The court upheld the right of the respondent to claim maintenance without residing with the applicant under Cr.P.C 125.

N.K. Gupta, J.

1. The applicant has preferred an application u/s 482 of Cr.P.C challenging the order dated 1.12.2010 passed by learned Vth Additional Sessions Judge, Rewa in Criminal Revision No.296/2009 by which the order dated 14.7.2009 passed by JMFC Rewa (Shri G. C. Mishra) in MJC No.189/2006 was confirmed. Applicant has also challenged the order dated 14.7.2009 passed by JMFC Rewa.

2. Facts of the case are that the respondent no.1 has filed an application u/s 125 of Cr.P.C that she was the wedded wife of the applicant. In 1986, after 8 years of her marriage Gauna took place and thereafter, she was residing with the applicant. She got six children from the applicant, out of them one had already expired. Applicant was in habit to assault the respondent no.1 and ultimately, she was thrown out from the house because the applicant kept one Geeta, daughter of Kolai @ Jamuna Saket in his house. Respondent no.1 and her children did not have any means for their maintenance and therefore, application u/s 125 of Cr.P.C was filed before the competent Magistrate.

3. In the reply filed by the applicant, he denied the entire allegations made in the application. On the contrary it is alleged that respondent no.1 had illicit relation with someone at Allahabad. She was in habit of running away from her husband's house frequently. In the year 2002 she left house of her husband without any intimation and started living with another man. Under such circumstances, she has no ground to get maintenance by living separately. It is also alleged that respondent no.6, Shivam was not the son of the applicant.

4. After considering the evidence adduced by both the parties, learned JMFC, Rewa granted maintenance to the respondents in tune of Rs.500/- to the wife and Rs.200/- to each of the children per month. Revision filed by the respondents was dismissed vide order dated 1.12.2010 by Vth Additional Sessions Judge, Rewa.

5. Learned counsel for the applicant has submitted that respondent no.6 is not the child of the applicant and therefore, applicant was not liable to pay any maintenance to that child. It is also submitted that respondent no.1 could not prove the circumstances by which she could live separately. Without any sufficient reason to live separate, she could not get any maintenance. It was for the respondent no.1 to prove the reason. Learned counsel for the applicant placed his reliance upon the judgment passed by Hon'ble the Apex Court in case of Chaturbhuj Vs. Sita Bai, (2008) 2 SCC 316.

6. Learned counsel for the respondents has submitted that respondent no.1 had resided with the applicant for so many years and she got six children from the applicant. Applicant was in habit to assault the respondent no.1 often and ultimately, he kept a woman Geeta with him and therefore, no option was left with the respondent no.1 but, to live with her parents. During the marriage, respondent no.6 was born and respondent no.1 was pregnant when she was thrown out of the house and therefore, presumption is in favour of the respondent no.1 that respondent no.6 was born to her by the applicant. Applicant could not rebut the presumption and therefore, respondent no.6 is entitled to get the maintenance.

7. After considering the submissions made by learned counsel for the parties and looking to the evidence adduced by the parties, it is apparent from the suggestions given to various witnesses of the applicant viz. Urmila Devi (P.W.1), Munnilal (P.W.2) that upto three years prior to their statement, the respondent no.1 was kept with comfort by the applicant. Statements of these witnesses were taken in the month of April and October 2007 and therefore, by such suggestions it is apparent that applicant was of the opinion that the respondent no.1 was residing with him up to the year 2004. Proceeding u/s 125 of the Cr.P.C was initiated in February 2005 in which applicant no.6 was shown to be two years old and therefore, the statement of the respondent no.1, Urmila Dev