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2017 DIGILAW 106 (HP)

Anil Sharma v. Alka Sharma

2017-03-02

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this revision petition, the petitioner has challenged the order passed by the Court of learned Judicial Magistrate, 1st Class, Nahan, District Sirmaur in petition No. 86/4 of 2014, dated 13.10.2015, vide which the learned Court below has partly allowed the ad-interim maintenance application filed by the present respondents under Section 125 of the Code of Criminal Procedure for grant of maintenance in their favour and has directed the present petitioner to pay an amount of Rs. 1,000/- each to the present respondents per month from the date of order till the disposal of the petition filed under Section 125 of the Code of Criminal Procedure. 2. Brief facts necessary for the adjudication of the case are that the present respondents/applicants (hereinafter referred to as ‘the applicants’) filed a petition under Section 125 of the Code of Criminal Procedure in the Court of learned Chief Judicial Magistrate, Nahan, District Sirmaur, in which it was averred that applicant No. 1 Alka Sharma was the legally wedded wife of the present petitioner/respondent (hereinafter referred to as ‘the respondent’). Marriage between applicant No. 1 and the respondent took place on 14.02.2000 as per Hindu rites and ceremonies and two children were born out of the said wedlock and the respondent and his family members kept applicant No. 1 properly for some time, but thereafter they started torturing her both physically and mentally on the demand of dowry. Further, as per the averments made in the petition, despite efforts made by the family of applicant No. 1, respondent and his family members kept on harassing applicant No. 1 and respondent also neglected and refused to maintain the applicants. It was further averred in the petition that applicant No. 1 was having no independent source of income and she was residing in the house of her parents at the mercy of her brother and respondent was having transport business and was owner of number of vehicles and was also having agricultural land as well as rental income from the shops let out by him was earning more than Rs. 40,000/- per month. It was further averred in the petition that respondent be directed to pay to the applicants an amount of Rs. 15,000/- per month for the maintenance of applicant No. 1, his wife and an amount of Rs. 40,000/- per month. It was further averred in the petition that respondent be directed to pay to the applicants an amount of Rs. 15,000/- per month for the maintenance of applicant No. 1, his wife and an amount of Rs. 5,000/- each for the maintenance of his two children, i.e. applicants No. 2 and 3 as well as litigation expenses. 3. The said petition was opposed by the respondent inter alia on the ground that applicant No. 1 is not legally wedded wife of the respondent and there has never been any cohabitation between the parties at any time. It was further mentioned in the reply filed by the respondent that his family as well as the family of applicant No. 1 were known to each other and that on account of the said intimacy between the families, applicant No. 1 pressurized the respondent to marry her, but he as well as his family members refused to do so. As per the respondent, the petition was filed by the applicants on false and frivolous grounds to harass and humiliate him. He also denied that he was owner of number of vehicles or was having agricultural land or any rental income or was earning an amount of Rs. 40,000/- per month. 4. In the said proceedings, applicants also filed an application for grant of ad-interim maintenance during the pendency of the petition. 5. By way of impugned order, learned Court below has directed the respondent to pay an amount of Rs. 1,000/- each to the applicants by partially allowing the ad-interim maintenance application filed by the applicants. 6. While passing the said order, it has been observed by the learned Court below that it is apparent from the assertions of the respondent that he has denied relationship of husband and wife between him and applicant No. 1 or that he was father of applicants No. 2 and 3, but though the factum of applicant No. 1 being the legally wedded wife of respondent had come into dispute, however, question of validity of marriage could not be decided in summary proceedings under Section 125 of the Code of Criminal Procedure. Learned Court below has further observed that denial of marriage by the respondent cannot be a ground at this stage to allow the applicants to die of starvation, destitution and vagrancy, simply on the ground that respondent has taken the plea that he is not the husband of applicant No. 1. Learned Court below has also observed that at the stage of passing interim orders, Court has to look into the basic purpose as to why Section 125 of the Code of Criminal Procedure was enacted and the reason was to make provision of interim maintenance for destitute wife as well as children so that they are not devoid of basic requirements of life, i.e. food and other basic necessities. On these bases, it was held by the learned Court below that the applicants had to be maintained till the Court prima facie comes to the conclusion about marriage between the respondent and applicant No. 1 and with regard to applicants No. 2 and 3 being born out of their wedlock. Learned Court below further held that the contention of the applicants that they were residing in the parental house of applicant No. 1 could not be disputed by the respondent and there was pertinence in the contention of applicant No. 1 that she alongnwith her children were subjected to maltreatment and that she was not having any source of income nor any property to maintain herself. Learned Court below further held that respondent has not disputed his ability to earn livelihood and that it was apparent that respondent was an able bodied person and was a man of means and on these bases, learned Court below partly allowed the application and has directed the respondent to pay an amount of Rs. 1,000/- each per month as maintenance in favour of the applicants by calculating the income of the respondent to be nominal income that was being earned by a labourer to the tune of Rs. 5,000/- to 6,000/- per month. 7. Feeling aggrieved by the said order, the petitioner/respondent has filed this revision petition. 8. 1,000/- each per month as maintenance in favour of the applicants by calculating the income of the respondent to be nominal income that was being earned by a labourer to the tune of Rs. 5,000/- to 6,000/- per month. 7. Feeling aggrieved by the said order, the petitioner/respondent has filed this revision petition. 8. The sole ground on which learned counsel for the petitioner has urged that the impugned order is not sustainable in law is that when the present petitioner/respondent had denied the factum of marriage having been solemnized between him and respondent/applicant No. 1 and the factum of respondents/applicants No. 2 and 3 being his children, learned trial Court could not have had passed order of grant of ad-interim maintenance in favour of the respondents/applicants. 