Madhya Pradesh High Court
Omprakash Pawar vs Bhabhut Pawar on 3 April, 2013
1
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR
SB: HON. SHRI N.K.GUPTA,J.
CRIMINAL REVISION NO.1072/2011
Om Prakash Pawar & another.
Vs.
Bhabhut Pawar.
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Shri S.K.Mishra, Advocate for the applicants.
Shri Anand Nayak, Advocate for the respondent.
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ORDER
(Passed on the 3rd day of April, 2013) The applicants have challenged the order dated 29.3.2011 passed by the learned Sessions Judge Chhindwara in Criminal Revision No.238/2010, whereby the maintenance granted to the applicant No.1 Om Prakash vide order dated 29.11.2010 passed by the learned JMFC Parasia District Chhindwara (Shri C.K.Barpethe) in MJC No.106/2008 was set aside.
2. The brief facts relating to the present revision are that the applicants have moved an application under Section 125 of Cr.P.C. that the marriage of the applicant No.2 Puniya Bai took place with the respondent 14 years prior to her application by customary procedure "Path". She was pregnant due to the respondent, but thereafter the respondent was harassing the applicant No.2 for demand of dowry and ultimately she was ousted by the respondent. 2 She remained with the respondent for few months. Thereafter she gave a birth to the male child i.e. applicant No.1 herein. The respondent was earning a sum of Rs.15,000/- per month by his salary from the WCL Nazarpur. He was also getting the income from his irrigated land, and therefore it was prayed that the maintenance of Rs.3,000/- be given to each of the applicants.
3. The respondent in his reply denied all the allegations. He refused that the applicant No.2-Puniya Bai was his married wife. He refused that the applicant No.1 herein was born to the applicant No.2 because of the respondent. He denied about any sexual intercourse with the applicant No.2.
4. After considering the evidence adduced by the parties, the learned JMFC Parasia District Chhindwara dismissed the maintenance application of the applicant No.2, whereas the maintenance of Rs.2,000/- per month was granted to the applicant No.1 Om Prakash with effect from 25.9.2008. In revision filed by the respondent, the Revisionary Court set aside the order passed by the JMFC and dismissed the application under Section 125 of Cr.P.C. filed by the applicants.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the applicants has submitted that the application of the applicants was 3 dismissed without any basis. The applicant No.2 Puniya Bai was the wife of the respondent and applicant No.1 Om Prakash was the son of the respondent, and therefore both the applicants were entitled to get the maintenance from the respondent.
7. On the other hand, the learned counsel for the respondent has submitted that no customary marriage could be proved by the applicant No.2 Puniya Bai. It was nowhere proved that the applicant No.1 was born to the applicant No.2 due to the respondent, and therefore the Revisionary Court has rightly dismissed the maintenance application of both the applicants.
8. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent that the applicants did not file any revision against the order dated 29.11.2010 passed by the learned JMFC Parasia in which the maintenance application of the applicant No.2 Puniya Bai was dismissed. If the present revision is treated against that order for the applicant No.2, then it is barred by limitation. However, if the suo-motu revision is considered for the applicant No.2, then it would be apparent from the evidence given by the parties that the marriage of the applicant No.2 Puniya Bai took place with one Gulab and she could not prove that the divorce took place with her husband Gulab. A 4 married woman could not re-marry without taking the divorce, and therefore if the marriage took place between the applicant No.2 and the respondent, then it was not a valid marriage and the applicant No.2 never became the wife of the respondent, and therefore she was not entitled for any maintenance under Section 125 of Cr.P.C. The learned JMFC has rightly rejected the application filed under Section 125 of Cr.P.C. by the applicant No.2.
9. It is apparent from the record that the applicant No.2 had moved a maintenance application prior to the present application at the time the child was not born. In her statement given relating to the application dated 1.7.1994, she told that she had a child of nine months but she neither amended her application for maintenance of her child nor claimed that the child was born through the respondent. Looking to the previous application pending at the time when child was born, it was possible that the name of the father of the applicant No.1 was mentioned in the various documents by the applicant No.2 due to legal advice given by the concerned counsel.
