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2024 DIGILAW 961 (RAJ)

Vinod S/o Shri Ramgopal v. Usha D/o Shri Ninuaram W/o Vinod

2024-07-10

ANIL KUMAR UPMAN

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ORDER : ANIL KUMAR UPMAN, J. 1. The instant criminal revision petition under Section 397 read with Section 401 Cr.P.C, has been filed on behalf of the petitioner/non-applicant assailing the order dated 21.07.2005 passed by learned Additional Sessions Judge, Dholpur in Criminal Revision No.150/2004 whereby the learned Revisional Court allowed the revision petition filed by respondent/applicant and set aside the order dated 19.01.2002 passed by learned Chief Judicial Magistrate (Senior Division Dholpur) in Criminal Misc. Case No. 50/1994, rejecting the application filed by the respondent/applicant for recovery of maintenance and did not held her entitle for maintenance w.e.f. 26.07.1995. 2. Brief facts of the case are that the respondent/applicant moved an application under Section 125 Cr.P.C on 25.11.1992 before the concerned Judicial Magistrate for maintenance against the petitioner/non-applicant on the ground of cruelty and desertion. The petitioner/non-applicant filed reply to the said application and denied the averments made therein. On account of absence of the petitioner before the learned trial court, ex-parte proceedings were initiated in the matter. Vide order dated 03.03.1994, the learned trial court allowed the application of respondent/applicant and directed the petitioner to pay maintenance to the tune of Rs.300/- per month from the date of the application i.e., 25.11.1992. 3. In the proceedings of recovery of maintenance, initiated by the respondent/applicant, on 01.07.1997, the petitioner moved an application under Section 127(3) Cr.P.C., with the averments that since the respondent/applicant entered into second marriage with one Rakesh Kumar and gave birth to a female child on 26.07.1996, she is not entitled for maintenance any further. The respondent/applicant filed response to the said application filed on behalf of the petitioner and denied the averments of second marriage as well as the factum of birth of female child. The learned Magistrate after hearing arguments of both the sides, vide order dated 06.11.1998 allowed the application of the petitioner/non-applicant and held that the respondent/applicant is entitled for maintenance only upto 26.07.1995. 4. The non-petitioner/applicant challenged the order dated 06.11.1998 by way of filing the revision petition (No.46/2000) before the learned Revisional Court. The learned Revisional Court vide its order dated 19.04.2001 set aside the order dated 06.11.1998 and remanded the matter to the learned Magistrate with direction to decide the application afresh as per law after providing opportunity to the parties to lead their evidence on the application dated 01.07.1997 filed by the petitioner/non-applicant. The learned Revisional Court vide its order dated 19.04.2001 set aside the order dated 06.11.1998 and remanded the matter to the learned Magistrate with direction to decide the application afresh as per law after providing opportunity to the parties to lead their evidence on the application dated 01.07.1997 filed by the petitioner/non-applicant. In compliance of order dated 19.04.2001 passed by the learned Revisional Court, the learned Magistrate on the application filed by the petitioner/non-applicant allowed both the parties to adduce their evidence. The petitioner/non-applicant adduced oral as well as documentary evidence in support of his case. 5. Vide order dated 19.01.2002, the learned Magistrate held that the petitioner/non-applicant had proved his case that respondent/applicant gave birth to a female child on 26.07.1996 from the relations with one Rakesh Kumar and therefore, she was not entitled for any maintenance from the petitioner with effect from 26.07.1995. Thereafter, the respondent/applicant again filed a criminal revision petition before the learned Sessions Judge Dholpur and challenged the order dated 19.01.2002 passed by the learned Magistrate. Vide order dated 21.07.2005, the learned Revisional Court accepted the revision petition filed by the respondent/applicant and set aside order dated 19.01.2002 passed by the learned Magistrate. Hence this revision petition. 6. Learned counsel for the petitioner/non-applicant vehemently argues that the order dated 21.07.2005 passed by the learned Revisional Court is absolutely illegal and perverse and therefore the same is liable to be set aside. He further submits that the learned Revisional Court has committed grave perversity and illegality in setting aside the order dated 19.01.2002 passed by learned Magistrate. The learned Magistrate vide order dated 19.01.2002, after considering the material available on record has rightly held that the petitioner has proved the fact that the respondent/applicant gave birth to a female child on 26.07.1996 from her relations with Rakesh Kumar and therefore, she is not entitled for any maintenance with effect from 26.07.1995. He submits that the petitioner/non-applicant produced oral as well as documentary evidence before the learned magistrate court in support of his case that the respondent-applicant gave birth to a female child on 26.07.1996 out of her relations with Rakesh Kumar. It is argued that the learned trial court accepted the case of the petitioner and held the respondent-applicant disentitled for maintenance. w.e.f. 26.07.1995 but the learned revisional court without there being any cogent reason or ground, set aside the order dated 19.01.2002. It is argued that the learned trial court accepted the case of the petitioner and held the respondent-applicant disentitled for maintenance. w.e.f. 26.07.1995 but the learned revisional court without there being any cogent reason or ground, set aside the order dated 19.01.2002. He thus craves acceptance of the revision petition. 7. Per contra learned counsel representing the respondent/applicant vehemently opposes the submissions advance by the learned counsel for petitioner. He submits that the learned Revisional Court has not committed any illegality and perversity in passing the impugned order. He further submits that the petitioner/non-applicant has failed to prove the factum of second marriage of the non-petitioner/applicant and therefore, the learned trial court committed grave illegality in holding that the non-petitioner/applicant is not entitled for maintenance w.e.f. 26.07.1995. He thus sought dismissal of the instant criminal revision petition. 8. I have heard and considered the arguments advanced at bar and perused the material available on record. 