Delhi District Court
Sh. Ram Kishore vs State Of Gujrat 2005 Cri. L.J. 2114 (Csc) ... on 13 July, 2010
THE COURT OF SH. R.P. PANDEY: ADDL. SESSIONS JUDGE-
OUTER (II): ROHINI COURTS: DELHI.
CR NO. 44/09
SH. RAM KISHORE
S/o Sh. Inder Lal
R/o C-314, J.J. Colony,
Khyala, New Delhi-18.
.................... PETITIONER
VERSUES
1. SMT. SUDHA DEVI
W/o Sh. Ram Kishore
2. PAWAN KUMAR
3. PREETI
Both Respondents no. 2 & 3
Through Their Natural Guardian/Mother
Smt. Sudha Devi
All R/o 677, A-Block,
Shahbad Dairy, Delhi.
................. RESPONDENTS
Date of Institution : 03.12.09
Date on which reserved for order : 05.07.10
Date of Order : 13.07.10
ORDER
1. By this order I proceed to dispose of a revision petition filed by CR NO. 44/09 Page No.1 of 8 petitioner/Ram Kishore assailing the order passed by Ld. MM, in complaint no. 1299/1, PS S.P. Badli on 06.11.09 (for short impugned order) assailing the order passed by Ld. MM disposing of a petition U/s 125 Cr. P.C filed by respondents herein, whereby they have been held entitled for monthly maintenance @ Rs. 2000/- for respondent no. 1/wife/Smt. Sudha Devi and @ Rs. 1000/- each for respondent no. 2 Master Pawan Kumar and respondent no. 3 Baby Preeti, who are respectively the minor son and daughter of the petitioner.
2. Brief facts of the case are that the respondents filed a petition U/s 125 Cr.P.C alleging that respondent no. 1 was married to petitioner on 10.03.88 and out of their wedlock respondent no. 2 & 3 were born. The respondent no. 1 claimed that she is household lady having no independent source of income whereas petitioner is a building contractor and earning Rs. 20,000/- per month. She also stated that she is living in her matrimonial house but petitioner neglected to maintain respondents. She thus claimed a maintenance of Rs. 500/- p.m for her self Rs. 2000/-p.m for maintenance of respondent nos. 2 & 3. The petitioner defended the action stating that he was already married to one Smt. Prem Devi in the year 1971 and having 6 children. He also stated that respondent no. 1/Smt. Sudha Devi was already married to one Ramesh and they both were employed with him as daily wagers CR NO. 44/09 Page No.2 of 8 and that she wrongfully taken over possession of plot measuring 12-1/2 Sq. Yards bearing no. 677-A, Shahabad Dairy owned by Smt. Chandra Kanta who is daughter of the petitioner herein and that she is gainfully employed as daily labourer and earning Rs. 5000/- p.m. He also denied of having ever agreed before DCP (North) to pay a sum of Rs. 2500/- p.m to the respondent.
3. After appreciating the evidence brought on record by the parties Ld. MM passed the impugned order granting monthly maintenance amount of Rs. 2000/- for respondent no. 1 and Rs. 1000/- each for respondent no. 2 and 3 which is to be paid by the petitioner from the date of filing of petition i.e., 08.01.1998 till the date they are entitled to receive.
4. The impugned order has been assailed on the ground that the factum of marriage between the petitioner and the respondent no. 1 and birth of respondent no. 2 and 3 out of their wedlock have not been established. He stated that respondent no.1 is herself capable of earning and that they are not entitled to maintenance since 08.01.1998.
5. I have heard Shri I.J.S. Gulati Ld. counsel for the petitioner and Sh. Inayat Ali Ld. counsel for the respondents and perused the Trial Court records carefully.
CR NO. 44/09 Page No.3 of 86. The Ld. counsel for the petitioner has submitted that the respondent no. 1 did not examine any other witness except herself and one Leela Ram to prove the factum of marriage. He has submitted that no photograph of marriage has been proved by the respondent no
1. He has also submitted that the Ld. MM has failed to appreciate that the photographs of respondent no. 1 with petitioner do not prove marriage between them. He stated that mere fact that the name of petitioner is mentioned in the certificate of birth of respondent nos. 2 and 3 also does not establish paternity. He has submitted that the petitioner was already married and having seven children prior to his alleged marriage with respondent no. 1. He has thus submitted that the respondent no. 1 has failed to establish the essential element of Section 125 i.e., she is wife of the petitioner.
