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2014 Supreme(All) 2047
ALLAHABAD HIGH COURT (LB)
Vishnu Chandra Gupta, J.
Shiva Kant Awasthy (Minor) and another through Mother and Natural Guardian Saroj Awasthy - Applicant
Versus
Jagdish Prasad Awasthy - Respondent
Criminal Revision No. 616 of 2003
Decided On : 15-12-2014
For the Applicant :Amit Chaudhary, Advocate
For the Respondent:A.R. Khan, G.A. and Jai Shrinet, Advocate
The burden of proof lies upon the husband to disprove the entitlement to maintenance of the subsequent married wife, and the scope of interference in maintenance orders is limited.
Headnote:
Maintenance - Criminal Procedure Code - Section 125 - 397/401 - 125 Cr.P.C.
Fact of the Case:
An application under Section 125 Cr.P.C. was filed by Smt. Saroj Awasthy for maintenance against Jagdish Prasad Awasthy, alleging neglect and refusal to provide for her and her children. The trial court granted maintenance to the minor children but not to Smt. Saroj Awasthy. The revisional court set aside the order, concluding that Smt. Saroj Awasthy was not legally married to Jagdish Prasad Awasthy.
Finding of the Court:
The court found that the revisional court exceeded its jurisdiction by setting aside the maintenance order for the minor children. It held that the evidence and findings of the trial court were legally sustainable and not perverse. The revisional court's decision was deemed a manifest error of law.
Issues: The main issue was the legitimacy of the children and the legal relationship between Smt. Saroj Awasthy and Jagdish Prasad Awasthy.
Ratio Decidendi: The court emphasized that the revisional court's interference with the trial court's findings was unwarranted, as the scope of interference in maintenance orders is limited. It also highlighted the burden of proof on the husband to disprove the entitlement to maintenance of the subsequent married wife.
Final Decision: The revision was allowed, and the order of the trial court granting maintenance to the minor children was restored and affirmed.
Vishnu Chandra Gupta, J.
This criminal revision under Section 397/401 Cr.P.C. has been filed by the revisionists against the order dated 22.10.2003 passed by Additional Sessions Judge, Court no. 1, Unnao in Criminal Revision No. 121 of 2002, whereby the order dated 26.10.2002 passed by learned Additional Chief Judicial Magistrate, Unnao in Criminal Case No. 1729 of 2002, under Section 125 Cr.P.C. for grant of maintenance of Rs.500/- to both the revisionists was set-aside.
2. The relevant facts for deciding this revision in nutshell are that an application under Section 125 Cr.P.C. has been filed by Smt. Saroj Awasthy and the present revisionists- Shiva Kant Awasthy and Km. Shivani Awasthy (minor) for grant of maintenance against Jagdish Prasad Awasthy-the opposite party with the allegation that Smt. Saroj Awasthy married with the opposite party-Jagdish Prasad Awasthy in accordance with Hindu rites and rituals. Revisionists Shiva Kant Awasthy and Km. Shivani Awasthy born out of wedlock of Smt. Saroj Awasthy and Shri Jagdish Prasad Awasthy. After birth of revisionist Shiva Kant Awasthy, the opposite party started neglecting and misbehaving Smt. Saroj Awasthy and her children and gave a small room to live in and stopped supporting his children and wife for their livelihood, education and for providing other necessities of life. Smt. Saroj Awasthy claimed herself unable to maintain and stated that she has no means for herself and her children, though the opposite party is legally bounded to maintain her and her children. It has also been alleged that the opposite party is possessing six bigha of agriculture land, two grove of Mangoes and as such he is earning Rs.20,000- Rs.25,000 per annum. The opposite party is also serving as a Government Teacher and is also getting salary of Rs.4,000/- per month.
3. In application moved under Section 125 Cr.P.C., she claimed Rs.1,000/- as maintenance for herself and Rs.500/- for her children Shiva Kant Awasthy and Km. Shivani Awasthy, who were minor at that time. This application moved on 30.10.1998 was contested by the opposite party by filing his reply wherein he denied any type of relationship with Smt. Saroj Awasthy and also disowned that the revisionists were born with cohabitation of opposite party and Smt. Saroj Awasthy. He married to Smt. Rani @ Pushpa thirty years ago in accordance with Hindu rites and rituals and his son Dharmendra Awasthy aged about 26 years was born with Smt. Rani Awasthy, who is alive and is living with opposite party. He also stated that Smt. Saroj Awasthy is a free lady and working in Aganwadi. She used to see village of opposite party so she knows the opposite party by name. On the instigation of some persons of the Village, to grab the property of the opposite party and to defame him, Smt. Saroj Awasthy filed this false claim of maintenance.
4. The applicant Smt. Saroj Awasthy filed certain documentary evidence including Domicile Certificate showing the name of Jagdish Prasad Awasthy as her husband, voter list showing her name as the wife of opposite party, birth certificate of Shiva Kant issued on 10.06.1989 by C.M.O. District-Unnao, birth certificate relating to delivery of a female baby by her on 27.01.1991 issued by C.M.O., Unnao, Domicile certificate issued by Jagdish Prasad Awasthy, the O.P., being Village Pradhan, some photographs of opposite party with Smt. Saroj Awasthy, receipt of Double Benefit Deposit certificate issued by Avadh Gramin Bank on 26.09.1999 of Rs.20,330 in the name of Km. Shivani showing her father as Jagdish Prasad Awasthy issued, Passbook of Awadh Gramin Bank Musiganj Branch in which the name of Smt. Saroj Awasthy has been shown as the wife of Jagdish Prasad Awasthy, the card of National Vaccination Mission in the name of Shivani showing the name of her father as Jagdish, copy of first information report lodged by her against Rajendra and Girish, her Caste certificate issued on 18.04.2000, School leaving certificate of Km. Shiv
