Ramji vs Smt. Chandrawati

Ashok Srivastava, J.—This criminal revision has been filed against the judgment and order dated 28.2.98 passed by the learned Judge, Family Court, Azamgarh in Criminal case No. 405 of 1990, Smt. Chandrawati @ Malia v. Ramji. The learned lower Court had allowed the application u/s 125 Cr.P.C., moved by the opposite party against the revisionist.

The brief facts of the case are that opposite party No. 2 Smt. Chandrawati @ Malia filed a petition u/s 125 Code of Criminal Procedure against the revisionist in the Court of Munsif Magistrate, Azamgarh which was registered there as Criminal Case No. 602 of 1990. During the pendency of the said petition it appears that a court of Judge, Family Court was created in the District of Azamgarh and the said petition stood transferred to that Court and it was ultimately decided by the Court on 28.2.98 on merits and the petition was allowed.

In her petition u/s 125 Code of Criminal Procedure the opposite party has alleged that she was married to the revisionist some ten years ago from the date of her application. The marriage was solemnized in accordance with Hindu rites and in the marriage the father of opposite party had given away substantial dowry including ornaments. Two issues were born out of the wedlock. It has been further alleged that the revisionist is an educated young man and is doing business of printing press in the city of Azamgarh and he has also sufficient landed property which is cultivated and the revisionist has substantial income out of the agriculture produce. The opposite party has said in her petition that she is a rustic and uneducated housewife and she is enable to maintain herself and her two minor children. She has further mentioned that the behaviour of the revisionist with her was cruel. He often demanded dowry from his father-in-law and to press his demand he continuously subjected the opposite party mentally and physically. After some time the revisionist turned the opposite party out of his house alongwith her two children and had remarried and his second wife is living with him in his house. It has been specifically mentioned in the petition u/s 125 Code of Criminal Procedure that the revisionist had married one Anita on 3.5.90 when the opposite party was away to her father''s home in connection with the marriage of her brother. The opposite party had tried her best that she should be allowed to live with the revisionist and a panchayat was also held in this connection but the revisionist had outrightly refused to keep the opposite party and her children with him. It is also come in the said petition that the revisionist had sufficient means and the opposite party and her children are not in a position to maintain themselves as they do not have any income and the opposite party is not in a position to earn her livelihood. In the last the opposite party had prayed the learned lower Court that a sum of Rs. 700/-be awarded as maintenance jointly for her and her two children.

The revisionist had contested the claim of opposite party. He has said that the opposite party is not his wife. He has further stated that since opposite party is not his wife therefore there is no question that her two children were born due to consummation of the alleged marriage. It has further been mentioned that the revisionist was married to one Smt. Chandrawati but she had died issue less and thereafter the revisionist had re-married and he is living with her. The revisionist has also mentioned in his objection that to the best of his knowledge the opposite party is a woman of easy virtue and she had illicit relationship with so many persons. It has further been stated that due to this reason the husband of opposite party had deserted her and ultimately divorced her. It has also been mentioned in the objection that the name of opposite party is Nirmala and not Chandrawati. He has further stated that the father of the opposite party wanted to get the opposite party married to the revisionist but when opposite party had refused to marry, her father felt insulted and due to this reason he alongwith opposite party hatched a conspiracy which had culminated in the shape of petition u/s 125 Code of Criminal Procedure and a rejoinder affidavit was also filed before the learned lower Court by the opposite party but nothing new has been said in it.

In the lower Court opposite party examined herself as APW 1. In support of her version she also examined APW-2, Babu Ram and APW-3 Basudev. The revisionist got himself examined as opposite party OPW-1 and he produced and examined OPW-2 Dina Nath Maurya as OPW-3 Sambhal Yadav and opposite party No. 4 Budhai. In support of his version certain documents were filed before the learned lower Court by the parties.

After hearing both the parties the learned lower Court has passed a reasoned judgment and allowed the petition by awarding Rs. 500/-p.m. as maintenance jointly to opposite party and her two children. It appears that the petition was allowed from the date of its finding before the learned Magistrate. Hence the present revision.

I have heard learned Counsel for the parties and perused the records. At the very outset my attention has been drawn towards the judgment reported in Jabar Singh Vs. Dinesh and Another, . In this judgment the Apex Court has said that while exercising its revisional powers, the High Court cannot convert itself to an appellate court and reverse the findings of fact arrived at by the trial Court on the basis of evidence or material on record, except where the High Court is not satisfied as to the legality or the propriety of the order by the trial court.

While disposing of this revision this Court has to bear in its mind the above guidelines given by the Apex Court but at the same time since it is revision against the judgment and order passed u/s 125 Code of Criminal Procedure the Court has to see whether the findings of the learned lower Court are perverse or not. If there is perversity the judgment is to be rectified but if there is no perversity the judgment of the lower Court can not be looked into by this Court.

It has been argued from the side of the learned Counsel for the revisionist-husband that the opposite party and her witnesses have miserably failed to prove that the marriage of the opposite party was solemnized in accordance with Hind rites and customs. To prove this contention my attention has been drawn towards the statements of opposite party and her witnesses. I have examined the statements and the discussions on this point made by the learned lower Court in its judgment.

From the perusal of the statements and the relevant portion of the judgment, I am of the considered view that the findings of the lower Court on this point is definitely not perverse. It has given cogent reasons in his arrival at the decision that the opposite party is legally wedded wife of the revisionist. Therefore no interference is warranted by this Court in respect of this finding. Much stress has been laid from the side of the revisionist on the Kutumb register in the light of the statement of opposite party No. 2, Dina Nath Maurya who is a Village Panchayat Officer of Block Palahmi, Azamgarh. From the perusal of the judgment of the learned lower Court it is evident that the learned lower Court has examined the entries of the Kutumb register in a very exhaustive and thorough manner and has also examined with reasonings the statement of the said Village Panchayat Officer. To me it appears that the decision upon which the learned Lower Court had arrived at while dealing with the statement of opposite party No. 2 and the Kutumb register is logical and correct. The learned lower Court has rightly held that from the examination of the relevant Kutumb register it is evident that opposite party No. 2 is the daughter of Babu Ram and she was married to the revisionist.

Another argument has been advanced before me about the judgment passed by the learned Magistrate in a complaint case u/s 494 IPC which has resulted in acquittal of the revisionist. It has been argued that since the revisionist was acquitted in the said case it should be presumed that opposite party was not the legally wedded wife of the revisionist. It should be mentioned here that in a criminal case u/s 494 I.P.C.a Magistrate can not declare the existence or non-existence of a marriage between the complainant and the accused so as to attract the provisions of Section 41 of Indian Evidence Act. If the judgment has been ignored by the learned lower Court no illegality has been committed by it. It has also been pleaded in the memo of revision that the judgment of the lower Court suffers from perversity and illegality. But during the course of arguments the learned Counsel for the revisionist could not point out any such perversity or illegality.

On the basis of the above discussions, I am of the view that there is no force in this revision and accordingly it is dismissed. Stay order granted in favour of the revisionist stands vacated. The amount awarded by the learned lower Court is a meager amount keeping in view the todays'' price index but this inadequacy can not be considered here because no such prayer has been made before this Court from the side of opposite party through an appropriate petition. But the learned lower Court should expedite the process of execution, if any such application is moved before it.