KAMAL Vs. KM AHILYA

JUDGEMENT

(1.) This is first appeal under Section 19 of the Family Courts Act, 1984 by the alleged husband Kamal challenging the judgment and order of the Family Court in Criminal Suit No. 43 of 1989, by which the family Court awarded Rs. 100/- each to the three minor children, Km. Ahilya, Ram Kumar and Km. Sukhmari alias Neelu, total amount Rs. 300/- per month payable with effect from the date of filing of the application on 19.3.1989 for maintenance of the minors. The family Court after filing of the criminal suit under Section 125 Cr. P.C. issued notice and the appellant submitted the written statement.

(2.) The case of the respondents is that Kamal-appellant and Dhanni Ram were two real brothers. Smt. Shanti was married to Dhanni Ram. Dhanni Ram died and after his death Smt. Shanti, according to custom, started living with appellant Kamal as his wife. It was pleaded that out of the said union three children Km. Ahilya, Raj Kumar and Km. Sukhmari were born. It was pleaded that since the appellant was not maintaining the minor children and paying necessary expenses, it was not possible for the mother Smt. Shanti to provide maintenance to them. Hence, application under Section 125 Cr. P.C. was filed. In the written statement it was admitted that Dhanni Ram was the real brother of Kamal-appellant. He emphatically denied that he ever kept or remarried Smt. Shanti. He catagorically denied that the three minor children named above were ever born out of the union with him and Smt. Shanti. He specifically pleaded that ho was physically incapable of procreating children. He stated that he was already married and a wife was living with him and there was no issue born out of the said marriage. The appellant, in order to prove the physical Incapability of procreating child, filed Medical Certificate of a doctor showing that in the chemical test of the seman there was no spermatozoa present., The medical certificate after examining his real wife was also filed to indicate that she was capable of bearing children.

(3.) The case of the appellant was that after the death of Dhanni Ram Smt. Shanti started living with one Bhajju as his wife and the three children were born out of the said union. Number of documents were filed by the appellant to show that in the Kutumb Register and Votors' List Shanti was shown to be the wife of Bhajju. The case of the other side was that Bhajju was below 20 years of age and Smt. Shanti was above 40 years in age. They were related as Maami an Bhajja and as such it was not possible that such marital relation be formed. Bhajju was examined as a witness and the Court was pleased to direct him to produce the school certificate to find out his age.