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2024 DIGILAW 618 (ALL)

Pinki Vishwakarma v. State of U. P.

2024-02-28

SURENDRA SINGH I

body2024
JUDGMENT : Heard Sri Hari Keshav, Advocate, holding brief of Sri Shailendra Kumar Rai, learned counsel for the revisionists and Sri Pradeep Kumar Rai, learned counsel for the opposite party no. 2. 2. This criminal revision has been instituted against judgment and order dated 06.12.2022 passed by learned Principal Judge, Family Court, Ghazipur in Criminal Misc. Case No. 838 of 2020, Pinki Vishwakarma and Another Vs. Ashok Kumar Vishwakarma u/s 125 Cr.P.C. 3. By the impugned order, Principal Judge, Family Court, Ghazipur, dismissed the misc. case filed by applicants/revisionists for maintenance. 4. It has been submitted by learned counsel for the revisionists that the learned Principal Judge, Family Court, Ghazipur, acted mechanically and vide impugned judgment and order dated 06.12.2022 rejected her application u/s 125 Cr.P.C. in a routine manner without considering the facts and circumstances of the case and without perusing the evidence on record. It has also been submitted that the impugned judgment was passed on the basis of forged certificate issued by the President of Maa Sheetla Sanrakshak Pujari Samiti, Sultanpur, Chunar, Mirzapur, wrongly showing that the revisionist no. 1, Pinki Vishwakarma was earlier married with one Raju Vishwakarma, son of Late Uma Vishwakarma. The impugned judgment and order dated 06.12.2022 passed by learned Principal Judge, Family Court, Ghazipur, is bad, wholly illegal and arbitrary, which is not sustainable in the eyes of law. It has also been submitted that the trial court has passed the impugned judgment and order on the basis of unproved documents produced by opposite party no. 2. It has also been submitted that the learned Family Court wrongly calculated the period of pregnancy of revisionist no. 1 on the basis of forged medical documents produced by the opposite party no. 2 and came to the conclusion that revisionist no. 1 was pregnant before her marriage with opposite party no. 2. The Medical Officer who had prepared the documents was not examined before the Family Court. It has also been submitted that the learned trial court has ignored the fact that the revisionist no. 1 is the legally wedded wife of the opposite party no. 2 and she is unable to maintain herself along with her minor daughter. Therefore, she could have been granted maintenance for herself as well as her daughter. The learned Family Court has committed manifest illegality causing irreparable loss and damage to the revisionists. 1 is the legally wedded wife of the opposite party no. 2 and she is unable to maintain herself along with her minor daughter. Therefore, she could have been granted maintenance for herself as well as her daughter. The learned Family Court has committed manifest illegality causing irreparable loss and damage to the revisionists. Therefore, the impugned order should be set-aside by this Court. It has also been submitted that the revisionist no. 1 after her marriage to opposite party no. 2 went to her matrimonial home and stayed there for 1½ months with opposite party no. 2 and his family members. During this period, she got pregnant with her relation with opposite party no. 2. At her matrimonial home, opposite party no. 2 and his family members pressurized her to bring Rs.2,00,000/- cash, her father’s truck and plot of 3 biswa land situated in front of Government Hospital on the Ghazipur-Varanasi main road. When revisionist no. 1 and her family members refused to fulfil the demands of dowry of opposite party no. 2 and his family members, they harassed her, beat her and threatened to murder her and at 8 p.m., they turned her out of her matrimonial home after snatching her jewellery, clothes and other items. Since then, revisionist no. 1 is staying in her parental home. In her parental home, revisionist no. 1 gave birth to her daughter. During her stay at her parental home, opposite party no. 2 did not provide any maintenance to revisionist nos. 1 and 2. Therefore, she filed application u/s 125 Cr.P.C. for maintenance. 