7. On careful perused of the evidence brought on record by the respondents I find that by proving joint photographs, birth certificate of respondents nos. 2 and 3 and by her own affidavit and the oral testimony of the PW-2 Leela Ram, the respondent no. 1 had established that she is wife of petitioner and the respondent no. 2 and 3 took birth out of their wedlock. Once the respondents successfully discharged their burden of proof, the burden had shifted to the petitioner who was pleading that he was already married. He did not get examined his wife or any of the children in CR NO. 44/09 Page No.4 of 8 his defence that he was having a legally wedded wife who was still alive when the respondent no. 1 allegedly got married to him. The Ld. counsel for petitioner has relied upon judgment cited Savitaben Vs. State of Gujrat 2005 Cri. L.J. 2114 (CSC) to submit that U/s 125 Cr. P.C the term 'wife' can not be enlarged to include women not lawfully married. He has also relied upon Yamunabai Vs. Anantrao AIR 1988 SC 644 to submit that marriage with a person having a living spouse is null and void. In my considered opinion the ratio of law enunciated by Hon'ble Supreme Court in above cited judgments does not apply to the present situation because the respondent no. 1 had successfully discharged her burden of proof about the factum of her marriage with petitioner whereas the petitioner could not rebut the same and did not even examine his first wife or any other witness to establish that he was already having his first wife alive when he got married with the respondent no. 1 and thus, I find no force in the submission of Ld. counsel for the petitioner that the respondent no. 1 is not legally wedded wife of petitioner or that he is not the father of the respondent no. 2 and 3.
8. The second limb of the arguments of Ld. Counsel for the petitioner is that when the Ld. MM vide order dated 17.09.1998 dismissed the application of the respondents for grant of interim CR NO. 44/09 Page No.5 of 8 maintenance holding that there was no prima facie case in favour of any of them, it was not just, proper and lawful for the Ld. MM to pass a direction for granting maintenance from the date of filing petition as it is going to kill the petitioner who is a poor person having no capacity at all to make payment of arrears of maintenance for past 12 years. He has also submitted that the Ld. MM failed to consider that the house of petitioner remained in unlawful possession of the respondents from the very beginning which admittedly is built upon the plot of land which is in the name of his daughter from the first wife. On the other hand the Ld. counsel for the respondent has submitted that there is no illegality in granting maintenance from the date of filing of petition.
9. The Ld. counsel for the petitioner has relied upon the judgment citied as Bhupinder Singh Walia Vs. Varinder Kaur 1993 Cri. L.J. 1128 wherein Hon'ble Punjab and Haryana High Court held that where the delay in disposal of case was not caused due to husband alone and wife taking more time in producing her evidence, granting of maintenance from the date of application was not justified and therefore, the maintenance was granted from the date of order. I find that the above ratio of law is squarely applicable to present case because the perusal of record reveals that the respondent have not promptly prosecuted the petition before Ld. MM and taken CR NO. 44/09 Page No.6 of 8 much longer time in completing the evidence and once even the PE was closed by Ld. MM on 14.07.2000 by adverse order as the respondents herein had failed to produce evidence despite ample opportunities. Thus, I find force in the submissions of Ld. counsel for the petitioner that the direction granting payment of maintenance from the date of filing of petition was not justified. The impugned order is accordingly modified to this extent making the grant of maintenance only from the date of impugned order and not from the date of filing of petition U/s 125 Cr.P.C.
10.As regards the quantum of maintenance, the Ld. counsel for the revisionist has submitted that the same is on higher side as the revisionist no. 1 is herself an able bodied person and doing the business of supplying oil to the shops and working as made servant at Kothies. Mere the fact that the respondent no. 1 is engaged in some employment does not disentitle her to claim maintenance U/s 125 Cr.P.C when such earning is not sufficient. The grant of Rs. 2000/- p.m. as maintenance is quiet reasonable and does not call for any interference.
11.Lastly, it has been submitted by the Ld. counsel for the petitioner that the respondent no. 2 Pawan Kumar has attained the age of majority as per birth certificate proved on record and as such not entitled for maintenance U/s 125 Cr.P.C. It suffice to say in this CR NO. 44/09 Page No.7 of 8 respect that the respondents are entitled for maintenance or till they are eligible under the provision of Section 125 Cr.P.C. This has also been made clean by the Ld. MM while passing the impugned order.
12.Thus, the revision petition is disposed of with the direction that the impugned order granting maintenance to the respondents will be applicable only from the date of impugned order i.e., 06.11.09. The revision file be consigned to record room and TCR be sent back to the Trial Court with a copy of order.
ANNOUCED IN OPEN COURT
ON 13.07.2010 (R.P.PANDEY)
ASJ : ROHINI : DELHI
13.07.10
CR NO. 44/09 Page No.8 of 8