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ALLAHABAD HIGH COURT
Vishnu Chandra Gupta, J.
Shiva Kant Awasthy (Minor)
& Anr. —Applicants
versus
Jagdish Prasad Awasthy —Respondent
Criminal Revision No.616 of 2003
Decided on 15.12.2014
For the Applicants:Mr.Amit Chaudhary, Advocate
For the Respondent:Mr.A.R.Khan, GA & Mr.Jai Shrinet, Advocates
IMPORTANT POINT
Burden to prove lies upon husband that applicant not entitled to pay maintenance to subsequent married wife, on account of continuous of first marriage.
Headnote:Criminal Procedure Code, 1973 — Section 125 — Maintenance — Documents show that opposite party introduced himself as father — In different institutions including bank account — Report of Awadh Gramin Bank called for during trial — Wherein categorically mentioned that sum of Rs. 10000/- deposited for period of six years in DBD Certificates of Bank by J showing her as his daughter — DOB mentioned in bank record of Km. S is 10.11.1991 — Domicile certified issued by J being village pradhan indicated that Smt. SA is his wife — Certificate of date of birth duly issued by Government Officers of both children have been brought on record — Certificate of domicile/residence issued by J indicating therein that opposite party husband of Smt. SA is also important piece of evidence — OP did not disown photographs of Smt. SA — He also did not disown other documents showing name of J as father of revisionists — Not stated by opposite party that these documents fictitious or forged — Court fully satisfied that Magistrate legally and correctly recorded findings on basis of material on record and findings recorded not perverse — While allowing application under S. 125 Cr. PC so far as it relates to revisionists — no irregularity of procedure occasioned — Reversal of such findings by Court of Revision not at all required — Grounds on which findings reversed by Court of Revision not sustainable — Court of Revision committed manifest error of law in setting-aside order of Magistrate — Awarding maintenance to revisionists. [Paras 17 & 18]
Result: Revision allowed.
JUDGMENT
Vishnu Chandra Gupta, J.—This criminal revision under Section 397/401 Cr. P.C. has been filed by the revisionists against the order dated 22.10.2003 passed by Additional Sessions Judge, Court No.1, Unnao in Criminal Revision No. 121 of 2002, whereby the order dated 26.10.2002 passed by learned Additional Chief Judicial Magistrate, Unnao in Criminal Case No.1729 of 2002, under Section 125 Cr. P. C. for grant of maintenance of Rs. 500 to both the revisionists was set-aside.
2. The relevant facts for deciding this revision in nutshell are that an application under Section 125 Cr. P.C. has been filed by Smt. Saroj Awasthy and the present revisionists- Shiva Kant Awasthy and Km. Shivani Awasthy (minor) for grant of maintenance against Jagdish Prasad Awasthy the opposite party with the allegation that Smt. Saroj Awasthy married with the opposite party Jagdish Prasad Awasthy in accordance with Hindu rites and rituals. Revisionists Shiva Kant Awasthy and Km. Shivani Awasthy born out of wedlock of Smt. Saroj Awasthy and Shri Jagdish Prasad Awasthy. After birth of revisionist Shiva Kant Awasthy, the opposite party started neglecting and misbehaving Smt. Saroj Awasthy and her children and gave a small room to live in and stopped supporting his children and wife for their livelihood, education and for providing other necessities of life. Smt. Saroj Awasthy claimed herself unable to maintain and stated that she has no means for herself and her children, though the opposite party is legally bounded to maintain her and her children. It has also been alleged that the opposite party is possessing six bigha of agriculture land, two grove of Mangoes and as such he is earning Rs.20,000-25,000 per annum. The opposite party is also serving as a Government Teacher and is also getting salary of Rs.4,000 per month.
3. In application moved under Section 125 Cr.P.C., she claimed Rs.1,000 as maintenance for herself and Rs.500 for her children Shiva Kant Awasthy and Km. Shivani Awasthy, who were minor at that time. This application moved on 30.10.1998 was contested by the opposite party by filing his reply wherein he denied any type of relationship with Smt. Saroj Awasthy and also disowned that the revisionists were born with cohabitation of opposite party and Smt. Saroj Awasthy. He married to Smt. Rani @ Pushpa thirty years ago in accordance with Hindu rites and rituals and his son Dharmendra Awasthy aged about 26 years was born with Smt. Rani Awasthy, who is alive and is living with opposite party. He also stated that Smt. Saroj Awasthy is a free lady and working in Aganwadi. She used to see village of opposite party so she knows the opposite party by name. On the instigation of some persons of the Village, to grab the property of the opposite party and to defame him, Smt. Saroj Awasthy filed this false claim of maintenance.
4. The applicant Smt. Saroj Awasthy filed certain documentary evidence including Domicile Certificate showing the name of Jagdish Prasad Awasthy as her husband, voter list showing her name as the wife of opposite party, birth certificate of Shiva Kant issued on 10.6.1989 by C.M.O. District Unnao, birth certificate relating to delivery of a female baby by her on 27.1.1991 issued by C.M.O., Unnao, Domicile certificate issued by Jagdish Prasad Awasthy, the O.P., being Village Pradhan, some photographs of opposite party with Smt. Saroj Awasthy, receipt of Double Benefit Deposit certificate issued by Avadh Gramin Bank on 26.9.1999 of Rs.20,330 in the name of Km. Shivani showing her father as Jagdish Prasad Awasthy issued, Passbook of Awadh Gramin Bank Musiganj Branch in which the name of Smt. Saroj Awasthy has been shown as the wife of Jagdish Prasad Awasthy, the card of National Vaccination Mission in the name of Shivani showing the name of her father as Jagdish, copy of first information report lodged by her against Rajendra and Girish, her Caste certificate issued on 18.4.2000, School leaving certificate of Km. Shivani Awasth
