Chunnu Singh vs Nitu Kumari on 14 August, 2008

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Patna High Court - Orders

Chunnu Singh vs Nitu Kumari on 14 August, 2008

While this Court would find merit in the first contention as pressed by the counsel for the petitioner that the order granting maintenance in exercise of power u/s 125 could not have been dated back on any date prior to filing of the application u/s 125 by the wife, this Court is not in a position to accept the second submission on the part of the petitioner that the opposite party-wife on account of getting allegedly married again during the pendency of maintenance case had altogether become disentitled for grant of maintenance.

The crucial question for deciding the impact or the alleged second marriage would be as to whether the second marriage infact taken place and even if it had taken place during the pendency of the maintenance case could it make the application for maintenance i.e. Annexure-1 dated 7.5.2004 infructuous. It is the case of the 2 petitioner himself before this Court that such marriage had taken place on 24.5.2005 i.e. only during the pendency of the maintenance proceedings initiated by his wife. Here also there is a caveat in the sense that there is nothing on record to show that when the wife had filed the application dated 7.5.2004, the petitioner by way of reply to that application had even remotely taken the plea of second marriage of the opposite party-wife. As a matter of fact when the petitioner had produced his evidenced in that maintenance case his two witnesses beyond the pleadings of the petitioner are said to have made a vague oral statement with regard to the alleged second marriage of the wife-opposite party and to make such story believable, a document by way of Ext.-'A' was also produced by the petitioner which is again a copy of an ordersheet in complaint case filed by the petitioner on 29.6.2006 with regard to the same allegation of second marriage of his wife on which cognizance under Section 494 I.P.C. is said to have 3 taken by the court on 18.8.2006. The Court however till date has not held that the wife-opposite party had entered into a second marriage nor any conviction of the wife-opposite party has been recorded and as such even the documentary evidence does not improve the case of the petitioner in any manner.

The question therefore would be as to what credibility can be attached on these oral statement of the witnesses of the petitioner of the document (Exhibit-A) an order taking cognizance in a complaint case for the purposes of deciding the issue of grant of maintenance in respect of an application under Section 125 Cr.P.C. filed by wife on 7.5.2004, a date on which admittedly even as per the case of the petitioner, she (wife) had not been married again. The requirement in law of a person being disentitled from getting maintenance is not that the moment a person is claimed to be married again during the subsistence of first marriage that done would deprive him or her from getting maintenance till 4 such remarriage is actually proved beyond doubt.

In the opinion of this court the evidence which were led by the petitioner were infact wholly insufficient to establish the second marriage of his wife. There is nothing to prove that the Vedic rites including Saptapadi were performed for constituting a vaid marriage under Hindu Law. There is infact no eye witness to the marriage. That apart the story of remarriage or second marriage of the wife opposite party on 24.5.2005 on the basis of a complaint petition filed on 29.6.2006 by the petitioner leading to an order taking cognizance dated 18.8.2006 can hardly be the clinching evidence to prove the factum of 2nd marriage of the wife. Infact it appears to this court that when the wife-opposite party had filed criminal case under Section-498A I.P.C. in 2001 and the maintenance case on 7.5.2004 under Section 125 Cr.P.C. the petitioner by way of his defence to the both cases had filed the aforementioned complaint case on 29.6.2006 and its evidentiary value 5 was also rejected by the Trial Court while convicting the petitioner for us a judgment dated 22.11.2006 offence under Section 498A. In that view of the matter, the court below has committed no error in holding that the story of remarriage of the wife-opposite party was not at all acceptable and the wife opposite party on account of continued negligence was entitled for grant of maintenance specially when she had no independent means of income to support herself.

              However,           the        court        below        has

committed        an        error           in     granting           such

maintenance       with          retrospective            date        i.e.

18.3.2001 which cannot be the basis at least u/s 125(2) Cr.P.C. Section 125(2) Cr.P.C. clearly lays down that such amount of maintenance can be granted at best from the date of application. Accordingly, the impugned order is modified to the extent that the petitioner will be required to pay a sum of Rs. 1000/- per month from the date of filing of the application u/s 125 i.e. with effect from 7.5.2004. Save and except 6 the aforesaid flaw, there is nothing in the impugned order which can be interfered by this Court exercising its revisional power.

That being so, this application with the aforementioned modification in the impugned order must be and is hereby dismissed.

(Mihir Kumar Jha,J.) Surendra/

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Patna High Court - Orders