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2022 Supreme(Pat) 584

IN THE HIGH COURT OF JUDICATURE AT PATNA
RAJEEV RANJAN PRASAD, J.
Criminal Revision No.331, 630 of 2017
(13.12.2022)
Gautam Jyoti (in 331)
Renu Devi & Anr. (in 630) ... Petitioner
vs.
Renu Devi & Anr. (in 331)
Gautam Jyoti & Anr. (in 630) ... Opp. Parties

Advocates:
For the Petitioner: Mr. Sunil Kumar (in both)
For the Opp. Parties : M/s Ajay Kumar Thakur, Vaishnavi Singh, Ritwik Thakur (in both).

Headnote:

Criminal Procedure Code, 1973 – Section 125 – Maintenance – Family Court, while rejecting request of wife-opposite party no. 1 to allow maintenance to her, took a view that opposite party no. 2 is illegitimate son of petitioner but would be entitled for a maintenance of Rs. 2,500/- per month – Even as proceeding under Section 125 Cr.P.C. is supposed to be a summary proceeding, Family Court seems to have gone for deciding application under Section 125 Cr.P.C. treating it as if it is a suit for declaration as to validity of marriage between petitioner and O.P. No. 1 – Even as Family Court went on to conclude that from materials available on record, strong opinion is formed that father of boy is petitioner and mother is applicant-wife, Court went further to observe that no proof of solemnization of marriage showing rituals has been brought by applicant-wife – Presence of O.P. No. 1 in company of petitioner and fact that during this period O.P. No. 2 was born are such that it would go a long way to show that applicant-wife has been able to establish a case showing circumstances in which her marriage with opposite party no. 1 and birth of O.P. No. 2 out of marriage was required to be accepted – Impugned judgment insofar as it declares O.P. No. not entitled for maintenance and O.P. No. 2 an illegitimate child are liable to be set aside – Matter remitted to Family Court to consider case of wife-applicant no. 1 for award of maintenance keeping in view income of opposite party no. 1 – O.P. No. 2 shall be entitled to get maintenance until he attains his majority. (Paras 10, 19, 21 to 24)

Rajeev Ranjan Prasad, J.—Heard learned counsel for the parties.

2. With the consent of learned counsel for the petitioner and the opposite parties in both the revision applications, these two matters have been taken up together for consideration.

3. In Criminal Revision No. 331 of 2017, petitioner is the husband who is aggrieved by and dissatisfied with the judgment and order dated 07.02.2017 passed by learned Principal Judge, Family Court, Jehanabad in Maintenance Case No. 53 of 2014 whereby and whereunder the learned Family Court has partly allowed an application under Section 125 Cr.P.C. preferred by the opposite parties. The learned Family Court, while rejecting the request of the wife-opposite party no. 1 to allow maintenance to her, took a view that the opposite party no. 2 is illegitimate son of the petitioner but would be entitled for a maintenance of Rs. 2,500/- per month. It is this order to pay Rs. 2,500/- per month to O.P. No. 2 which has been challenged by the petitioner.

4. The main ground taken for the challenge is that the learned Family Court has held that O.P. No. 2 is an illegitimate son of the petitioner. It is submitted that the marriage between the petitioner and the O.P. No. 1 could not be proved and there is a categorical finding of the learned Family Court in the impugned judgment that the applicant-wife had failed to prove a valid marriage and/or a long living relationship which were required to take a view that the O.P. No.1 is a legally wedded wife of the petitioner.

5. On the other hand, the opposite party nos. 1 and 2 have preferred Criminal Revision No. 630 of 2017 seeking to challenge the impugned judgment whereunder the claim of maintenance of the opposite party no. 1 has been rejected and the opposite party no. 2 has been allowed a maintenance of Rs. 2,500/- per month only with effect from 10.07.2014.

6. The petitioners in Cr. Rev. No. 630 of 2017 have submitted that the documentary evidences laid before the learned Family Court go a long way to show that the petitioner no. 1 is the wife of O.P. No. 1 and from their wedlock, a son who is O.P. No. 2 was born. It is their further contention that the learned Family Court, Jehanabad has rejected the claim of the applicant no. 1 without appreciating the materials available on the record keeping in view the requirements of Section 125 Cr.P.C. It is submitted that Section 125 Cr.P.C. is a piece of social legislation and the purpose behind incorporating Section 125 Cr.P.C. in the statute book is to provide a succor to the neglected women and children.

7. Both the parties have relied upon some judgments of the Hon’ble Supreme Court. The petitioner in Cr. Rev. No. 331 of 2017 has relied upon a judgment of the Hon’ble Apex Court in the case of Samir Mandal vs. State of Bihar and Another reported in (2001) 10 SCC 50 to submit that where the marriage between the parties could not be established, there would be no question of payment of maintenance.

8. Learned counsel for the opposite parties in Cr. Revision No. 331 of 2017 has opposed this application and supported his contentions in Cr. Rev. No. 630 of 2017 on the strengths of the judgments of the Hon’ble Supreme Court in the case of Gokal Chand vs. Parvin Kumari @ Usha Rani reported in (1952) 1 SCC 713, Dwarika Prasad Satpathy vs. Bidyut Prava Dixit & Another reported in (1999) 7 SCC 675 and Chanmuniya vs. Virendra Kumar Singh Kushwaha and Another reported in (2011) 1 SCC 141 [: 2011 (1) BLJ 67 (SC)].

9. This Court has heard both the sides and perused the records. In course of hearing, learned counsel for the petitioner in Cr. Rev. No. 331 of 2017 has produced the copy of the deposition of the witnesses and this Court has gone through the same.

10. On perusal of the impugned judgment, it appears that the learned Principal Judge, Family Court, Jehanabad framed as many as five issues in this case and even as the proceeding under Section 125 Cr.P.C. is supposed to be a summary proceeding, the learned Family Court se

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