10. The respondent has submitted the document Ex.D-1 and the order dated 4.9.1996 passed by the learned JMFC Chhindwara in which maintenance application of the applicant No.2 was dismissed, because she could not prove her marriage. In that application, the respondent had 5 clearly stated that his wife was sick, and therefore the applicant No.2 went to see the wife of the respondent, and she remained only for 2-4 days, and therefore the trial Court found that no marriage took place between the applicant No.2 and the respondent. Criminal Revision No.105/1996 filed by the applicant No.2 was also dismissed vide order dated 23.9.2000, and therefore it was finally settled that in those years the applicant No.2 was not at all married with the respondent and it was not proved in that application that she remained in the house of the respondent for three months. Under such circumstances, no second application could be entertained or allowed by any Court for maintenance of the applicant No.2.
11. Puniya Bai (PW-1) has stated that she was kept by the respondent for three months, and therefore she was pregnant in that period and thereafter she was ousted. She had submitted birth certificate Ex.P-1 relating to the birth of the applicant No.1 Om Prakash. Similarly, residential certificate Ex.P-2 was taken by the applicants and a mark sheet of pre-middle examination Ex.P-3 was submitted by the applicants to show that from very beginning the applicant No.1 Om Prakash was shown to be a son of the respondent. Puniya Bai (PW-1), Guddi Bai (PW-2) and Narendra (PW-3) were examined to prove the marriage took place between the respondent and the applicant No.2, but 6 none of the witnesses gave the date of alleged marriage. Guddi Bai was the Sarpanch at that time, but she could not tell the date of marriage or actual period when the applicant No.2 resided with the respondent.
12. It appears that during the pendency of the previous maintenance application, the documents were prepared in favour of the applicant No.1 Om Prakash that he was the son of the respondent so that the applicant No.1 could claim the property of the respondent being an illegitimate child of the respondent. However, no amendment took place in the previous maintenance application of the applicant No.2 and she did not file any maintenance application for last 15 years. It appears that false entries were done in the various documents to show that the applicant No.1 was the son of the respondent, whereas no marriage of the applicant No.2 took place with the respondent and no date could be shown by the applicant No.2 on which she resided with the respondent. She could not prove that the applicant No.1 was born within the period as prescribed in Section 112 of the Evidence Act. If the applicant No.2 was interested to usurp the property of the respondent, then she could create such document like birth certificate etc. in the name of the respondent so that her son could not be told as bastard and she could get the entire property of the respondent, and therefore by such 7 documents which were created by the applicant No.2, it cannot be said that the applicant No.1 was the son of the respondent. As per the provisions of Section 112 of the Evidence Act, a presumption can be drawn about the birth during the marriage if the child is born within 280 days. After dissolution of marriage and mother remained unmarried, then a presumption can be drawn that the child was born through her husband. In the present case, no valid marriage is proved between the applicant No.2 and the respondent. The applicant No.2 could not prove that she did not reside with her husband Gulab thereafter and she could not give the exact date of marriage or exact date on which she was ousted from the house of the respondent, and therefore it cannot be presumed that the applicant No.1 was the son of the respondent.
13. It is strange that the boy became 15 years old, till date the applicants never demanded any maintenance from the respondent. Such conduct of the applicants clearly indicates that if they have applied for the maintenance from very beginning, then the respondent could prove the date of ouster and date of birth of the applicant No.1 and he could prove that the applicant No.1 was not his child, and therefore for 15 years the applicant No.2 kept silence. She did not file any maintenance application for her son. 8
14. Guddi Bai (PW-2) has accepted that the applicant No.1 Om Prakash was born after nine months of the incident when the applicant No.2 came to her parents house. It was not stated by any of the witnesses that the applicant No.2 was not in access to any other man during that period including her husband Gulab. Under such circumstances, the Revisionary Court has rightly rejected the maintenance application of the applicant No.2 and rightly set aside the order passed by the learned JMFC.
15. Narendra (PW-3) has stated that the applicant No.1 was born after 8-11 months when the applicant No.2 came back to her father's house. Narendra is the husband of sister of the applicant No.2, whereas Puniya Bai as well as Narendra could not tell as to why the previous maintenance application of the applicant No.2 was not modified at that time for the new born child.
16. On the basis of the aforesaid discussion, it appears that during the pendency of the previous maintenance application, various entries were made for the applicant No.1 to show him that he was the child of the respondent. The applicants could not prove that the respondent was the father of the applicant No.1, and therefore the applicant No.1 could not get any maintenance from the respondent. There is no basis by which any interference can be done by this Court in the order dated 9 29.3.2011 passed by the learned Sessions Judge Chhindwara. Consequently, the present revision filed by the applicants is hereby dismissed with no order as to cost.
17. A copy of this order be sent to the trial court as well as the appellate Court along with their records for information.
(N.K.Gupta) Judge 03/04/2013 Ansari