9. I have heard the learned counsel for the parties and have also gone through the records of the case. 10. Admittedly, the order under challenge is an order of adinterim maintenance passed by the learned Court below and whether or not the applicants are entitled for maintenance, as has been prayed in the main petition filed under Section 125 of the Code of Criminal Procedure is yet to be adjudicated. 11. The Hon’ble Supreme Court in Savitri W/o Govind Singh Rawat Vs. Govind Singh Rawat (1985) 4 SCC 337 has held that jurisdiction of a Magistrate under Chapter IX of the Code of Criminal Procedure is not strictly a criminal jurisdiction and while passing an order under the said Chapter, asking a person to pay maintenance to his wife, child or parent, as the case may be, the Magistrate is not imposing any punishment on such person for a crime committed by him. It has been further held by the Hon’ble Supreme Court that it is the duty of the Court to interpret the provisions of Chapter IX of the Code of Criminal Procedure in such a way that the construction placed on them would not defeat the very object of the legislation. It has been further held by the Hon’ble Supreme Court that it is the duty of the Court to interpret the provisions of Chapter IX of the Code of Criminal Procedure in such a way that the construction placed on them would not defeat the very object of the legislation. Hon’ble Supreme Court has further held that it is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally and in order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. It has been further held by the Hon’ble Supreme Court that every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. The Hon’ble Supreme Court has further held: “Having regard to the nature of the jurisdiction exercised by a magistrate under Section 125 of the Code, we feel that the said provision should be interpreted as conferring power by necessary implication on the magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to therein pending final disposal of the application.” 12. The Hon’ble Supreme Court in Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit, (1999) 7 SCC 675 has held that it is to be remembered that the order passed in an application under Section 125 Cr. P.C. does not finally determine the rights and obligations of the parties and the said Section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents. The Hon’ble Supreme Court has further held that the validity of the marriage for the purpose of summary proceedings under Section 125 Cr. P.C. is to be determined on the basis of evidence brought on record by the parties and the standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence under Section 494 IPC. P.C. is to be determined on the basis of evidence brought on record by the parties and the standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence under Section 494 IPC. The Hon’ble Supreme Court has further held that if the claimant in proceedings under Section 125 of the Code succeeds in showing that she and the respondent have lived together as husband and wife, the Court can presume that they are legally wedded spouses and in such a situation, the party who denies the marital status can rebut the presumption. Hon’ble Supreme Court has further held that from the evidence which is led, if the Magistrate is prima facie satisfied with regard to performance of marriage in proceedings under Section 125 of the Code of Criminal Procedure which are of a summary nature, strict proof of performance of essential rites is not required. 13. It has been held by the Hon’ble Supreme Court in Badshah Vs. Urmila Badshah Godse and another (2014) 1 SCC 188 that a liberal interpretation has to be given to the term ‘wife’ under Section 125 of the Code of Criminal Procedure and would include cases where a man and woman have been living as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for claim of maintenance under Section 125 of the Code of Criminal Procedure. 14. Incidentally, a perusal of the reply filed by the present petitioner/respondent to petition filed under Section 125 of the Code of Criminal Procedure Code demonstrates that he has admitted the factum of the present respondent/applicant No. 1 being known to him, though he has denied relationship of husband and wife between himself and respondent/applicant No. 1. Therefore, it is not the case of the present petitioner/respondent that respondent/applicant No. 1 is a stranger. Besides this, prima facie no cogent explanation has come forth in the reply so filed by the petitioner as to why respondent/applicant No. 1 would be falsely claiming herself to be his wife and further claim respondents/applicants No. 2 and 3 to be his children. Besides this, prima facie no cogent explanation has come forth in the reply so filed by the petitioner as to why respondent/applicant No. 1 would be falsely claiming herself to be his wife and further claim respondents/applicants No. 2 and 3 to be his children. Further, taking into consideration the fact that the impugned order is only an ad-interim order, all these aspects of the matter are otherwise also required to be gone into by the learned Court below and it is always open to the petitioner to demonstrate before the learned Court below that present respondent No. 1 is not his wife or that present respondents No. 2 and 3 are not his children. However, till the main petition filed under Section 125 of the Code of Criminal Procedure is decided, neither present respondent No. 1 nor respondents No. 2 and 3 can be left in oblivion and in this background, this Court does not find any infirmity or illegality in the order passed by the learned Court below granting ad-interim maintenance of Rs. 1,000/- to each of the respondents/applicants during the pendency of the petition filed under Section 125 of the Code of Criminal Procedure. The amount of maintenance granted by the learned Court below can also not be said to be unreasonable and rather it is on the lower side. 15. Otherwise also, in view of the law laid down by the Hon’ble Supreme Court, there is no merit in the contention of the learned counsel for the petitioner that learned Court below was not having any power to pass an ad interim order directing the present petitioner/respondent to pay maintenance to the present respondents/applicants till the issue was adjudicated upon as to whether respondent/applicant No. 1 is wife of the present petitioner/respondent and respondents/applicants No. 2 and 3 are his children. 16. It is well settled law that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. The High Court in revision cannot in the absence of error on a point of law, re-appreciate evidence and reverse a finding. 16. It is well settled law that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. The High Court in revision cannot in the absence of error on a point of law, re-appreciate evidence and reverse a finding. It has been further held by the Hon’ble Supreme Court that the object of the revisional jurisdiction was to confer upon superior criminal Courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted in undeserved hardship to individuals. Learned counsel for the petitioner could not point out any of the above infirmities in the impugned order. 17. Therefore, in view of above discussion, I do not find any merit in the present revision petition. Thus, as the revision sans merit, the same is dismissed.