is legally wedded wife of respondent? 2. However, according to the petitioner, respondent divorced his first wife and had again married with the petitioner. In order to adjudicate the petition preferred under section 125 Cr.P.C. learned Addl. Chief Judicial Magistrate framed as many four issues which are as under: 1. Whether the petitioner is legally wedded wife of respondent? 2. Whether the respondent has wilfully and intentionally neglected the petitioner from maintenance? 3. Whether the respondent is having sufficient means and liable to maintain the petitioner. 4. Final order? 5. Learned Addl. Chief Judicial Magistrate also examined as many as six witnesses i.e. PW-1, petitioner Chatter Kala, PW-2 Baldev Singh, Panchayat Assistant, PW-3, Krishan Lal, Jr. Assistant of Ayurvedic Hospital, PW-4 Sarna, PW-5, Mr. Shera, father of Chatter Kala and PW-6 Mukand Sharma, Panchayat Secretary of Gram Panchayat, Taluna. RW-1, Chet Ram was also examined. RW-2, Paras Ram, son of Chet Ram from first wife was also examined. RW-3 Smt. Churamani, first wife of respondent was also examined. 6. As per testimony of PW-1, Chatter Kala, she had been married with respondent on 14.10.1987 and to that effect, an affidavit of respondent has also been exhibited as Ext PA, which reveals that respondent has put signature on this affidavit and has declared that he has married to petitioner as per Hindu rituals. PW-2 Baldev Singh has deposed that as per Panchayat Register, the marriage of petitioner with respondent was recorded as 10.11.1987. However, as per testimony of PW-2, nothing has been indicated about the divorce of respondent with his first wife, namely, Churamani. PW-3 has simply testified that respondent is working in Ayurvedic hospital as an employee and his salary certificate has been produced. As per testimony of PW-4, it becomes apparent that the marriage of respondent with petitioner took place in the year 1987, however, nothing has been revealed from the testimony of PW-4 that the first wife of respondent was divorced and thereafter the second time respondent had married with the petitioner. According to testimony of PW-5 (Sheru), the father of petitioner, marriage of petitioner with respondent Chet Ram took place firstly in the court and thereafter the same was solemnized according to traditional way and in cross examination he has expressly indicated that there was no `Pandit' in the marriage ceremony and the same was solemnized according to the traditional way. According to testimony of PW-5 (Sheru), the father of petitioner, marriage of petitioner with respondent Chet Ram took place firstly in the court and thereafter the same was solemnized according to traditional way and in cross examination he has expressly indicated that there was no `Pandit' in the marriage ceremony and the same was solemnized according to the traditional way. The testimony of PW-5 also does not disclose anything about the existence of any material record of divorce having been ever granted by Chet Ram to his first wife Churamani. RW-1, (Chet Ram), has, however, denied the existence of marriage, but, he could not deny the existence of affidavit. RW-2 (Paras Ram) has deposed that his father Chet Ram had married with Churamani, (his mother) and he was born in 1978 and is serving in Army since 1996. According to RW-2, his father Chet Ram has never married with Chatter Kala and the petitioner had never resided with his father as a wife. RW-3, Churamani has claimed to have been legally married with respondent. She has also stated that she was never married earlier and is not a divorce. As per her testimony, she was married with Chet Ram and she had been residing with Chet Ram as a wife and (RW-2) is her son from the said wedlock. 7. However, on the analysis of the witnesses and material on record and relying on the testimony of PW-1, PW-2 and PW-5 and relying on the Exts PW-6/A and PW-2/A, learned Addl. Chief Judicial Magistrate has arrived at finding that the marriage of the petitioner with respondent took place in the year 1987 and being a legally second wife she was entitled for maintenance of Rs. 500/- PM.. Same documents have been analysed by the revisional court, namely, Addl. Sessions Judge, Mandi and additional issues framed are also indicated as below: "1. Whether the impugned order is not sustainable in the eyes of law? 2. Final order." 8. On analysing the testimonies, witnesses and material on record, , learned first revisoinal court has given due importance to the solemnization of marriage of respondent with his first wife, Churamani on 18.4.1975 and the birth of Paras Ram (RW-2) on 24.1.1978 in the house of Chet Ram. 2. Final order." 8. On analysing the testimonies, witnesses and material on record, , learned first revisoinal court has given due importance to the solemnization of marriage of respondent with his first wife, Churamani on 18.4.1975 and the birth of Paras Ram (RW-2) on 24.1.1978 in the house of Chet Ram. Finding no record of divorce in existence of respondent with his first wife Churamani, learned revisional court has arrived at its finding that the testimony of Baldev, Panchayat Assistant as well as Ext PW-2/A, demonstrating from Parivar Register, showing Chatter Kala as wife of Chet Ram after 10.11.1987 is not reliable. According to the first revisional court when RW-2 (Paras Ram) was born on 24.1.1978 in the house of (RW-1) Chet Ram, then Churamani cannot be ceased to be wife of (RW- 1) prior to that. In such a condition, Ext PW-2/A was not said to be reliable. According to the first revisional court, undisputedly, Churamani was firstly legally wedded wife of Chet Ram and Paras Ram, RW-2, was his son from that wed lock and no material of divorcie of Chet Ram with his first wife is in existence, therefore, the reliance on Ext PW-2/A, Parivar register, as well as reliance on Ext PW-6/A, where Churamani was said to be recorded as wife of Narainu S/o Sh. Laturia in Gram Panchayat Taluka was said to be declared as suspicious documents. On analysis of the documents, learned revisional court has indicated that the entry in Ext PW-2/A is wrong. 9. I have heard learned counsel for the parties and have perused the documents. I find that the appraisal of witnesses and evidences have been properly made by the learned revisional court and there is no scope of fresh appraisal of these documents and the inference has correctly been derived from such documents . The learned revisional court vide its impugned order dated 11.1.2007 has correctly relied on the decision of Supreme Court on (Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another) AIR 1988 SC 644 , where it was held that marriage of woman with man already having living spouse as per Hindu rights is nullity and the woman claiming to be subsequent second wife is not entitled to maintenance. The verdict of Hon'ble Supreme Court in the case of Smt. Yamunabai Anantrao Adhav (supra) squarely protects the case of Chet Ram. 10. The verdict of Hon'ble Supreme Court in the case of Smt. Yamunabai Anantrao Adhav (supra) squarely protects the case of Chet Ram. 10. On analysis of the material on record, I find no illegality and impropriety in the order dated 11.1.2007 passed by learned Additional Sessions Judge, Mandi, therefore, in my considered view, the findings arrived in respect of the issues framed by learned first revisional court is not to be interfered with. The revision petition being devoid of merit, is dismissed so also the pending application, if any.