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2011 DIGILAW 926 (MP)

Ram Bahore Saket v. Sheela @ Asha

2011-08-11

NARESH KUMAR GUPTA

body2011
ORDER : N.K. Gupta, J. JMFC Rewa (Shri Rupesh Kumar Mandil) vide order dated 27.12.2006 in Misc. Criminal Case No. 25/2006 dismissed the application u/s 125 of Cr.P.C. filed by the applicants before the Trial Court/non-applicants at present. In criminal revision No. 33/2007, learned Additional Sessions Judge, Rewa vide order dated 15.12.2007 accepted the revision in a partial manner and granted maintenance of Rs. 700 per month to the non-applicant No. 2 Aneesh Kumar Saket. Being aggrieved with the order passed by the learned Additional Sessions Judge, Rewa, the applicant/non-applicant before the Magisterial Court has preferred this revision. 2. The application u/s 125 of Cr.P.C. filed by the applicants before the Trial Court, in short, is that the applicant No. 1 Sheela (c) Asha @ Gujratia was married to one Mangal Saket. The non-applicant Ram Bahore was husband of the sister of Mangal Saket. Mangal Saket has expired in a motor accident and, therefore, the applicant No, 1 Sheela could get the compensation under Workmen's Compensation Act. The non-applicant proposed her for marriage to usurp the compensation amount received by her and, therefore, in January, 1997, the non-applicant and applicant No. 1 had performed their marriage in Sharda Temple, Maihar in presence of relatives. The non-applicant was maintaining the applicant No. 1 and her children. In the month of September, 2000, the applicant No. 2 was born and in the meantime, the entire compensation amount was spent. Thereafter, the non-applicant started misbehaviour with the applicant No. 1 and, ultimately, she was thrown out of the house on 27.7.2002. In the application, she had prayed for a maintenance of Rs. 1,500/- for herself and Rs. 1,500 for her child i.e. applicant No. 2. 3. The non-applicant in his reply had denied the entire pleadings done by the applicants. He had submitted that he was a married person. One Duiji, sister of Mangal was his wife and he had some children with that marriage. He had helped the applicant No. 1 in getting the compensation upon death of her husband. Since the non-applicant had spent a sum of Rs. 8,000 in funeral of her husband and he was demanding the same from applicant No. 1 and her relatives, therefore, the applicant No. 1 has filed a false application against him. He had pleaded that the applicant No. 1 was getting a pension meant for widows. She is earning a sum of Rs. 8,000 in funeral of her husband and he was demanding the same from applicant No. 1 and her relatives, therefore, the applicant No. 1 has filed a false application against him. He had pleaded that the applicant No. 1 was getting a pension meant for widows. She is earning a sum of Rs. 50 per day by her labour job. She took a loan from State Bank of India in the name of Sheela @ Asha widow of Mangal Saket. Under such circumstances, since neither the applicant No. 1 was his wife nor the applicant No. 2 was his son, he prayed that the applicants were not entitled to get any maintenance. 4. Learned Judicial Magistrate, First Class after considering the evidence adduced by the parties, dismissed the application u/s 125 of Cr.P.C. filed by the applicants. However, in criminal revision, the learned Additional Sessions Judge found that though the marriage of the applicant No. 1 was not valid with the non-applicant No. 1 and therefore, she could not get any maintenance u/s 125 of Cr.P.C., but the applicant No. 2 was a child born to the applicant and non-applicant No. 1 and, therefore, he was entitled to get the maintenance and, therefore, the impugned order was passed. 5. I have heard the learned Counsel for the parties. 6. Learned Counsel for the applicant/non-applicant before the Trial Court have submitted that Smt. Sheela was not the wedded wife of the applicant Ram Bahore Saket. No marriage took place between the parties and since the applicant was already married, therefore, second women could not claim as a wife. He has further submitted that paternity of the non-applicant No. 2 Aneesh Kumar was not proved in a proper manner and, therefore, the non-applicant No. 2 could not get any maintenance from the applicant. He has placed his reliance on the order passed by this Court in the case of Hazari Prasad v. Jhagadua, (1965) MPLJ Note 162 and order passed in the case of Nilkantha v. Chandra Kumar, (1967) JLJ Short Note 55. 7. On the other hand, learned Counsel for the non-applicant No. 1 has submitted that the non-applicant No. 2 was born to the applicant and non-applicant No. 1 and, therefore, he was entitled for the maintenance. 