5. Per contra, learned counsel for the opposite party no. 2 while opposing the revision, has submitted that prior to the marriage with opposite party no. 2, revisionist no. 1 had solemnized her marriage with Raju Vishwakarma on 02.05.2004. Without obtaining divorce from her first husband and with a view to grab the property of opposite party no. 2 and extort money in the name of alimony, she married opposite party no. 2. The revisionist no. 1 stayed only for 4 days with opposite party no. 2 and then she left. After that she is living with her first husband. It has also been submitted that after obtaining Rs.1,00,000/- from opposite party no. 2, revisionist no. 1 has taken divorce on 15.03.2008 with him before Panchayat members. The revisionist no. 2. The revisionist no. 1 stayed only for 4 days with opposite party no. 2 and then she left. After that she is living with her first husband. It has also been submitted that after obtaining Rs.1,00,000/- from opposite party no. 2, revisionist no. 1 has taken divorce on 15.03.2008 with him before Panchayat members. The revisionist no. 2, Vaishnavi was not born from her wedlock with opposite party no. 2 but she was born out from the wedlock of first marriage with Raju Vishwakarma. It has also been submitted that revisionist no. 1 married with opposite party no. 2 on 12.12.2006. She got her ultrasound done by Dr. Usha Gupta at Aashirvaad Hospital and Research Centre, Mehmudganj, Varanasi on 09.02.2007. According to the ultrasound, medical paper no. 113(b) in remark 9, it is specifically mentioned that ultrasound gestation age is 10 weeks. It means that the revisionist no.1 had carried a foetus of 70 days at the date of 09.02.2007. Hence, on this basis it can be concluded that on the date of her marriage with opposite party no. 2, i.e., 12.12.2006, the revisionist no.1 had carried a foetus of 11 days. It has also been submitted that the revisionist no. 1 has admitted in her cross-examination that she had filed medical papers annexed to her application u/s 156(3) Cr.P.C. for registration of case u/s 498-A I.P.C. She has also admitted that before marriage, she had no acquaintance with opposite party no. 2. It has also been submitted that since revisionist no. 1 had admitted the medical paper regarding her ultrasound in her examination-on-oath, thus these papers under the provisions of Section 58 of Evidence Act can be considered as admissible in evidence without being proved. It has also been submitted that opposite party no. 2 had filed application no. 136-b on 25.02.2019 for summoning the doctor for proving the medical paper and application no. 128-b on 27.02.2018 for conduct of DNA test of revisionist no. 1 but his application was rejected by the trial court vide orders dated 25.02.2019 and 17.10.2018 respectively. It has also been submitted that the trial court, after considering the evidence on record as well as the legal provisions applicable thereto, had passed the impugned judgment and order and there is no illegality in it and the revision should be rejected. 6. It has also been submitted that the trial court, after considering the evidence on record as well as the legal provisions applicable thereto, had passed the impugned judgment and order and there is no illegality in it and the revision should be rejected. 6. In its impugned judgment and order dated 06.12.2022, the Principal Judge, Family Court, after discussing the pleadings of the parties and documentary and oral evidence on record, has alluded that the marriage of revisionist no. 1 was solemnized with opposite party no. 2 on 12.12.2006 according to Hindu rites and customs and after the marriage, she came to her matrimonial home and started living with opposite party no. 2. 7. In the impugned judgment and order dated 06.12.2022, the trial court has mentioned that opposite party no. 2 has filed original certificate, paper no. 1, 48-b which shows that revisionist no.1, Pinki Vishwakarma, daughter of Shyam Deo Vishwakarma, resident of Nandganj, Ghazipur was married to Raju Vishwakarma son of late Uma Vishwakarma, village- Varapur, Nandganj, Ghazipur, on 02.05.2004 in the courtyard of Sheetala Dham Mandir, Adalpura, Mirzapur in the presence of priests. It has also been mentioned that opposite party no. 2 who produced the documents in the Court has stated in his evidence that this original document was given to his father, Subhash Vishwakarma, in the year 2018 by Chandrama Vishwakarma, father-in-law of revisionist no. 1’s brother, Babulal, whose daughter Sunita was married to Babulal. The trial court has mentioned that since revisionist no. 1 did not file any document in rebuttal of this certificate, the contents of the documents was considered as proved and relied upon. 8. The trial court has also mentioned that the revisionist no. 1, Pinki Vishwakarma had on the advice of Dr. Usha Gupta of Aashirvaad Hospital and Research Centre, Mehmudganj, Varanasi, got her ultrasound done on 09.02.2007 at the Diagnostic Ultrasound unit of aforesaid hospital regarding her pregnancy. In its medical report dated 29.11.2006, it was mentioned that the foetus is 10 weeks old. Therefore, the conceivement had taken place 70 days before from 29.11.2006 i.e. before the date of her marriage 12.12.2006 with opposite party no. 2. The Principal Judge, Family Court, has also mentioned that the revisionist no. 1 admitted in her evidence that she had submitted her medical report with her application u/s 156 (3) Cr.P.C. for registration of first information report. 