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Madhya Pradesh High Court · body

2012 DIGILAW 151 (MP)

SHANKARLAL v. SAVITRIBAI

2012-02-02

N.K.GUPTA

body2012
Judgement N K Gupta, J [1] The applicant-husband has preferred this application under Section 482 of Cr.P.C. against the order dated 9.3.2010 passed by the Additional Sessions Judge, Kotma District Anuppur (Shri B.S.Dixit) in Criminal Revision No.1/2010 by which the revision application was dismissed and the order dated 4.11.2009 passed in M.Cr.C. No.9/2009 by the Judicial Magistrate First Class, Kotma District Anuppur (Shri SPS Bundela) was confirmed. [2] The brief facts of the case are that the respondents herein had moved an application before the trial Court under Section 125 of Cr.P.C. that the marriage of the respondent No.1 Savitribai took place with the applicant in the year 1999 which was followed by her Gona. Thereafter she resided with the applicant and respondent No.2 was born on 21.5.2005. During the pregnancy of respondent No.2, applicant ousted respondent No.1, and therefore she had lodged an FIR at Police Station Jaithari District Anuppur. The respondent No.1 was not working, and therefore she was unable to maintain herself. Consequently, she prayed for a sum of Rs.3,000/- per month as a maintenance amount against the applicant. After delivery of the child (respondent No.2), a sum of Rs.2,000/- per month was also demanded for that child. [3] The applicant-husband in reply denied all the allegations. He has specifically pleaded that the grand father of the respondent No.1 kept a woman of caste Ghasiniya, and therefore he was ousted from his caste, therefore applicant could not marry with the respondent No.1 because of that social boycott. The respondent No.1 had illicit relations with one Lalaman, and therefore child born to the respondent No.1 was not of the applicant. It was also pleaded that applicant being Guruji under Education Guarantee Scheme earns a sum of Rs.1,000/- as a salary, and therefore he was unable to provide maintenance to the respondents. [4] After considering the evidence adduced by both the parties, learned Magistrate found that the marriage of the respondent No.1 took place with the applicant and child was also born to her. Under such circumstances, the monthly maintenance amount of Rs.800/- and 500/- was granted to the respondents No.1 and 2 respectively. The Additional Sessions Judge dismissed the revision application and confirmed the order passed by the JMFC concerned. [5] Heard the learned counsel for the parties. [6] Learned counsel for the applicant has submitted that the respondent No.1 was not a wedded wife of the applicant. The Additional Sessions Judge dismissed the revision application and confirmed the order passed by the JMFC concerned. [5] Heard the learned counsel for the parties. [6] Learned counsel for the applicant has submitted that the respondent No.1 was not a wedded wife of the applicant. On the basis of entry in the voter list, respondent No.1 wants to get the advantage whereas the applicant was already married to one Sumitra Bai and two children were born with Sumitra Bai to the applicant. Under such circumstances, respondent No.1 could not get any maintenance from the applicant. Similarly, it was not at all proved that the respondent No.2 was the child of the applicant, and therefore both the Courts below have wrongly directed for payment of maintenance to the respondents. Learned counsel for the applicant has placed his reliance on the order of the Hon'ble Apex Court in the case of "Khemchand Om Prakash Sharma Vs. State of Gujrat,, 2000 3 SCC 753 " in which it is held that if first wife is alive and marriage had not annulled by any method, then no maintenance can be granted in favour of second wife. Similarly, he has placed his reliance on the judgment of the Hon'ble Apex Court in the case of "D. Velusamy Vs. D. Patchaiammal, 2010 10 SCC 469 " in which it is held that for purpose of Section 125 of Cr.P.C., "wife" means legally wedded wife, and therefore it is requested that the orders passed by both the Courts below may be set aside. [7] On the other hand, learned counsel for the respondents has submitted that the respondent No.1 was a wedded wife of applicant No.1. The learned JMFC has rightly held that respondent No.1 was a wedded wife, and therefore maintenance was granted to respondents No.1 and 2. No illegality or perversity can be found in the impugned orders, and therefore it is a second revision filed by the applicant in the garb of application under Section 482 of Cr.P.C., which cannot be entertained. [8] At present there is concurrent finding of both the Courts below about the marriage of applicant and the respondent No.1. However, if any drastic mistake has been committed by the trial Court, then such a point can be reconsidered. The learned JMFC has erred in presuming the marriage of the applicant and the respondent No.1. [8] At present there is concurrent finding of both the Courts below about the marriage of applicant and the respondent No.1. However, if any drastic mistake has been committed by the trial Court, then such a point can be reconsidered. The learned JMFC has erred in presuming the marriage of the applicant and the respondent No.1. A specific pleading was made by the