7. On the other hand, learned Counsel for the non-applicant No. 1 has submitted that the non-applicant No. 2 was born to the applicant and non-applicant No. 1 and, therefore, he was entitled for the maintenance. Learned Guardian (Shri Prakash Gupta, Advocate appointed for the non-applicant No. 2 has submitted that according to the evidence laid before the Trial Court, the non-applicant No. 2 was a legitimate child of applicant and non-applicant No. 1. In revision, birth certificate was filed before the revisionary Court, in which name of the applicant was mentioned as father of the non-applicant No. 2. He has placed his reliance on the judgment passed by Hon'ble the Apex Court in the case of Bakulabai and Another v. Gangaram and Another, (1988) MPLJ Page 218, in which it was laid that if the marriage although ineffective in the eye of law took place between one male and female, the status of the by must be held to be legitimate in view of the provisions of Section 16(1) of the Hindu Marriage Act, 1956 as amended by the Hindu Marriage Laws Amendment Act 68 of 1976. Even if the factum of marriage of his mother is ignored, the child must be treated as an illegitimate child of the respondent and was entitled to relief by reason of Clauses (b) and (c) of Section 125(1) of Cr.P.C. and, therefore, it is contended that order passed by the learned Additional Sessions Judge seems to be correct and no interference can be made in that order. 8. It is a settled opinion of both the Courts below that Ram Bahore could not marry with non-applicant No. 1 Sheela because his first wife was alive and therefore, if such type of marriage was performed then it is null and void. Though the learned Counsel for the applicant has submitted that child was not born to the non-applicant No. 1 with the applicant but looking to the evidence given by one Jaimaniya (P.W.2), who was mother of the applicant Ram Bahore, it appears that Ram Bahore kept the non-applicant No. 1 Sheela as a wife for 3-4 years. Due to that marriage, 2 sons were born, out of them one was expired and another one is alive. No suggestion was given to the witness that there was any enmity between the witness and applicant Ram Bahore. Due to that marriage, 2 sons were born, out of them one was expired and another one is alive. No suggestion was given to the witness that there was any enmity between the witness and applicant Ram Bahore. Witness Jaimaniya was the mother of the applicant Ram Bahore and, therefore, her testimony should be believed. With the help of evidence given by Jaimaniya, statements of Sheela @ Asha (P.W.1) are duly corroborated. Therefore, the applicant could not contradict the testimony of those two witnesses in any manner. Various witnesses examined on behalf of Ram Bahore were of no use. If Asha Bai was getting pension meant for widows showing herself to be a widow woman, then it creates no point in favour of the applicant Ram Bahore. According to the witness Jaimaniya, it is clear that Ram Bahore was living with non-applicant No. 1 Sheela @ Asha at a particular place, leaving his first wife and children away. It is nowhere rebutted by the applicant that no child was born to the non-applicant No. 1 in that period. The overt act told by witness Jaimaniya that two children were born in that period is duly corroborated by other evidence and, therefore, it is clearly proved that the child Aneesh Kumar was born to the non-applicant No. 1 Asha during her relations with the applicant Ram Bahore. 9. Under such circumstances, orders passed by this Court in the case of Hazari Prasad (supra) and Nilkantha (supra), are not relevant in the present case. Paternity of the non-applicant No. 2 is duly proved. On the contrary, in the light of the judgment passed by Hon'ble the Apex Court in the case of Bakulabai (supra), it would be clear that though marriage of the applicant and non-applicant No. 1 was null and void, still non-applicant No. 2 could get the maintenance from the applicant. Maintenance amount seems to be proper. Under such circumstances, there is no reason by which any interference can be made in the order passed by the learned Additional Sessions Judge, Rewa. 10. On the basis of the aforesaid discussion, the revision filed by the applicant could not be accepted. The impugned order seems to be proper. No illegality or perversity is visible in that order. Consequently, the revision petition filed by the applicant is hereby dismissed. 11. 10. On the basis of the aforesaid discussion, the revision filed by the applicant could not be accepted. The impugned order seems to be proper. No illegality or perversity is visible in that order. Consequently, the revision petition filed by the applicant is hereby dismissed. 11. Shri Prakash Gupta was appointed as guardian for the non-applicant No. 2 and it was directed that a sum of Rs. 5,000 be provided to Shri Prakash Gupta as fees of guardian. It appears that the applicant has not deposited that sum, therefore, JMFC Rewa is directed to recover that sum from the applicant during the execution of maintenance and to transmit it to Shri Prakash Gupta, Advocate, Jabalpur, through Registry of this Court.