Smt. Vidhya Devi @ Kamla Devi. vs . State & Anr. on 9 December, 2014

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Rajasthan High Court - Jodhpur

Smt. Vidhya Devi @ Kamla Devi. vs . State & Anr. on 9 December, 2014

The instant revision petition has been preferred by the petitioner Smt. Vidhya Devi against the order dated 20.1.2012 passed by the learned Additional Sessions Judge, Sri Karanpur, District Sri Ganganagar in Criminal Revision No.1/2012 preferred by the respondent no.2 Jeet Ram, husband of the petitioner, setting aside the order dated S.B. Criminal Revision Petition No.1191/2014 Smt. Vidhya Devi @ Kamla Devi. vs. State & Anr. 2 19.10.2011 passed by learned Additional Chief Judicial Magistrate, Sri Karanpur in Criminal Case No.316/2010 whereby the learned Magistrate directed the respondent no.2 to make payment of maintenance to the petitioner to the tune of Rs.2,500/- per month.

The petitioner was married to the respondent no.2 about 11 years before the application in question came to be filed. After being alleged turned out of the matrimonial home, the petitioner filed an application under Section 125 Cr.P.C. against the respondent no.2 claiming maintenance. The respondent no.2, upon appearance, took a stance that he had not married the petitioner at all and instead, the petitioner had been married with a person named Ram Lal. She had not divorced Ram Lal as per law and thus, the application for maintenance filed under Section 125 Cr.P.C. was not maintainable. The petitioner examined herself and one more witness in support of her case whereas the respondent no.2 examined himself in counter thereto.

The learned trial Court, while concluding the proceedings, held that the respondent no.2 is employed as a peon in a Government school. In all the service documents of the respondent no.2 including his ration card, medical claims etc. he disclosed his wife's name to be Vidhya Devi i.e. the petitioner herein. Thereupon, after S.B. Criminal Revision Petition No.1191/2014 Smt. Vidhya Devi @ Kamla Devi. vs. State & Anr. 3 finding the respondent no.2 to be negligent to maintain the petitioner without any justifiable cause, he directed that the respondent no.2 will pay Rs.2,500/- to the petitioner as monthly maintenance.

The respondent no.2 challenged the order dated 19.10.2011 passed by the learned Magistrate by filing a revision. The revisional Court upturned the order passed by the learned Magistrate holding that the petitioner failed to prove that she was the legally wedded wife of the respondent no.2 because she could not give proper proof regarding her divorce from Ram Lal. Accordingly, the order of maintenance passed in favour of the petitioner was reversed.

The petitioner, Vidhya Devi has approached this Court assailing the order dated 20.1.2012 passed by the revisional Court.

Learned counsel for the petitioner vehemently contended that the learned trial Court appreciated the material available on the record in a just manner and directed the respondent no.2 to pay her maintenance to the tune of Rs.2,500/- per month as the respondent no.2 failed to maintain her without any justifiable cause. He submitted that the petitioner came with a specific plea in her application under Section 125 Cr.P.C. that she was earlier S.B. Criminal Revision Petition No.1191/2014 Smt. Vidhya Devi @ Kamla Devi. vs. State & Anr. 4 married to Ram Lal Nayak, with whom she took a customary divorce. He submits that the petitioner, while giving evidence, was cross examined on this issue and she specifically stated that her earlier marriage with Ram Lal was terminated by a customary divorce. The respondent did not dispute that customary divorce is permissible in the community to which the parties belong. He further submitted that the petitioner also proved the medical bill Ex.2A submitted by the respondent no.2 in his department wherein he has shown the petitioner to be his wife. The ration card of the respondent no.2, the petitioner's own election identity card issued in the year 2001, the voters list etc. were all proved in order to establish and prove that the respondent no.2 had married the petitioner. He further submitted that the respondent no.2 stated a blatant lie when he was examined as NAW1 before the trial Court. He denied having any knowledge of the petitioner and claimed that the ration card, voter list etc. were forged. He further submitted that the respondent no.2 was confronted with the medical claim bill Ex.P/1 and he denied his own signatures on the document. The said document was procured from the respondent no.2's department and there was no occasion for the petitioner to have forged the same. If at all the respondent no.2's signatures on the document were S.B. Criminal Revision Petition No.1191/2014 Smt. Vidhya Devi @ Kamla Devi. vs. State & Anr. 5 forged, he could have filed an FIR in relation thereto. The said medical bill was generated at the time the respondent no.2 was working in the forest department and thus, there was no occasion for the petitioner to forge the document. She could not be expected to foresee that a matrimonial dispute would arise in future and thus, would create documentary proof in advance. He thus urged that the order of the revisional Court holding that the petitioner had not divorced her earlier husband Ram Lal and thus, was not legally wedded wife of the respondent no.2, is totally unjust and contrary to the material available on the record and hence, the same deserves to be quashed.

