Chattisgarh High Court

Daman Lal vs Smt. Tuman Bai on 9 May, 2025

                                                        1




                                                                                        NAFR

                         HIGH COURT OF CHHATTISGARH AT BILASPUR

                                     Criminal Revision No. 1147 of 2016
                                          Order Reserved on 24.04.2025
                                         Order Pronounced on 09.05.2025

             Daman Lal, S/o Late Agnu Mahar, Aged About 31 Years R/o Village Gidhwa, Post
             Office Pinkapar, Police Station Devri, District Balod, Chhattisgarh. (Through In The
             Impugned Order Wrongly Mentioned As District Balade)
                                                                      ... Petitioner/Non-applicant
                                                     versus
Digitally
signed by
             1 - Smt. Tuman Bai W/o Daman Lal Mahar Aged About 24 Years
ANJANI
KUMAR        2 - Ku. Pratiksha D/o Daman Lal Mahar Aged About 4 Years Minor Through Her
ALLENA
Date:
2025.05.09
             Natural Guardian Mother Smt. Tuman Bai, W/o Daman Lal,
17:45:41
+0530        Both are R/o Village Gidhwa, Post Office Pinkapar, Police Station Devri, District
             Balod, Chhattisgarh. Civil District : Balod (Chhattisgarh)
                                                                     ... Respondents/Applicants

For Petitioner : Shri Chetan Singh Chouhan appears on behalf of Shri Ashish Surana, counsel for the petitioner.

For Respondents : Shri Vidya Bhushan Soni appears on behalf of Shri B.P.Singh, counsel for the respondents.

(HON'BLE SHRI JUSTICE RADHAKISHAN AGRAWAL)

C.A. V. Order

1. The present revision is filed by the petitioner under Section 19 (4) of the

Family Courts Act being aggrieved by the order dated 06.10.2016 passed by

learned 1st Additional Principal Judge, Link/Family Court, Balod (C.G.)

(hereinafter referred to as the Family Court) in Misc. Criminal Case

No.53/2012, whereby, the application filed under Section 125 of the Cr.P.C.

by the applicants, respondents herein, has been allowed by the Family Court

while directing the Non-applicant, petitioner herein, to pay maintenance of

Rs.1,500/- per month each to the applicants, respondents herein.

2. As per averments made by respondent No.1 in her application under Section

125 of Code of Criminal Procedure (for short, 'the Code'), the petitioner, on

the pretext of marriage, established a love relationship with respondent No.1,

as a result of which, the respondent No.1 has become pregnant by 7 months

and when she asked the petitioner to marry her, then he refused, for which, a

meeting was convened in the village and on 14.06.2011, respondent No.1

Tuman Bai lodged a report in Police Station Devri and offence under

Sections 450, 376 of IPC was registered against the petitioner and during the

pendency of the said criminal case, compromise took place between them

and thereafter, the petitioner performed marriage with respondent No.1 as

per their social customs. Thereafter, on the basis of statement of respondent

No.1, the petitioner was acquitted of the said charges. After that, from their

wedlock, on 16.09.2011, respondent No.2 was born. Thereafter, the

petitioner started harassing respondent No.1 in connection with demand of

dowry and ultimately in March, 2012, during Navratri festival, the petitioner

ousted the respondents from his house, which compelled them to live at her

parental home along with her daughter. It is further averred that the

respondents are not capable to maintain themselves and that the petitioner,

being a mason, earns Rs.200 - 250/- per day and also earns approximately

Rs.50,000/- per annum from agricultural work, therefore, the respondents

may be granted maintenance amount of Rs.3,000/- and Rs.2,000/- per month

respectively from the petitioner.

3. The petitioner denied the averments made by the respondents by filing

written statement, pleading therein that on 08.04.2010, he was married to

one Punita Bai and has daughter out of their wedlock. It is further pleaded by

him that a false case under Section 376 IPC was registered against by

respondent No.1 and due to pressure, he agreed to keep respondent No.1 as

his wife, but respondent No.1 is not legally wedded wife and respondent No.2

is not his daughter and that he has no source of income.

