Hema @ Hemlata & Ors. vs Kantilal

The applicants have preferred this revision petition under Section 19(4) of the Family Court Act, 1984 being aggrieved by order dated 12/12/2017

passed by Additional Principal Judge, Family Court, Ujjain in Criminal MJC No. 88/2016, whereby the application filed by the applicant No.1 under

Section 125 of the Cr.P.C. for grant of maintenance has been partly allowed by directing the non-applicant to pay Rs.5,000/-per month to the applicant

No.2; whereas rejecting the prayer for maintenance of applicant No.1. Accordingly, the applicants have filed the present revision petition for

enhancement of the maintenance amount.

The necessary facts for disposal of this revision petition are that applicant No.1 and her minor son Adarsh had filed an application under Section

125 of the Cr.P.C. against the non-applicant on the ground that marriage of non-applicant and applicant No.1 was solemnized on 29/06/2000 as per

Hindu rituals and customs at Inodre. On 03/09/2013, applicant No.2-Adarsh was born out from the wedlock of applicant No.1 and non-applicant. Till

the birth of applicant No.2, the behaviour of the non-applicant towards the applicant No.1 was cordial. Thereafter, applicant No.1 came to know that

non-applicant is still in touch with her previously divorcee wife, he has provided a house to his first wife and also borne her expenses. When applicant

No.1 objected to the non-applicant to keep relations with his first wife then non-applicant told her that he will keep the relations with his first wife and

she can do whatever she want to do, he also threatened to kill her. The non-applicant kicked the applicant No.1 alongwith applicant No.2 from her

matrimonial house since 2015 and he has not made any arrangements for livelihood of applicants. Applicant No.1 is less educated lady, therefore, she

is not having sufficient source of income to maintained herself and her child. The applicant No.2 is a student of class IInd in Ujjain Public School and

she has to pay Rs.1200/- per month as tuition fee. The non-applicant is doing a business of cable and laundry and he is earning Rs.1.0 Lacs per month.

Accordingly, a prayer for grant of maintenance of Rs.15,000/- per month for applicant No.1 and Rs.10,000/-per month for applicant No.2 was made.

Non-applicant has filed the reply of application filed under Section 125 of the Cr.P.C. and he admits that applicant No.2 is studying in Ujjain Public

School. However, non-applicant submits that applicant No.1 is not his legally wedded wife and stated that he was earlier married to one Julie @

Premlata as per Hindu rituals and customs. After the marriage Julie @ Premlata is living with the non-applicant at House No. H 9/4, Rishinagar,

Ujjain and one son and daughter was born out from their wedlock, who was presently aged about 24 years and 22 years respectively. It is further

pleaded that applicant No.1 earlier married to one Kishore @ Munna S/o Ghasilal resident of Ujjain and after sometime of the marriage, Kisore went

away to some unknown place leaving the applicant No.1. Thereafter, applicant No.1 contacted Natra with one Shyam S/o Ratanlal Resident of

Prakash Nagar, Ujjain she remained with him for a period of 7 to 8 months and after that she left him. Thereafter, applicant No.1 was come to the

contact of non-applicant and they made physical relations, due to which applicant No.2 is born out. Non-applicant spent huge amount on applicant

No.1 and he also purchased a house for living of applicant No.1 . In the year 2005, he got seriously injured in an accident and went into coma, during

which applicant No.1 has not take care of him. His wife Julie @ Premlata made arrangements for his treatment and she is also looking after him.

Applicant No.1 is not his legally wedded wife, thus, she is not entitled for getting any maintenance amount from the non-applicant, therefore, he prays

for rejection of the application.

Family Court after appreciating the evidence adduced by the parties, vide order dated 12/12/2017, rejected the application of applicant No.1 on the

ground that she is not legally wedded wife of non-applicant, therefore, she is not entitled for getting any maintenance amount. However, the

application filed on behalf of applicant No.2 was allowed and the non-applicant was directed to pay him Rs.5,000/-per month till attains the majority.

