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2013 DIGILAW 505 (MP)

Shailendra Alias Pintu Chouhan v. Kalpana

2013-04-12

N.K.GUPTA

body2013
JUDGMENT : The applicant has preferred the instant revision against the order dated 25.10.2010 passed by the learned JMFC Sagar (Shri Manish Lovanshi) in MJC No.10/2008, whereby the maintenance of Rs.3,000/- and Rs.2,000/- was granted to the respondents No.1 and 2 respectively. 2. The brief facts relating to the present revision are that the respondents moved an application under Section 125 of Cr.P.C. against the applicant that the respondent No.1 was married to the applicant and the respondent No.2 was born due to that marriage. The applicant harassed the respondent No.1 for demand of dowry etc., and thereafter she was ousted from the house of the applicant. She had lodged an FIR against the applicant on 14.7.2006 at Police Station Naryawali District Sagar. The respondents gave the particulars of income of the applicant and the particulars of their own expenditure, and therefore claimed maintenance of Rs.8,000/- for the respondents. 3. The applicant in his reply denied all the allegations made in the application. He denied that any marriage took place with the respondent No.1 or the respondent No.2 was his son. He denied his income. He has stated that the applicant was falsely implicated in the matter. Actually an engagement of the applicant was fixed with the respondent No.1, but he knew that the character of the respondent No.1 was not good, and therefore the marriage could not take place. The respondent No.1 misused the invitation card printed for that marriage, therefore it was prayed that the maintenance application of the respondent No.1 be dismissed. The applicant has also submitted that he was duly married with one Sandhya in the year 1998, and therefore there was no possibility of marriage of the applicant with the respondent No.1. 4. After considering the evidence adduced by the parties, the learned JMFC Sagar has granted maintenance of Rs.3,000/- to the respondent No.1 and Rs.2,000/- to the respondent No.2. 5. I have heard the learned counsel for the parties. 6. In the present case quantum of maintenance is not under dispute. Only few questions are to be decided as to whether the respondent No.1 was a legal wife of the applicant and whether the respondent No.2 is the son of the applicant. 5. I have heard the learned counsel for the parties. 6. In the present case quantum of maintenance is not under dispute. Only few questions are to be decided as to whether the respondent No.1 was a legal wife of the applicant and whether the respondent No.2 is the son of the applicant. If the evidence adduced by the parties is considered, then Kalpana (PW-1), Chali Raja Singh (PW-2) and Radheyshaym (PW-3) were examined on behalf of the respondent No.1 to show that the marriage of the applicant and the respondent No.1 took place nine years back. It is also stated by the witnesses that a son was born due to that marriage, and thereafter the respondent No.1 was ousted from the house of the applicant in consequence of the dowry demand and harassment. It is strange that the parents of the respondent No.1 were not examined in her support. Chali Raja Singh is maternal uncle of the respondent No.1, whereas Radheshaym was nowhere related to the respondent No.1. On cross examination, it appears that witness Radheyshyam did not attend the marriage ceremony of the respondent No.1, but his evidence is a hearsay evidence, which has no evidentiary value. 7. In the application under Section 125 of Cr.P.C. the respondent No.1 has shown that her son was born one year after the marriage and she was living with her father since 5-6 years. The application was filed in the year 2008, and therefore it appears that the marriage ceremony took place in the year 2002 and the son was born in the year 2003. The witness Chali Raja Singh, maternal uncle of the respondent No.1 was examined on 9.7.2009 and he has accepted in para 5 of his cross examination that the respondent No.1 was residing with her father since last eight years, that means she was residing at her father’s house since the year 2001, which is contradictory to the statement given by the respondent No.1. According to this witness, the marriage of the respondent No.1 took place ten years ago, and therefore according to his statement marriage should have been taken place in the year 1999 and if the boy was born to that marriage, then he must have been born in year 2000. 8. On the other hand, the applicant Shailendra alias Pintu Chouhan (DW-1) and Sandhya (DW-2) are examined for the applicant. 8. On the other hand, the applicant Shailendra alias Pintu Chouhan (DW-1) and Sandhya (DW-2) are examined for the applicant. They have shown the invitation card Ex.D-3 that their marriage took place on 6.2.1998. looking at the testimony of Sandhya, it appears that she is the wife of the applicant since the year 1998, and therefore there was no possibility of marriage of the respondent No.1 with the applicant in the year 1999 or 2000. The respondent No.1 moved the maintenance application in the year 2008 showing that her boy was five years old, and according to the respondent No.1 herself it is apparent that the boy Abhay was born in the 2003 or 2004. But if the marriage of the respondent No.1 took place in the year 1999, then apparently after one year of her marriage, the boy was born, then he must have born in the year 2000, and therefore at the time of filing the maintenance application, he must have been nine years old. The applicant did not submit any document relating to date of birth of the boy Abhay. Under such circumstances, it cannot be said that the child Abhay was born due to cohabitation of the applicant and the respondent No.1. 9. The respondent No.1 has submitted two photographs Ex.P-1 and Ex.P-2, however the photographs are to be proved as a primary evidence, and therefore negative of the photographs are required to be proved and a photographer was to be examined that he photographed the photos during the marriage and he should have proved the negatives, and therefore thereafter the secondary evidence of the positive photographs be produced before the trial Court. Hence the alleged photographs are not duly proved according to the provisions of the Evidence Act, and therefore the same may not be considered as primary evidence. However, if the photographs are seen, then it would be apparent that those are prepared in some studio. According to the respondent No.1 the marriage took place in a temple and looking to the background of the photographs, it appears that the photographs are prepared in studio and they did not appear to be genuine. 