2. The Principal Judge, Family Court, has also mentioned that the revisionist no. 1 admitted in her evidence that she had submitted her medical report with her application u/s 156 (3) Cr.P.C. for registration of first information report. She had also admitted that she obtained the aforesaid medical report from the file of misc. case u/s 156 (3) Cr.P.C. and she had filed it in the case of maintenance u/s 125 Cr.P.C. On the basis of the aforesaid evidence, the learned Principal Judge, Family Court, concluded that since the ultrasound report has been admitted by the revisionist no.1, it can be considered as proved and can be relied upon against revisionist no. 1. On the basis of the aforesaid evidence, the trial court has concluded that before her marriage with opposite party no. 2, Ashok Kumar Vishwakarma, the revisionist no.1 had illicit relation with some other person from which revisionist no. 1 was conceived. Since revisionist no. 1 has admitted that before her marriage with opposite party no. 2, she did not have any acquaintance with him, the trial court concluded that revisionist no. 1 was not pregnant with her relation with opposite party no. 2 and revisionist no.2 was not born from the wedlock of revisionist no. 1 with opposite party no. 2. 9. After the aforesaid discussions, the trial court has dismissed the application u/s 125 Cr.P.C. filed by the revisionist no. 1 on the ground that :- (i) revision no. 1 had adulterous relationship with some other person before her marriage to opposite party no. 2, and, (ii) the revisionist no. 2 was not conceived from the wedlock of revisionist no.1 with opposite party no. 2 but from some other person, therefore, she was not entitled to maintenance u/s 125 Cr.P.C. (iii) the revisionist no. 1 is staying separately from opposite party no. 2 without any reason after staying in her matrimonial home of 1½ month with him. 10. Regarding conceivement of revisionist no. 1 before her marriage to opposite party no. 2, Ashok Kumar Vishwakarma, the trial court has relied on the ultrasound report dated 09.02.2007 regarding the foetus of revisionist no. 1 in which the age of the foetus is shown as 10 weeks which is equal to 70 days. Therefore, on the date of her marriage to opposite party no. 2 i.e. on 12.12.2006, the revisionist no. 2, Ashok Kumar Vishwakarma, the trial court has relied on the ultrasound report dated 09.02.2007 regarding the foetus of revisionist no. 1 in which the age of the foetus is shown as 10 weeks which is equal to 70 days. Therefore, on the date of her marriage to opposite party no. 2 i.e. on 12.12.2006, the revisionist no. 1 was bearing the foetus of 11 days. The trial court has mentioned in its judgment that the revisionist no. 1 had admitted the medical papers in her cross-examination. Therefore, it can be presumed as duly proved and can be relied upon as evidence. The alleged ultrasound report dated 09.02.2007 which was prepared on the basis of the ultrasound of revisionist no.1 done at Aashirvaad Hospital and Research Centre, Mehmudganj, Varanasi under the supervision of Dr. Usha Gupta which is mentioned in the judgment as paper no. 113-b has not been proved by the evidence of Dr. Usha Gupta or any other person of the ultrasound centre who was familiar with the handwriting and signature of Dr. Usha Gupta. 11. Since opposite party no. 2 did not file any criminal revision in the Hon’ble High Court against rejection of his aforesaid application, therefore, the aforesaid order of the trial court rejecting his application has become final and the opposite party no. 2 cannot raise any objection against the aforesaid orders at this stage in this revision. 12. Now, it has to be seen whether the ultrasound report dated 09.02.2007 regarding the age of the foetus of revisionist no. 1 can be considered as admitted and proved and can be relied upon by the trial court for passing the impugned order. The trial court has alluded in its judgment that revisionist no. 1 has admitted the genuineness and contents of the ultrasound report in her cross-examination. The above referred cross-examination of P.W.1 Pinki Vishwakarma is filed at page nos. 1 can be considered as admitted and proved and can be relied upon by the trial court for passing the impugned order. The trial court has alluded in its judgment that revisionist no. 1 has admitted the genuineness and contents of the ultrasound report in her cross-examination. The above referred cross-examination of P.W.1 Pinki Vishwakarma is filed at page nos. 98 and 99 of Annexure No. 6 to the revision which is reproduced as hereunder : esjh cPph dk uke oS".koh fo'odekZ gSA esjh cPph fnukad 16-09-2007 dks iSnk gqbZA ;g cPph izfrHkk eSVjfuVh ,.M vkbZ fjlpZ lsUVj eÅ es iSnk gqbZA eS viuk bykt djkus cukjl Hkh x;h FkhA eSus vk'khZokn fjlpZ lsaVj esa MkŒmek