Col. Sushil Giri vs State Of U.P. And Anr.
2015 Latest Caselaw 766 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                        Reserved
 
Case :- CRIMINAL REVISION No. - 2326 of 2012     AFR
 
Revisionist :- Col. Sushil Giri
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Indra Mani Tripathi
 
Counsel for Opposite Party :- Govt. Advocate,Sunil Vashisth
 
Hon'ble Arvind Kumar Mishra-I,J.

Heard learned counsel for the revisionist, the learned AGA for the State and the learned counsel for the private respondent.

By means of the instant revision, the revisionist has challenged the judgment and order dated 19.07.2012 passed by the Principal Judge, Family Court, in Case No.670 of 2006 under Section 125 Cr.P.C., Police Station Kanker Khera, District Meerut whereby the opposite party no.2 Smt. Jaswanti Devi has been awarded maintenance to the tune of Rs.2000/- per month from the date of presentation of the application and Rs.4500/- per month from the date of the order.

Brief sketch of the facts discernible from record reflect that the opposite party no.2 Smt. Jaswanti Devi instituted proceedings under Section 125 Cr.P.C. by moving an application before the Family Court, Meerut claiming maintenance for herself from Colonel Sushil Giri- the revisionist-as her husband.

It was averred, inter-alia, in the maintenance application that the applicant was earlier married to elder brother of revisionist Vijay Giri in the year 1964, who died in road accident in 1967. Thereafter, she went to her Maika and stayed over there for about two years. Her marriage with Sushil Giri-the revisionist-was solemnized according to the Hindu rituals in the year 1970. Four children were born to her out of aforesaid wedlock. Three of whom died while one daughter survived. After few years, the revisionist came under influence of another lady Vijay Goswami and began to neglect her. After alleging numerous episodes regarding her marital life she claimed maintenance from revisionist. This application was numbered 670 of 2006.

The revisionist put in his appearance and controverted the claim so made by the applicant. Both the sides led oral as well as documentary evidence before the learned Principal Judge, Family Court. The learned Principal Judge, Family Court after careful appraisal of evidence and circumstances passed aforesaid order dated 19.07.2012-thus allowing the maintenance application. Consequently, this revision.

The grounds urged in support of the instant revision relate to the extent that the Principal Judge, Family Court, Meerut, exceeded his jurisdiction so vested in him and has not properly exercised the same as was required of him while deciding the application under Section 125 Cr.P.C. The jurisdiction so vested has been erroneously exercised by the Principal Judge. The impugned order has been passed without application of mind.

Apart from above jurisdictional grounds, various factual aspects of the case have been detailed as grounds of the revision as incarnated in the memo of revision.

Arguments on behalf of the revisionist have been vigorously advanced and confined to the point that the opposite party no.2 Smt. Jaswanti Devi was never married to the revisionist. She was in fact Bhabhi of the revisionist and was wedded to the elder brother of the revisionist Vijay Pal in the year 1964. Vijay Pal died in the motor accident in the year 1967. Thereafter the revisionist who was at that point of time a student and was pursuing study, became sympathetic and emotional under such pathetic situation, took care of his Bhabhi. In due course of time he was appointed as radio operator in the Indian Army in the year 1968. By dint of hard work, he was offered rank of Colonel in the Indian Army, later on.

Thereafter the revisionist got married to Vijay Goswami after performing "Saptpadi" and all prescribed rituals under the Hindu religion in the year 1974. Two daughters were born out of this wedlock. Claim of opposite party no.2 Smt. Jaswanti Devi that she is legally wedded wife of the revisionist in the year 1970, is without any basis. There is no proof or vestige of any marriage having taken place between the opposite party no.2 Smt. Jaswanti Devi and the revisionist in the year 1970. The claim so made is mischievous one and is intended device to blackmail, in order to grab property of the revisionist.

It has been submitted by the learned counsel for the revisionist that the application under Section 125 Cr.P.C. was filed before the Family Court, Meerut in the year 2006 after a lapse of about 36 years and the opposite party no.2 Smt. Jaswanti Devi is a widow who lost her husband Vijay Pal in the year 1967. In order to obtain maintenance amount, lady will have to prove first that she is legally wedded wife. Opposite party no.2 has miserably failed to establish this essential and relevant fact before the learned trial court.

Learned counsel for the opposite party no.2 has vehemently refuted the aforesaid argument and in reply, has supported the finding recorded by the Principal Judge, Family Court, Meerut in relation to the application under Section 125 Cr.P.C. and has submitted that the Principal Judge, Family Court, Meerut while recording the finding has taken into consideration the entirety of claim vis-a-vis the entire evidence and circumstances on record which evidence and circumstances are self speaking and evince the truth, to the hilt, which no prudent man will decline to accept.

