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2018 DIGILAW 22 (JK)

Mohinder Kunar v. Reeta Devi

2018-01-29

M.K.HANJURA

body2018
JUDGMENT : 1. In this petition filed under section 561-A Cr. P. C, the petitioner has sought the endurance of this Court in quashing the order dated 15.10.2015 passed by the learned 3rd Additional Munsiff, Jammu, whereby interim maintenance @ Rs.3500/- per month has been awarded in favour of the respondents and the order dated 04.07.2016 of the learned 2nd Additional Sessions Judge, Jammu, passed in criminal revision, titled Mohinder Kumar v. Reeta Devi, whereby the revision against the order dated 15.10.2015 has been dismissed. 2. The facts that have given rise to the instant petition are that the respondent No.1 in this petition filed an application for the grant of maintenance in her favour and in favour of her minor child under Section 488 of the Code of Criminal Procedure before the Court of 1st Additional Munsiff, JMIC, Jammu. By order dated 15.10.2015, the learned 3rd Additional Munsiff, Jammu (JMIC), Jammu, granted interim maintenance to the respondents here in this petition by ordaining the petitioner herein to pay Rs.1500/- as maintenance to respondent No.1, i.e. his wife, and Rs. 2000/- to respondent No.2 (his son) from the date of the order till the final disposal of the main petition with a further direction that the order will not have any effect on the rights of the parties at the final disposal of the main petition. 3. Aggrieved by this order the petitioner herein filed a revision petition which was dismissed by the learned 2nd Additional Sessions Judge, Jammu, vide order dated 04.07.2016, the relevant excerpts of which are detailed below: “6. The order of trial court is resisted on the issue that the marriage of petitioner with respondent No.1 is void, because respondent-wife had not disclosed about her earlier marriage to the petitioner. The copy of objections filed by respondent is annexed with the revision petition. On going through it, certain factual aspects have been raised; i) whether respondent no.1 is legally wedded wife of petitioner is an issue that has to be gone into by the Court below after taking evidence; also, whether that marriage is legally valid, void or otherwise, that too is a question of fact to be gone into by the Court below while determining the rights of the parties. 7. As already discussed above, petitioner has not denied the marital status of respondent No.1. 7. As already discussed above, petitioner has not denied the marital status of respondent No.1. Her earlier husband Sham Lal expired on 15.11.2007 and when she contracted second marriage, that too was dissolved on 16.12.2010. Thereafter, she got married with petitioner. He admits the parental status of respondent no.2; he also concedes that there was a marriage agreement between him and petitioner and that they got their marriage registered with Arya Smaj, Daya Nand Marg, Jammu, on 5th September, 2013. These factual aspects lay a strong presumption in favour of validity of marriage and legitimacy of its offspring, but that presumption is rebuttable subject to the evidence, if any to be led by the parties. It is not case of the petitioner that he has questioned the marital status of respondent no.1 before any civil Court as that material shows to this Court is false or otherwise. 8. The petitioner and respondent prior to the proceedings had lived together and even have an offspring. ............................................................................................................................................................................................................................. 11. It is by now legally established that wife’s right to maintenance cannot be defeated on the plea that husband does not have means to pay, or that he is not doing well in business. Here, the petitioner is a government employee and has got handsome salary which is sufficient to maintain him and his family. It is not the case of the petitioner that he has other social obligations to maintain his parents or sister. Though, because of ill health he may be requiring certain amount of money to cater his medical needs, but, that cannot be the ground to deny the respondent/wife a reasonable sum as maintenance. In exercise of revisional jurisdiction, this Court is required to see legality and propriety of the order passed by the Court below and this Court is of the considered view that the order passed by ld. trial Magistrate does not suffer from any illegality or impropriety. The order has been passed after due diligence, due application of mind thus does not call for interference. Revision petition accordingly is dismissed. Parties to appear before the ld. trial Magistrate does not suffer from any illegality or impropriety. The order has been passed after due diligence, due application of mind thus does not call for interference. Revision petition accordingly is dismissed. Parties to appear before the ld. Trial Court on 25.07.2016; Any observation made hereinabove regarding case of the parties shall be treated as observation for disposal of the present petition only that shall have any bearing on the rights of the parties to be determined by the Court below in accordance with law and on the basis of evidence to be led by the parties. Interim direction passed too shall stand vacated.” 