Smt. Padmini Sahu And Another vs Dhansai Sahu
2021 Latest Caselaw 2018 Chatt

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                                                                            AFR

                 HIGH COURT OF CHHATTISGARH, BILASPUR

                       Criminal Revision No. 49 of 2017

                         Order reserved on 13.08.2021

                        Order delivered on 26.08.2021

      1.     Smt. Padmini Sahu, aged 43 years, wife of Dhansai Sahu,

      2.     Pushpanjali Sahu, aged 7 years, daughter of Dhansai Sahu, minor,
             through the mother, natural guardian Smt. Padmini Sahu, wife of
             Dhansai Sahu

             Both above are residents of opposite Hatkeshar Naka, Dock
             Bungalow ward, Dhamtari, District Dhamtari (C.G.)

                                                                  ---- Applicants

                                        Versus

      Dhansai Sahu, aged 49 years, son of late Shri Gangadhar Sahu,
      Constable No. 59, City Kotwali, Dhamtari, resident of City Kotwali
      compound, Dhamtari, District Dhamtari (C.G.)

                                                                 ----Respondent



For Applicants             : Mr. Somnath Verma, Advocate.
For Respondent             : None present, though served.


                   Hon'ble Shri Justice N.K. Chandravanshi

                                ORDER [C.A.V.]

(1)   The proceedings of the matter have been taken-up through video

conferencing.


(2)   This revision petition is brought against the order dated 24.09.2016 passed

by Judge, Family Court, Dhamtari in MJC No. 11/16 (Computer registration

No.12/16), whereby the Family Court has party allowed the application under
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Section 125 of the Code of Criminal Procedure, 1973 (henceforth "Code") filed by

the applicants and granted maintenance to applicant No. 2/daughter to the tune

of Rs.5,000/- per month whereas declined to grant maintenance to applicant

No. 1/wife.


(3)   Facts

of the case leading to filing of this revision are that marriage of

applicant/wife was solemnized with non-applicant/husband on 14.12.2008 by

exchanging garlands (t;ekyk i)fr) at Rudreshwar Temple, Rudri, District

Dhamtari, thereafter, they were living together as husband & wife at Dakbangla

Ward, Dhamtari till 2014. Out of their wedlock, they blessed with one daughter

namely Pushpanjali Sahu, applicant No. 2 herein. These facts have been

admitted by non-applicant/husband. After few months of marriage, non-

applicant/husband started torturing by beating and abusing the applicant/wife

after consuming liquor and after 2014, non-applicant/husband deserted them and

living separately. He is not taking care of applicants i.e. wife & daughter, they

have no source of income to maintain themselves, therefore, they preferred an

applicant under Section 125 of the Code for granting maintenance to the tune of

Rs.10,000/- and Rs.5,000/- per month, respectively from non-applicant/husband.

(4) In reply, the non-applicant/husband denied the allegations regarding

harassment, cruelty as well as desertion of the applicants. He has further

pleaded that before marriage with applicant/wife, he had already married with one

Ramla Sahu in the year 1988, from whom, he has three children. As per non-

applicant/husband, he had been socially divorced with his first wife - Ramla Sahu

in the year 2007. Thus, since ex-wife - Smt. Ramla Sahu of non-

applicant/husband is alive, therefore, applicant/wife is not his legally wedded wife

and the application under Section 125 of the Code seeking maintenance filed by

her, is not maintainable.

(5) After considering the evidence available on record, learned Family Court

vide impugned order dated 24.09.2016 has partly allowed the application, as

mentioned in paragraph two of this order. Hence, this revision.

(6) Learned counsel for the applicants submits that non-applicant/husband, in

his reply, himself has admitted the fact of his marriage with applicant/wife. He

further submits that non-applicant/husband & applicant/wife were living together

as husband & wife from 2008 to 2014 and out of their wedlock, they blessed with

one daughter namely Pushpanjali Sahu. Non-applicant/husband has further

admitted in his reply that he had been socially divorced with his ex-wife - Ramla

Sahu, therefore, there is no occasion for the learned Family Court to deny their

marriage or to hold that marriage of applicant/wife and non-applicant/husband is

void. He further submits that standard of proof of marriage in a proceedings under

Section 125 of the Code, as is required in a trial of offence under Section 494 of

the IPC, is not required and even non-applicant/husband neither adduced any

evidence in support of his reply nor he himself entered into witness box to prove

his reply. Despite all these facts, learned Family Court, taking into the place of

non-applicant/husband, has held that since non-applicant's/husband first wife is

alive, therefore, his marriage with applicant/wife is void and consequently

declined to grant maintenance to applicant/wife. The aforesaid finding recorded

by the Family Court is against the evidence available on record, therefore, the

impugned order declining to grant maintenance to the applicant/wife is erroneous,

illegal and unsustainable in law, which deserves to be set aside.

