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2018 Supreme(AP) 543

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
P. KESHAVA RAO, J.
Sanneerappa - Petitioner
Versus
The State of A.P. & Others - Respondents
Criminal Revision Case No.979 of 2018
Decided On : 05-07-2018

Advocates Appeared:
For the Petitioner: Sri M. Chalapati Rao.
For the Respondents: Sri N. Ranga Reddy.

Headnote:Criminal Procedure Code, 1973-Section 125-Interim maintenance-Burden lies on 2nd respondent to prove that she is the legally wedded wife of petitioner-When petitioner categorically denied his marriage with 2nd respondent, it is necessary for 2nd respondent to prove her marriage or at least that she lived with petitioner under one roof as wife and husband for a long time-However, from evidence of PWs.1 to 3, same is not established-Husband has categorically pleaded that he has no access to wife and that he had not fathered child-There is likelihood that the husband's plea that he had no access to wife when child was begotten stands proved by DNA test report as, in facts and circumstances of case, it is possible to opine that proof based on DNA test would be sufficient to dislodge presumption under Section 112 of Evidence Act-2nd respondent miserably failed to make out her case that she is legally wedded wife of petitioner, whereby she is entitled for maintenance along with 3rd respondent-Impugned order set aside. (Paras 13 to 18)

ORDER :

1. Heard the learned counsel for the petitioner as well as respondent Nos.2 and 3.

2. The present revision case is filed questioning the orders passed in Crl.R.P.No.28 of 2015 dated 18.01.2018 on the file of the Court of learned II Additional District and Sessions Judge, Hindupur, Anantapur District, reversing the orders passed in M.C.No.8 of 2012 dated 16.04.2015 on the file of the learned Judicial Magistrate of First Class, Madakasira, Anantapur District.

3. The facts in brief are that respondent Nos.2 and 3 filed M.C.No.8 of 2012 claiming a sum of Rs.3,000/- each per month against the petitioner. It is their case that respondent No.2 is the legally wedded wife of the petitioner having solemnized the marriage on 12.04.1996 at the house of Begadar Venkataramanappa according to the Hindu rites and customs. At the time of marriage, the 2nd respondent’s father presented gold ring of two grams, some silk sarees, gold ear studs to the 2nd respondent and also to the petitioner and spent huge amount for performing the marriage. After marriage, the 2nd respondent joined the petitioner and led a happy marital life for about ten years. Out of wedlock, they were blessed with respondent No.3. After giving birth to respondent No.3, the petitioner addicted to vices including adulterous life and neglected them. The petitioner used to quarrel with the 2nd respondent and harassed her mentally and physically demanding additional dowry. In spite of panchayats convened, there was no change in the behaviour of the petitioner. The petitioner even beat the 2nd respondent when she questioned about his illegal acts. She also stated that the petitioner is working in a factory in Bangalore and also doing business apart from his profession and is capable of maintaining them.

4. The petitioner filed counter denying the petition averments and contended inter alia that there is no relationship of wife and husband between him and the 2nd respondent. Therefore, the question of the 3rd respondent born to them may not arise. The 2nd respondent is a cousin sister to him. She has to explain as to who is Begadar Venkataramanappa. In fact, the photographs and identity cards are created and manipulated documents. The 2nd respondent is neither the resident of Hottebata nor S.S. Gundlu and she is absolutely no way concerned with him. On the other hand, he specifically stated that he married one Nagamani 18 years ago and she is his legally wedded wife. Out of wedlock, they were blessed with two children and they were studying 9th and 3rd class respectively. In fact, the 2nd respondent filed the maintenance case only to defame him in the society and to extract money. He also stated that neither he is the husband nor having any physical contact with her.

5. During the course of trial, the 2nd respondent examined PWs.1 to 3, including herself, and marked Exs.P1 to P3 on her behalf. The petitioner examined himself as RW.1 and marked Exs.R1 to R5 on his behalf.

6. After hearing, the learned Magistrate dismissed the maintenance case by orders dated 16.04.2015. Aggrieved by the said orders, respondent Nos.2 and 3 filed Crl.R.P.No.28 of 2015 on the file of the learned II Additional District and Sessions Judge, Hindupur. The learned Sessions Judge, after hearing both the parties, allowed the revision petition with costs and set aside the orders passed in M.C.No.8 of 2012 by orders dated 18.01.2018. Aggrieved by the said orders, the present revision case is filed.

7. Learned counsel appearing for the petitioner contended that the order of the learned Sessions Judge, Hindupur, is incorrect, contrary to the evidence on record and well settled principles of law in appreciating the evidence and is perverse one. The learned Sessions Judge miserably failed to appreciate that the 2nd respondent was not ready to undergo the DNA test to find out the paternity of the 3rd respondent and therefore an adverse inference should have been drawn against her that they are not the wife and biolo



























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