Madhya Pradesh High Court
Dayanidhi vs Sanyam Sharma on 1 April, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 1 st OF APRIL, 2024
CRIMINAL REVISION No. 719 of 2015
BETWEEN:-
1. DAYANIDHI W/O SANYAM SHARMA, AGED
ABOUT 33 YEARS, OCCUPATION: NIL SANJAY
COMPLEX, MANDI ROAD, NEAR PETROL PUMP,
JAORA (MADHYA PRADESH)
2. DAYANIDHI THRU. SWATIK S/O SAYAM JI
SHARMA, AGED ABOUT 4 YEARS, OCCUPATION:
NIL DISTT. SAHAKARI BANK KE PASS,
GURUNANAK ROAD NAI ABADI MANDSAUR
(MADHYA PRADESH)
.....APPLICANTS
(BY SHRI POURUSH RANKA, LEARNED COUNSEL)
AND
SANYAM SHARMA S/O CHINTAMANI SHARMA, AGED
ABOUT 38 YEARS, OCCUPATION: BUSINESS SANJAY
COMPLEX, MANDI ROAD, NEAR PETROL PUMP, JAORA
(MADHYA PRADESH)
.....RESPONDENT
(NONE FOR THE RESPONDENT THOUGH SERVED)
T h is revision coming on for orders this day, t h e cou rt passed the
following:
ORDER
The revision is pending since 2015 arising out of the proceedings under
Section 125 Cr.P.C., therefore, the matter is considered on merit in absence of
the representation on behalf of respondent.
2. The present revision is filed being aggrieved by the order dated
25.03.2015 passed by Family Court, Mandsaur in MJC No.57/2014 whereby
the petition under Section 125 Cr.P.C. filed by the applicants has been partly
allowed and the application has been dismissed so far it relates to applicant
No.1 and the same has been allowed in respect of applicant No.2 granting
maintenance Rs.1500/- per month from the date of order till he attains majority.
3. Counsel for the applicant submits that the trial Court has erred while
rejecting the maintenance of the applicant No.1. The applicant has specifically
pleaded in para-1 of the claim that the marriage between the applicant No.1 and
the respondent was solemnized on 11.07.2008 as per Hindu rites in Viswakarma
Mangalik Bhawan Goul Chourah, Nai Abadi, Mandsaur. In rebuttal the
respondent has denied the factum of marriage, but alternatively in para-3
pleaded that if the contention of marriage with applicant is accepted that she is a
wife of the non-applicant No.1, but since he was already married and, therefore,
her marriage was illegal and, therefore, she was not entitled for maintenance.
4. Counsel for the applicant argued that in support of her contention, the
applicant No.1 has filed marriage card and also adduced oral evidence which
has not been rebutted by the non-applicant No.1. He could not prove the
existence of earlier marriage and, therefore, the trial Court has erred in rejecting
the maintenance application of the applicant No.1. In support of his submission,
he has placed reliance on the judgment passed by the Supreme Court in the
case of Pyla Mutyalamma alias Satyavathi vs. Pyla Suri Demudu & Anr.,
2012 CRI.L.J. 660 and also the judgment passed in the case of Badshah v.
Sou. Urmila Badshah Godse, AIR 2014 SC 869.
5. After hearing learned counsel for the parties and upon perusal of the
record and impugned order, it is axiomatic that there was specific pleading to
the effect that marriage was solemnized and the evidence was adduced and in
view of the pleading of the respondent in para-3 of the reply, the onus has
shifted on the respondent/husband to prove the subsistence of earlier marriage
if he was claiming that the applicant was second wife. In the case of Pyla
Mutyalamma alias Satyavathi (supra), the Supreme Court held that if the
plea of subsistence of earlier marriage is taken by the husband, the burden is on
the husband to prove subsistence of earlier marriage by tendering satisfactory
evidence, failure of husband to establish his plea of subsistence of earlier
marriage, does not makes entitle the wife for the maintenance.
6. In the case of Chanmuniyavs. Virender Kumar Singh Kushwaha,
JT 2010 (11) SC 132, it has been held that construing the term 'wife' broad
and expansive interpretation should be given to term 'wife' to include even those
cases where a man and woman have been living together as husband and wife
for a reasonably long period of time, strict proof of marriage should not be a
pre-condition for maintenance under Section 125 of the Cr.P.C.
7. In the light of the aforesaid discussion, this Court finds that the trial
Court erred while rejecting the maintenance application of the wife. It is held that
the applicant No.1 is entitled for maintenance.
8. So far the quantum of of maintenance in respect of both the
applicants and the date of payment of maintenance is concerned, the matter is
remitted back to the Family Court, Mandsaur to decide the quantum after
affording opportunity of hearing to the applicants and the respondents and the
Court will also decide that the date of entitlement of maintenance.
9. Considering the fact that the matter is pending since long, the Registry
is directed to send the record to the concerned Court immediately and the
Court shall make all endeavour to decide the question of quantum of
maintenance and the date of payment of maintenance within a period of three
months from the date of communication of the order.
10. With the aforesaid, the revision is partly allowed and disposed off.
(VIJAY KUMAR SHUKLA)
JUDGE
soumya