applicant that grand father of the respondent No.1 kept one woman of Ghasiniya caste, and therefore he was ousted from the caste, and therefore there was no possibility by which the applicant could enter into the contract of marriage with respondent No.1. The respondent No.1 has examined four witnesses before the trial Court to prove her marriage, but amongst them Shivbhajan Kewat (PW-2), who was of same caste as of the applicant, has admitted in para 9 of his cross examination that he had no social relations with the father of respondent No.1. He did not take any meals etc. in the house of father of respondent No.1. Similarly, Babulal Kewat (PW-4) has admitted in para 7 that grand father of respondent No.1 was ousted from the caste, because he kept one woman of other caste. He has also admitted that no marriage took place of the father of respondent No.1. He has also kept one woman, and therefore brother of respondent No.1 could not get himself married. Under such circumstances, marriage of the applicant and the respondent No.1 should be proved strictly. [9] Shivbhajan Kewat (PW-2), claims that he visited in the marriage ceremony whereas he has no relation with the father of respondent No.1, because he was ousted from the caste. A person who is unable to visit the house of father of respondent No.1, then it was not possible for him to attend the marriage ceremony of the respondent No.1. It appears that he is a tutored witness. Bela Bai (PW-3) and Babulal Kewat (PW-4) have deposed that in their caste bride goes with baraat and marriage takes place in the village of bridegroom, but Babulal Kewat has admitted that baraat did not start from village Malanga where respondent No.1 was residing prior to her marriage. But contrary to this fact, Bela Bai (PW-3) admits that baraat started from village Malanga and marriage of the applicant and respondent No.1 took place 13 years ago. But contrary to this fact, Bela Bai (PW-3) admits that baraat started from village Malanga and marriage of the applicant and respondent No.1 took place 13 years ago. However, looking to the age of this witness as mentioned in the affidavit and in the cross examination, it appears that her affidavit was prepared by some advocate and she was not aware of the facts as mentioned in the affidavit. However, she has admitted that no person of Kewat caste went in that baraat. [10] For the sake of arguments, if it is admitted that the marriage of the applicant and the respondent No.1 took place in the year 1999, then why the voter list of that period is not submitted before the Court. Ex.P-7 is the voter list prepared in the year 2004 in which the name of respondent No.1 was mentioned in the voter list, at entry No.638 and her husband's name was mentioned as Shankarlal. The respondent No.1 Savitribai could not state the reason as to why no child was born in six years of her marriage. In such circumstances, the documents which are submitted in favour of respondent No.1 clearly indicate that there is no evidence in favour of respondent No.1 to show that she was residing with the applicant prior to the year 2004, and therefore oral evidence given by various witnesses in support of respondent No.1 cannot be relied. The learned JMFC has committed an error in holding that the marriage of the applicant and the respondent No.1 was properly proved. The respondent No.1 is claiming that her marriage took place in the year 1999, but looking to the specific allegations that her grand father was ousted from the caste and marriage could not take place, it appears that no marriage took place in the year 1999. It is not the claim of respondent No.1 that marriage took place in the year 2004, therefore if she resided with the applicant for sometime, then she cannot be said to be a wedded wife in the eye of law. Under such circumstances, in the light of the judgment of the Hon'ble Apex Court in the case of D. Velusamy , respondent No.1 was not at all the wife of applicant in the eye of law under the provisions of Section 125 of Cr.P.C., and therefore she was not entitled to any maintenance. Under such circumstances, in the light of the judgment of the Hon'ble Apex Court in the case of D. Velusamy , respondent No.1 was not at all the wife of applicant in the eye of law under the provisions of Section 125 of Cr.P.C., and therefore she was not entitled to any maintenance. [11] The learned JMFC has not committed any mistake in appreciation of evidence, but he has drawn his conclusion without any substantial evidence. Under such circumstances, a legal mistake has been committed about the presumption and purpose of the marriage. Applicant has tried to prove that his marriage took place with one Sumitra Bai in the year 1994. The marriage of Sumitra Bai was not at all relevant in the present case, because the respondent No.1 has alleged that after throwing her out, applicant kept Sumitra Bai in the house. Some certificates are also produced to show that the marriage took place between Sumitra Bai and the applicant and two children were born. But important thing is that whether Sumitra Bai was the first wife of the applicant, because if marriage of Sumitra Bai took place in the year 1994, then she could be a first wife and in the light of the order of the Hon'ble Apex Court in the case of