4. During the pendency of the revision petition before the learned 2nd Additional Sessions Judge, Jammu, the petitioner filed a petition under Section 561-A of the Code of Criminal Procedure bearing No.197/2016 before this Court which was decided on 28.04.2016 with the following directions: “Scope to interfere at this stage by invoking powers under Section 561-A Cr. P. C. is not permissible as the power exercised is well defined and it has to be exercised in exceptional cases. Questions raised by the learned counsel that the marriage between the petitioner and respondent No.1 is void and child born, i.e., respondent No.2, is disowned on the ground that the same is born from the wedlock of earlier marriage of the respondent No.1. These are matters to be looked into by the revisional Court. Suffice it to say that the revisional Court shall dispose of the revision preferably within one month and shall schedule the case so as to ensure its early disposal.” 5. Dissatisfied with the orders of the trial Court and the revisional Court the petitioner has assailed these in this petition under Section 561-A of the Code of Criminal Procedure, chiefly on the grounds that the marriage between the parties was the outcome of fraud and deceit and is, therefore, void. The respondent No.1 is not entitled to claim any maintenance. The learned 2nd Additional Sessions Judge, Jammu, even after noticing the factum of marriage being void on the face of the documents which clinchingly established this fact has failed to exercise the jurisdiction vested in him as a revisional Court, inasmuch as the legality and the proprietary of the order passed by the Magistrate has escaped his scrutiny. The learned 2nd Additional Sessions Judge, Jammu, even after noticing the factum of marriage being void on the face of the documents which clinchingly established this fact has failed to exercise the jurisdiction vested in him as a revisional Court, inasmuch as the legality and the proprietary of the order passed by the Magistrate has escaped his scrutiny. The fact that the respondent No.1 was married to one Gurpreet Singh at the time of marrying the petitioner could not be disputed by the respondent No.1 and, therefore, the respondents were debarred from claiming maintenance under Section 488 of the Code of Criminal Procedure. 6. Heard and considered. 7. In the earlier round of the proceedings under Section 561-A of the Code of Criminal Procedure initiated by the petitioner against the respondents, this Court directed the revisional Court to decide and determine the pivotal questions raised in the petition that are, firstly, “whether the marriage between the petitioner and respondent No.1 is void?” and secondly, “whether or not the respondent No.2 is born from the ribs of the petitioner?” The revisional Court deliberated on these issues and by a well reasoned order held that these pleas involve questions of fact and therefore, have to be determined on the basis of the evidence that the parties may lead during the enquiry. The revisional Court also held that on 16.12.2010 the marriage between the respondent No.1 and her ex-husband came to an end by dissolution and, thereafter, she married the petitioner. It has also been stated that the petitioner has not denied his marital status with the respondent No.1. 8. The revisional Court has rightly held that the decision on the questions raised by the petitioner will rest upon the proof adduced during enquiry. The plea of a husband in a given case that the marriage is void and the child is not born from his thighs has to be proved at the enquiry and not at the very outset. A probable defense raised by the husband in answer to the claim of the wife can be determined on the culmination of the enquiry and not at the threshold. Insofar as the question of the grant of interim maintenance is concerned it is sufficient for the wife to show that she has the existence of a prima facie case in her favour and her husband has refused or neglected to maintain her. Insofar as the question of the grant of interim maintenance is concerned it is sufficient for the wife to show that she has the existence of a prima facie case in her favour and her husband has refused or neglected to maintain her. The petitioner admittedly has entered into a marriage with the respondent No.1, whether after the dissolution of the marriage as contended by the respondent No.1 or during the subsistence of the marriage of the respondent No.1 with her ex-husband as stated by the petitioner in his petition. This disaccord in the pleadings has to be judged and decided on the basis of the evidence that the parties may produce at the enquiry and till then the respondents cannot be left in a lurch. 9. Viewed in the above context, the proceedings in the case cannot be truncated at this stage by taking umbrage under the provisions of Section 561-A of the Code of Criminal Procedure. The grounds urged by the petitioner to defeat the claim of the respondents are such which require to be proved during the enquiry. The impugned orders awarding interim maintenance to the respondents cannot be brought within the term and fold of the expression “abuse of the process of law” as would give this Court the teeth to quash the same. There is no legal infirmity in the impugned orders. These withstand the scrutiny of law as a corollary to which the petition of the petitioner is dismissed. A copy of this order shall be forwarded to the trial Court for information and compliance.