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2012 DIGILAW 518 (JHR)

Ram Kumar Sahu v. Rita Devi

2012-04-05

H.C.MISHRA

body2012
Order 1. Heard learned counsel for the petitioner, learned counsel for the State as also learned counsel for the private opposite party No.1. 2. The petitioner has challenged the order dated 29.5.2010, passed by the learned Principal Judge, Family Court, Gumla, in Maintenance case No. 43 of 2007, on an application filed under Section 125 Cr.P.C., whereby the Court below has directed the petitioner to make the payment of Rs.1,000/- per month to the O.P. No.1, who is said to be the second wife of the petitioner. By the said order, the Court below has also directed the petitioner for making payment of Rs.5,00/- per month to his son Upendra Sahu, born to O.P. No.1, but the said part of the impugned order is not challenged by the petitioner in this revision application. 3. It appears that O.P. No.1-claimant had filed the application under Section 125 Cr.P.C claiming maintenance, wherein it is stated that the said O.P.1 and the petitioner had married in a temple in the year 2004, with the consent of the first wife of the petitioner, after OP No.1 had conceived due to physical relationship between them. 4. From the impugned order itself it is apparent that the present petitioner had denied the marriage between him and O.P. No.1 and had stated that the petitioner was already married with one Tileshwari Devi, from whom he had two sons and two daughters and all of them were living together. However, on the basis of the evidence brought on record, the Court came to the conclusion that the petitioner and O.P. No.1 were also living as wife and husband, subsequently O.P. No.1 was ousted from the matrimonial home and accordingly, directed the petitioner to make payment of Rs.1000/- per month as compensation to the applicant. 5. Learned counsel for the petitioner has submitted that the impugned order so far as it allows the compensation of Rs.1,000/- per month to O.P. No.1 is absolutely illegal, in as much as, admittedly the petitioner’s first wife is alive and it is well settled law that the second wife is not entitled to maintenance under Section 125 Cr.P.C. Learned counsel has placed reliance upon the decision of Supreme Court of India in Savitaben Somabhai Bhatiya Vs. State of Gujarat & Ors., reported in 2005(2) JLJR 120 (SC), in support of his contention. State of Gujarat & Ors., reported in 2005(2) JLJR 120 (SC), in support of his contention. Learned counsel accordingly, submitted that the impugned order cannot be sustained in the eyes of law and is fit to be set-aside. 6. Learned counsel for O.P. No.1, on the other hand has opposed the prayer submitting that though the petitioner had challenged the marriage between the parties in the Court below, but in this petition he has taken the ground that the second wife is not entitled to maintenance. It has also been submitted that the petitioner has not challenged the maintenance granted to the son. Learned counsel accordingly, submitted that in view of the admitted fact that the petitioner and O.P. No.1 have a son, O.P. No.1, being the wife of the petitioner, is also entitled to maintenance. 7. After having heard learned counsels for both the sides, I find that admittedly O.P. No.1 is the second wife of the petitioner. Section 125 Cr.P.C. makes provision of maintenance to the wife who is unable to maintainable herself, which clearly means that the wife should be legally wedded wife. It is equally well settled that even the illegitimate child is entitled for maintenance under Section 125 Cr.P.C., but the woman, who is not legally married, is not entitled to maintenance under Section 125 Cr.P.C. The decision cited by the learned counsel for the petitioner in Savitaben’s case (Supra), is fully applicable to the facts of this case, wherein the Apex Court has laid down as follows:- “17. It may be noted at this juncture that the legislature considered it necessary to include within the scope of the provision an illegitimate child but it has not done so with respect to woman not lawfully married. However, desirable it may be, as contended by learned counsel for the appellant to take note of the plight of the unfortunate woman, the legislative intent being clearly reflected in Section 125 of the Code, there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression 'wife'.” (Emphasis supplied). 8. 8. In the facts and circumstances of this case, I am of the considered view that the impugned order so far as it directs payment of Rs.1,000/- per month as maintenance to O.P. No.1, who is admittedly not the legally wedded wife, being the second wife of the petitioner, the first wife being still alive, cannot be maintained in the eyes of law. 9. In view of the aforementioned discussions, the impugned order dated 29.5.2010 passed by the learned Principal Judge, Family Court, Gumla, in maintenance case No.43 of 2007, whereby, in so far as, the petitioner is directed to make payment of Rs.1,000/- per month as maintenance to O.P No.1 Rita Devi, is hereby set-aside. However, the maintenance of Rs.500/- per month directed to be paid to the son of the petitioner, cannot be interfered with and the same is maintained. Let the L.C.R. be sent back forthwith. This application is, accordingly, allowed.