Amar Singh vs Smt. Prem

H.K. Sandhu, J.—Smt. Prem filed an application u/s 125 of the Code of Criminal Procedure for grant of maintenance on the allegations that she was married to Amar Singh respondent according to Hindu rites and after marriage resided with him as his wife. She could not give birth to any child out of this wedlock which annoyed Amar Singh and he started maltreating her. She was often subjected to beating. On account of misbehaviour of her husband she left his house. She has no income and was unable to maintain herself. During the pendency of this application she also moved another application for grant of interim maintenance.

The claim of the applicant was resisted by Amar Singh on the ground that she was not his legally wedded wife and moreover she had sufficient means to maintain herself.

After hearing the counsel for the parties the learned Judicial Magistrate 1st Class, Charkhi Dadri allowed a sum of Rs. 200/ - per month to the applicant by way of interim maintenance, which was to be paid by Amar Singh with effect from 1.4.1991. Aggrieved by this order dated 25th July, 1991 Amar Singh filed the present Revision Petition.

I have heard Shri R.S. Sagwan; learned Counsel for the petitioner and Mr. Bahadur Singh, the learned Counsel for the respondent and have perused the record.

The main contention of the learned Counsel for the petitioner was that in the application filed by Smt. Prem it was not alleged that marriage was solemnized in accordance with customary rites and ceremonies nor the ceremonies were specified in the pleadings. It was necessary to plead that a valid marriage between the parties had taken place before the wife could file a claim for maintenance. The mere fact that the lady stayed with the petitioner from time to time will not entitle her to any maintenance. This contention of the learned Counsel is without any merit. In para 1 of the application for grant of maintenance it has been specifically pleaded that Smt. Prem was married to Amar Singh according to Hindu rites and after marriage she resided and cohabited with the respondent. In order to make out a prima facie case she produced copy of the voters'' list wherein she was described as wife of the petitioner. Similar entry existed in the ration card, photostat copy of which was placed on record. The question whether Smt. Prem is legally wedded wife of the Revision-Petitioner will be decided after evidence is led to that effect. At present the only apprehension on the part of the petitioner can be that in case contention of the husband was proved that Smt. Prem was not his legally wedded wife then he might not be able to recover the maintenance amount paid to Smt. Prem. In the circumstances Trial Court can be directed to pass an appropriate order protecting the rights of the petitioner to recover maintenance in case he succeeded in his plea. Similar direction was given in the case of Balbir Singh v. Smt. Maya and Ors. 1990 (1) RCR 28.

As a result the Trial Court is directed to pass ah appropriate order protecting the rights of the petitioner to recover maintenance amount paid to Smt. Prem by way of interim maintenance in case he succeeded in his plea. The petition is dismissed except to the extent of above direction.