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2012 DIGILAW 701 (RAJ)

Kachari v. Vijay Singh

2012-03-21

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant miscellaneous petition has been filed by the petitioner challenging the order dated 6.8.2005 passed by the Judicial Magistrate, First Class, Pratapgarh rejecting the application filed by the petitioner under Section 125 Criminal Procedure Code, as affirmed in the revision by the learned Sessions Judge cum Special Judge, SC/ST Act Cases, Pratapgarh by his order dated 5.8.2006. 2. Succinctly stated, the facts of the case are that the petitioner filed an application under Section 125 Criminal Procedure Code on 21.3.1998 in the Court of the learned Judicial Magistrate, First Class, Pratapgarh alleging inter alia that she was married to the petitioner fifteen to sixteen years back but after her marriage with the respondent, he did not treat her properly and started treating her with cruelty physical as well as mental. It was also stated that the respondent contacted 'Nata' with another woman, viz. Urmila and from their relationship, five children were born who are living with the respondent. It was also stated in the application that the petitioner was turned out from her matrimonial home by the respondent about eight to nine years prior to filing of the application and the respondent, despite having sufficient means of income, neglected to maintain her and, thus, the application was filed with the prayer that the respondent should be directed to make payment of Rs. 1,000/- per month as maintenance to the petitioner. 3. On notice being issued, the respondent appeared before the learned Court below and submitted a reply to the application, as per which he denied the factum of marriage having been solemnized between him and the petitioner and submitted that as a matter of fact of marriage between the petitioner and the respondent had never been solemnized and that the respondent had only one wife namely Urmila, with whom he has been living since marriage. 4. Evidence was recorded at the trial and the learned Magistrate, on the conclusion of the trial, proceeded to hold that the application filed by the petitioner under Section 125 Criminal Procedure Code was highly belated and that on the basis of the oral evidence of the petitioner, it was not possible to hold that she was the legally wedded wife of the respondent and, thus, the application filed by the petitioner under Section 125 Criminal Procedure Code was rejected by the impugned order dated 6.8.2006. The petitioner challenged that order of the learned Magistrate by way of a revision petition but the learned Revisional Court has also rejected the revision petition filed by the petitioner vide impugned order dated 5.8.2006 whilst concurring with the findings of the learned Judicial Magistrate; hence the instant miscellaneous petition has been filed by the petitioner seeking reversal of the impugned orders as also seeking a direction that the respondent should be directed to make payment of maintenance to the petitioner. 5. Assailing the impugned orders, learned counsel for the petitioner submits that when the petitioner was examined during the course of inquiry under Section 125 Criminal Procedure Code no suggestion was made to her that she was not married to the respondent. Pointing out to the examination-in-chief of respondent Vijay Singh recorded during the inquiry, the learned counsel for the petitioner submits that the respondent, in his statement, has not uttered even a word of denial regarding the averment of the petitioner that she was married to the respondent. Thus, the learned counsel submits that the findings of the learned Courts below regarding marriage of the petitioner having not been solemnized with the respondent, are absolutely illegal and contrary to the evidence which is available on record. He, thus, submits that the impugned orders deserve to be set aside and a direction requires to be given to the respondent for making payment of maintenance to the petitioner. 6. Per contra, Mr. Pradeep Shah, learned counsel for the respondent submits that the averments made by the petitioner regarding her marriage having been solemnized with the respondent, are absolutely false and concocted. He further submits that there are grave discrepancies in the statements of the witnesses of the petitioner regarding the time when the marriage was solemnized between the parties. He submits that it is unnatural and unbelievable as to why the petitioner would keep silent for a long period of fifteen years before making the application for maintenance had the respondent turned her out from his house. He submits that it is unnatural and unbelievable as to why the petitioner would keep silent for a long period of fifteen years before making the application for maintenance had the respondent turned her out from his house. He further submits that though a suggestion has not been put to the petitioner in her cross-examination regarding her not being married to the respondent, but looking to the fact that the petitioner herself, in her statement, has not stated that she is unable to maintain herself and the fact that the application under Section 125 Criminal Procedure Code has been filed after a period of fifteen years from date of the alleged separation of the parties, there can be no justification for directing the maintenance to be paid to the petitioner now. He further submits that the petitioner has his wife Urmila and five children to support and, thus, there cannot be any justification for directing payment of maintenance to the petitioner because the petitioner has been unable to prove the earning capacity of the respondent beyond the extent of his ability to maintain his five children and the so-called second wife Urmila. He submits that though the respondent has not specifically denied the factum of his marriage with the petitioner in his examination-in-chief yet when he was subjected to cross- examination, he specifically denied the factum of his marriage with petitioner Kachari. Thus, he submits that no interference is called for in the concurrent finding of two Courts rejecting the prayer of the petitioner for grant of maintenance from the respondent. 