Allahabad High Court
Shamim Ahmad vs State Of U.P. And Others on 14 March, 2013
Author: Mushaffey Ahmad
Bench: Mushaffey Ahmad
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 48 Case :- CRIMINAL REVISION No. - 5776 of 2006 Petitioner :- Shamim Ahmad Respondent :- State Of U.P. And Others Petitioner Counsel :- Anil Kumar Singh,R.C. Gupta Respondent Counsel :- Govt. Advocate Hon'ble Mushaffey Ahmad,J.
Heard Sri R.C. Gupta, learned counsel for the revisionist, learned counsel for respondent nos. 2 and 3, learned A.G.A. for the State and perused the record.
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 dishonored. She was turned out of the house alongwith two and a half years 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.
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 498-A I.P.C. and Section 3/4 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.
The parties produced evidence in 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.
The learned lower court, therefore, directed the revisionist-husband to pay Rs. 5000/- amount as maintenance to the respondent no. 2 and Rs. 2000/- to their son respondent no. 3. Against this judgment and order, the present revision has been preferred.
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.
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.
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 2005 (3) SCC, 636 Savitaben Somabhaibhatiya Vs. State of Gujrat and others . 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 against the woman who unwillingly gets into relationship with a married man and Section 125 of the Code does not give protection to such woman. This may be an inadequacy in law, which only the legislature can undo. But as the position in law stands presently there is no escape from the conclusion that the expression ' wife' as per Section 125 of the Code refers to only legally married wife.
The position of law is admitted. Where the marriage is invalid because of previous spouse living the wife cannot claim any maintenance from her subsequent husband.
Learned counsel also refers to the judgment of the lower court and argues that the learned Judge has not dealt with the important question of illegality of marriage when it was disputed before him.
We, do not agree with the learned counsel on this point. The revisionist has himself pleaded in the written statement para-14 that it came to his knowledge that the respondent with the aid of her father lodged a case of cruelty and dowry against her first husband and then she managed to secure Talaq and Rs. 30,000/- from him and squared up the matter. It is well established that things admitted need not be proved. No specific plea has been taken in the written statement that the respondent no. 2 had not been divorced by her first husband before she entered into marriage with the revisionist.
Learned counsel banks on an averment in another application which he calls to be his additional written statement and contends that the Ikrarnama filed in compliance with the Court's order seems to be a bogus agreement and it was not a Talaknama and, therefore, she had not been validly divorced. The record shows that the applicant has been frank enough to admit her first marriage with and divorce from the first husband in her statement on oath. She has produced the document that was prepared as memorandum of divorce and the agreement reached between the applicant wife and her first husband and this memorandum contains the averment that she has been divorced. There is no formal mode of divorce under the Muslim Law. In the statement on oath, the respondent no.2 has stated that she was firstly married to Ishhaq who had divorced her and the divorce was obtained under a compromise. At a belated stage on 22.5.2004, the respondent moved an application in which he said that her former husband Ishhaq alias Irshad had revealed to him that she was not divorced nor marital relations snapped. and a case was launched against him to extort money and, therefore, the applicant wife continue to establish her relationship with him (her former husband). This application was moved at a delayed stage to trump up a plea and when the Ikrarnama was produced, the revisionist husband did not bother to call Ishhaq as a witness to establish that he had not divorced her. Section 101 of the Evidence Act provides , 'whoever desires any Court to give judgment as to any legal right or liablity dependent on the existence of facts which he asserts, must prove that those facts exist.
Section 103 provides, ' The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence."
The fact that the applicant wife had not been divorced of her former husband was claimed by the husband revisionist. The burden , therefore, lay on him to establish that no such divorce was effected between respondent-wife and her former husband. This could have been easily established by evidence of former husband as the revisionist claims to have elicited the knowledge of this fact from the former husband himself. The revisionist having failed to discharge the burden of proving that the wife had not been divorced by her former husband, he cannot claim that the wife should have established it.
Proceedings under Section 125 Cr.P.C. are summary and quasi civil in nature. Matters are decided on the principle of preponderance of probability and not on the principle of proving the case beyond reasonable doubt. The 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. The applicant has been admitted as married wife and the validity of the marriage having not been displaced by any evidence to the contrary, she remains legally wedded wife of and entitled to maintenance from the revisionist.
Considering all the facts of the case, I am of the opinion that the revision has no force and the same is hereby dismissed.
Order Date :- 14.3.2013 n.u.