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IN THE HIGH COURT OF DELHI AT NEW DELHI
CHANDRA DHARI SINGH, J.
Mohd Shakeel @ Shakeel Ahmed – Petitioner
Versus
Mst. Sabia Begum and Others – Respondents
Crl. Rev. Pet. No. 588 of 2018, Crl. M.A. No. 12593 of 2018, 13141 of 2021
Decided On : 28-01-2022
Civil Procedure Code, 1908 - Section 397/401 - Criminal Procedure Code, 1973 - Section 125 - Maintenance - Order for maintenance of wives, children and parents - Question of DNA test - Alleged by Respondents that marriage between Petitioner and Respondent No. 1 was solemnized, according to Muslim rites and ceremonies. Respondents No. 2 and 3 were born out of their wedlock. Prior to her marriage with Petitioner, Respondent No. 1 was married to one Likayat Ali and had four children out of that wedlock - It has been alleged that Petitioner accepted children of Respondent No. 1 and gave his name as their father in school records - Whether there existed a relationship between parties and in doing so, had appreciated evidence before it to its prima-facie satisfaction, which in itself was sufficient to pass award of maintenance in favour of Respondents.
Finding of the Court:
A bare reading of Section 125 of Cr.P.C. suggests that intention of legislature while making the provision for maintenance was to ensure that a person shall oblige with his matrimonial and familial obligations of maintaining his wife and children, when they do not have sufficient means to sustain themselves - Where parties have been living together as husband and wife, assumption is in favour of them being legally married. Therefore, statements of neighbours favour version of Respondent No. 1, that there existed a marital relationship between parties - It is an established law that the Revisional Court need not re-assess or re-appreciate the material and evidence on record before Trial Court. A Revisional Court is to limit its jurisdiction for adjudicating upon material illegalities and irregularities apparent in impugned orders. Conclusive determination of marital status in cases of maintenance under Section 125 of Cr.P.C. shall therefore, be declared by Civil Court and Revisional Court shall restrain itself to questions before it without reopening evidence - Where parties have been living together as husband and wife, assumption is in favour of them being legally married. Therefore, statements of neighbours favour version of Respondent No. 1, that there existed a marital relationship between parties - The maintenance awarded to tune of Rs. 4,000/- per month to Respondent No. 1 and Rs. 3,000/- to Respondents No. 2 and 3, each till attaining age of majority, is hence seen to be justified in light of relationship between the parties and conduct and negligence of the Petitioner towards the Respondents - Court does not find any substantial ground for invoking Revisional Jurisdiction to interfere with impugned judgment.
Result: Revision Petition is dismissed.
JUDGMENT :
CHANDRA DHARI SINGH, J.
1. The instant Petition under Section 397/401 of the Code of Criminal Procedure, 1908, (hereinafter Cr.P.C.) has been filed by the Revisionist/Petitioner (hereinafter “Petitioner’) seeking setting aside of the Order dated 3rd April, 2018, passed by the learned Judge, Family Court, North-East, Karkardooma, Delhi whereby the Petitioner was directed to pay maintenance to the tune of Rs. 4,000/- per month to Respondent No. 1 and Rs. 3,000/- to Respondents No. 2 and 3, each till attaining the age of maturity, alongwith litigation expenses of Rs. 11,000/-.
FACTUAL MATRIX
2. It has been alleged by the Respondents that the marriage between Petitioner and Respondent No. 1 was solemnized in January, 1994, according to Muslim rites and ceremonies. Respondents No. 2 and 3 were born out of their wedlock. Prior to her marriage with the Petitioner, the Respondent No. 1 was married to one Likayat Ali and had four children out of that wedlock, namely, Danish, Monish, Sanah and Farah. It has been alleged that the Petitioner accepted the children of Respondent No. 1 and gave his name as their father in the school records.
3. The Petitioner along with Respondents and said four children were residing together at their matrimonial house at Khajoori Khas, Delhi. However, due to disputes between the first wife of the Petitioner and Respondent No. 1, the Petitioner purchased a separate property at Ziauddinpur, Delhi and started living there alongwith the Respondents.
4. Subsequently, due to certain matrimonial issues between the parties, the Petitioner stopped paying maintenance to the Respondents and aggrieved by the same, Respondent No. 1 filed maintenance petition for herself and Respondents No. 2 and 3 under Section 125 of the Cr.P.C. before the learned Judge, Family Court, North-East District, Karkardooma Courts, Delhi.
5. The Petitioner in his Written Statement dated 29th February, 2008, to the Petition under Section 125 of the Cr.P.C. denied his marriage to Respondent No. 1 and the birth of Respondents No. 2 and 3 from the wedlock of the Petitioner and Respondent No. 1. However, Respondent No. 1 refuted the allegations of the Petitioner and agreed to carry out a DNA test for Respondents No. 2 and 3. The learned Trial Court vide order dated 5th November, 2014, allowed the commission of the test subject to cost of Rs. 5,000/- to be paid by the Petitioner. However, the test was not carried out for unstipulated reasons.
6. Following witnesses were examined on behalf of the Respondents before the learned Trial Court:
| Witness Name | Examined | Relevant part of the depositions |
| Mst. Sabia Begum (Respondent No. 1) | PW-1 | Alleged that her marriage was solemnized with the Petitioner. Tendered her affidavit and produced photographs of marriage. (Ex.PW1/1-PW1/7). |
| Deposed that the marriage was performed before a Qazi and a Nikahnama was prepared but it is in possession of the Petitioner. | ||
| The nikah took place at the Petitioner’s house and only Respondent’s mother was there. | ||
| Produced her ration card (Ex. PW1/8) wherein the Petitioner is named as her husband. | ||
| Copy of voter list showing her and Petitioner’s name at serial no. 1206 and 1205. (Ex.PW1/10). | ||
| Due to interference of first wife of the Petitioner, he stopped paying for expenses of the Respondents from February, 2007. | ||
| She is a semi-illiterate lady, did not have any work and had no source of income to maintain her children. | ||
| Petitioner is a man of means, who is running handicrafts business-and polishing the handicrafts items and is earning more than Rs. 60,000/- per month and his rental income is more than Rs. 20,000/- per month. He had huge bank balance and FDRs in his own name and all modern facilities, own car, scooter, etc. and was leading a luxurious life. | ||
| She denied the suggestion | ||
Power to adjudicate on the issue of maintenance has been given, at the first instance, to the Magistrate, who may upon being satisfied direct the concerned person to provide such maintenance/monthly ....
The term ‘wife’ in Section 125 of the Code includes a woman who has been divorced by her husband or who has obtained a divorce from her husband and has not remarried. A woman not having the legal sta....
(1) Standard of proof of marriage in a Section 125, Cr.P.C. proceeding is not as strict as is required in a trial for an offence under Section 494 IPC.(2) Order passed in application under Section 12....
In maintenance proceedings under Section 125 Cr.P.C., strict proof of marriage is not required; a prima facie view of marital status suffices for claims of maintenance.
Point of Law : As it is a settled position of law that there is no strict prove of marriage is required in a proceeding under Section 125 of Cr.P.C.
Maintenance can be granted under Section 125 Cr.P.C. based on a marriage-like relationship, without strict proof of marriage; primary focus is on neglect and economic capabilities.
Point of Law : The principles of Hindu Personal Law have developed in an evolutionary way out of concern for all those subject to it so as to make fair provision against destitution. The manifest pur....
Wife and legitimate child are entitled to maintenance unless proven living in adultery, with allegations requiring strong substantiation.
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