Ram Niwas vs Smt. Kamal

Mahesh Chandra Sharma, J.—By filing instant criminal revision the petitioner has challenged the judgment dated 19.5.2008 passed by the Judge, Family Court, Kota in criminal case No. 860/2002, by which he directed the petitioner to make payment of Rs. 2000/- p.m. as maintenance amount.

I have heard counsel for the respective parties and carefully scanned the entire material.

Without going into the merits of the case, both the counsel appearing for the respective parties jointly prayed that the Family Court, Kota be directed to decide the matter, after taking into consideration the judgments which they are citing before this Court.

Manish Kumawat, counsel appearing for the petitioner has placed reliance upon a Judgment delivered in the case of Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. reported in Savitaben Somabhai Bhatiya Vs. State of Gujarat and Others, The head-note A & B of which are reproduced as under: .

(A) Criminal P.C. (2 of 1974), Section 1, 25- Maintenance- ''wife''-Scope -Cannot be enlarged to include woman not: lawfully married- Plight of woman unlawfully entering into Wedlock with married man - can only be undone by Legislature- Principle of estoppel cannot be pressed to defeat Section 125.

(B) Criminal P.C. (2 of 1974) Section 125- Maintenance -Entitlement-Cannot but be decided by reference to personal law of parties.

Per contra Mr. Surendra Sharma, counsel for the non-petitioner has also placed reliance upon para 13 of the same judgment i.e. Sevitaben Sombabhai Bhatiya (supra), which is reproduced as under:

in Dwarika Prasad Satpathy Vs. Bidyut Praya Dixit and Another, it was held that the validity of the marriage for the purpose of summary proceedings u/s 125 of the Code is to be determined on the basis of evidence brought on record by the parties. The standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence u/s 494 of the Indian Penal Code, 1860 (in short "IPC"). If the claimant in proceedings u/s 125 succeeds in showing that she and the respondent have lived together as husband and wife, the court has to presume that they are legally wedded spouses, and in such a situation one who denies the marital status can rebut the presumption. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe as to whether the said procedure was complete as per Hindu rites, in the proceedings u/s 125 of the Code. It is to be noted that when the respondent does not dispute the paternity of the child and accepts the fact that marriage ceremony was performed though not "legally perfect, it would hardly lie in his mouth to contend in proceedings u/s 125 of the Code that there was no valid marriage as essential rites were not performed at the time of the said marriage. The provision u/s 125 cannot be utilized for defeating the rights conferred by the legislature on the destitute women, children or parents who are victims of social environment. The provision is a measure of social justice and as noted above, specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution.

To support his case further he has also placed reliance upon a Judgment delivered in the case of Amina Vs. Hassn Koya,

In view of above, the criminal revision filed by the petitioner is allowed and the Judgment dated 19.5.2008 passed by the Judge, Family Court, Kota in criminal Case No. 860/2002, is quashed and set-aside and to remand the case to the Judge, Family Court, Kota. The Family Court, Kota is directed to re-hear the, matter and decide the same after ''taking into consideration the judgments cited by both the counsel appearing for the respective parties as cited above, within a period of 15 days from the date of receipt a certified copy of this Judgment.