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2022 DIGILAW 141 (TRI)

Piplu Ghosh v. Archana Das

2022-03-17

T.AMARNATH GOUD

body2022
JUDGMENT T. Amarnath Goud, J. - This is a petition filed under Section 397 read with section 401 of the Code of Criminal Procedure, 1973 and under Section 19(4) of Family Courts Act, 1984 against the order of maintenance dated 30.07.2019 passed by the learned Addl. Judge, Family Court, Agartala, West Tripura in connection with Case No. Misc. 370 of 2018 directing the revision-petitioner to pay maintenance @ Rs. 10,000/- (Rupees Ten thousand only) per month to the opposite party for the purpose of maintaining herself within 10th day of every English Calendar month w.e.f. 01.08.2019. 2. Heard Mr. A Basak, learned counsel appearing for the petitioner as well as Mr. D. Datta, learned counsel appearing for the respondent. 3. Mr. Basak, learned counsel appearing for the petitioner herein submits that his client has no relationship with the respondent herein and the respondent is only exploiting him for extracting money. The petitioner-counsel further contended that the petitioner is already a married person and the respondent is a widow with children and both the petitioner and the respondent never married. The petitioner is already having a wife and under Section 125 of Cr.P.C, this lady, the respondent herein claiming herself to be the wife of the petitioner herein cannot be accepted under the definition of a wife. Even if there is any marriage between the petitioner and the respondent, the said marriage becomes a void marriage, thus, the question of payment of any maintenance does not arise. 4. In support of his argument, learned counsel appearing for the petitioner has relied upon Para-10 of the judgment passed by the Apex Court in D. Velusamy v. D. Patchaiammal reported in (2010) 10 SCC 469 , and the same is reproduced herein under:- 'It may be noted that Section 125 Cr.P.C. provides for giving maintenance to the wife and some other relatives. The word 'wife' has been defined in Explanation (b) to Section 125(1) of the Cr.P.C. as follows: 'Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.' 5. Petitioner-counsel has further relied upon para-10 of the Judgment of the Patna High Court in Baby Devi and ors. v. Arun Kumar Aman alias Rameshwar Rahi alias Rameshwar Prasad Mandal alias Durga reported in 1999 CRI. L.J. 4510 and the same is reproduced hereunder:- '10. Petitioner-counsel has further relied upon para-10 of the Judgment of the Patna High Court in Baby Devi and ors. v. Arun Kumar Aman alias Rameshwar Rahi alias Rameshwar Prasad Mandal alias Durga reported in 1999 CRI. L.J. 4510 and the same is reproduced hereunder:- '10. On the question of quantum of maintenance, Section 125 says that a person having sufficient means neglects or refuses to maintain his wife or children can be called upon to pay maintenance to them. All the witnesses on both the sides have stated that the opposite party is engaged in a good job in the railway workshop at Jamalpur, All the AWS have stated that he was then drawing salary of Rs. 3,000/- per month. Therefore, the opposite party has surely sufficient means to maintain the petitioners. As has been found hereinabove, he has failed to maintain the petitioners. In view of the findings hereinabove that petitioner No. 1 is the second wife of the opposite party while the first one is still alive, I hereby declare for the purpose of the present application that petitioner No. 1 is not entitled to maintenance within the meaning of Section 125 of the Act. Section 125(1)(b) lays down that the father is bound to maintain his legitimate or illegitimate minor children whether married or not and unable to maintain themselves. It is undoubtedly clear that petitioner Nos. 2 and 3 are unable to maintain themselves. As to their age, PW 1 stated in his deposition recorded on 22-2-92 that '.....................................' A Therefore, petitioner No. 2 has attained majority on completion of 18 years of age in February, 1998 and petitioner No. 3 would attain majority in February, 2002. Petitioner No. 2. is thus entitled to maintenance from June, 1990 to February, 1998 and petitioner No. 3 from June, 1990 to February, 2002. In such circumstances, I order and direct that the opposite party shall pay to petitioner Nos. 2 and 3 a sum of Rs. 500/- (five hundred) each per month for the aforesaid periods, the application under Section 125, Cr.P.C. having been filed on 16-6-90. Learned counsel for the parties informed the Court during course of oral arguments that petitioner No. 1 has recently died. 2 and 3 a sum of Rs. 500/- (five hundred) each per month for the aforesaid periods, the application under Section 125, Cr.P.C. having been filed on 16-6-90. Learned counsel for the parties informed the Court during course of oral arguments that petitioner No. 1 has recently died. In such circumstances, I direct the Chief Works Manager, Jamalpur Workshop, Eastern Railway, Jamalpur, to realise the aforesaid sum from the salary and other dues of the opposite party, which shall be deposited in a Savings Bank Account to be opened in the name of