1. Respondent and her son Sachin Kumar filed maintenance application under Section 488 Cr. P.C in the Court of learned Judicial Magistrate, Sub Judge, Nowshera on 22nd of December, 2003 on the ground that the respondent is the legally wedded wife of the peti tioner, which marriage was solem nized in the year 1982 in accordance with Hindu Rites. It was also pleaded that out of the said wedlock, the claim ant No.2 Sachin Kumar was born and is living with his mother. The mainte nance application was filed on the ground that the petitioner herein has deserted the respondent. The petitioner who was respondent in the mainte nance application denied his marriage with respondent No. 1 and specifically pleaded in the objections filed before the learned Trial Court that the present petitioner was married to one Kamlesh Devi in the year 1970 in accordance with Hindu Rites and that the Kamlesh Devi has begotten children to the peti tioner. In order to support his plead ings, copies of voter list for the year 1975 and 1980 were also placed on record along with the objections of the petitioner. 2. After conclusion of the Trial, the learned trial Magistrate vide order dated 4th December, 2010 allowed the maintenance application and recorded the finding that respondent is legally wedded wife of the petitioner and that the petitioner has failed to maintain her and ordered for payment of main tenance to the respondent @ Rs. 15,00/- per month. The petitioner feeling ag grieved of the said order, challenged the same in Criminal Revision before the learned Sessions Judge, Rajouri, which petition was dismissed by the learned Revisional Court vide its order dated 4th December, 2010. The peti tioner being aggrieved of this order has called it question in this petition filed under Section 561-A Cr. P.C. 3. Mr. Raina, learned Senior Advo cate, submitted that the petitioner was married to one lady and out of the said wedlock, 4 children were born. Learned counsel submitted that in presence of the marriage, the respondent could not legally marry with the petitioner and is not entitled to any maintenance.
P.C. 3. Mr. Raina, learned Senior Advo cate, submitted that the petitioner was married to one lady and out of the said wedlock, 4 children were born. Learned counsel submitted that in presence of the marriage, the respondent could not legally marry with the petitioner and is not entitled to any maintenance. Learned counsel also submitted that since the order of the trial Court, hold ing the respondent to be legally wedded wife of the petitioner and directing for payment of maintenance has direct impact on the status of the wife of the petitioner, notice was required to be is sued to the said lady and after giving the opportunity of hearing, the appro priate orders could have been passed by the learned Trial Magistrate. Learned counsel also referred to the statement of the respondent and sub mitted that she has not tendered any explanation in respect of the first mar riage of the petitioner. Learned coun sel in support of his contentions re ferred to and relied upon the judgment in case titled D. Velusamy, Appellant vs. D. Patchaiammal, Respondent reported in (2010) 10 SCC 469 , case titled C.S. Krishnamurthy, Appellant Vs. State of Karnataka, Respondent re ported in 2005 CRI. L. J. 2145 and case titled Smt. Yamunabhai Anantrao Adhav, Appellant Vs. Anantrao Shivram Adhav & Anr, Respondentsreported in 1988 CRI. L.J. 793 and submitted that in view of the law laid down, this peti tion deserves to be allowed. Learned counsel also submitted that the con tention of the petitioner that he was married, has not been accepted by the Trial Court as also by the Revisional Court on the ground that there was in consistency between the pleadings and evidence. Learned counsel in order to explain it, submitted that since the petitioner as also one of his sons stepped into witness box to prove the marriage, the learned Trial Court as also the Revisional Court should not have rejected the claims so made. Learned counsel also submitted that this petition be allowed and in the al ternative, the impugned order be set aside and the case be remitted back to Trial Court with the direction that he shall issue notice to the lady, who is said to be wife of the petitioner, and af ter hearing her, pass the orders. 4. Mrs.
Learned counsel also submitted that this petition be allowed and in the al ternative, the impugned order be set aside and the case be remitted back to Trial Court with the direction that he shall issue notice to the lady, who is said to be wife of the petitioner, and af ter hearing her, pass the orders. 4. Mrs. Rozina, learned counsel for respondent raised objection about the maintainability of the petition and sub mitted that in view of concurrent find ings of the Trail Court and Revisional Court, this petition under Section 561-ACr.PC is not maintainable. 5. Learned counsel for the respon dent submitted that it has been proved that the respondent is legally wedded wife of the petitioner and having been deserted, the learned Trial Court was justified in issuing the order for grant of maintenance. Learned counsel fur ther submitted that the learned Trial Court as also the Revisional Court has passed the orders which are correct in law. Learned counsel submitted that the evidence which has been tendered by the petitioner in support of his case before the learned Trial Court being in consistent with the plea taken in the objections, it cannot be said that the marriage which the petitioner claims to have solemnized prior to his marry ing the respondent has been proved. Learned counsel in support of her ar guments referred to judgments in cases titled Smt. Yamunabhai Anantrao Adhav, Appellant Vs. Anantrao Shivram Adhav and another, Respon dents reported in 1988 CRI.L.J. 793, Sham Lal Vs. Kanta Devi reported in petitionno. 19/1991 under Section 561-ACr. P.C, decided on 10.05.1991, Hero Vinoth (minor) vs. Seshammal reported in 2006(5) SCC 545 , D. Velusamy, Ap pellant vs. D. Patchaiammal, Respon dent reported in (2010) 10 SCC 469 , and Samidurai Vs. Rajalakshmi reported in 1999 Cr. L. J. 2074. 6. In the maintenance application filed by the respondent and her son, it was pleaded that the respondent mar ried with the petitioner in the year 1982 in accordance with Hindu Rites. From the said wedlock, a son was also born. The maintenance application was filed on the ground that the petitioner deserted respondent and her son. 7. The petitioner as already stated in the objections has taken specific plea that he was married to one Kamlesh Devi in the year 1970, and from the said wedlock, children were also born.