Per contra, learned counsel for the respondent no.2 vehemently opposed the submissions advanced by the petitioner's counsel. He submitted that the petitioner herself came with a specific plea in her application that she was married from before to Ram Lal. She did not get the marriage annulled. Thus, her alleged marriage with the respondent no.2 during subsistence of her marriage with Ram Lal, is void ab-initio in view of the specific provisions of the Hindu Marriage Act. Thus, he submitted that as the petitioner failed to prove that she was the legally wedded wife of the respondent no.2, the learned revisional Court rightly reversed the order passed by the learned trial Court.

S.B. Criminal Revision Petition No.1191/2014 Smt. Vidhya Devi @ Kamla Devi. vs. State & Anr. 6 Heard and considered the arguments advanced at the Bar and perused the material available on the record.

The petitioner came out with a specific plea in her application under Section 125 Cr.P.C. that she was married to Ram Lal from before and divorced him customarily before marrying the petitioner. No cross examination was made from her on the issue of customary divorce when she was examined at the trial. The respondent no.2 in his own statement did not deny that the customary divorce is permissible in the community to which the parties belong. The document Ex.P/1, which the petitioner proved in her examination in chief, is a medical bill submitted by the respondent no.2 in the forest department where he used to work in the year 2002. There was no occasion for the petitioner to have prepared the said document. The respondent no.2 of course denied the said document when he was examined by the trial Court but his denial is of no worth whatsoever. If his signatures on the document were forged, then he could have inid criminal proceedings. He could have sought information from the department to disprove the fact. The ration card of the respondent no.2 was also proved as Ex.P/5A wherein also, the name of wife of the respondent no.2 was mentioned as Vidhya Devi. The ration card was prepared in the year 2005 and thus, there S.B. Criminal Revision Petition No.1191/2014 Smt. Vidhya Devi @ Kamla Devi. vs. State & Anr. 7 was no occasion for the petitioner to have got entered her name in the Ration card so as to project herself as respondent no.2's wife. Consequently, it is evident that the plea taken by the respondent no.2 that the petitioner is not his legally wedded wife and that she was not able to establish that she had divorced her earlier husband, is without any basis whatsoever. The respondent no.2 in his statement admitted that he had not taken any steps whatsoever to maintain the petitioner. Undisputedly, the petitioner is his legally wedded wife and he being a Government servant, is under an obligation to maintain her.

The learned trial Court appreciated the material available on the record in a just fashion and accepted the application seeking maintenance filed by the petitioner. The learned revisional Court was clearly unjustified in subsequently upturning the order of the learned trial Court. The view taken by the learned revisional Court is highly unjust and perverse on the face of the record.

Consequently, the instant revision petition deserves to be and is hereby allowed and the revisional court's order dated 20.1.2012 is quashed. As a consequence, the order passed by the learned trial Court dated 19.10.2011 is hereby revived and restored. Now the respondent no.2 shall make payment of arrears of maintenance accrued till date S.B. Criminal Revision Petition No.1191/2014 Smt. Vidhya Devi @ Kamla Devi. vs. State & Anr. 8 in favour of the petitioner in three equal instalments payable over a period of nine months. The respondent no.2 shall continue to make regular payment of maintenance @ Rs.2,500/- per month to the petitioner as directed by the learned trial Court by 10th of each month, failing which, the learned trial court shall take steps to recover the maintenance amount from his salary and thereafter have the amount disbursed to the petitioner.

Stay petition also stands disposed of.

(SANDEEP MEHTA), J.

S.Phophaliya

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Rajasthan High Court - Jodhpur