UDIT NARAIN Vs. PAU

JUDGEMENT

(1.) THIS criminal revision is directed against an order dated September 7, 1978 of the court of the IVth Additional Sessions Judge, Deoria allowing the revision of Smt. Paudharia who is the opposite party in this court and directing Udit Narain, who is the applicant in this Court, to pay maintenance to her at the rate of Rs. 100/- per month with effect from the date of the application made by her under Section 125 of the Code of Criminal Procedure. Smt. Paudharia had approached the court of the Judicial Magistrate, Pad-rauna at Kasia, alleging that she was married to Udit Narain some 50 or 55 years ago and had been living with him as his wife since then; that she had given birth to two daughters and one son of whom, one son and one daughter were still alive, one of the daughters having died, that the name of the son was Sarvadeo and he was married and had children, that the daughter Subha-wati was also married and was living with her husband. It was then urged that about 10 years ago Udit Narain had married another wife to which Smt. Paudharia had objected but she acquiesced on being told by Udit Narain that she wag concerned with her food and clothing and not with what else he did; that the name of the other wife was Marichhia and she was living with Udit Narain: that Smt. Paudharia had be-come very old and had no means of subsistence and that about a year ago Udit Narain had stopped giving her any maintenance under the influence of his second wife and that he/had also separated her son who was living elsewhere with his family and that Udit Narain was the only person who must maintain Smt. Paudharia. The application proceeds on to allege that Udit Narain had about 6 or 7 bighas of agricultural land, a pumping set and Tube well etc., and his material condition was very good but it was impossible for Smt. Paudharia to now live with Udit Narain and that Udit Narain was threatening to sell away his la nd and house in order to harass Smt. Paudharia. On these allegations it was prayed that Udit Narain may be ordered to pay the maintenance allowance of Rs. 2001-, per month to Smt. Paudharia. The application was contested by Udit Narain. The allegations made by him are rather unusual. He alleged that Smt. Paudharia was not his wife and was not living with him as such that she was his father's mistress and her children were begotten upon her by his father and that the truth of the matter was that when Udit Narain was a minor, his father solemnised a fictitious and sham marriage between him (Udit Narain) and Smt. Paudharia (his father's mistress); that Udit Narain had no knowledge of this fact but when he attained the age of majority, he came to know of this villainy of his father and broke all connection with him and started living separately, the result of which was that his father and Smt. Pandharia became inimical to him. It was then alleged by Udit Narain that from the very beginning Smt, Paudharia had sexual connection with his father and continuously lived with and was maintained by him including the maintenance of her children; that Smt. Paudharia was never his wife and he had never maintained her and that he had married a second time long ago and was living with his married wife separately. Udit Narain proceeded to allege that his father always threatened him that he will give away all the property to Sarbdeo in order to wrongfully compell him to acknowledge Smt. Paudharia as his (Udit Narain) wife and on his refusal to accede to that he got a fictitious application filed by Smt. Paudharia which has no basis in fact. It was then alleged by Udit Narain that Smt. Paudharia was not his wife according to Hindu Law and was not entitled to any maintenance from him. He further pleaded that he was indebted to the extent of Rs. 3,400j-to the government which he was unable to pay and had no agricultural land or other property and that on the other hand his father has dishonestly taken loan in his (Udit Narain) name and Sarbadeo had got all the property fictitiously recorded in his name in which he (Udit Narain) had no interest. Lastly it was alleged by Udit Narain that all his property was recorded in the name of the father and that he was living with his wife at the place of others and earned his livelihood by manual labour and was under the circumstances not liable to pay any maintenance to Smt. Paudharia and her application was liable to be dismissed. The learned Magistrate found that there was no independent evidence of the fact of marriage between Smt. Paudharia and Udit Narain; that Smt. Paudharia under cross-examination stated that she was in difficulty for maintaining herself for the last 10 years since when she was separated by Udit Narain but she also stated that Dukhan, that is, Udit Narain's father had died about 10 years ago and that she, her son and her husband's father all lived together from which it was clear that so long as Dukhan was alive Smt. Paudharia was living with him and that tha application for maintenance had been filed by her against Udit Narain after his father's death. In view of the aforesaid facts, the learned Magistrate believed the evidence of Udit Narain that Smt. Paudharia was not Udjt Narain's wife and that Sarbadeo was begotten upon her by his father Dukhan. The learned Magistrate brushed aside the documentary evidence in the form of the certified copies of the Kutumb Register and the Electoral Roll by observing that there was no reliable evidence to prove the fact of marriage, between Udit Narain and Smt. Paudharia, The learned Sessions Judge has on the other hand relied upon the fact that in paragraph 4 of his written statement Udit Narain had stated that while he was still a minor, his father had performed his Farzi marriage with Smt. Paudharia although he had also pleaded that it was in fact a mere pretence of marriage and not a real marriage at all. The learned Sessions Judge also placed reliance on the documentary evidence