Nek Ram Dofara vs Chanchal Kumari

Muzaffar Hussain Attar, Judge

Respondent and her son ' Sachin Kumar filed maintenance application u/s 488 Cr.PC in the Court of learned Judicial Magistrate, Sub Judge,

Nowshera on 22nd of December, 2003 on the ground that the respondent is the legally wedded wife of the petitioner, which marriage was

solemnized in the year 1982 in accordance with Hindu Rites. It was also pleaded that out of the said wedlock, the claimant No. 2 ' Sachin Kumar

was born and is living with his mother. The maintenance application was filed on the ground that the petitioner herein has deserted the respondent.

The petitioner who was respondent in the maintenance application denied his marriage with respondent No. 1 and specifically pleaded in the

objections filed before the learned Trial Court that the present petitioner was married to one Kamlesh Devi in the year 1970 in accordance with

Hindu Rites and that the Kamlesh Devi has begotten children to the petitioner. In order to support his pleadings, copies of voter list for the year

1975 and 1980 were also placed on record along with the objections of the petitioner. After conclusion of the Trial, the learned trial Magistrate

vide order dated 4th December, 2010 allowed the maintenance application and recorded the finding that respondent is legally wedded wife of the

petitioner and that the petitioner has failed to maintain her and ordered for payment of maintenance to the respondent @ Rs. 15,00/- per month.

The petitioner feeling aggrieved of the said order, challenged the same in Criminal Revision before the learned Sessions Judge, Rajouri, which

petition was dismissed by the learned Revisional Court vide its order dated 4th December, 2010. The petitioner being aggrieved of this order has

called it question in this petition filed u/s 561A Cr.PC.

Mr. Raina, learned Senior Advocate, submitted that the petitioner was married to one lady and out of the said wedlock, 4 children were born.

Learned counsel submitted that in presence of the marriage, the respondent could not legally marry with the petitioner and is not entitled to any

maintenance.Learned counsel also submitted that since the order of the trial Court, holding the respondent to be legally wedded wife of the

petitioner and directing for payment of maintenance has direct impact on the status of the wife of the petitioner, notice was required to be issued to

the said lady and after giving the opportunity of hearing, the appropriate orders could have been passed by the learned Trial Magistrate. Learned

counsel also referred to the statement of the respondent and submitted that she has not tendered any explanation in respect of the first marriage of

the petitioner. Learned counsel in support of his contentions referred to and relied upon the judgment in case titled D. Velusamy Vs. D.

Patchaiammal, , case titled 'C.S. Krishnamurthy, Appellant Vs. State of Karnataka, Respondent' reported in 2005 CRI. L. J. 2145 and case titled

'Smt. Yamunabhai Anantrao Adhav, Appellant Vs. Anantrao Shivram Adhav and another, Respondents' reported in 1988 CRI.L.J. 793 and

submitted that in view of the law laid down, this petition deserves to be allowed. Learned counsel also submitted that the contention of the

petitioner that he was married, has not been accepted by the Trial Court as also by the Revisional Court on the ground that there was inconsistency

between the pleadings and evidence. Learned counsel in order to explain it, submitted that since the petitioner as also one of his sons stepped into

witness box to prove the marriage, the learned Trial Court as also the Revisional Court should not have rejected the claims so made. Learned

counsel also submitted that this petition be allowed and in the alternative, the impugned order be set aside and the case be remitted back to Trial

Court with the direction that he shall issue notice to the lady, who is said to be wife of the petitioner, and after hearing her, pass the orders.

Mrs. Rozina, learned counsel for respondent raised objection about the maintainability of the petition and submitted that in view of concurrent

findings of the Trail Court and Revisional Court, this petition u/s 561-A Cr.PC is not maintainable. Learned counsel for the respondent submitted

that it has been proved that the respondent is legally wedded wife of the petitioner and having been deserted, the learned Trial Court was justified

in issuing the order for grant of maintenance. Learned counsel further submitted that the learned Trial Court as also the Revisional Court has passed

the orders which are correct in law.

Learned counsel submitted that the evidence which has been tendered by the petitioner in support of his case before the learned Trial Court

being inconsistent with the plea taken in the objections, it cannot be said that the marriage which the petitioner claims to have solemnized prior to

his marrying the respondent has been proved. Learned counsel in support of her arguments referred to judgments in cases titled 'Smt. Yamunabhai

Anantrao Adhav, Appellant Vs. Anantrao Shivram Adhav and another, Respondents' reported in 1988 CRI.L.J. 793, 'Sham Lal Vs. Kanta Devi'

reported in petition No. 19/1991 u/s 561-A Cr.PC, decided on 10.05.1991, Hero Vinoth (minor) Vs. Seshammal, , D. Velusamy Vs. D.

Patchaiammal, , and 'Samidurai Vs. Rajalakshmi' reported in 1999 Cr.L.J. 2074.

