IMPORTANT POINT
Delay in filing a maintenance application does not negate entitlement to maintenance; consent to separate was misinterpreted.

ORDER :

1. The applicants have filed this revision challenging the illegality and sustainability of the order dated 31.08.2021 passed in Criminal Case No. 378/2019 by the learned Family Court, Balodabazar, District-Balodabazar-Bhatapara whereby, the learned Family Court has dismissed the application filed under Section 125 of the Cr.P.C. seeking maintenance from the non-applicant.

2. Facts relevant for disposal of this revision are that Applicant No. 1 got married with Non-applicant No. 1 in accordance with the Hindu rites and rituals about 20 years ago from the date of filing of the application under Section 125 of the Cr.P.C. In the affidavit submitted by the applicant, date of marriage is mentioned as 09.05.1997. After a few months of marriage, Non-applicant No. 1 suspecting character of Applicant No. 1 started ill-treating and assaulting her due to which, brother of the Applicant No. 1 brought her back to her parents’ house. Thereafter, non-applicant did not make any effort to bring her back to matrimonial home. Applicant No. 1 gave birth to Applicant No. 2 in her parents’ house. Feeling aggrieved with the act of non-applicant in not taking care and maintaining them, the applicants have filed an application under Section 125 of Cr.P.C. on 16.12.2016 before the Court of Judicial Magistrate First Class, Simga, District Balodabazar-Bhatapara which was later on, transferred to the learned Family Court, District- Balodabazar-Bhatapara on 06.07.2019.

3. Application filed under Section 125 of Cr.P.C. was replied by non-applicant pleading therein that Applicant No. 1 resided with the non-applicant only for a period of 15 days and thereafter, she left her matrimonial home stating that she does not like him. Non-applicant made several efforts to bring her back, but, she did not return to her matrimonial home. It was also denied that during her stay in her matrimonial home, Applicant No. 1 became pregnant because after marriage, there was no physical relation between them, Applicant No. 2 is not his daughter. The income of non-applicant as pleaded in the application, was also denied. It is pleaded that no reason has been assigned for filing an application for maintenance after lapse of 20 years of separation. Applicant No. 1 is having 05 acres of agricultural land, she possess a house in her own name under the Indira Awas Scheme and is also running a Fancy Shop in the name of Rajeshwari Fancy Store and earning Rs. 20,000-25,000/- per month.

4. During trial, both the parties submitted documents in support of their claim and also examined witnesses. Applicants examined 04 witnesses in support of their claim including Applicant No. 1 and Applicant No. 2. Non-applicant exhibited as many as 14 documents and examined 02 witnesses including himself.

5. Learned Family Court while appreciating the pleadings, oral and documentary evidence brought on record by respective parties, dismissed the application under Section 125 of Cr.P.C. observing that the applicants are not entitled for the amount of maintenance. Learned Family Court while rejecting the claim for grant of maintenance considered that the application was filed with a delay of 20 years, no explanation is offered for delay, according to document Ex. A-1, the Applicant No. 1 is residing separately with consent. With respect to the rejection of claim of Applicant No. 2, learned Family Court observed that Applicant No. 2 has attained the age of majority before filing of the application for grant of maintenance and there is no provision for providing maintenance to a child who has attained the age of majority.

6. Learned counsel for applicants would submit that learned Family Court while rejecting claim of Applicant No. 1 has considered only two grounds, first that, application is filed with unexplained delay of 20 years and Applicant No. 1 residing separately with consent, taking note of the document Ex. A-1 which is per se illegal. The learned Family Court failed to consider the entire eviden