xqIrk ds ;gka ls eSus viuk bZykt djk;k FkkA ngst ds :i es esjs llqj o esjs ifr ds uke ls ipkl gtkj ds psd fy;s x;sA psd dk uacj eS ugh crk ldrhA esjs ngst esa dksbZ ,uŒ,lŒlhŒ ugh fn;k x;k FkkA nksuks vLirkyksa ds tkap fjiksVZ esa esjs xHkZorh gksus dh tks frfFk crk;h x;h] eq>s ;kn ugh gSA eSus 156¼3½ lhŒvkjŒihŒlhŒ ds eqdnes esa lkjs esfMdy fjiksVZ yxk;s gSA eS 'kknh ds iwoZ xHkZorh ugh FkhA esjk dksbZ iwoZ ifr ugh gSA ,uŒ,lŒlhŒ dk Hkqxrku esus djk fy;k gS eS vius ifr v'kksd dh 'kknh ds iwoZ ugh tkurh FkhA 'kknh ds ckn esa MSढ ekg rd vius llqjky es jgh FkhA 13. From the perusal of the above-mentioned cross-examination dated 06.03.2020 of P.W.1 Pinki Vishwakarma, it transpires that during the cross-examination, the ultrasound report regarding her foetus was neither shown to P.W.1 nor she has proved the aforesaid ultrasound report after its perusal in the Court. She has deposed in her evidence that she had attached all medical papers in her application u/s 156(3) Cr.P.C. During her cross-examination, her application u/s 156(3) Cr.P.C. or the medical paper attached to it has not been shown to her. Thus, it cannot be inferred that P.W.1 Pinki Vishwakarma after perusal of the medical report/ultrasound report attached to her application u/s 156(3) Cr.P.C. admitted its genuineness and ultrasound report was duly proved according to law. The aforesaid ultrasound report has not been exhibited after allegedly being proved by P.W.1 Pinki Vishwakarma. 14. Thus, it cannot be inferred that P.W.1 Pinki Vishwakarma after perusal of the medical report/ultrasound report attached to her application u/s 156(3) Cr.P.C. admitted its genuineness and ultrasound report was duly proved according to law. The aforesaid ultrasound report has not been exhibited after allegedly being proved by P.W.1 Pinki Vishwakarma. 14. Under these facts and circumstances of the case, it cannot be considered that the ultrasound report dated 09.02.2007 which has shown the age of foetus to be 10 weeks old has been duly proved. Since the ultrasound report has not been duly proved, it cannot be considered as proving the fact of the age of her foetus on the date of ultrasound i.e. 09.02.2007. Thus, it cannot be concluded that revisionist no. 1 was bearing an 11 days foetus at the date of her marriage with opposite party no. 2 i.e. on 12.12.2006. 15. Thus, it cannot be said that revisionist no. 2 was not begotten with revisionist no. 1 relation with opposite party no. 2. Since revisionist no. 2, Vaishnavi, was born on 16.09.2007 i.e. after 9 months 4 days after marriage of revisionist no.1 with opposite party no. 2, she will be considered to have been begotten by revisionist no. 1 with opposite party no. 2 during the continuance of her marriage with him. 16. Section 112 of the Indian Evidence Act provides that birth of a child during continuance of valid marriage between his mother and any man or within 280 days after its dissolution, the mother remaining unmarried shall be conclusive proof of legitimacy of the son. Section 112 is as follows : 112. Birth during marriage, conclusive proof of legitimacy – The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. Section 112 of the Indian Evidence Act provides in itself that how this presumption about legitimacy of a child can be rebutted by the opposite party. Section 112 of the Indian Evidence Act provides in itself that how this presumption about legitimacy of a child can be rebutted by the opposite party. For its rebuttal, it should be shown that parties to the marriage had no access to each other at the time when the child could have been begotten. 17. From the above discussion, it is proved that revisionist no. 2, Vaishnavi was born after 9 months and 4 days of the marriage of revisionist no.1 with opposite party no. 2 which is less than 280 days. Therefore, the presumption u/s 112 of the Indian Evidence Act is applicable on the birth of revisionist no. 2 and provides legitimacy to her birth and raises a presumption that she is a legitimate child of revisionist no.1 and opposite party no. 2. The opposite party no. 2 has failed to rebut the presumption arising out of Section 112 of Indian Evidence Act by proving that revisionist no.1 was bearing a foetus before her marriage with opposite party no. 2. Therefore, it cannot be considered that revisionist no. 2 was not conceived from the wedlock of revisionist no.1 with opposite party no. 2 but from some other person. Since, revisionist no. 2 is a legitimate child from revisionist no.1 with opposite party no. 2, she is entitled to maintenance u/s 125 Cr.P.C. from opposite party no. 2. 