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ALLAHABAD HIGH COURT
Mushaffey Ahmad, J.
Shamim Ahmad —Revisionist
versus
State of U.P. and Anr. —Opp. Parties
Cri Revision No. 5776 of 2006
Decided on 14.3.2013
For the Revisionist:Anil Kumar Singh, R.C. Gupta, Advocates.
For the Opposite Parties: AGA.
IMPORTANT POINT
Proceedings under Section 125, Cr.P.C. are summary and quasi civil in nature.
Headnote:Criminal Procedure Code, 1973—Section 125—Evidence Act, 1872—Section 103—Maintenance—Expression ‘wife’ as per Section 125 of Code refers to only legally married wife—Where marriage is invalid because of previous spouse living wife cannot claim any maintenance from her subsequent husband—Fact that applicant wife had not been divorced of her former husband was claimed by husband revisionist—Burden lay on him to establish that no such divorce was effected between respondent-wife and her former husband—Proceedings under Section 125, Cr.P.C. are summary and quasi civil in nature—Matters are decided on principle of preponderance of probability and not on principle of proving case beyond reasonable doubt—Wife having already stated that she had been divorced by her former husband and her father also deposing that his daughter had already been divorced by her former husband, divorce has been adequately proved—Applicant has been admitted as married wife and validity of marriage having not been displaced by any evidence to contrary, she remains legally wedded wife of revisionist and entitled to maintenance from revisionist—Criminal Revision dismissed. (Paras 8, 9, 13, 14 and 15)
Result: Criminal Revision dismissed.
Mushaffey Ahmad, J.—Heard Sri R.C. Gupta, learned counsel for the revisionist, learned counsel for respondent Nos.2 and 3, learned AGA for the State and perused the record.
2. The revision has been preferred against the judgment and order dated 5.8.2006 passed by Principal Judge, Family Court Kanpur Nagar. The respondent No.2 applied for maintenance. In the application she has alleged that she was married to the revisionist husband, according to Muslim rites. She carried dowry with her. In January, 2002 the husband, however, pressed for Rs.20,000 in dowry. When the demand was not fulfilled, she was harassed and subjected to cruelty. Her father was also dishonoured. She was turned out of the house alongwith two and a half year old child in her lap. The applicant has no source of livelihood and can not maintain herself. On the other hand, the revisionist-husband is a teacher and imparting tuition privately also and earn about Rs.4000 a month.
3. The revisionist-husband admitted that he was married to the applicant on 25.9.1997 and a child namely Imran was born in the wedlock. He loved her and kept her honorably but she quarrelled with him and his family members. She insisted that he should leave the village and start living with her parents. It was learnt after marriage that the applicant-wife had been married to another person and a Criminal case under Section 498A IPC and Section 374 of the Dowry Prohibition Act was lodged against him. Divorce was procured and Rs.30,000 were also extorted. This shows that the applicant’s father is a greedy fellow and was intending to extract some money from him. On 25.2.2002 he sent a notice. He haunted her parental house and tried to bring her back, but failed. He is still ready to keep her and the child with him. A suit for restitution of conjugal right had to be instituted. The applicant wife knew sewing who was suing and was earning about Rs.3000, therefore, he was not liable to maintain her.
4. The parties produced evidence ill support of their respective claims. The learned Judge held that the applicant being legally wedded wife of the respondent-husband was neglected and, therefore, she alongwith her child was entitled to maintenance.
5. The learned lower court, therefore, directed the revisionist-husband to pay Rs.5,000 amount as maintenance to the respondent No.2 and Rs.2,000 to their son respondent No.3. Against this judgment and order, the present revision has been preferred.
6. Learned counsel for the revisionist argues that it is admitted that the revisionist entered into Nikah with respondent No.2 as for back as in 1997 and the respondent No.3 was borne in the wedlock. Learned counsel also submits that the revisionist does not challenge the part of the judgment granting maintenance to the son because under the law, the child whether legitimate or illegitimate is entitled to maintenance.
7. Learned counsel pitches his arguments on the point that the respondent No.2 had not obtained divorce from her former husband before she married the revisionist. The learned counsel emphasize that this plea was taken at the very out-set in the written statement and the respondent No.2 simply filed Ikrarnama in evidence which has only a mention of divorce between the parties but no reliable evidence has been produced to establish that the respondent No.2 had procured divorce from her former husband.
8. Learned counsel insists that the documents produced by respondent No.2 in compliance with the order of the learned trial judge was’ simply an ‘Ikrarnama’ and not a divorce-deed. This Respondent No.2 had not been divorced and therefore, the marriage between the respondent No.2 and the revisionist was a nullity. The learned counsel refers to case law, reported in Savitaben Somabhaibhatiya v. State of Gujarat and others, 2005(3) SCC 636. In para-8 of the aforesaid judgment, it has been held that, there may be substance in the plea of learned counsel for the appellant that law operates harshly
