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2014 Supreme(Pat) 1263
IN THE HIGH COURT OF JUDICATURE AT PATNA
Hon'ble DINESH KUMAR SINGH, J.
Dr. Firoz Alam
Versus
State of Bihar & Ors.
Criminal Revision No. 147 of 2014. Decided on 24th September, 2014.
Mr. Md. Khurshid Alam, For the Petitioners; Mr. Harendra Prasad, For the State; Mr. Bimlesh Kr. Pandey, For the O.P. No.2.
Headnote:
(A) Criminal Procedure Code, 1973 – Section 125 – Maintenance – Denial of factum of marriage by petitioner – For the purpose of proceeding under Section 125 of Cr.P.C., factum of marriage has to be prima facie considered – If prima facie materials are on record to suggest that parties have married or have relationship in nature of marriage, court can presume in favour of woman claiming maintenance – Provision under Section 125 of Cr.P.C. is a measure of social justice – Decision under Section 125, Cr.P.C. is tentative in nature, subject to decision in any civil proceeding. (Paras 21 to 24)
(B) Criminal Procedure Code, 1973 – Section 125(1)(b) – Maintenance – A divorced woman who cannot be technically called a wife has been treated as wife for purposes of proceeding under Section 125 of Cr.P.C. – Object of Section 125 of Cr.P.C. is to prevent vagrancy and destitution – Court has to adopt a different approach in social justice adjudication as mere adversarial approach may not be very appropriate. (Paras 28 and 30)
(C) Criminal Procedure Code, 1973 – Section 125 – Maintenance – Validity of marriage will not be a ground for refusal of maintenance if other requirements of Section 125, Cr.P.C. are fulfilled. (Para 26)
ORDER
Heard learned counsels for the parties.
2. The present Criminal Revision application is directed against the order dated 19.12.2013 passed by the learned Principal Judge, Family Court, West Champaran at Bettiah in Maintenance Case no. 143(M) of 2011 whereby the petitioner has been directed to pay maintenance amount of Rs.10000/- per month to O.P. No. 2 by 10th day of every succeeding month. The maintenance amount has been directed to be paid from the date of filing of the maintenance application i.e. 15.6.2011. The interim maintenance, if any, already paid to the O.P. No. 2 has been directed to be deducted from the quantum of maintenance amount to be paid.
3. This court vide order dated 18.2.2014 issued notice to the O.P. No. 2. Consequently, the O.P. No. 2 has appeared and filed counter affidavit.
4. The short factual matrix of the case is that O.P. No. 2 filed Maintenance Case No. 143(M) of 2011 on 15.6.2011 claiming to have married the petitioner on 13.3.2010 as per the Muslim rituals and her Dain Mehar was fixed as Rs.25,786/-. The mother of the O.P. No. 2 gave jewellery, cloths, furniture and Rs.50,000/- in cash to the petitioner and after the marriage, the petitioner and O.P. No. 2 started residing in a rented house as husband and wife. Subsequently, the O.P. No. 2 came to know that the petitioner was already married and he performed the marriage with O.P. No. 2 by concealing his earlier marriage. The petitioner took a loan of Rupees Two Lacs from the mother of O.P. No. 2 and when the petitioner was requested to return the loan amount, he started inflicting torture upon O.P. No. 2. Subsequently, the petitioner demanded Rupees Five Lacs as dowry and when the demand was not fulfilled, then the O.P. No. 2 was driven out after snatching all her belongings.
5. The complainant O.P. No. 2 has claimed that the petitioner is a Government doctor and is getting a salary of Rs.40,000/- per month and apart from that he earns Rs.6,00,000/- per annum by running a private clinic, hence his total annual income is Rupees Ten Lacs Eighty Thousand. Accordingly, O.P. No. 2 claimed maintenance of Rs.30,000/- per month.
6. The petitioner appeared on notice being issued by the learned Principal Judge, Family Court, West Champaran at Bettiah and filed his show-cause denying the factum of marriage with O.P. No. 2 by claiming that the marriage was never performed with O.P. No. 2 nor there has been any marital relationship with her. The petitioner claimed that he did not even recognize O.P. No. 2 and the Nikahnama, if any, being produced, is forged and fabricated one. The O.P. No. 2 has been set up by Dr. Nikhil Kumar, against whom the petitioner has filed a complaint. The petitioner is already married with one Minni Begum and is having three children out of the wedlock. The wife of the petitioner had earlier filed an application before the S.D.O., with regard to the lodging of the false case by O.P. No. 2.
7. During the course of proceedings under Section 125 Cr.P.C., O.P. No. 2 examined three witnesses to prove the marriage between the petitioner and O.P. No. 2, of which P.W. 1 is Meena Khatoon (mother of O.P. No. 2), P.W. 2 Wakil Akhtar (Kazi) who had recited Nikah between petitioner and O.P. No.2) and P.W. 3 is O.P. No. 2 herself.
8. The petitioner examined 13 witnesses to prove that neither any marriage was performed between the petitioner and O.P. No. 2 nor there has been any relationship in the nature of marriage between them.
9. The learned Principal Judge, Family Court, on analyzing the evidence adduced on behalf of the parties, vide order dated 19.12.2013, came to the conclusion that O.P. No. 2 is the legally wedded wife of the petitioner and is entitled for maintenance as she is unable to maintain herself. The petitioner being an Ayurvedic doctor, posted at Primary Health Centre, Ustu under Gourwadih block in the district of Bhagalpur has deliberately neglected O.P. No. 2, hence, O.P. No. 2 is entitled for maintenance of Rs.10000/- per mont