10. However, if the photographs are seen, then it would be apparent that those are prepared in some studio. According to the respondent No.1 the marriage took place in a temple and looking to the background of the photographs, it appears that the photographs are prepared in studio and they did not appear to be genuine. 10. The respondent No.1 has submitted the ration card Ex.P-3 in which the applicant was shown to be her husband, but that ration card has been prepared in the year 2006 and that could be prepared by the instigation of the respondent No.1. In the ration card the name of head of the family was to be given on the top and thereafter the name of family members may be given. In the document Ex.P-3 name of head of the family is shown to be Kalpana and not Shailendra. There is no signature appended by the applicant in that ration card, and therefore ration card could be a prepared document from the side of the respondent No.1. Similarly, the photo identity card Ex.P-4 is prepared on the basis of the information given by the respondent No.1. Under such circumstances, the document filed by the respondent No.1 gives no evidence about her marriage. 11. There is a lot of contradiction between the evidence of the respondent No.1 and Chali Raja Singh about the marriage of the respondent No.1 Kalpana. No Pandit has been examined to show that the marriage was duly performed. On the other hand, it is proved beyond doubt that the applicant was married with one Sandhya, and therefore no such marriage could take place with Kalpana. Under such circumstances, the respondent No.1 failed to prove her marriage with the applicant. 12. The learned counsel for the applicant has placed his reliance upon the judgment of Hon’ble the Apex Court in the case of “Yamuna Bai Vs. Anantrao Shivram Adhav”, [ (1988) 1 SCC 530 ] in which it is led that a Hindu woman married after coming into force of Hindu Marriage Act, 1955 in accordance with Hindu rites with a Hindu male having a wife living is not entitled for maintenance, because the marriage is void ipso jure under Section 11 of the Hindu Marriage Act. In the present case though the respondent No.1 could not prove her marriage with the applicant, but if it is presumed that she was married, then the applicant was already married with one Sandhya, and therefore the marriage of the applicant is void ipso jure, and she cannot be considered as a “wife” as required under Section 125 of Cr.P.C. 13. The learned counsel for the applicant has also referred the judgment of Hon’ble the Apex Court in the case of “Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit”, (2000 Cr.L.J. 1) in which it is held that performance of marriage is not to be proved strictly. It is sufficient if the claimant prima facie satisfies the Court that she lived with her husband as a husband and wife. In the present case the respondent No.1 could not prove that she lived with the applicant at all, and therefore she cannot be treated as a wife of the applicant. 14. The learned counsel for the applicant has also placed his reliance upon the judgment of Hon’ble the Apex Court in the case of “Savitaben Somabhai Bhatiya Vs. State of Gujarat”, [ (2005) 3 SCC 636 in which it is held that if the wife is not found to be a wife in the eye of law, then she could not get any maintenance from her husband. Under such circumstances, where the respondent No.1 could not show that she was married with the applicant, it cannot be said that she was wife of the applicant for any moment, and therefore she was not entitled for any maintenance under Section 125 of Cr.P.C. The learned JMFC has committed an error of law in granting the maintenance to the respondent No.1. 15. The respondent No.1 could not prove the date of birth of her son and she could not prove that she ever resided with the applicant, therefore when she was not a legally wedded wife of the applicant, no presumption under Section 112 of the Evidence Act can be considered relating to birth of the respondent No.2. 15. The respondent No.1 could not prove the date of birth of her son and she could not prove that she ever resided with the applicant, therefore when she was not a legally wedded wife of the applicant, no presumption under Section 112 of the Evidence Act can be considered relating to birth of the respondent No.2. As discussed above, if it is presumed that the marriage of the respondent No.1 took place with the applicant in the year 2000 and her son was born after one year and according to witness Chali Raja Singh, the respondent No.1 was residing with her father eight years prior to his deposition, then it is apparent that the respondent No.1 was residing away with the applicant for last seven years of her application, whereas she had shown her son to be five years old, and therefore it is apparent that there was no access of the applicant to the respondent No.1 so that a son could be born. The respondent No.1 could not show that she was not in access to some other male in that period, and therefore looking to the evidence given by the respondent No.1 and Chali Raja Singh, it is not at all proved that the respondent No.2 was the son of the applicant, and therefore the respondent No.2 cannot get any maintenance from the applicant being legitimate or illegitimate child. Under such circumstances, the learned JMFC has committed an error of law in granting the maintenance to the respondent No.2. 15. On the basis of the aforesaid discussion, the respondents could not get any maintenance from the applicant, and therefore it is a fit case in which an interference is required from the side of this Court by way of this revision. Consequently, the present revision filed by the applicant is hereby allowed and the impugned order passed by the learned court below is hereby set aside. It is directed that if any maintenance is paid to the respondents in compliance to the impugned order dated 25.10.2010, then it would not be recovered due to the result of the present revision. 16. A copy of this order be sent to the trial court along with its record for information and compliance.