The moot point which forms centre of discussion rests on the anvil whether the maintenance amount can be claimed and allowed in this case?

I have perused the entire record and pored over the impugned judgment and order dated 19.07.2012 passed by the Principal Judge, Family Court in the aforesaid case. The learned Principal Judge, Family Court, Meerut has taken panoramic view of the various pros and cons of the rival claim so put forth right from the year 1970 and has analyzed in detail the relevant evidence applicable in the present case qua circumstances of this case. 

It is obvious that both the parties have led their testimony oral as well as documentary before the trial court. The revisionist as well as the opposite party no.2, Smt. Jaswanti Devi have got themselves examined before the trial court. It would be appropriate to take note of some relevant finding recorded by the trial court.

In so far as the point of marriage of the opposite party no.2, Smt. Jaswanti Devi with the revisionist is concerned, in that regard, evidence has come forth to the effect from the opposite party no.2, Smt. Jaswanti Devi herself  that her husband died in the year 1967, whereafter she got married with the revisionist. Four children were born out of their wedlock. She has stated that the marriage was solemnized according to the Hindu rituals, whereas, in her cross examination she has stated that no "Saptpadi" took place. After death of her husband, she resided at her Maika. She took her domicile at her Maika for about two years.  Ten people participated in the marriage ceremony. She was garlanded (in the ceremony) and thereafter she was taken to the village 'Baghela'. She used to live with the revisionist as his wife. The oral testimony so adduced in the trial court was corroborated by a number of documentary evidence. The description of some relevant documents deserve mention at this stage.

Paper no.30-A is copy of the dependency Identity Card of Colonel Sushil Giri which is meant for providing medical facility by the Indian Army to its personnel, which was provided in original also before the trial court, wherein, the opposite party no.2, Smt. Jaswanti Devi has been stated to be wife of  Colonel Sushil Giri. Paper no.31 A is  copy of Pariwar register. Paper no.32 A is copy of the Identity Card issued by the Election Commission of India in the year 1995 concerning the opposite party no.2, Smt. Jaswanti Devi. Paper no.33 A is copy of the joint account held by both the contesting parties relating to the District Cooperative Bank Ltd. 'Sakauti'. Paper no.34 A is copy of the voter list of Panchayat Nirvachan Niyamawali 2005 and so forth and so on. Other relevant paper is paper no.67 Ka relating to the Indian Army wherein the opposite party no.2, Smt. Jaswanti Devi has been described as wife and Renu has been described as daughter of the revisionist. Similarly, Paper nos.68 A and 69 A relate to the office of the Indian Army wherein also the opposite party no.2, Smt. Jaswanti Devi has been stated to be the wife of the revisionist. All these documents proved claim of the opposite party no.2 and entitled her for maintenance. These documents have been rightly given weightage. The papers on record carry unimpeachable force and are impregnable. The revisionist could not rebut and deny authenticity and veracity of these relevant documents which innocuously establish relationship between the contesting parties as one of husband and wife.

Perusal of record reflects that a claim for maintenance as wife was raised before the army authority against the revisionist, which was allowed and the claim for maintenance was upheld by the concerned departmental authority and 22% of the salary was directed to be given to Smt. Jaswanti Devi.

This order of maintenance was challenged before the High Court Guwhati by filing a petition which was got dismissed on 12.10.2007 as not pressed. The above documentary proofs act as a estoppel against the revisionist to deny claim of opposite party no.2 for maintenance. These documents have been rightly and correctly believed by the trial court. These papers are self-speaking about the existing status the revisionist was enjoying at that particular point of time; and circumstances further indicate that he continued with the same at the time of marriage of Km. Renu Goswami who was described in the military record as daughter of the revisionist. The revisionist allowed his name to be used in the marriage invitation card as the father of Renu Goswami. Not only this, some affidavit, copy whereof is Paper No.65A on record, reflects that a declaration was made to the effect that name of the opposite party no.2-Smt. Jaswanti Devi though entered in the official record as wife of revisionist was named in her educational certificates as Vijay Goswami. This act on the part of the revisionist, not only establishes intriguing proclivity but also establishes fact that the revisionist is in the habit of changing his version according to changing circumstances, whereby he has no hesitation in changing lady of his own choice; besides the act shows dual personality of the revisionist. The learned trial court has given consistent analogy of facts, law and evidence and has taken entirety of the matter into consideration in most positive and consistent manner, which analogy and appraisal cannot be faulted with even after strenuous efforts.

