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2016 DIGILAW 428 (MP)

Pawan v. Raj

2016-06-13

JARAT KUMAR JAIN

body2016
ORDER 1. This revision under section 19 (4) of the Family Courts Act has been filed against the order dated 25.4.2014 passed by the Principal Judge, Family Court, Dewas in MJC No.64/2014. 2. Brief facts of this case are that Non-applicant's mother Seemabai filed an application under section 125 of the Code of Criminal Procedure against the applicant claiming maintenance. That application has been dismissed so far as wife Seemabai is concerned on the ground that she is not legally wedded wife of the applicant; whereas learned trial Court directed the applicant to pay maintenance to his minor son Non-applicant Raj @ Rs.5,000/- per month from the date of application i.e. 5.8.2011. Being aggrieved, the applicant has filed this revision. 3. Learned counsel for the applicant submits that it is not proved that the non-applicant is legitimate son of the applicant, even though learned trial Court has directed to pay maintenance. The non-applicant claimed maintenance @ Rs.3,000/- per month; whereas learned trial Court has directed the applicant to pay maintenance @ Rs.5,000/- per month and without assigning any reason he is directed to pay maintenance from the date of application i.e. 5.8.2011. Learned trial Court has not gave a finding about the income of the applicant, even though fixed the maintenance as aforesaid. The order is bad in law. Therefore, it be set aside. 4. On the other hand, learned counsel for the non-applicant submits that on the basis of the oral as well as documentary evidence it is proved that the non-applicant is born out of the wedlock of Seemabai and applicant Pawan. Learned trial Court after considering the evidence on record has rightly directed to pay maintenance @ Rs.5,000/- per month. Therefore, no interference is called for by this Court. The revision be dismissed. 5. After hearing learned counsel for the parties, perused the record. 6. Seemabai deposed that earlier she was married with one Kishore but subsequently as per the custom their marriage has been dissolved and thereafter she entered into second marriage with the applicant Pawan and out of their wedlock non-applicant Raj born on 20.6.2005. In support she has filed the Birth Certificate issued by Nagar Palika Nigam, Dewas (Ex.P-1) and Discharge Certificate of hospital – Deokar Nursing Home, Dewas dated 22.6.2015 (Ex.P-2). In these documents, Seemabai's husband's name is shown Pawan. In support she has filed the Birth Certificate issued by Nagar Palika Nigam, Dewas (Ex.P-1) and Discharge Certificate of hospital – Deokar Nursing Home, Dewas dated 22.6.2015 (Ex.P-2). In these documents, Seemabai's husband's name is shown Pawan. Besides this, there is a certificate dated 3.8.2009 issued by Gram Panchayat Napakhedi, District Dewas (Ex.P-8) to the effect that Seemabai is wife of applicant Pawan and Non-applicant Raj is their son. Seemabai's evidence has been corroborated by witnesses – Rameshwar and Sanjay. On the basis of oral and documentary evidence, it is proved that Raj is the son of applicant Pawan and his date of birth is 20.6.2005. There is nothing on record to disbelieve this evidence. The trial Court has rightly held that the non-applicant Raj is minor son of the applicant Pawan. 7. So far as the income of the applicant Pawan is concerned, Seemabai deposed that Pawan is an agriculturists having 40 bighas land 20 buffaloes. Besides this, he has a grocery shop. In support she has filed the Khasra entries of the agriculture land (Exs.P-4 to P-9). It is proved that the agriculture land is in the name of applicant's father – Radheshyam, however, applicant Pawan is residing with his father Radheshyam and doing agricultural operations and from these facts it is clear that the applicant is having sufficient means to pay maintenance. In the application Seemabai claims Rs.3,000/- per month as maintenance for her son Raj. 8. Seemabai in her deposition deposed that she required Rs.3,000/- per month for maintenance of her son Raj; whereas learned trial Court without assigning any reason directed the applicant to pay maintenance @ Rs.5,000/- per month from the date of application i.e. 5.8.2011. The finding of the trial Court is against the pleadings and evidence. 9. I am of the view that the order granting maintenance @ Rs.5,000/- per month is against the pleadings and evidence. Therefore, it is hereby set aside and the revision is partly allowed. The applicant is directed to pay maintenance to the non-applicant Raj @ Rs.3,000/- from the date of application i.e. 5.8.2011 till he attains majority. Smt. Sudha Shrivastava for applicant; Vaibhav Dube for non-applicant.