The dependent child of a wife is entitled to maintenance irrespective of being born from a prior marriage.

JUDGEMENT

1. The petitioner being partly aggrieved by an order dated 28 th May 2014 passed by the Family Court, Godhra in so far as it allows the application under section 125 of the Criminal Procedure Code ( for short “Cr.P.C”) for maintainance of the minor born to respondent no. 2 out of the wedlock with her previous husband who unfortunately expired is before this Court in the Revision Application under section 397/401 of Cr.P.C.

2. Having considered the arguments advanced by the learned counsel for the petitioner and also the impugned order, it is more than clear that the serious allegations by the respondent no.2 against the petitioner are as regards his extramarital physical relations with his sister­in­law which were not denied by the petitioner in the evidence. Thus, the reason for respondent no. 2 withdrawing from the company of the petitioner within a span of only four days post her marriage with the petitioner came to be established before the Court below.

It is noticed from the impugned order that the petitioner did not even dispute his sources of income and thus, the maintainance to minor child born out of the wedlock of the respondent no. 2 with her deceased husband came to be awarded. 3. The learned counsel while relying upon Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and Anr. 2014(1) G.L.H 203 and Abdul Razak Haji Gulabhai Qureshi Vs. Horabibi Haji Kalubhai Qureshi and Anr. 2007(1)GLH 145 would contend that the said minor, not being the legitimate or illegitimate child of the petitioner could not have been awarded the maintainance in absence of the biological relations between the two.

4. Having perused both the aforesaid cases, it appears that the Courts were dealing with the facts where for illegitimate child of the wife, the maintainance was sought. In the instant case, the minor to whom the maintenance is awarded is the legitimate child of the wife of the petitioner born to her out of the marriage with her deceased husband. Subsequent thereto she married with the petitioner brought her dependent minor with her to the knowledge of the petitioner without his objection.

The minor is dependent upon his biological mother and his mother is dependent on the petitioner. Therefore, in view of such dependency the petitioners wife would be entitled to her maintenance, which maintenance would necessarily comprehend the maintenance to her biological legitimate child accepted in the family of the petitioner with knowledge and without objection. In the judgments cited by the learned counsel, biological legitimate minor child of the wife is not excluded for being considered for maintenance. Thus the said authorities are not applicable in the facts of the case.

7. Under the circumstances, the trial court appears to have correctly appreciated the facts, evidence and law.

This Court is unable to find any illegality in the impugned order warranting interference under section 397 and 401 of the Cr.P.C. This Revision Application, therefore, fails and is rejected.

(G.R.UDHWANI, J.) mary mary