JUDGMENT :

(Shree Prakash Singh, J.)

1. On 04.04.2023, this Court observed that if, the counsel for the opposite party will not remain present on the next date, the Court will proceed in absence of the opposite party.

2. Case called out. None present on behalf of the opposite party.

3. This Court is proceeding to hear the matter in the aforesaid circumstances.

4. Heard Sri Sanjay Kumar Srivastava, learned counsel for the revisionist, Sri Anirudh Kumar Singh, learned A.G.A. for the State and perused the material placed on record.

5. By means of the instant revision, the prayer has been made to allow the revision with cost after summoning the lower court record and set aside the impugned judgment and order dated 26.09.2015 passed by the trial court i.e. Principal Judge, Family Court, Ambedkar Nagar in Case no. 272 of 2013 Smt Tarawati Vs Dr Arun Kumar Singhal.

6. Learned counsel appearing for the revisionist submits that the opposite party filed an application under section 125 of Cr.P.C. on 18.01.2011, against the revisionist before the Judicial Magistrate, Ambedkar Nagar while alleging herself to be the widow of late Parshuram son of Ram Naresh, resident of Village Bela Persa, PS- Baskhari, Pargana Birhal, District-Ambedkar Nagar and also having a son with the wedlock of her and late Parshuram. He submits that the opposite party has shown herself to be married with the present revisionist on 17.07.2007, at her village Baskhari and this fact is also evident from the statement of the opposite party including the cross examination that she allegedly performed marriage with the present revisionist on 17.07.2007.

7. He added that the date of death of the husband of opposite party has been shown as on 29.09.2006, which is the wrong date given by the opposite party as, the actual date of death of late Parshuram is 29.09.2009 which transpires from Parivar Register which is annexed as Annexure No. 1 with the supplementary affidavit dated 04.04.2023.

8. Further submission is that since the date of death of the husband of opposite party is 29.09.2009, therefore, the marriage with the present revisionist would be abinitio void and if, once it becomes void, the application under section 125 is not maintainable on behest of the opposite party. He added that the additional evidence has been supplied through the supplementary affidavit before this Court wherein the copy of the death certificate has also been appended. He submits that taking the additional evidence, either this Court decide the matter or the same may be remitted back to the trial court to decide a fresh.

9. Adding his arguments he submits that in fact due to recklessness on the part of the counsel for the revisiionist, the death certificate could not be produced before the trial court whereas, the same was in existence and non-submissions of the death certificate has hampered the fate of the case and the revisionist has been put into trouble.

10. Further submitted that the additional evidence in revision can very well be taken if the court is of the satisfaction that the same can change the nature of the order. In support of his contention, he has placed reliance on the provision of section 401(1) of Cr.P.C.

11. Section 401(1) of Cr.P.C. is quoted here in under:-

(1) In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.

12. Next submission is that likewise powers under section 401 of Cr.P.C., the analogous power has been given under section 399 (1) of Cr.P.C. thus, the power for taking additional evidence is also vest with the trial court.

13. In support of his contention, he has also placed