Khemchand , no second wife could get any maintenance. However, the applicant could not prove that his marriage took place with Sumitra Bai in the year 1994. As per the document Ex.D-3, children were born to Sumitra Bai in the year 2006 and 2008. [12] Most important fact is that the applicant has not pleaded in his reply that he was also married to some Sumitra Bai, and therefore evidence relating to his marriage with Sumitra Bai is an after thought. If marriage of Sumitra Bai took place in the year 1994, then what was the reason that in last 12 years no child was born to her. The voter card is also submitted in the case file by which it would be clear that Sumitra Bai was born in the year 1981, and therefore in the year 1994 she was only 13 years of age and in such a condition it may be a case of child marriage, and therefore according to their custom, Gona must have been performed after sometime of marriage. [13] Witness Shivdayal Kewat (DW-2) was a key witness in the case, who has managed the certificate issued in favour of the applicant about his marriage with Sumitra Bai. He was the President of Kewat Samaj Kalyan Committee of that village and by issuance of certificate Ex.D-6, a consequential certificate was obtained from Gram Panchayat, which was placed at Ex.D-7. Shivdayal Kewat (DW-2) has stated that at the time of marriage, Sumitra Bai was only 8-10 years old and after sometime Gona was performed and she was taken to the house of applicant. But other witnesses viz. Pancharam Kewat (DW-3) and alleged wife Savitribai (DW-4) could not manage the calculation done by Shivdayal. Savitribai has stated that she was 18 years old in her marriage and therefore she has stated in the Court that she was 33 years old, but that is contradictory to the statement of Shivdayal. Savitribai has stated that no child was born to her in last 12 years because it was blessings from the Almighty whereas Shivdayal has stated that she was 8-10 years old at the time of marriage, and therefore when she was brought to the house of applicant, two children were born. [14] In such circumstances, it would be apparent that the marriage of Savitribai and the applicant did not take place in the year 1994 and it cannot be said that she was a first wife. On the contrary, it appears that she remained with the applicant after the year 2005 because there is nothing in the reply filed by the applicant before the trial Court about the marriage of Savitribai etc. Under such circumstances, the order of the Hon'ble Apex Court in the case of Khemchand is not applicable in the present case at all. [15] The applicant has also disputed that the respondent No.2 is not the child of applicant. However, he could not give the explanation as to why the name of Savitribai was given in the voter list and why he was there with Savitribai in a photograph. Under such circumstances, it appears that he kept Savitribai for few months from 2004, and therefore the name of Savitribai was there in the voter list. After ousting Savitribai, he brought Sumitra Bai in his house, and therefore two children were born to Sumitra Bai thereafter. Under such circumstances, it appears that he kept Savitribai for few months from 2004, and therefore the name of Savitribai was there in the voter list. After ousting Savitribai, he brought Sumitra Bai in his house, and therefore two children were born to Sumitra Bai thereafter. Under such circumstances, where the respondent No.1 was residing with the applicant in his house, it cannot be said that child born to the respondent No.1 was not of the applicant. If a child is born because of invalid marriage, then she is entitled to get maintenance under Section 125 of Cr.P.C., and therefore both the Courts below have rightly awarded the maintenance to the respondent No.2. [16] On the basis of aforesaid discussion, no error of law was committed by both the Courts below in granting maintenance to the respondent No.2, but it is visible that learned JMFC has erred in presuming that respondent No.1 was the "wife" of applicant. Their marriage was not at all proved. Under such circumstances, in the light of the judgment of the Hon'ble Apex Court in the case of D. Velusamy , respondent No.1 was not entitled to get any maintenance from the applicant, and therefore in awarding maintenance to respondent No.1, learned JMFC has committed mistake of law. Maintenance could not be granted to a woman who was not the wife and hence it was granted without any jurisdiction, and therefore it could be corrected in the revision, but learned Additional Sessions Judge did not consider this fact, therefore it would be proper to interfere in the orders of both the Courts below in granting maintenance to the respondent No.1 by invoking extra ordinary jurisdiction under Section 482 of Cr.P.C. [17] Consequently, the present application under Section 482 of Cr.P.C. is hereby partly allowed and the orders of both the Courts below relating to grant of maintenance to respondent No.2 are hereby maintained, but the orders relating to grant of maintenance to respondent No.1 are hereby set aside. If any maintenance is paid to the respondent No.1 in compliance to such orders, then that maintenance may be adjusted with maintenance of respondent No.2, which is payable in future. Application allowed.