In view of the aforesaid facts and circumstances of the case and the material available on record, it cannot be said that the trial Judge has committed any jurisdictional error of any kind whatsoever. It is an admitted fact that the application under Section 125 Cr.P.C. is to be and may be moved where the wife normally resides for the time being and in this case the address given in the maintenance application of the wife relates to the district Meerut, therefore, it cannot be said that the Principal Judge, Family Court, Meerut was not having jurisdiction for disposal of the maintenance proceedings as initiated at the instance of the the opposite party no.2, Smt. Jaswanti Devi.

Learned counsel for the revisionist has placed reliance on various decisions of the Hon'ble Apex Court as well as the High Court, which on careful consideration are not helpful and not applicable to the given facts and circumstances of the case. A bare perusal of the record profusely reflects that the revisionist took advantage of his position, exploited vulnerability of a widow and enjoyed physical company of Smt. Jaswanti Devi after death of her husband in 1967. The revisionist by his overt act disclosed to the entire word that he treated the opposite party no.2, Smt. Jaswanti Devi as his wife. In catena of decisions, Hon'ble Apex Court has laid down the law that in cases where a man and woman live together and maintain sustained physical relationship for quite a long time giving impression to the society that they are living in the company of each other, then assumption on marital relationship alone can be imputed upon both of them. And this circumstance alone is sufficient for awarding maintenance amount in favour of a lady who claims to be wife of such man.

The trial court has also taken note of the principles laid down by Hon'ble Apex Court in the case of Payala Muthamma Vs. Payala Suri Taimaidu 2011 AIAR (Crl.) 833 wherein also the same proposition has been laid down by Hon'ble Apex Court. Similarly, the trial court has also considered the principles and directions as contained in the case of Chanmuniya Vs. Virendra Kushwaha reported 2011 (73) ACC 334 SC.

It is surprising that Renu Goswami was born in the year 1975 and the revisionist showed himself to be the father of Renu Goswami in her educational record and in her marriage invitation card. This admitted fact by itself is uncontroverted admission, in black and white, which need no further explanation, about the nature and extent of existing relationship between the revisionist and Smt. Jaswanti Devi. This style smacks of deliberate indulgence on the part of the revisionist and this cannot be undone merely by putting argument that the revisionist was sympathetic towards pitiable condition of the opposite party no.2-Smt. Jaswanti Devi, after the death of her husband in the year 1967 and he wanted to ameliorate her condition in society at large. Colonel Sushil Giri could not name the person as father of Renu Goswami, when opposite party no.2 was called a widow at that point of time in 1975. No sane person who has entered into wedlock with a lady (Vijay Goswami) in 1974 will dare to allow his name to be used as father of a child born to a lady who is known widow. Here admitted conduct proves the actual relationship.

I would further add that it is surprising to note that the revisionist claims to have been wedded to one Smt. Vijay Goswami in the year 1974 but it has not been made clear as to how and why Smt. Vijay Goswami, if alive, was not produced/examined before the trial court so as to reflect on the point in issue before the trial court, whose testimony, if adduced, would have unravelled truth in more transparent way than any other substantial evidence, which the revisionist in fact wanted to make the trial court to believe in under circumstances, this particular aspect is not only a mistake but also a deliberate aberration. Apart from marital facts, the learned trial Judge has considered other relevant aspects which are also liable to be sustained for the reason that the finding so recorded is based on material on record.

Before parting with the judgment, I would supplement that Hon'ble Apex Court has recently pronounced various judgments wherein also live-in relationship has been accorded sanction to the extent that a lady may claim maintenance from the person who enjoyed her company and lived with her for quite long time as such. On that count also, the revisionist is liable to pay the maintenance amount to the opposite party no.2, Smt. Jaswanti Devi.

In view of the above analogy, it can be conveniently concluded that the findings recorded by the trial court are absolutely justified. The judgment and order 19.07.2012 passed by the Principal Judge, Family Court, Meerut in Case No.670 of 2006 under Section 125 Cr.P.C., Police Station Kanker Khera, District Meerut is elaborate and self-speaking, as it contains all the variations, colours and reflections both documentary as well as oral (evidence) vis-a-vis circumstances of the case. Similarly, the grounds urged in support of the instant revision sans merit. The judgment and order 19.07.2012 passed by the Principal Judge, Family Court, Meerut, in Case No.670 of 2006 under Section 125 Cr.P.C., Police Station Kanker Khera, District Meerut is affirmed.

Accordingly, the instant revision is dismissed.

Order Date :- 29.5.2015

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