Smt. Sunita and Another vs Kailash Awaya

Hon''ble Shri Justice M.C. Garg, J.—This petition has been filed by Smt. Sunita and her minor son against the order of enhancement of the maintenance awarded to the minor son only @ Rs. 1000/- per month, while denying the maintenance to the first petitioner to whom the Metropolitan Magistrate granted maintenance @ Rs. 1,500/- per month, while sum of Rs. 500/- was granted to the minor child. The sessions Court vide the impugned order accepted the case of the respondent that the petitioner No. 1 was not legally wedded wife of the respondent and thus was not entitled for maintenance. Of course by the same order, the Additional Sessions Judge enhanced the order of maintenance in favour of the second petitioner by enhancing the maintenance from Rs. 500/- to Rs. 1000/- per month.

According to the petitioner, the conclusion drawn by the Revisional Court that the petitioner was not legally wedded wife of the respondent is not tenable in law because there are documentary evidence ration card, birth certificate of the minor child born from the wedlock. She also urged that the findings of the Revisional Court that the son of the petitioner was the illegitimate child is not based on cogent evidence. It is also submitted by the petitioner that the amount of maintenance awarded to the second petitioner and denial of the maintenance to petitioner No. 1 is even otherwise not sustainable, considering the income of the petitioner who is having a monthly income of Rs. 23000/- from salary and sum of Rs. 40000/- from agriculture.

According to petitioner she is legally wedded wife of the respondent while the second petitioner is the son of the respondent. It is held that the respondent has deserted both the petitioners for the last several years. In fact the second petitioner is living with the respondent. The marriage between the petitioner and the respondent has been solemnized at Sendhwa seven years ago. It is he submitted that since 2004 the respondent started ignoring her and stopped maintaining her besides misbehaving with petitioner which compelled her to file a petition u/s 125 Cr.P.C.

Notice was issued to the respondent who is now represented through a counsel. According to the respondent the conclusion drawn by the first appellate Court are justified and does not call for any interference.

I have heard learned counsel for the parties and also gone through the record.

As per the impugned order dated 24.11.09 it has been observed that it is the admission of the petitioner herself that she is not legally wedded wife of the respondent in as much as in her cross examination she admitted that she was not aware of date of marriage and she had been living with the respondent for about 6-7 years. She has also admitted that the marriage between the petitioner and the respondent had not taken place in accordance with the customs prevailing in Awasia Samaj of which the parties belong to.

She also admitted that in terms of the customs prevalent in the Awasia Samaj, before marriage Sagai takes place which has not been taken place between the parties. Moreover the petitioner also did not lead any evidence regarding her marriage with the respondent. It is further necessary to take note of paragraphs 13 & 14 of the Judgment which reads as under :-

During the course of argument counsel for the petitioner submitted that if liberty is granted to the petitioner she can lead evidence regarding the factum of marriage with the respondent.

Even though this request has been denied on behalf of the respondent, but considering the documents already placed on record such as identification card, birth certificate of her son, receipts of Rogi Kalyan Samiti Prathimik Swasthya Kendra, Sendhwa which are exhibits P-1 to P-3, prima facie which shows that the parties had relationship of husband and wife and the son was accepted to have been born from the wedlock. Paragraph 15 of the judgment is relevant which is reproduced as under:

In the aforesaid circumstances, I am of the considered view that it will be in the interest of justice to give an opportunity to the petitioner to lead additional evidence before the Additional Sessions Judge to prove her marriage with the respondent by producing those persons including her own family members who were present at the time of marriage of the parties. In these circumstances the petition is disposed off with a direction to the Sessions Court to allow summoning of additional evidence as may be required by the petitioner to prove her marriage with respondent. Such evidence would also give a right of rebuttal to the respondent. After recording this evidence the Sessions Court shall re-decide the issue of relationship between the parties as also the quantum of maintenance. However, the maintenance granted to the minor child will continue in the meanwhile. Let the needful be done within three months from the date the parties appear before the Sessions Court for which the case is listed on March 13 of 2012.

C.C. as per rules.