Paras Giri vs State of Uttar Pradesh and Others

Suneet Kumar, J—The revision has been filed against the judgment and order dated 6.5.2015 passed by the Principal Judge Family Court, Deoria in Maintenance Case No. 685 of 2014 Smt. Bhagwati Devi v. Paras Giri, under section 125, Cr.P.C. granting Rs. 3,000/- per month from the date of order towards maintenance. The submission of the learned Counsel for the revisionist is that, the impugned order is ex-parte order passed behind the back of the revisionist. The opposite party No. 2 is not a family member of the revisionist and has no concern with the revisionist. The proceeding has been initiated maliciously at the behest of opposite party No. 3 who is co-villager and a practicing lawyer at the Civil Court.

The impugned order noted that the revisionist was married to the opposite party No. 2 according to hindu rites and rituals 40 years ago, from the marriage a son and daughters were begotten. The revisionist is an employee of Scooter India Limited, earning Rs. 20,000/-. per month. The revisionist contracted a second marriage with Veena Phool Kumari without the consent of the opposite party No. 2 and out of the second wedlock three children were begotten. The opposite party No. 2 is an illiterate lady, is unable to maintain herself and is residing at the village.

The revisionist appeared and filed his objection stating that he never married the opposite party No. 2, Veena Phoolkumari Devi is his sole wife.

The opposite party No. 2 in her statement/examination reiterated the fact stated in her application, however, the revisionist failed to cross-examine the opposite party No. 2, consequently, on 15.4.2015 the cross-examination by the revisionist was closed and an order was passed to proceed ex-parte. The revisionist did not file any application under section 126, Cr.P.C. for recall of the ex-parte order.

The Supreme Court in Rajathi Vs. C. Ganesan, AIR 1999 SC 2374 : (1999) CriLJ 3668 : (1999) 3 Crimes 189 : (1999) 2 CTC 646 : (1999) 5 JT 29 : (1999) 4 SCALE 191 : (1999) 6 SCC 326 : (1999) 3 SCR 1047 : (1999) 2 UJ 1238 : (1999) AIRSCW 2490 : (1999) 6 Supreme 201 observed that where the husband was living with another women would entitle the wife to live separately and would amount to neglect or refusal to maintain. Her statement that wife is unable to maintain herself is sufficient.

Section 125, Cr.P.C. is a piece of social legislation which provide for summoning and summary relief by way of maintenance to a wife who is unable to maintain herself and her children. The section is not intended to provide for a full and final determination of status and personal rights of parties, which is in the nature of a civil proceedings, those are governed by provisions of C.P.C. and an order made under section 125, Cr.P.C. is tentative and is subject to final determination of rights in a Civil Court. (Refer: Nagendrappa Natikar Vs. Neelamma, (2013) 3 ABR 420 : AIR 2013 SC 1541 : (2013) 116 CLT 389 : (2013) CriLJ 2060 : (2013) 2 CTC 440 : (2013) 2 DMC 68 : (2013) 4 JT 120 : (2013) 172 PLR 55 : (2013) 2 RCR(Civil) 469 : (2013) 2 RCR(Criminal) 424 : (2013) 3 SCALE 561 : (2013) AIRSCW 1822 : (2013) 2 Supreme 424 .

Similarly, the Supreme Court in Badshah Vs. Sou. Urmila Badshah Godse and Another, (2013) 11 AD 9 : AIR 2014 SC 869 : (2014) CriLJ 1076 : (2013) 3 DMC 518 : (2013) 4 JCC 2765 : (2013) 13 JT 570 : (2013) 4 RCR(Civil) 830 : (2013) 4 RCR(Criminal) 764 : (2013) 12 SCALE 681 : (2014) 1 SCC 188 : (2014) 2 SCJ 779 held that section 125, Cr.P.C is social justice legislation, therefore, distinct approach has to be adopted while dealing with cases under the said provisions. The Court observed as follows:--

"While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalized sections of the society. The purpose is to achieve "social justice" which is the constitutional vision, enshrined in the Preamble of the Constitution of India. Preamble to the Constitution of India clearly signals that we have chosen the democratic path under rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the Courts to advance the cause of the social justice."

In the fact of the case the Court held that the husband had duped the second wife by not revealing to her the fact of his earlier marriage, it was held that husband cannot deny maintenance to her in such a case. He cannot be permitted to take advantage of his own wrong. For purpose of 125, Cr.P.C. said women would be treated as a legally wedded wife, reliance was placed upon a Dwarika Prasad Satpathy Vs. Bidyut Praya Dixit and Another, AIR 1999 SC 3348 : (2000) 89 CLT 167 : (2000) CriLJ 1 : (1999) 8 JT 329 : (1999) 6 SCALE 579 : (1999) 7 SCC 675 : (1999) 3 SCR 684 Supp : (1999) AIRSCW 3844 : (1999) 8 Supreme 602 and Chanmnniya v. Virendra Kumar Singh Kushivaha 2011 (73) ACC 334 (SC) : 2011 (101) AIC 149.

Learned Counsel appearing for the revisionist was unable to satisfy the Court as to why the revisionist did not file any recall application against the ex-parte proceedings, further, as to why the revisionist did not appear to cross-examine the opposite party No. 2.

The onus was on the revisionist to establish that the opposite party No. 2 was not a legally wedded wife however, the revisionist failed to discharge the onus.

In these circumstances, upon considering the materials available on record, I do not find any illegality or infirmity in the impugned order passed by the learned Family Court, Deoria. The revision being devoid of merit is, accordingly, dismissed.

No order as to costs.