4. Before the learned Family Court, both the parties led their evidence, oral and

documentary. The learned Family Court, after appreciating the evidence

available on record, has allowed the application under Section 125 Cr.P.C.

filed by the respondents, as mentioned in opening paragraph.

5. Learned counsel for the applicant would submit that respondent No.1 is not

his legally wedded wife so also respondent No.2 is not his child. Further

learned counsel for the petitioner would submit that the petitioner has already

married with one Punita Bai, and the evidence adduced on behalf of

respondent No.1 Tuman Bai, who claims herself to be legally wedded wife of

the petitioner, has specifically shown that at the time of their marriage, Punita

Bai was the first wife of the petitioner, therefore, respondent No.1 is not

entitled for grant of any maintenance under Section 125 of Cr.P.C. In

support, he placed his reliance on the decision of the Supreme Court

rendered in the matter of Savitaben Somabhai Bhatiya v. State of Gujarat

and others reported in (2005) 3 SCC 636.

6. On the contrary, learned counsel for the respondents would submit that

respondent No.1 Tuman Bai is the legally wedded wife of the petitioner.

Further, he would submit that the petitioner, in his statement, admitted

photographs filed by respondent No.1 and exhibited as Ex.P.4 to Ex.P.7

showing specifically therein that the petitioner was performing marriage with

respondent No.1 as per the prevailing customs and rituals. Further, drawing

attention towards Ex.P.9, which is Birth Certificate issued under Section

12/17 of Registration of Birth and Death Act, 1969 and Rule 8/13 by the

Chhattisgarh State Registration of Birth and Death Rules, 2001, he would

vehemently contend that respondent No.2 was born on 16.09.2011 and that

the petitioner and respondent No.1 have been shown to be her father and

mother and would further submit that the said certificate has not been

challenged by the petitioner. Therefore, the learned Family Court has rightly

awarded maintenance which does not call for any interference.

7. I have heard learned counsel appearing on behalf of the parties and perused

the record.

8. A perusal of record would show that the petitioner, on the pretext of marriage,

established relationship with respondent No.1 and thereafter started

neglecting her, which compelled the respondent No.1 to file a criminal case

against him and in order to avoid criminal case, he married the respondent

No.1 by keeping her in dark about his first marriage and after marriage she

started living with him and in the meantime, both the petitioner and

respondent No.1 have been blessed with a female child, who was born on

16.09.2011, as is evident from the statement of respondent No.1 (A.W.1),

which was supported by A.W.2 Sundar Singh and A.W.3 Ghanshyam. From

their evidence, it also emerged that during subsistence of first marriage, the

petitioner married the respondent No.1 and that the petitioner and

respondent No.1 are of the same caste and that, they follow the Hindu

religion. To substantiate the factum of marriage with the petitioner, the

respondent No.1 had filed Ikrarnamas of the petitioner - Daman Lal, Smt.

Punita Bai, wife of Daman Lal (Petitioner herein) and that of respondent No.1

herself, which were exhibited as Ex.P.1 to P.3. Ex.P.1 is Ikrarnama of the

petitioner, wherein he specifically admitted the birth of respondent No.2 and

he is the father and respondent No.1 is mother of that child. Ex.P.2, executed

by Smt. Punita Bai, would show that she is the first wife of the petitioner and

because of relationship, respondent No.1 conceived and gave birth to a

female child and that, she has no objection if the petitioner keeps respondent

No.1 with him in the same house where she lives. Ex P.3 is of respondent

No.1 stating that there was relationship between her and the petitioner which

led to birth of respondent No.2 and they are living as husband and wife and

leading happy married life. The ikrarnamas (Ex.P.1 to P.3) would show that

petitioner's first wife Smt. Punita Bai is alive and during subsistence of his

first marriage, the petitioner had married the respondent No.1 and out of their

wedlock, respondent No.2 was born. Further, the oral and documentary

evidence would also show that the respondent No.1 was well aware of the

fact that first wife (Smt. Punita Bai) is alive and during subsistence of his

marriage, the petitioner performed marriage with respondent No.1. Although

Smt. Punita Bai, wife of the petitioner, was not examined before the learned

Family Court, but the above facts brought on record cannot be discarded.