Heard learned counsel for the parties and perused the record.

Learned counsel for the applicants submits that the non-applicant had informed the applicant No.1 that his first wife is no longer exists, therefore,

the non-applicant had married second time with applicant No.1. If non-applicant by concealing the substance of his earlier marriage with another

woman contracted second marriage, then he cannot escape from payment of maintenance to applicant No.1 under Section 125 of the Cr.P.C.,hence,

she is entitled for getting maintenance amount from the non-applicant.

Learned Principal Judge erroneously rejected the application filed on behalf of applicant No.1 on the ground that she is not legally wedded wife of

non-applicant. Learned Family Court has ignored the fact that maintenance amount granted to the applicant No.2 is not reasonable and sufficient,

therefore, a prayer was made for enhancing the said amount.

Learned counsel for the non-applicant supported the findings given in the impugned order and submitted that the applicant No.1 is not legally

wedded wife of the non-applicant, therefore, she is not entitled for getting any maintenance amount, hence, he prayed for dismissal of the revision

petition.

Considered the contentions advanced by the learned counsel for the parties and perused the record.

Applicant No.1 deposed that her marriage was solemnized with non-applicant on 29/06/2000 at Indore according to the Hindu rituals and customs.

But, this fact has been denied by the non-applicant. Applicant No.1 has neither examined any person, who witnessed the marriage of applicant No.1

with non-applicant nor she has filed marriage certificate or other documents to prove her marriage with non-applicant. She has also not filed

photographs of marriage to substantiate the said fact. Non-applicant pleaded that he was earlier married with Julie @ Premlata and applicant No.1

knew about the first marriage of the non-applicant. Applicant No.1 also pleaded in para 4 of the application filed under Section 125 of the Cr.P.C. that

she was known about the first marriage of the non-applicant, therefore, the statement of the applicant No.1 is not found trustworthy that she was not

aware about the first marriage of the non-applicant. Thus, it is clear that the applicant No.1 knew about the first marriage of non-applicant and even

then she made physical relations with the non-applicant.

Applicant No.1 has failed to establish that her marriage was solemnized with non-applicant as per Hindu rituals and customs, therefore, the trial

Court has not committed any error in holding that applicant No.1 is not the legally wedded wife of the non-applicant and she was not entitled for

getting any maintenance amount from the non-applicant.

Applicant No.1 accepted in her cross-examination that in the year 2005, non-applicant was fell down from the motorcycle and sustained grievous

injuries and he went into coma. Although, she stated that she made arrangements for the treatment of the non-applicant, however, she failed to prove

the aforesaid fact. Applicant No.1 deposed that she is not having knowledge about the treatment of non-applicant till 2008, therefore, defence taken by

the non-applicant cannot be discarded that after the accident, applicant No.1 left the non-applicant and she did not take care of him. His first wife Julie

@ Premlata and other family members of the non-applicant take care him. Applicant N0.1 also deposed that she has not aware that in the year 2016,

non-applicant again got injury in an accident and he was operated for three times. This fact also shows that applicant No.1 is not residing with the non-

applicant for a long period as his wife.

After re-appreciation of the material available on record, it is quite clear that applicant No.1 is not legally wedded wife of the non-applicant and

applicant No.1 and non-applicant made physical relations, due to which applicant No.2 is born out, therefore, applicant No.1 is not entitled for getting

any maintenance amount from the non-applicant. So far as the quantam of maintenance of applicant No.2 is concerned, it has come on record that

non-applicant got injured in the accident and he is not in a position to work and non-applicant's son-Akash and his wife-Julie @ Premlata are carrying

his business, therefore, the Family Court has rightly awarded Rs.5,000/-per month to the applicant No.2. Hence, no case for enhancement in the

maintenance amount is made out. Accordingly, being devoid of any merits this revision petition deserves to be and is hereby dismissed.

Let a copy of this order alongwith record of the trial Court be sent to the concerned Court for information and necessary compliance.

Certified copy as per rules.