(7) I have heard learned counsel appearing for the applicant and perused the

material available on record.

(8) At the outset, perusal of the record, especially, the reply filed by the non-

applicant/husband shows that he got married with applicant/wife in the Temple by

exchanging garlands in the year 2008 and, thereafter, they were living together as

husband & wife till 2014 at Dak Bangla Ward, Dhamtari and out of their wedlock,

they blessed with one daughter namely Pushpanjali Sahu, applicant No. 2 herein.

These facts are undisputed between the parties. Non-applicant/husband further

stated in his reply that Ramla Sahu is his first wife, with whom he got married in

the year 1988 and from whom he has three children also. Applicant/wife has

admitted in her cross-examination that first wife of non-applicant/husband i.e.

Ramla Sahu is alive but non-applicant/husband has not adduced any evidence to

this effect and even he himself has not examined to prove the fact that is

so-called first marriage was in subsistence at the time of his marriage with

applicant/wife- Smt. Padmini Sahu.

(9) In the case of Chanmuniya v. Virendra Kumar Singh Kushwaha and

another1, their Lordships of the Supreme Court while considering the word "Wife"

used in the provisions contained in Section 125 of the Code, has held as under :-

"42. We are of the opinion that a broad and expansive interpretation should be given to the term `wife' to include 1 (2011) 1 SCC 141

even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual."

(10) In the case of Pyla Mutyalamma alias Satyavathi v. Pyla Suri Demudu

and another2, husband has taken a defence that before his marriage with

appellant/wife, he had earlier married with another woman namely Kolupuru

Mutyalamma in the year 1970. In this case, Hon'ble Supreme has held as under :-

"19..........proof and evidence of subsistence of an earlier marriage at the time of solemnizing the second marriage, has to be adduced by the husband taking the plea of subsistence of an earlier marriage and when a plea of subsisting marriage is raised by the respondent-husband, it has to be satisfactorily proved by tendering evidence. This was the view taken by the learned Judges in Savitaben Somabhai Bhatiya v. State of Gurarat3 also which has been relied upon by the respondent-

husband. Hence, even if the ratio of this case relied upon by the respondent-husband is applied, the respondent-husband herein has failed to establish his plea that his earlier marriage was at all in subsistence which he claims to have performed in the year 1970 as he has not led even an iota of evidence in support of his earlier marriage including the fact that he has not produced a single witness except the so-called first wife as 2 (2011) 12 SCC 189 3 (2005) 3 SCC 636

a witness of proof of his earlier marriage. This strong circumstance apart from the facts recorded herein above, goes heavily against the respondent-husband."

(11) In the instant case, non-applicant/husband has taken a plea that his ex-

wife Ramla Sahu, with whom he got married in the year 1988 (before marriage

with applicant/wife) is alive and applicant/wife knowing fully well this fact, indulged

in marriage with him, but non-applicant/husband himself has admitted in his reply

that he had been socially divorced with his alleged first wife - Ramla Sahu in the

year 2007. Despite that, if he takes plea that his so-called first marriage was

subsisting at the time of his marriage with applicant/wife - Smt. Padmini Sahu,

then he had to prove these facts by adducing cogent evidence, but neither he

adduced any evidence nor has examined himself to prove his defence, therefore,

in absence of credible evidence, only on the basis of plea taken by non-

applicant/husband and suggestion accepted by applicant/wife in her cross-

examination that first wife of non-applicant/husband - Ramla Sahu is alive, it

cannot be held that at the time of marriage of non-applicant/husband with

applicant/wife - Smt. Padmini Sahu in the year 2008, non-applicant's so-called

first marriage was in subsistence.

(12) In view of aforesaid discussion and the judgment rendered by the Hon'ble

Supreme Court in the above referred cases, it is apparent that learned Family

Court, without appreciating properly the evidence available on record, held that

marriage of applicant/wife with non-applicant/husband is void, therefore, this

finding recorded by the learned Family Court is erroneous and unsustainable in

law with regard to application filed by the applicant/wife under Section 125 of

Code.

(13) Applicant/wife - Padmini Sahu (PW-1) has stated in her evidence that after

few months of marriage, non-applicant/husband started torturing her by beating

and abusing after consuming liquor. She has stated that since 2014, non-

applicant/husband is living separately and not taking care of them and also not

giving any sum for their routine livelihood. She has also made complaint to the

Police regarding their dispute, which is supported by Reserve Inspector -

Dharmendra Dhruv (PW-4). The aforesaid facts have not been rebutted in her

cross-examination, it seems that non-applicant/husband has also doubted her

character.

