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2012 DIGILAW 531 (RAJ)

Kalu Lal v. State of Rajasthan

2012-02-28

R.S.CHAUHAN

body2012
Hon'ble CHAUHAN, J.—The petitioner is aggrieved by the judgment dated 13.11.2009 passed by Family Court, Udaipur, whereby the learned Judge has granted a maintenance of Rs.3,000/- per month to Smt. Pattu alias Gattu Bai, the non-petitioner No.2. 2. Briefly, the facts of the case are that Smt. Pattu filed an application under Section 125 Cr.P.C. for maintenance against the petitioner on the ground that she had been the Nata wife of petitioner for last 35 years and out of their physical relationship children were born. It was averred in the application that the petitioner has another wife also. She stated that she was left by the husband petitioner one year back, and petitioner is now living with another wife and is not maintaining her. She claimed a maintenance of Rs. 7,000/- per month for herself. 3. The petitioner submitted his reply and denied the averments made by Smt. Pattu and claimed that non-petitioner Pattu is not his legally wedded wife. He further claimed that Smt. Patu is now living with her son, Suresh, separately at the instance of her brothers. Therefore, she is not entitled to any maintenance. 4. In order to buttress their case, while Smt. Pattu examined four witnesses, the petitioner examined three witnesses. After going through the testimonies, vide judgment dated 13.11.2009, the learned judge granted a maintenance of Rs.3,000/- in favour of Smt. Pattu as aforementioned. Hence, this petition before this Court. 5. Mr. Rajesh Panwar, the learned counsel for the petitioner, has raised the following contentions before this Court: firstly, that the evidence taken by the Family Court was by way of an affidavit; the evidence was not recorded in the presence of the petitioner. Therefore, the procedure prescribed by Section 126 Cr.P.C. has not been followed by the learned Judge. Secondly, that the petitioner has claimed that non-petitioner No.2 Smt. Pattu is not his legally weeded wife. This aspect has been overlooked by the learned Judge. Thirdly, that according to the testimony of the petitioner and of his witnesses, Smt. Pattu is living with one of her sons. Therefore grant of a maintenance of Rs.3,000/- is on the higher side. 6. On the other hand, Mr. J.V.S. Deora, the learned counsel for Smt. Pattu, has contended that merely because the evidence was taken in the form of affidavits would not prejudice the cause of the petitioner. Therefore grant of a maintenance of Rs.3,000/- is on the higher side. 6. On the other hand, Mr. J.V.S. Deora, the learned counsel for Smt. Pattu, has contended that merely because the evidence was taken in the form of affidavits would not prejudice the cause of the petitioner. After all, he was granted an opportunity to cross-examine Smt. Pattu and her witnesses. Secondly, that in his cross-examination, the petitioner himself has admitted that he and Smt. Pattu had lived as husband and wife for many years. He has further admitted that out of their physical relationship three children were born. Therefore, the petitioner and Smt. Pattu had moved in the society and were known as "husband and wife". Once, this admission is made by the petitioner, he is bound by the admission and cannot challenge the same before this Court. Lastly, that the learned Judge has noticed the fact that Smt. Pattu is living with one of her sons. Considering the fact that the petitioner at the relevant time was earning Rs. 27,225 per month, a maintenance of Rs. 3,000/- is not too much of a maintenance being granted to Smt. Pattu. Hence, the learned counsel has supported the impugned judgment. 7. Heard the learned counsel for the parties and perused both the impugned judgments. 8. It is true that Section 126 Cr.P.C. lays down that all evidence for such proceedings shall be taken in the presence of the persons against whom the order of payment of maintenance is proposed to be made or when his personal attendance is disposed with, in he presence of his pleader. It further lays down that the said evidence shall be recorded in the manner prescribed for summons cases. However, merely because the evidence was taken in the form of affidavit, this fact by itself cannot be held to be prejudicial to the interest of the petitioner. After all, he was given ample opportunities, and he did cross-examine the non-petitioner No.2 and her witnesses. Therefore, he had ample opportunity to shatter the witnesses in the cross-examination. Hence, the petitioner cannot claim that any prejudice has been caused to him, merely because the evidence of Smt. Pattu and her witnesses was taken in the form of affidavits. 9. In his cross-examination, the petitioner has admitted the fact that he and Smt. Pattu had lived as husband and wife for many years. Hence, the petitioner cannot claim that any prejudice has been caused to him, merely because the evidence of Smt. Pattu and her witnesses was taken in the form of affidavits. 9. In his cross-examination, the petitioner has admitted the fact that he and Smt. Pattu had lived as husband and wife for many years. According to him, during the interim period, three children were born. Once this admission is made by the petitioner, he cannot be permitted to raise the issue whether the non-petitioner No.2 was his legally wedded wife or not. Moreover, in catena of cases the Hon'ble Supreme Court has already opined that where a man and woman live as husband and wife, where they are perceived in the society as husband and wife, it is not for the Court to go into the legal issue whether they were lawfully married for the purpose of deciding an application under Section 125 Cr.P.C. Therefore, as the petitioner and Smt. Pattu have lived as husband and wife, according to his own admission, this issue cannot be raised at the appellate stage. Hence, the learned Judge was justified in concluding and in treating Smt. Pattu as the lawfully wedded wife of the petitioner. 10. A bare perusal of the impugned judgment clearly reveals that the learned Judge has noticed the fact that Smt. Pattu was being looked after by one of her sons. Considering the fact that at the relevant time, the petitioner was earning an income of Rs.27,225/- per month, the amount of maintenance of Rs.3,000/- is certainly not unreasonable. 11. For the reasons stated above, this Court does not find any merit in this petition, it is, hereby dismissed. 12. The Registry is directed to immediately send back the record to the concerned court.