Smt. Kusum Kali Kewat vs Ashok Kewat

N.K. Gupta, J.—The applicant has challenged the order dated 29.7.2013 passed by the learned Principal Judge, Family Court, Rewa in MJC No. 177/2011 whereby the application filed u/s 125 of Cr.P.C. by the applicant was dismissed. The brief facts of the case are that the applicant had preferred an application u/s 125 of Cr.P.C. before the trial Court that on 11.5.2006 her marriage took place with the respondent and she had resided as his wife for a pretty long time. After her marriage a demand was initiated by the respondent and his family members for a motorcycle and cash of Rs. 50,000/-. In the marriage ceremony of the applicant, her father gave a cash of Rs. 10,000/-, one golden chain, one golden ring, one bicycle, furnitures and various utensils for cooking etc. The applicant was not provided with the meals and she was harassed for that demand. In the year 2009 the applicant after due assault was sent back to the house of her father. The parents of the applicant went to the house of the respondent at Village Judmani and requested to take the applicant to the house of the respondent, but they did not accept the proposal. The applicant had lodged a report at Mahila Police Station Rewa on 23.7.2010. It was also pleaded that after ouster of the applicant, the respondent entered into a second marriage with one Semkali Kewat daughter of Lallu Kewat resident of Village Badhan District Satna and thereafter the applicant was not permitted to enter in the house of the respondent. Hence, she claimed a maintenance of Rs. 10,000/- per month. She has also pleaded that the income of the respondent was a sum of Rs. 20,000/- per month by agricultural and business of fishing.

The respondent denied all the allegations made by the applicant in the application. In his reply he has specifically pleaded that no marriage of the respondent took place with the applicant. It is also denied that the respondent received any gift from the father of the applicant. He refused that his marriage took place with one Semkali. On enquiry the respondent found that the character of the applicant was not appropriate and therefore it was prayed that the maintenance application of the applicant may be dismissed.

After recording the evidence of the parties, the learned Principal Judge, Family Court, Rewa has dismissed the maintenance application filed by the applicant u/s 125 of Cr.P.C.

I have heard the learned counsel for the applicant on the question of admission.

Kusum Kali (PW-1) has stated that her marriage took place with the respondent whereas the respondent Ashok Kewat (DW-1) has refused that his marriage performed with the applicant. The applicant Kusum Kali has accepted that she was filling her hairline by Sindoor after her marriage, but in last line of para 7 of her statement she has accepted that the respondent is a bachelor person. Sushila (PW-2) mother of the applicant and one Pannalal Sen (PW-4) have stated that the marriage of the applicant took place with the respondent six years back. Ramniwas (PW-3) has stated that the marriage of the applicant and the respondent took place on 11.5.2006 and he was a Pandit in that marriage. In the cross examination Ramniwas (PW-3) has accepted that he was making entries in his diary relating to various marriages performed by him. However, he could not produce that diary relating to marriage of the applicant. In the cross examination he could not tell the various dates and time of those persons, who called him to perform their marriage. Under such circumstances, where there is no documentary evidence in support of Ramniwas, it appears that he was a concocted witness. If the marriage took place on 11.5.2006 and the applicant and her mother knew that the witness Ramniwas performed that marriage, then the date of marriage could have been pleaded in the application from very beginning. But Kusum Kali, Sushila and Pannalal Sen could not tell the date of marriage of the applicant. Under such circumstances, the testimony of Ramniwas (PW-3) cannot be accepted.

