Point of Law: It is by rule of fictio juris that legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that marriage was void or voidable.

JUDGMENT :

Goutam Bhaduri, J.

Heard.

1. The present appeal is against the judgment and decree dated 27.03.2019 passed by 1st Addl. Principle Judge, Family Court Durg in Civil Suit No. 16A/2016 whereby a declaratory petition to set aside the order passed by the Family Court under Section 125 of the Cr.P.C on 31.05.2012 was dismissed.

2. The petition and the appeal both are preferred by the husband against Smt. Ahirmati Deshlahara Satnami and Master Kripank.

3. The facts of the case are:-

On 31.05.2012, a maintenance order was granted in favour of the respondent.

Thereafter, the appellant herein filed an application in the year 2015 with a prayer that the order of maintenance dated 31.05.2012 was obtained by fraud by the respondent.

It was further stated that Bhagdas Deshlahara (appellant herein) was married to Indumati, who is the first wife and out of such wedlock, one daughter namely Sarita was born.

Subsequently, Indumati deserted Bhagdas and started living separately.

Thereafter, another marriage was performed by Bhagdas with (respondent No. 1) Ahirmati but they could not go along. Consequently, an application for maintenance was filed by Ahirmati under Section 125 of Cr.P.C.

During such proceedings, husband Bhagdas (appellant herein) came to know that Smt. Ahirmati to whom he married was earlier married to Anesh Kumar according to rituals and out of that relation one son Suraj Kumar was born. Further, it was stated that suppressing the fact that Ahirmati was married to Anesh Kumar and without getting divorce she performed another marriage with appellant Bhagdas, therefore, the marriage would be nullity.

It was further stated that after Bhagdas got separated with Ahirmati. Ahirmati was in live-in-relation with one Khilesh Jangde and out of such relationship Master Kripak (respondent No. 2) was born.

Because of such consequences and suppressing the fact when Ahirmati filed an application with Mastar Kripak for maintenance, maintenance was granted in favour of Mastar Kripak.

It is stated that the order is an outcome of fraud, the same may be set aside.

Thereafter, respondent Ahirmati and Master Kripak though appeared and denied the averments. Perusal of the order sheet of learned Family court would show that certain efforts were carried out for settlement but nothing transpired.

Appellant Bhagdas examined himself. The records shows that no evidence was adduced on behalf of the respondent Ahirmati.

Learned Family court after evaluating the facts and evidence dismissed the petition. Hence, this appeal.

4. Learned counsel for the appellant submits that learned trial court has erred in holding that no proof was placed about validity of marriage. He would submit that as per statement of the appellant himself, he was earlier married to Indumati, therefore, in whatever circumstances may be unless and untill a valid decree of divorce is passed, validity of second marriage cannot be supported. He would further submit that in a statement under Section 125, categorical averments were made that appellant was physically incapacitated to produce child. In these circumstances, if the child was said to be born out of such relation the illegitimacy cannot be ruled out, which would have a direct bearing to the grant of maintenance to children.

5. Per contra, learned counsel for the respondent would submit that the appellant has failed to prove the fact about the marriages so alleged and only bald statements was made that he was married to Indumati and one daughter was also born and would submit this could have been proved by sufficient evidence. He further submits that allegations of marriage of Ahirmati with Anish Kumar has also not been established, therefore, which marriage was at first point of time was necessarily required to be adjudicated. He further submits that learned Family court while granting maintenance by order dated 31.05.2012 came to a categorical finding that respondent No. 2 Mastar Kripank being the son is entitled to receive the maintenance.