petitioner No. 2 (Sanjana Kumari) in a nationalised Bank at place and Branch of her choice. It will be the responsibility of the Chief Works Manager to deduct and deposit in the aforesaid Bank Account the arrears as well as the amount payable in future, apart from the interest and costs ordered for hereinbelow. This arrangement will terminate in March, 2002. I further order and direct the Chief Works Manager to start a departmental proceeding against Arun Kumar Aman, the opposite party herein, in accordance with the Rules for engaging himself in bigamy. It will be open to the Chief Works Manager to move this Court for clarification of this order or for further directions from time to time. 6. Stating this, the petitioner-counsel prayed to allow the instant petition and set aside the order passed by the trial court. 7. Mr. D. Datta, learned counsel appearing for the respondent submits that the petitioner and the respondent are legally wedded couple and the petitioner herein suppressed the fact of his first marriage with the respondent and lured her taking advantage of her widow status. The petitioner promised to share her burden and responsibilities and also told her that he will act as a responsible husband. Trusting the words of the petitioner, the respondent herein accepted his proposal and both became husband and wife and they started to live as a tenant in the house of one Rina Pal. The landlady has been examined before the Court below wherein she has categorically deposed that the petitioner and the respondent herein were husband and wife and they stayed in her premise for rent. 8. The landlady has been examined before the Court below wherein she has categorically deposed that the petitioner and the respondent herein were husband and wife and they stayed in her premise for rent. 8. Learned counsel appearing for the respondent further contended that on many occasions, the respondent has requested the petitioner to take her to his house and introduce her to his other family members which the petitioner used to ignore. When the matter became serious, the petitioner started behaving rudely with her. He also used to consume alcohol and in inebriated condition used to beat the respondent. Thereafter, slowly the petitioner reduced attending to her residence and once in a while, he used to come and stay with her. At this point of time when the petitioner felt that the respondent is in a financial crisis without a job, he started avoiding her and also refused to maintain the family. At that point, the respondent has preferred to approach the Court below seeking maintenance. The trial Court rightly after examination of the witnesses had directed the petitioner-husband herein to pay a sum of Rs. 10,000/- to the respondent-wife. To the respondent-wife, even the said amount ordered by the Trial Court is meager and she has sought for enhancement. However, for the present, they have not preferred any enhancement and prayed to dismiss the present revision petition and pass an order for maintenance. 9. Heard both sides and scrutinized the evidence on record. 10. The only point which falls for consideration in the light of the argument of the petitioner-counsel with regard to the marital status between the petitioner and the respondent herein is that, since the petitioner herein is already a married person and the respondent is claiming to be his second wife, the respondent herein cannot have the status of a wife as defined under Section 125 of Cr.P.C. Thus she is not entitled to maintenance. Accordingly, the claim needs to be rejected and the revision petition needs to be allowed. This Court has no hesitation to say that the contention made by the petitioner-counsel with regard to the status of the respondent as his second wife cannot be accepted since there is no judgment or decree in favour of the petitioner to declare that the marriage between the petitioner and respondent is void and their relationship is not that of husband and wife. Further, the case of the respondent is that the petitioner suppressed the fact of his first marriage and with false promises, he married her. The respondent also insisted the petitioner to take her to his house and introduced her to his other family members. This itself indicates that there was a suppression of fact by the petitioner with regard to his earlier marriage and this bonafide conduct of the respondent-wife cannot be ignored. For a minute, even otherwise if it is presumed that the petitioner is married, but, since the petitioner herein had a prolonged stay with the respondent herein, their relationship needs to be considered as a 'living-in-relationship'. So, even if looked at from any other angle, the petitioner cannot deny and deprive the respondent from paying her the maintenance. 11. In view of the above observation, this instant revision petition is dismissed. The order passed by the learned Addl. Judge, Family Court, Agartala in Case no. Misc. 370 of 2018 dated 30.07.2019 is upheld. The petitioner is liable to pay the maintenance as fixed by the Court below. As a sequel, miscellaneous applications pending, if any shall stand closed. Send down the LCRs.