Wife and legitimate child are entitled to maintenance unless proven living in adultery, with allegations requiring strong substantiation.

CAV JUDGMENT

Date : 18-03-2025

The present revision petition has been preferred by the petitioners against the impugned order dated 22.06.2019, passed by learned Principal Judge, Family Court, Gopalganj, in Maintenance Case No. 156 of 2013, C.I.S. Reg. No.751 of 2013, whereby learned Principal Judge has dismissed the application of the petitioners under Section 125 Cr.PC for maintenance.

2. The factual background of the case is that the petitioners herein filed one application bearing Misc. Case 156 of 2013 under Section 125 Cr.PC on 12.08.2013 in the Court of Principal Judge, Family Court, Gopalganj, against the Opposite Party No. 2 herein seeking maintenance, stating therein that the petitioner No. 1 is married to Opposite Party No. 2 on 6.3.2012 as per Hindu rites and customs and petitioner No. 2 is the son born out of the wedlock.

3. As per further statement, petitioner No. 1 joined the matrimonial home of her husband/Opposite Party No. 2 on 8.3.2012. On 21.8.2012, she was taken by her husband/Opposite Party No. 2 to Mumbai where he was working in Indian Navy having monthly Salary of Rs. 35,000/-. After birth of the son/petitioner No. 2, the Opposite Party No. 2/husband started harassing her in different ways. He used to even abuse and beat her. The Opposite Party No. 2 also developed illicit relationship with one lady. He subjected the petitioner No. 1/wife to beating on several occasions and ultimately on 19.01.2013, she along with her son was ousted from the matrimonial home. Thereafter, she went back to her Maikey. Subsequently, one panchayati was held at the house of Opposite Party No. 2 and there was a settlement between both parties. As per settlement, the petitioner No. 1 along with her son again started living with her husband, but again on 18.04.2013, she was ousted from the matrimonial home by the Opposite Party No. 2/husband and since then she is living at her parent’s house.

4. It is also stated that the petitioners have no means to maintain themselves, whereas the Opposite Party No.2 is a government employee earning 35,000/- rupees per month and also having ten bighas of agricultural land earning annual income of Rs. 2,00,000/- from the cultivation. The Opposite Party No. 2 has also market place in Lucknow getting monthly rent or Rs. 25,000/-. The petitioners have claimed for 20,000/- per month for their maintenance from O.P. No. 2.

5. On notice, the Opposite Party No. 2 appeared and filed his written statement wherein he has taken objection that the petitioners are not entitled to get any maintenance, claiming that the petitioner No. 1/wife was already pregnant prior to the marriage with someone else and she concealed her previous pregnancy from him at the time of her marriage with him and petitioner No. 2 is born out of that pregnancy and hence, he is not his legitimate son. After the birth of petitioner No. 2, DNA test was conducted which confirmed that he is not his son. It is also claimed that his wife/petitioner No. 1 is still living in adultery.

6. He has admitted that he is doing service in Indian Navy in class ‘D’, but he has denied that his monthly income is of Rs. 35,000/- and claims that his take home salary is only Rs.10,000/- after all deductions and payment of installment of bank loan. He has also claimed that his wife is a beautician and runs a beauty parlour having monthly income of Rs. 25,000/-.

7. He has also stated that he has filed one matrimonial petition under Section 12 of the Hindu Marriage Act for annulment of the marriage.

8. During trial following witnesses have been examined on behalf of the petitioner:-

(i) P.W.-1 – Pradeep Gupta, who is brother of Petitio