9. Besides above documentary evidence, respondent No.1 had also filed some

photographs, which were marked as Ex.P.4 to Ex.P.7 and in addition to these

documents, she had also brought on record the judgment dated 3.11.2011

and birth certificate of respondent No.2, marked as Ex.P.8 and Ex.P.9

respectively. Although the petitioner denied the factum of marriage with

respondent No.1, but admitted the photographs (Ex.P.4 to Ex.P.7), which

would specifically show that the petitioner was performing marriage with

respondent No.1 as per customs and rituals whereas Ex.P.8 would show that

the petitioner married with respondent No.1 and kept with him in his house.

Ex.P.8 would further show that on the basis of report of respondent No.1,

offence under Sections 450, 376 of IPC was registered against the petitioner

and during the pendency of the said criminal case, compromise took place

between them and thereafter, the petitioner was acquitted of that charges

only on the basis of statement of respondent No.1 and after that he

performed marriage with respondent No.1 as per their social customs.

Ex.P.9 is a Birth Certificate issued under Section 12/17 of Registration of

Birth and Death Act, 1969 and Rule 8/13 by the Chhattisgarh State

Registration of Birth and Death Rules, 2001, which would show that

respondent No.2 was born out of their wedlock on 16.09.2011 and that the

petitioner and respondent No.1 have been shown to be her father and

mother of respondent No.2. Thus, the respondent No.1 has proved and

admitted the documents Ikrarnamas, photographs, judgment dated 3.11.2011

passed by the Additional Sessions Judge, Balod and birth certificate of

respondent No.2, which would clearly show that the petitioner was having

spouse at the time of alleged marriage with respondent No.1.

10. If the above stated documents coupled with the statements of the witnesses

(A.W.1 to A.W.3) are considered together, then an inference can be drawn

that at the time of alleged marriage of the petitioner with respondent No.1,

the petitioner was having spouse and their marriage was not dissolved by a

decree of divorce or by any recognised custom and during subsistence of

first marriage, the petitioner has married the respondent No.1.

11. Apart from the above, in the matter of Savitaben Somabhai Bhatiya (supra),

the Supreme Court, while dealing with Section 125 of Cr.P.C. held in

paragraph 15, which read as under:-

15. In Yamunabai case [(1998) 1 SCC 530], it was held that expression "wife" used in Section 125 of the Code should be interpreted to mean only a legally wedded wife. The word "wife" is not defined in the Code except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must therefore be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act, 1955 (in short the 'Marriage Act'). Marriage with person having living spouse is null and void and not voidable. However, the attempt to exclude altogether the personal law applicable to the parties from consideration is improper. Section 125 of the Code has been enacted in the interest of a wife and one who intends to take benefit under sub-section (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. The issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes such status or relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the provision in Section 125 of the Code is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. The issue whether the Section is attracted or not cannot be answered except by reference to the appropriate law governing the parties."

12. When the present matter is examined in the light of above referred decision

by the Supreme Court, it is quite vivid that although the petitioner performed

marriage with the respondent No.1 and started living with her, but status of

respondent No.1 remained being not legally wedded wife, and therefore, she

is not entitled to the benefit of Section 125 of the Code. The learned Family

Court has committed illegality in granting maintenance to respondent No.1.

13. However, as regards grant of maintenance to respondent No.2, it is clear

from Ex.P.9, which is a Birth Certificate of respondent No.2, issued under

Section 12/17 of Registration of Birth and Death Act, 1969 and Rule 8/13 of

the Chhattisgarh State Registration of Birth and Death Rules, 2001 wherein

the petitioner and respondent No.1 have been shown to be the father and

mother of respondent No.2, thereby meaning that, the petitioner accepted the