9. In the present case, it is an admitted position that petitioner and his wife (respondent) are not living together since long. In my considered opinion, the petitioner could not establish the factum of re-marriage of the respondent wife but he was able to establish the fact that she gave birth to a baby on 26.07.1996 out of her relations with Rakesh Kumar by producing oral as well as documentary evidence. Shri Kamal Kumar (NAW-3) who was the nursing staff of Navdeep Nursing Home, Agra had categorically stated that respondent-applicant was admitted in the Nursing Home on 26.07.1996 and she gave birth to a baby. He further deposed that as per record, on 26.07.1996, two ladies gave births to two infants in the nursing home. Their names were Meera and Usha. He disclosed that the name of the husband of Usha is recorded as Rakesh in the register maintained in the Nursing Home. Usha gave birth to a female child at 08:15 AM on 26.07.1996 and he can identify Usha, if she appears before him. However, respondent Usha was not present in the Court on the relevant date but her counsel did not raise any objection regarding she being identify by the witness. Usha gave birth to a female child at 08:15 AM on 26.07.1996 and he can identify Usha, if she appears before him. However, respondent Usha was not present in the Court on the relevant date but her counsel did not raise any objection regarding she being identify by the witness. On the basis of information sent by the Nursing Home, necessary entries were made in record of Nagar Nigam and birth certificate of female baby was issued wherein the name of mother has been mentioned as Usha whereas name of the father of the baby has been mentioned as Rakesh. To establish these facts, witness Najirbux, the then ASP Nagar Nigam, was produced in the witness box as NAW-4. Another witness i.e., Hari Singh, the Ward Parshad appeared in witness box as NAW-l and he categorically stated that the respondent was living with Rakesh and she had given birth to a female baby from that person. After going through the same, I do not see any reason to disbelieve the aforesaid evidence. On the basis of aforesaid evidence, it can be said that respondent is living with another person and has given birth to female baby. 10. Thus, in my considered opinion, learned revisional court committed illegality in holding that Rakesh, with whom respondent is residing, could have been produced by the petitioner as witness to establish the second marriage of the respondent. It is well settled law that standard of proof of fact in the proceedings of section 125 CrPC is not as strict as is required in a trial for an offence before the Court in any other criminal proceedings. 11. Man, whether in the role of a son, a father or a husband, has a socially embedded duty to provide for the well-being - physical as well as financial of his elderly parents, children and wife. This duty cast upon man is a consequence of the entrenched societal belief and mindset which has prevailed over the world, and especially in India, that the husband is the bread-earner of the family, whereas the duty of the wife is limited to taking care of the household. This duty cast upon man is a consequence of the entrenched societal belief and mindset which has prevailed over the world, and especially in India, that the husband is the bread-earner of the family, whereas the duty of the wife is limited to taking care of the household. In this context within the provisions of section 125 Cr.P.C, it has been provided that any person who is having sufficient means is under legal obligation to maintain wife, children and parents who are not having sufficient means to maintain themselves but there is an exception to this general provision like that provided under sub-section-4 of Section-125 Cr.P.C., where a wife will not be entitled to seek maintenance if she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent. 12. Sub-section (4) of Section 125 of the Code of Criminal Procedure reads as under: "No wife shall be entitled to receive an {allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this Section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent." 13. The interpretation ‘living in adultery' was adopted by the Hon'ble High Court of Gujarat in Giraben Sandipbhai Jotangiya & Ors. v/s State of Gujarat & Ors, decided On 4th August, 2015 : (2016) 2 RCR (Cri) 799 that a continuous adulterous relationship on the part of the wife is a vital requirement for her to be disentitled to claim maintenance from her husband under Section 125 of the Code. The Hon'ble Court, while delivering a detailed judgment, has also relied upon the observations of various courts from different parts of the country to the effect that a continuing adulterous relationship on the part of the wife is one of the fundamental requirements for her to be disqualified from claiming maintenance from her husband by virtue of section 125(4) of the Code. Thus, it is clear that when the wife is leading adulterous life, that itself disentitles her to claim maintenance from her husband. 14. Thus, it is clear that when the wife is leading adulterous life, that itself disentitles her to claim maintenance from her husband. 14. In view of the foregoing discussion, I hold that the learned Revisional Court was not right in reversing order of the Trial Court and therefore, the order of the learned Revisional Court impugned in this Criminal Revision Case is liable to be set aside. Resultantly, this Criminal Revision Petition is allowed. The order dated 21.07.2005, passed in Revision No.150/2004, passed by the learned Revisional Court, is set aside and the order dated 19.01.2002 passed by learned Additional Chief Judicial Magistrate, (Senior Division) Dholpur, dated 19.01.2002, passed in Misc. Criminal Case No.50/1994, is restored. 15. By effect of order dated 19.10.2005, the effect and operation of order dated 21.07.2005 passed by learned Addl. District & Sessions Judge, Dholpur in Criminal Revision No.150/2004 was stayed provided the petitioner deposits 50% of the amount of maintenance as per order dated 21.07.2005. By the said order, it was also directed that the amount would be kept in fixed deposit in the name of the non-petitioner in any nationalized bank. Since the petitioner has not been able to prove the factum of remarriage of the non-petitioner/applicant; she is the wife of the petitioner and she has fought her case from trial court to this Court, I am of the considered opinion that in the interest of justice, any un-disbursed amount, deposited in pursuance of the order dated 19.10.2005 shall be released in favour of the respondent-applicant forthwith. 16. Record of learned trial court as well as revisional court be returned to the concerned court forthwith.