From the said wedlock, a son was also born. The maintenance application was filed on the ground that the petitioner deserted respondent and her son. 7. The petitioner as already stated in the objections has taken specific plea that he was married to one Kamlesh Devi in the year 1970, and from the said wedlock, children were also born. In support of his said aver ments, he has also filed copies of the voter list of the year 1975 and 1980. The petitioner had specifically denied of ever having married with the re spondent. 8. The respondent in support of her maintenance application deposed that in the year 1982, she married with pe titioner and the marriage ceremonies were performed at Nowshera. It was also stated in the evidence before the Trial Court that after the marriage, the respondent lived with the petitioner at Jammu and also lived at Nowshera where the petitioner had rented out some accommodation. 9. The respondent also stated in her statement that petitioner would not be in a position to come to home regularly and after solemnization of marriage, he occasionally visited the respondent and paid her the amount of Rs.200-400.The respondent also referred to some pho tographs which she claimed to have been taken with the petitioner at Jammu immediately after her mar riage. She also stated in her statement after 8/9 years of her marriage, the petitioner stopped visiting her. In her cross-examination, the respondent stated that the marriage between the petitioner and the respondent was per formed by one Gula Ram Pandit resi dent of Nowshera. She also stated that the petitioner had brought some 10/12 persons with him and from the side of the respondent, also 10/12 persons were also present there. She stated before the Trial Court that the marriage was solemnized between the petitioner and respondent only after the father of the petitioner requested for it to the father of the respondent. The father of the petitioner was also invited in the mar riage whose name is stated to be Thoru Ram. She also named the place where she lived at Jammu. In the cross-ex amination, it appears that she was asked about Kamlesh Devi and she spe cifically stated that she does not know the said lady and also was not knowing the children. She denied that the pe titioner was married with Kamlesh Devi.
She also named the place where she lived at Jammu. In the cross-ex amination, it appears that she was asked about Kamlesh Devi and she spe cifically stated that she does not know the said lady and also was not knowing the children. She denied that the pe titioner was married with Kamlesh Devi. She specifically asserted that the petitioner was married with the re spondent. In the cross-examination, she also stated that she did not enquire as to whether the petitioner has mar ried with one Kamlesh Devi. She fur ther stated that when her son was taken ill, she talked to the petitioner on phone, phone number is recorded in the statement tendered by respondent before trial Court. 10. In the cross-examination, when reference was made to the photographs, the respondent stated that when same were taken she was not having good re lationship with the petitioner. 11. The petitioner in his statement recorded by the Trial Court on 22nd Oc tober, 2008 stated that he was married to one Parvesh Kumari in the year 1970 at R.S. Pura in accordance with Hindu Rites and that after the wedlock four children were born. He also stated that Parvesh Kumari is alive. Petitioner in his statement before the Trial Court asserted that he was not married with the respondent and the claimant No.2 was not his son. He also stated that from the year 1977 to 1980 in connec tion with his professional work, he vis ited Nowshera and had taken a room on rent. In the cross-examination, also the petitioner specifically stated that he was not married with the respon dent and the claimant No. 2 is not his child. 12. The petitioner in his objections has taken a specific stand that he is married to one Kamlesh Devi. In the statement tendered before the Trial Court he has stated that he is married to one Parvesh Kumari. This state ment was recorded by the Trial Court after filing of objections. He has not taken steps to clarify as to whether Parvesh Kumari and Kamlesh Devi are one and the same persons. What was suggested by the counsel for the peti tioner to the respondents in cross-ex amination was that Kamlesh Devi is the wife of the petitioner.
This state ment was recorded by the Trial Court after filing of objections. He has not taken steps to clarify as to whether Parvesh Kumari and Kamlesh Devi are one and the same persons. What was suggested by the counsel for the peti tioner to the respondents in cross-ex amination was that Kamlesh Devi is the wife of the petitioner. The peti tioner in his statement and also the other witnesses, who appeared on be half of the petitioner have also taken a stand that petitioner is married to Parvesh Kumari. 13. The parties are required to prove their stand taken in the pleadings. Any amount of evidence which is not in tune or inconsonance with the plead ings on a material fact cannot be ac cepted. In the peculiar facts and cir cumstances of the case, the petitioner has failed to prove his marriage as al leged by him both in the objections as also in his statement given before the Trial Court. He has not proved that he is married to Kamlesh Devi in the year 1970. His evidence before the Trial Court was that he was married to Parvesh Kumari. The factum of mar riage, which he asserted in his objec tion, has not been proved by him. Resultantly, grant of maintenance to respondent is justified as she in her statement and also other evidence ad duced in unequivocal terms has proved that she was married to the petitioner in accordance with Hindu Rites. 14. The contentions of the learned counsel for the petitioner are that in the presence of first marriage, the sec ond marriage is nullity. This submis sion cannot be accepted in the facts of this case as no marriage prior to the petitioner's marriage with the respon dent has been proved on record. In the pleadings, Kamlesh Devi is shown to be his wife and in the evidence Parvesh Kumari is said to be his wife, the issu ance of notice to wife is not possible in the facts of this case. The judgments referred to by the learned counsel for petitioner are not applicable to the facts of this case. 15. The petition stands dismissed. 16. Record be sent back. This judg ment, however, shall not preclude the petitioner from seeking appropriate re lief in appropriate proceedings, if ad vised to file.