18. The other ground which has been relied upon by the trial court for rejecting the application of revisionist no. 1 u/s 125 Cr.P.C. is that she was residing separately from opposite party no. 2 without any reason. Thus, she is dis-entitled from obtaining maintenance u/s 125 (4) Cr.P.C. from opposite party no. 2. P.W.1 Pinki Vishwakarma has deposed that after her marriage with opposite party no. 2, she resided in her matrimonial home for 1½ months. During this period, opposite party no. 2 and her family members pressurized her to bring Rs.2,00,000/- cash, her father’s truck and plot of 3 biswa land situated in front of Government Hospital on the Ghazipur-Varanasi main road. They harassed her, beat her and threatened to murder her and at 8 p.m. turned her out of her matrimonial home after snatching her jewellery. The opposite party no. 2 and her family members pressurized her to bring Rs.2,00,000/- cash, her father’s truck and plot of 3 biswa land situated in front of Government Hospital on the Ghazipur-Varanasi main road. They harassed her, beat her and threatened to murder her and at 8 p.m. turned her out of her matrimonial home after snatching her jewellery. The opposite party no. 2 has deposed that neither any demand of dowry was made from the revisionist no.1 nor she was harassed or beaten by his family members at her matrimonial home. She left her matrimonial home after living there for 4 days only. P.W.1 Pinki Vishwakarma has also deposed in her evidence that her father and brother made efforts for settlement with opposite party no. 2 for 3 times but they did not agree to let her stay at her matrimonial home without fulfilling the dowry demand. 19. D.W.1 Ashok Kumar Vishwakarma has admitted in his evidence that revisionist no. 1 has filed application u/s 156 (3) Cr.P.C. regarding cruelty and harassment for dowry against him as well as his family members. Admittedly, opposite party no. 2 has filed a Hindu Marriage Petition No. 31 of 2008, Ashok Kumar Vishwakarma Vs. Pinki Vishwakarma u/s 13 of the Hindu Marriage Act for divorce against revisionist no. 1. The opposite party no. 2 has entered into second marriage with daughter of Ram Prasad Vishwakarma who is resident of Chandausi. The name of her brothers are Swagat and Pradeep. The revisionist no. 1 could not recall the name of second wife of opposite party no. 2 but did mention that the name of her brothers are Swagat and Pradeep. The revisionist no. 1 also deposed that since opposite party no. 2 had married another woman, she is not prepared to live along with her. From the analysis of the above oral and documentary evidence, it can be concluded that due to harassment and cruelty met by Pinki Vishwakarma from Ashok Kumar Vishwakarma and his family members and his marrying another woman, she is living separately from him. Therefore, it cannot be concluded that she is staying separately from Ashok Kumar Vishwakarma without any reason. Thus, finding in this regard arrived at by the trial court is perverse and cannot be accepted. 20. Therefore, it cannot be concluded that she is staying separately from Ashok Kumar Vishwakarma without any reason. Thus, finding in this regard arrived at by the trial court is perverse and cannot be accepted. 20. From the perusal of the impugned judgment and order, it transpires that the trial court has not given any finding on the income of Ashok Kumar Vishwakarma. The trial court has rejected the application u/s 125 Cr.P.C. merely on the basis of above-mentioned three grounds that firstly, revisionist no. 1 was pregnant at the time of her marriage to opposite party no. 2, secondly, revisionist no. 2, Vaishnavi is the daughter born from the wedlock of revisionist no. 1 and opposite party no. 2 and thirdly, revisionist no. 1 is living separately from her husband without any reason, therefore, she is entitled for maintenance. 21. From the above discussion of the evidence on record, the Court is of the considered view that illegality has been committed by the trial court by rejecting the misc. case and application u/s 125 Cr.P.C. by the impugned order. The impugned order is liable to be rejected. 22. Accordingly, the criminal revision is allowed. The impugned judgment and order dated 06.12.2022 passed by learned Principal Judge, Family Court, Ghazipur, is hereby set-aside. 23. This Court is of the view that the trial court be directed to order afresh on application u/s 125 Cr.P.C. in the light of the observations made in this judgment and after ascertaining the income of opposite party no. 2, pass order for maintenance allowance in favour of revisionist nos. 1 and 2 according to law. The trial court shall direct both the parties to submit affidavit regarding their income in the light of the directions given by Hon'ble Apex Court in Rajnesh Vs. Neha and Another, (2021) 2 SCC 324 within one month and decide the application u/s 125 Cr.P.C. within a period of 4 months. The parties shall appear in the trial court on 15.03.2024. 24. The copy of the judgment be forthwith sent to the trial court for compliance.