In the maintenance application filed by the respondent and her son, it was pleaded that the respondent married with the petitioner in the year

1982 in accordance with Hindu Rites. From the said wedlock, a son was also born The maintenance application was filed on the ground that the

petitioner deserted respondent and her son.

The petitioner as already stated in the objections has taken specific plea that he was married to one Kamlesh Devi in the year 1970, and from

the said wedlock, children were also born. In support of his said averments, he has also filed copies of the voter list of the year 1975 and 1980.

The petitioner had specifically denied of ever having married with the respondent.

The respondent in support of her maintenance application deposed that in the year 1982, she married with petitioner and the marriage

ceremonies were performed at Nowshera. It was also stated in the evidence before the Trial Court that after the marriage, the respondent lived

with the petitioner at Jammu and also lived at Nowshera where the petitioner had rented out some accommodation.

The respondent also stated in her statement that petitioner would not be in a position to come to home regularly and after solemnization of

marriage, he occasionally visited the respondent and paid her the amount of Rs. 200-400. The respondent also referred to some photographs

which she claimed to have been taken with the petitioner at Jammu immediately after her marriage. She also stated in her statement after 8/9 years

of her marriage, the petitioner stopped visiting her. In her cross-examination, the respondent stated that the marriage between the petitioner and the

respondent was performed by one Gula Ram Pandit resident of Nowshera. She also stated that the petitioner had brought some 10/12 persons

with him and from the side of the respondent, also 10/12 persons were also present there. She stated before the Trial Court that the marriage was

solemnized between the petitioner and respondent only after the father of the petitioner requested for it to the father of the respondent. The father

of the petitioner was also invited in the marriage whose name is stated to be Thoru Ram. She also named the place where she lived at Jammu. In

the cross-examination, it appears that she was asked about Kamlesh Devi and she specifically stated that she does not know the said lady and also

was not knowing the children. She denied that the petitioner was married with Kamlesh Devi. She specifically asserted that the petitioner was

married with the respondent. In the cross-examination, she also stated that she did not enquire as to whether the petitioner has married with one

Kamlesh Devi. She further stated that when her son was taken ill, she talked to the petitioner on phone, phone number is recorded in the statement

tendered by respondent before trial Court.

In the cross-examination, when reference was made to the photographs, the respondent stated that when same were taken she was not having

good relationship with the petitioner.

The petitioner in his statement recorded by the Trial Court on 22nd October, 2008 stated that he was married to one Parvesh Kumari in the

year 1970 at R.S. Pura in accordance with Hindu Rites and that after the wedlock four children were born. He also stated that Parvesh Kumari is

alive. Petitioner in his statement before the Trial Court asserted that he was not married with the respondent and the claimant No. 2 was not his

son. He also stated that from the year 1977 to 1980 in connection with his professional work, he visited Nowshera and had taken a room on rent.

In the cross examination, also the petitioner specifically stated that he was not married with the respondent and the claimant No. 2 is not his child.

The petitioner in his objections has taken a specific stand that he is married to one Kamlesh Devi. In the statement tendered before the Trial

Court he has stated that he is married to one Parvesh Kumari. This statement was recorded by the Trial Court after filing of objections. He has not

taken steps to clarify as to whether Parvesh Kumari and Kamlesh Devi are one and the same persons. What was suggested by the counsel for the

petitioner to the respondents in cross-examination was that Kamlesh Devi is the wife of the petitioner. The petitioner in his statement and also the

other witnesses, who appeared on behalf of the petitioner have also taken a stand that petitioner is married to Parvesh Kumari.

The parties are required to prove their stand taken in the pleadings. Any amount of evidence which is not in tune or inconsonance with the

pleadings on a material fact cannot be accepted. In the peculiar facts and circumstances of the case, the petitioner has failed to prove his marriage

as alleged by him both in the objections as also in his statement given before the Trial Court. He has not proved that he is married to Kamlesh Devi

in the year 1970. His evidence before the Trial Court was that he was married to Parvesh Kumari. The factum of marriage, which he asserted in

his objection, has not been proved by him Resultantly, grant of maintenance to respondent is justified as she in her statement and also other

evidence adduced in unequivocal terms has proved that she was married to the petitioner in accordance with Hindu Rites.

The contentions of the learned counsel for the petitioner is that in the presence of first marriage, the second marriage is nullity. This submission

cannot be accepted in the facts of this case as no marriage prior to the petitioner's marriage with the respondent has been proved on record. In the

pleadings, Kamlesh Devi is shown to be his wife and in the evidence Parvesh Kumari is said to be his wife, the issuance of notice to wife is not

possible in the facts of this case. The judgments referred to by the learned counsel for petitioner are not applicable to the facts of this case.

The petition stands dismissed. Record be sent back. This judgment, however, shall not preclude the petitioner from seeking appropriate relief

in appropriate proceedings, if advised to file.