Bhimrav Sonteke @ Bhimarav vs Smt. Vaijanti Mala Sonteke @ ...
2022 Latest Caselaw 6928 Chatt

                                    1

                                                                NAFR

        HIGH COURT OF CHHATTISGARH, BILASPUR

                       CRR No. 1068 of 2016

    Bhimrav Sonteke @ Bhimarav S/o Late Gangaram @ Mukani
     Sonteke, Aged About 49 Years R/o Amatalab, Shiv Mandir Road,
     Samata Colony Of Behind Dhobi Ghat, Chirhuldih Ward, Thana
     Saraswati Nagar, Raipur, Chhattisgarh

                                                        ---- Petitioner

                              Versus

    Smt. Vaijanti Mala Sonteke @ Vajayantimala W/o Shri Bhimrav
     Sonteke, Aged 42 Years, Caste Schedule, R/o Buddha Mandir,
     Near Dharmendra Ganbir Niwas Baju, Malaviy Ward No.57
     (Vivekanand Nagar) Tumsar, District Bhandara (Maharashtra)



                                                      ---- Respondent

For Petitioner Mr. Bharat Rajput, Advocate

SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari

Order On Board 18/11/2022

1. This revision has been preferred against the impugned order

dated 29.8.2016 passed by the Second Additional Principal

Judge, Family Court, Raipur in MJC in 64/2014, whereby, an

application preferred by the husband/applicant under Section

127 of Cr.PC to cancel the order of maintenance to respondent-

wife, has been dismissed.

2. Brief facts of the case are that on an application filed under

Section 125 of Cr.P.C. before the Additional Principal Judge,

Family Court, Raipur (CG), monthly maintenance of Rs.1000/-

has been granted to the non-applicant - wife - Smt. Vaijanti

Mala Sonteke vide order dated 27.11.2013 passed by the First

Additional Principal Judge, Family Court, Raipur in MJC

No.365/10. Thereafter, the applicant-husband moved an

application under Section 127 of Cr.PC on 28.1.2014 to cancel

the order of maintenance raising the following grounds :

(1) The non-applicant- wife has already remarried with her

Jija (brother-in-law) - Dayalrao;

(2) An ex-parte divorce decree has been passed in his favour

by the Second Additional District Judge, Raipur in Civil Suit

No.40-A/90 vide judgment dated 14.12.1990.

However, the said application of the petitioner-husband was

dismissed by the impugned order.

3. The non-applicant also moved an application under Section 13

of the Hindu Marriage Act vide Case No.208-A/2010 for grant of

divorce, which also came to be dismissed vide order dated

31.10.2015 passed by the Family Court, Raipur on the ground

that since the non-applicant has not challenged the ex-parte

decree dated 14.12.1990 by filing an appeal, the principles of

res judicata would apply and the parties cannot be permitted to

raise the same ground in the subsequent suit. The non-applicant

thereafter moved an application under Order 9 Rule 13 of CPC

to set-aside the ex-parte decree of divorce dated 14.12.1990,

which has been dismissed vide order dated 29.8.2016 passed in

Civil MJC No.12/10 by the Second Additional Principal Judge,

Family Court, Raipur.

4. Learned counsel for the applicant submits that the non-

applicant-wife is a working lady, having sufficient means to

maintain herself. The petitioner is a very poor person, suffering

from various serious ailments. The applicant is not able to work

on account of his illness and he is totally dependent on his

second wife to maintain himself and also for treatment,

therefore, the trial Court ought to have allowed the application

preferred by the applicant. Learned counsel prays to quash the

impugned order and allow the revision.

5. Heard learned counsel for the petitioner and also perused the

documents annexed with the petition with utmost

circumspection.

6. The applicant has taken specific defence while consideration of

the application under Section 125 of CrPC filed by the non-

applicant in MJC No.365/20 and further, an ex-parte decree of

divorce has also been granted in his favour vide order dated

14.12.1990 passed in Civil Suit No.40A/1990 passed by the

Second Additional District Judge, Raipur. While granting the

amount of monthly maintenance, the Court has also recorded a

finding that a divorced wife until she gets remarried, is entitled

for maintenance and it has been alleged that the non-applicant

has remarried and on the same score, the applicant moved an

application under Section 127 of Cr.PC. However, during the

examination of the non-applicant-wife, no suggestion in this

regard was given by the applicant-husband to the non-applicant

- wife. Considering the evidence on record, the fact of

remarriage is not proved.

7. Moreover, the applicant has admitted that he got remarried

with another women namely Meera and residing with her and in

the ex-parte decree passed in favour of the applicant-husband,

serious allegations of adultery and remarriage of the non-

applicant have been raised, then, the said facts were required

to be proved by producing satisfactory evidence but except the

evidence of the petitioner, no other evidence has been adduced.

In the proceeding under Section 127 of Cr.PC, the applicant has

not put any question specifically to the wife about the

remarriage or leaving the non-applicant or adultery, then,

considering the object of Section 125 of Cr.PC, this Court does

not find any ground to interfere in the impugned order.

8. According, this Court find no merit in the revision and the same

is liable to be and is hereby dismissed.

Sd/-

( Deepak Kumar Tiwari) Judge

Shyna