Allahabad High Court
Raj Kumar vs State Of U.P. And Anr. on 8 April, 2022
Bench: Brij Raj Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 16
Case :- CRIMINAL REVISION No. - 725 of 2019
Revisionist :- Raj Kumar
Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Anuj Dayal
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Brij Raj Singh,J.
Heard Sri Anuj Dayal, learned counsel for the revisionist and Sri Diwakar Singh, learned A.G.A. for the State.
Although, the notice has been served upon opposite party no.2, but none appeared on his behalf.
The present revision has been preferred with a prayer to call for the records of Criminal Misc. Case No.2481/2014 (Smt. Anju Vs. Raj Kumar) and set aside the impugned order dated 02.05.2019 passed by the learned Principal Judge, Family Court, Sultanpur, under Section 125 Cr.P.C., Police Station Motigarpur, District Sultanpur.
The opposite party no.2 filed an application under Section 125 Cr.P.C. before the Family Court, Sultanpur to the effect that she was married to revisionist on 06.05.2001 as per Hindu rites. In April 2002, she came to her in-laws house (Sasural) at the time of her Gauna. The opposite party no.2 and revisionist led their life as wife and husband. However, the dowry was demanded by the in-laws and her husband and a motorcycle was demanded. It has been further submitted by the opposite party before the Family Court that out of their wedlock one child was born and in September, 2007. The opposite party no.2 was deserted by her husband. She further stated that the revisionist has got agriculture lands and a Mahindra Tractor and has source of income to the tune of Rs.10,000/- per month, whereas, the opposite party no.2 has no source of income.
The application filed by the opposite party no.2 was opposed by the revisionist by filing objection and in the objection he stated that marriage was solemnized on 29.04.2002. He further objected that when opposite party no.2 came to the house of the revisionist she was already pregnant and she lived with him only for 20 days. It has been stated that she had an illicit relation with man of her paternal village and an illegitimate child was born out of illicit relationship. It is further stated that thereafter, Case No.343 of 2007, (Raj Kumar Vs. Anshu) under Section 13 of Hindu Marriage Act was instituted and also an application filed under Section 24 of the Hindu Marriage Act for maintenance was rejected by the Family Court on the ground of adultery. The opposite party no.2 filed case before the High Court challenging the said order which is pending. He has further submitted that the decree of the divorce has been passed and the opposite party no.2 is doing sewing work and earning Rs.5,000/- per month and therefore, it was requested that the Case under Section 125 Cr.P.C. liable to be rejected. The Family Court framed following five issues:-
1. Whether the marriage took place between the revisionist and opposite party no.2?
2. Whether the revisionist has deserted the opposite party no.2 and whether opposite party no.2 is residing separately?
3. Whether the opposite party no.2 is unable to maintain herself and has source of income?
4. Whether the revisionist has got sufficient source of income?
5. Whether the opposite party no.2 is entitled for the maintenance and if yes, how much and from which date?
The court below passed the impugned order and recorded categorical finding that after examining the wife and her father and looking other circumstances, the maintenance was awarded and it was further recorded that the wife is unable to maintain herself, whereas, the revisionist being husband is liable to maintain her. Being aggrieved against the impugned order, the present revision has been preferred.
So for issue no.1 is concerned it is admitted on record that marriage took place between the revisionist and opposite party no.2 and there is no dispute on the issue of marriage between the parties because both the parties have admitted this fact on record. However, I have to see the issue nos.2 to 5, which has been decided by the court below. The opposite party and her father was examined and cross examination was also conducted. Similarly, the revisionist was also examined before the Family Court and it has come on record that in the divorce decree being Case No.343 of 2007 (Raj Kumar Vs. Manju), the judgment was passed on 19.01.2013. In the said judgment the divorce decree was passed on 19.01.2013, however, the court in the said divorce decree has observed that the child was born out of the wedlock of revisionist and opposite party no.2 and the birth of the child took place in the house of the revisionist.
In the said facts and circumstances, it cannot be said that the child is illegitimate. The revisionist was unable to prove that the opposite party no.2 had any illicit relation as has been alleged by the revisionist which was an oral submission made before the court and could not be substantiated by the revisionist. The charge of adultery is not proved, therefore, the point of maintenance would definitely arise in the present case. It is admitted on record that the opposite party no.2 is residing with her father and there is no source of her own income and she merely depending upon her father. Once, it is admitted on record that she has no source of income and she is unable to maintain herself, it is incumbent upon the husband to maintain the wife. The child was born out of the wedlock of the two, therefore, the husband is duty-bound to maintain the child. It has also come on record that the revisionist has done second marriage. Once he is maintaining his second wife and himself, he cannot be allowed to keep away himself from the duty to maintain his first wife, nevertheless she is divorced. Argument advanced by the learned counsel for the revisionist is that the opposite party no.2, is living separately and filed application in 2014; thus, she was able to maintain herself and it is presumed that she has source of income. The submission of the learned counsel for the revisionist has no force since the revisionist was unable to prove, by filing any document, that the opposite party no.2 has got any source of income. Therefore, this argument does not survive.
The order passed by the court below awarding maintenance of Rs.2,000/- to the wife and Rs.1,000/- to the child is legal and I do not find any illegality or infirmity in the order dated 02.05.2019, passed by the learned Principal Judge, Family Court, Sultanpur, under Section 125 Cr.P.C., Police Station Motigarpur, District Sultanpur.
Consequently, the revision fails and is dismissed.
No order as to costs.
Order Date :- 8.4.2022
Atul
