Smt. Bijali Bai Bhatari vs Ballu Ram Joshi

Pritinker Diwaker

The applicant has preferred this revision against the order dated 22.11.2010 passed by Additional Principal Judge, Family Court, Durg in Misc. Criminal Case No. 350/2009 dismissing the application filed by the applicant u/s 125 of the Code of Criminal Procedure. Facts of the case in brief are that on 28.5.2009, the applicant had filed an application u/s 125 of the Code of Criminal Procedure seeking maintenance from the non- applicant. Case of the applicant is that her marriage was solemnized with the non-applicant in November, 2008 and immediately thereafter, she was being subjected to cruelty and deprived of even food by him. She has further alleged that on account of cruel behaviour of the non-applicant, a village meeting was called but even then he did not improve his attitude. According to her, the non-applicant had deserted her without there being sufficient reason and he is not even making any arrangement for maintenance. She has alleged that monthly income of the non-applicant comes to Rs. 10,000/- as he is working in a kiln and therefore, she is entitled to get the monthly maintenance of Rs. 3,000/-. In support of her contention, the applicant has examined herself, Munsif and Pannalal. In her statement, the applicant has deposed that in marriage, certain photographs were also taken which are marked as Annexures P-1 to P-5. From the record, it is revealed that the non-applicant had filed an application u/s 9 of the Hindu Marriage Act for restitution of conjugal rights duly supported by affidavits vide Annexures P-6 and P-7. This application was duly replied by the applicant herein vide Annexure P-8. She has also filed the order sheets of Court below showing the proceedings u/s 9 of the Hindu Marriage Act. She has further alleged that her marriage was solemnized in village Medesara as per the social customs prevailing there by exchanging garlands. Munsif has supported the case of the applicant including her marriage with the non-applicant. He has stated that the applicant who is working in a kiln earns Rs. 200/- per day. Pannalal - another witness has stated that daily income of the non-applicant comes to Rs. 60/-, 70/- or 80/- whereas the applicant is not doing anything. The photographs filed by the applicant are not disputed by the non-applicant and it appears that their marriage was solemnized by applying vermilion on hair parting of the applicant.

According to the non-applicant there is no marriage between him and the applicant and a report was lodged by the applicant against him u/s 376 IPC and on account of the pressure of the Police, so called marriage is alleged to have taken place but in the eye of law there is no marriage between them. Witnesses of the non-applicant namely Munnalal and Rajkumar have also stated that there was no marriage between the non-applicant and the applicant.

Minute examination of the evidence of the applicant and her witnesses makes it clear that she is a legally wedded wife of the non-applicant. Applicant has also filed certain photographs showing her marriage with the non- applicant and there is no contrary evidence to this effect. This apart, non-applicant himself had filed an application u/s 9 of the Hindu Marriage Act for restitution of conjugal rights in which it has been admitted by him that there was love marriage with the consent of both of them. He has stated in the application that the applicant lived with him for about 24 days but thereafter, she stopped living him without assigning any reason and therefore, she may be directed to live with him. In support of this application the non-applicant has also filed the detailed affidavit showing that the contents of the said application filed u/s 9 of the Hindu Marriage Act are correct.

Though an attempt has been made by the non-applicant to prove that there was no marriage between him and the applicant, considering the entire evidence on record, this Court is of the considered view that the applicant has prima facie proved her marriage with the non-applicant as per the requirement of Section 125 of Code of Criminal Procedure and that being so, she is entitled for maintenance.

Conclusion of the Court below that there was no marriage between the applicant and non-applicant appears to be incorrect. Further conclusion of the Court below that there was tremendous difference in the age of the applicant and non-applicant and therefore, their marriage appears to be doubtful, also does not appear to be correct because the age between bride and groom hardly makes any difference if there is other evidence to show that there was a marriage between them.

In view of above, the order impugned is liable to be set aside. Order accordingly.

Now, the next question to be considered by this Court is as to the quantum of maintenance to be granted to the applicant. It has come in the evidence that the non- applicant is working as a labourer in a kiln and therefore, it can be presumed that his daily income must be between Rs. 100/- and 150/- and if that is calculated month wise, it comes to Rs. 3000/- to 4,500/-. Thus, looking to the present price hike of the essential commodities, keeping in view the income of the non-applicant and also living standard of the parties, the applicant is entitled to get a monthly maintenance of Rs. 1,000/-. Accordingly, it is held that the non-applicant shall pay Rs. 1,000/- per month to the applicant as maintenance from the date of this order. This apart, she would also be entitled for Rs. 2,000/- towards cost of litigation. Revision is accordingly allowed.