7. I have considered the arguments advanced at the bar and carefully perused the Impugned orders as also the record of the case. 8. From a perusal of the record, it becomes apparent that the petitioner, in her application under Section 125 Criminal Procedure Code and her statement, has categorically stated about the solemnization of her marriage with the respondent. The respondent has, of course, in the reply to the application, denied the fact of his marriage with the petitioner. When the petitioner was examined on oath in the inquiry, she empathetically stated that she was married to the respondent but when the cross-examination of the petitioner is perused, it is revealed that there is no specific. The respondent has, of course, in the reply to the application, denied the fact of his marriage with the petitioner. When the petitioner was examined on oath in the inquiry, she empathetically stated that she was married to the respondent but when the cross-examination of the petitioner is perused, it is revealed that there is no specific. suggestion made to her that she was not married to the respondent; though, of course, a suggestion has been given that the respondent was married only to Urmila, but if at all the respondent was desirous of substantiating to his stand regarding his marriage with the petitioner having not been solemnized then he should have given a specific suggestion to the petitioner in this regard. Further more, when the respondent himself appeared in the witness-box, he also, in his examination-in-chief, has not made a specific statement that he was not married to the petitioner. Thus, in the opinion of this Court, looking to these undisputed facts, the findings of the trial Court, as affirmed in the revision regarding the marriage between the parties not having been solemnized, do not appear to be based on a just and proper appreciation of the evidence. The learned trial Court as well as the revisional Court have given much stress upon the discrepancy in the statements of the petitioner regarding the time when the marriage was solemnized, but when the application itself has been filed after a gap of nearly fifteen years, a discrepancy in the dates is bound to occur. It cannot be expected that the rustic villagers would remember the exact dates or time after expiry of a long period, which was lapsed since the marriage between the parties is averred to have been solemnized. Thus, the finding of the learned Courts below regarding the marriage between the parties not having been solemnized, does not appear to be justified on a proper appreciation of the material available on record. 9. Thus, the finding of the learned Courts below regarding the marriage between the parties not having been solemnized, does not appear to be justified on a proper appreciation of the material available on record. 9. However, now coming to the question regarding entitlement of the petitioner to claim and receive maintenance from the respondent, it is the conceded case of the petitioner that she was turned out from the house of the respondent between the period of 10 to 15 years before filing of the application under Section 125 Criminal Procedure Code When the petitioner was examined on oath in the inquiry, she has not made a specific averment that she was not in a position to maintain herself. It can be easily inferred that if the petitioner was maintaining herself without any difficulty for a period of ten to fifteen years before filing of the application, she had to make a specific and direct averment supported by material to demonstrate the facts, by which she was suddenly prevented from maintaining herself. 10. It is an admitted case from the record that the respondent contacted marriage with another lady namely Urmila even whilst the petitioner was allegedly living with him. Five children undisputedly have been born from the wed-lock of the respondent and Urmila. The petitioner, as per her own saying, stayed with Urmila and the respondent for a long period of time and thereafter she says that she was turned out from the house about ten to fifteen years prior to filing of the application. There is no material available on record, by way of any notice or any case of cruelty being filed against the respondent to show that when the respondent allegedly turned the petitioner out of his house, at that time the petitioner was being treated with cruelty. The petitioner and her witnesses have admitted that there is a tradition of 'Nata' in their community. Therefore, in the opinion of this Court, the petitioner is not entitled to receive maintenance from the respondent because she has not been able to prove that she is not in a position to maintain herself and also for this reason, she was living separately without any justification. Therefore, in the opinion of this Court, the petitioner is not entitled to receive maintenance from the respondent because she has not been able to prove that she is not in a position to maintain herself and also for this reason, she was living separately without any justification. Though the fact of second marriage of the respondent can be a ground for the petitioner to live separately from the respondent and claim maintenance, yet from the facts narrated hereinabove, it becomes apparent that the petitioner herself had voluntarily accepted the second marriage of the respondent and even lived with the respondent and other lady namely Urmila for a long period of time. Thus, in the opinion of this Court, there can be no justification for allowing the belated application under Section 125 Criminal Procedure Code filed by the petitioner. The respondent also has a large family to support as mentioned above and the petitioner has failed to prove that she is unable to maintain herself. 11. Therefore, whilst holding that the marriage between the petitioner and the respondent was validly solemnized, this Court is of the opinion that the application under Section 125 Criminal Procedure Code, having been filed after a considerably unreasonable delay, for the reason that the petitioner has not been able to establish the fact that she is not in a position to maintain herself and also because the petitioner is living apart from the respondents for no valid cause, there cannot be any justification for directing payment of maintenance to the petitioner by the respondent in the belated application filed under Section 125 Cr.P.C.The miscellaneous petition, as also the stay petition, are, thus rejected.Petition dismissed. *******