in the form of the certified copies of the Kutumb Register and the Electoral Roll in which Smt. Paudharia is described as the wife of Udit Narain and Sarbadeo as his son. In the light of the same the learned Sessions Judge held that Smt. Paudharia was the lawfully weded wife of Udit Narain. The learned Sessions Judge then proceeded to consider a question whether Srnt. Paudharia had no means to maintain herself and whether Udit Narain had sufficient means to do so. The learned Sessions Judge thought that in view of the fact that Udit Narain had married a second time quite some years ago and Smt. Paudharia had been living separately from him, it was more probable that he was refusing to maintain her. It was argued on behalf of Udit Narain before the learned Sessions Judge that the parties were living separately by mutual consent and that in view of the provision of the Code of Criminal Procedure that the learned Magistrate was bound to cancel the order of maintenance on being shown that the parties were living separately by mutual consent, the learned Sessions Judge held that that provision came into force only after an order of maintenance had been passed, while on the other hand the Explanation appended to sub-section (3) showed that if a husband had contracted marriage with another woman and that it shall be just ground for his wife's refusal to live with him. Having arrived at these findings the learned Sessions Judge held that Smt. Paudharia's claim for recovery of maintenance was fully proved in law and was justified, and with regard to the quantum of maintenance he held that as against the claim of Rs. 2001-which appeared to be excessive, the ends of justice required that she should be granted maintenance allowance of Rs. 100j- per month. Having heard Mr. S.I. Jafri .for Udit Narain, the applicant in this court, the opposite party Smt. Paudharia being un-represented, I have come to the conclusion thai the order of the learned Sessions Judge cannot be sustained. It may be that the finding of the learned Sessions Judge that Smt. Paudharia was the lawfully wedded wife of Udit Narain may not be open to question on account of Udit Narain's admission that a fictitious and sham marriage was solemnised by his father during his (Udit Narain's) minority. It is, however, not necessary to go into that vexed question and to finally adjudicate upon it in these proceedings in view of the provisions of sub-section (4) of Section 125 of the Code of Criminal Procedure, 1973 which enacts that no wife shall be entitled to receive an allowance from her husband under that section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. According to Smt. Paudharia's own case, Udit Narain married a second time some 10 years ago and she acquiesced in the marriage on being assured of her maintenance. In her examination-in-chief she stated that the second marriage took place some 20 years ago. According to her own statement on oath she was living with Udit Narain's father along with her own son so long as he, that is, Udit Narain's father was alive. The learned Sessions Judge has not recorded any finding on the question whether Smt. Faudharia was living in adultery with Udit Narain's father. But the fact remains that Smt. Paudharia acquiesced in the second marriage and that could, therefore, not constitute and good ground for her jiving separately, she was living separately from Udit Narain bin with his father, along with her son. She rever claimed any maintenance so long as Udit Narain's father was alive Thtisa facts are, in my opinion sufficient to disentitle Smt. Paudharia to any order of maintenance under Section 125 of the Code of Criminal Procedure. The learned Sessions Judge looked at sub-section (5) of Section 125 when he held that living separately by mutual consent was not a ground for refusing to order maintenance but was a ground only for cancelling an order of maintenance already passed. He was also in error in relying on the Explanation to sub-section (3). That Explanation is appended to the second proviso to that sub-section. Now, in this case no offer was made by Udit Narain under that proviso to maintain Smt. Paudharia on condition of her living with him and that being so neither the proviso nor the Explanation thereto had any application to the facts of the present case. THIS is, however, not to say that in a given case the fact that the husband had contracted a second marriage with another woman or keeps a mistress is not a good ground to justify a wife in refusing to live, with such a husband and claiming maintenance from him under Section 125, in case in other conditions of that provision are satisfied. But the learned Sessions Judge was, in my opinion, not right in applying that principle to the fact of the present case, in view1 of the admitted acquiescence of the wife in the second marriage had been contracted long long ago. In view of the conclusion reached by me above, I do not consider it appropriate to go into the question of the validity of the marriage raised by the learned counsel for the applicant Udit Narain in this Court nor into the question whether Smt. Paudharia was living in adultery with TJ-lit Narain's father and that the son Sarbadeo was begotten on her by Udit Narain's father I say so because as observed above the determination of these question is not necessary for the disposal of this case and the proceedings under Section 125 ol the Code of Criminal procedure are of a summary nature and any finding on such questions of status arrived at in these proceedings would not be binding on the civil court in any suit involving the determination of these questions. In the result the revision succeeds and is allowed. The order dated September 8, 1978 of the court of the IV Additional Sessions Judge, Deoria ;s set. aside and that dated April 20, 397fl of the court of the Judicial Magistrate dismissing Smt. Paudharia's application for mainttnance under Section 125 is restored.