(14) Tarun Kumar Naidu (PW-2) has also supported the statement of

applicant/wife - Padmini Sahu that non-applicant/husband has deserted the

applicants since about 2014. Non-applicant/husband has not adduced any

evidence in rebuttal of the aforesaid evidence. Although, Reserve Inspector -

Dharmendra Dhruv (PW-4) has stated in his evidence that in an enquiry to the

complaint made by applicant/wife, he did not find any case against the non-

applicant/husband. Even from evidence of this witness also, statement of

applicant/wife get support that she has made complaint to the police against the

non-applicant/husband.

(15) Looking to the aforesaid evidence adduced by applicant/wife, which have

not been rebutted by non-applicant/husband, it is proved that non-

applicant/husband had not only harassed the applicant/wife by abusing & beating

and threatening but also he has deserted them since about 2014 whereas, being

a husband, he is bound to maintain her wife i.e. applicant - Pandmini Sahu.

(16) Smt. Padmini Sahu (PW-1) has admitted in her cross-examination that she

is getting widow pension of Rs.1,750/- per month as a widow of her first husband

- Premlal Sahu. She has also admitted that she has her own house, which is in

her name at Hatkeshar Nagar, Dhamtari. She has stated that there are 7-8

rooms in her house. Surprisingly, she has stated that she doesn't know that who

are the tenants in that house or they have entered unauthorizedly and living

forcefully in her house. The above mentioned statement of Smt. Padmini Sahu

(PW-1) shows that she has suppressed/concealed some material fact that some

tenants are living in her house and she is getting some amount from her house

on a rent.

(17) Statement of Dharmendra Dhruv, Reserve Inspector (PW-4) with regard to

the fact that applicant No. 1/wife is receiving Rs.24,000/- per month as pension

and Rs.14,000/- per month from her rented house is not reliable because this fact

was told him by non-applicant/husband but he (non-applicant/husband) himself

has not examined in this case. Therefore, it is found that learned Family Court

has committed illegality in holding that applicant/wife is getting aforesaid income,

on the basis of hearsay evidence of Dharmendra Dhruv.

(18) Taking into account of admission of applicant/wife - Smt. Padmini Sahu

(PW-1) that she is getting pension of Rs. 1750/- and also taking into

consideration that she is having 7-8 rooms in her house and she has concealed

the fact that some tenants are living in her house, as such, she is getting some

amount from her rented house. Aforesaid facts shows that applicant No. 1/wife is

having some source of income but it is not clear from her statement that what is

her monthly income from the sources available to her.

(19) Respondent/husband is working as Constable in the police department

and as per his salary slip (Ex.P-12), which has been proved by Sanat Verma

(PW-3), posted as Clerk in the office of Superintendent of Police, Dhamtari that

gross monthly salary of respondent/husband is Rs.33,501/- whereas his net

monthly salary is Rs. 31,551/-. Record of courts below shows that

respondent/husband is having his ex-wife and three children from her and their

family responsibility is also upon the respondent/husband; and Rs.5,000/- per

month has already been granted by the Family Court in favour of applicant No.

2/daughter namely Padmini Sahu.

(20) Thus, looking to all the aforesaid facts, it is just & proper to grant

maintenance of Rs.5,000/- per month in favour of applicant No. 1/wife also.

(21) The applicants have also challenged that maintenance amount of

Rs.5,000/- per months granted to the applicant No. 2/daughter is on lower side,

therefore, it deserves to be enhanced suitably. Looking to the facts, which have

been mentioned in the earlier paragraphs and heavy family responsibilities of

respondent/husband, I do not find that amount of maintenance of Rs.5,000/-

granted to applicant No. 2/daughter is on lower side, therefore, it cannot be

interfered with.

(22) Consequently, criminal revision is partly allowed. The impugned order

granting maintenance of Rs.5,000/- to applicant No. 2/daughter deserves to be

and is hereby upheld. Part of the impugned order, by which applicant No. 1/wife

has been declined to grant maintenance, is set aside. She is entitled to get

maintenance amount to the tune of Rs.5,000/- per month from the non-

applicant/husband, which shall be payable till 15 th day of every month, from the

date of passing of the order by Judge, Family Court, Dhamtari i.e. 24 th

September, 2016. Rest part of the impugned order shall remain intact.

Sd/-

                                                                (N.K. Chandravanshi)
D/-                                                                   Judge