So far as the statement of Pannalal Sen is concerned, he has stated that he worked as a barber and he followed the various procedures to be done by a barber in that marriage. The testimony of Pannalal Sen is also disbelievable, because such ceremonies shown by him to be done with the applicant, was to be done by her friends or sister. A male barber could not do such ceremonies to a bride. He has accepted that he did not receive any summon from the Court and he was called by the applicant''s parents, he came from his shop after taking three days'' leave. He has stated that he attended the Court for 3-4 times for recording of his evidence. Under such circumstances, it would be apparent that this witness was an interested witness and without any documentary proof his statement cannot be accepted. In the marriage, it is necessary that an invitation card was given to the various friends etc. and thereafter Barat must have come to the house of parents of the applicant and thereafter marriage could have been performed. Sushila (PW-2) mother of the applicant could not tell the date, month or year of the marriage. Sushila (PW-2) has accepted that one daughter of her sister was married to a person of Village Judmani where the respondent resides, and therefore that niece of the witness Sushila could be an appropriate witness to prove the marriage of the applicant. She has admitted in para 5 of her cross examination that the applicant was not a married wife of the respondent. It is a matter of oath against oath and when the marriage of bride is under challenge, it is for the bride to prove the marriage, otherwise if she had resided with the respondent for 2-3 years, then it cannot be said that her marriage took place with the respondent. In the present case, if the applicant was the wife of the respondent, and he had lodged an FIR at Mahila Police Station Rewa and the respondent was called to the police station, then the copy of FIR and other documents could be filed to show that the respondent had accepted that the applicant was his wife, but no reason has been shown by the applicant as to why the FIR lodged by the applicant was not produced before the trial Court. Under such circumstances, the learned Principal Judge, Family Court has rightly observed that the applicant could not prove that she was wife of the respondent.

When the applicant could not prove that she was the wife of the respondent, she could not get any maintenance from the respondent u/s 125 of Cr.P.C. because it is a provision for the wife and divorced wife and not for a woman, who was not married with the alleged husband. However, other points are to be considered and decided in the matter. It was mentioned in the application that one and half years prior to the application, the applicant was ousted. If she resided for 2-3 years with the respondent, then she had to show as to why she was ousted. If she was ousted in the year 2009, then as to why she had not taken any step thereafter. It was pleaded that the parents of the applicant went to the parents of the respondent, but the talk was not fruitful. However, no witness was examined for such conference. Ramniwas (PW-3), Pannalal Sen (PW-4) were not the witnesses of that conference, whereas Sushila (PW-2) mother of the applicant did not say anything about the conference took place between the parents of the applicant and the parents of the respondent. It is alleged that a report dated 23.7.2010 was lodged at Mahila Police Station Rewa but no copy of such report was produced. Sushila has stated that the I.G. Police intervened in the matter and she sent the applicant to the house of the respondent and thereafter the respondent again sent back the applicant to her parents house by taking ornaments etc. But such fact is neither pleaded in the application nor told by the applicant Kusum Kali. Therefore, such fact told by Sushila cannot be accepted. Under such circumstances, when it was alleged by the applicant that she was residing with her father since February 2009 and she did not take any step for conciliation or to lodge an FIR, which indicates that she was with her father on her own, otherwise she would have taken steps against the respondent in those 23 1/2 months before filing of the present application. Under such circumstances, the applicant could not show any reason so that she could get maintenance without residing with the respondent.

The learned Principal Judge, Family Court, Rewa did not assess the dependency of the applicant and the income of the respondent. The applicant witnesses Kusum Kali (PW-1) and Sushila (PW-2) could not prove the income of the respondent. No revenue papers of the land held by the respondent were produced in the Court and no evidence is shown that he was earning from the business of fishing. Ashok Kewat and Mudrika Prasad Shukla (DW-2) have stated that the respondent Ashok was dependent upon his father and there was no separate income of the respondent. However, Ashok was a healthy person, who does not suffer from any disability, and therefore it would be expected that he could earn a minimum income as prescribed by the Collector for an unskilled labourer, and therefore his income can be assessed to be Rs. 100/- per day and it may be Rs. 3,000/- per month. Out of that income, he can keep half of it for his own maintenance and he could give its half to the applicant, if directed. Therefore dependency of the applicant could be of Rs. 1500/- per month.

Since the applicant could not prove that her marriage took place with the respondent, then she could not get any maintenance from the respondent. Secondly, she could not prove any reason as to why she left the house of the respondent, therefore she cannot get any maintenance from the respondent though if it is presumed that she is wife of the respondent. Under such circumstances, the learned Principal Judge, Family Court, Rewa has rightly dismissed the application of the applicant u/s 125 of Cr.P.C. Under such circumstances, there is no basis by which any interference can be done in the impugned order. No illegality or perversity is visible in the impugned order. Consequently, the present revision filed by the applicant Kusum Kali is hereby dismissed at motion stage. A copy of this order be sent to the trial Court along with its record for information.