Entitlement to claim maintenance based on the Nata system and long association with the non-petitioner as husband and wife, emphasizing the presumption of marriage arising from long cohabitation.

S.P. Pathak, J.-This revision petition under Section 397 read with Section 401 of the CrPC has been filed against the Judgment & Order dated 21.02.1995 passed by the learned Additional District Judge, Bundi in Criminal Revision No. 12/94 titled Prabhulal vs. Kailash where by the order dated 22.01.1994 passed by the learned Munsiff & Judicial Magistrate, Ist Class, Lakheri in Case No. 308/92 (209/90) was partly set aside and modified to the extent that the order of maintenance in relation to the daughter is maintained and the order in relation to the maintenance of petitioner scands set aside.

2. Briefly, the relevant facts of the case are that an application under Section 125 of the CrPC was made by the petitioner against non-petitioner/respondent in the Court of learned Munsiff & Judicial Magistrate, Ist Class, Lakheri on 11.06.1990 with the averments that her marriage in accordance with the Hindu Customs took place with the non-petitioner prior 7 years of filing the application. She thereafter started living with the non-petitioner as his wife and she gave birth to a daughter namely Shakuntla. For some time the relations were cordial between them, but after some time the relations between the petitioner and the non-petitioner became strained as the non-petitioner started dealing with her with cruelty and also the family members of the non-petitioner started mal-treating her and a demand of dowry was also raised for a sum of Rs. 15,000/-. It is further averred that the she was forcibly turned out of the house 3 to 4 times. It is further averred that before one year of filing of the application the non-petitioner brought with him a lady namely Mathari in the house and the non-petitioner started living with the lady Mathari as his wife. It was further averred that non-petitioner was running a cloth shop at Itawa and his income from that source was about Rs. 8,000/-per month.

3. The application was contested by the non-petitioner, who denied the averments made in the petition and also denied that petitioner never lived with him as his wife.

4. The non-petitioner further denied the alleged fact that Skakuntla was born out of the relations between the petitioner and the non-petitioner. It was also stated by the non-petitioner that infact the husband of petitioner namely Ram Kalyan was alive.

5. The learned Munsiff & Judicial Magistrate, Lakheri after recording evidence of both the sides, allowed the application and in his order dated 22.01.1994 he has held that non-petitioner lived with the petitioner as his wife. The daughter-Shakuntla was of non-petitioner. The non-petitioner had sufficient income source from the agricultural lands and other source of income. The learned Magistrate thus passed an order to the effect that the non-petitioner shall make the payment of Rs. 300/-and Rs. 200/-per month for maintenance respectively to the petitioner and his daughter-Shakuntla.

6. On a revision filed by the non-petitioner the learned Additional District Judge in Revision Petition No. 12/94 vide order dated 21.02.1995 partly accepted the revision petition and set aside the order in relation to maintenance awarded in favour of the petitioner, but upheld the order of maintenance in relation to the daughter. Hence, the present revision petition has been filed.

7. Heard learned Counsel for the petitioner. The contention of the learned Counsel for the petitioner is that for years together the petitioner and the non-petitioner had lived together and out of their marital relation a daughter namely Shakuntla was born. It was also contended that it is the bounded duty of the petitioner to maintain the wife and the daughter. The learned Counsel submits that in their custom Nata system is prevailing and both the Courts have come to the conclusion that the petitioner and the non-petitioner were living as husband and wife, therefore, to say that since no divorce was obtained therefore, she was not entitled for maintenance, is of no sequence.