MURALIDHAR GHADEI PETITIONER Vs. SMITRA GHADEI

JUDGEMENT

(1.) This petition arises out of a proceeding under section 125 of the Code of Criminal Procedure (hereinafter referred to as Cr. P.C.) at the instance of the opposite parties claiming maintenance from the petitioner on the ground of his second marriage. The application having been allowed by the learned S.D.J.M. gtailting maintenance of Rs. 300/- per month to the opp. party No.1 and Rs. 200/- per month to opp. party No. 2, the daughter through her, and the order having been also confirmed in revision, the present petition under section 482, Cr. P.C. has been filed. The facts emerging his in a short corn pass. It is the admitted case of the parties that the petitioner married the opp. party No.1 in 1964. On differences arising between them, the petitioner filed a suit for divorce, O.S. No. 66 of 1968 under section 13 of the Hindu Marriage Act. That suit was compromised as per compromise dated 21.8.1969, Ext. 1 in the present case and the parties agreed to live together and in fact did so. Later on the petitioner married for the second time and both the opposite party No.1 and the second wife Manjulata lived with him. Two issues, a son P.W. 2 and a daughter (opposite party No. 2) were born to the opposite party No.1 through the petitioner. It is the admitted case that no issue had been born to the opposite party No. 1 by the date of the compromise. The petitioner also begot four children through Manjulata. The petitioner is employed as a Sweeper at Calcutta. While it is the case of the opposite party No. 1 that she was driven out by the petitioner from the house, it is the case of the petitioner that while he was away at Calcutta, the opposite party No. 1 left the house on 10.4.1989 on her own accord.

(2.) In the petition under section 125, Cr. P.C. the opposite party No. 1 claimed maintenance on the grounds of second marriage of the petitioner and her having been driven out on 10.4.1989 and that since that date she has been living at her fathers place along with the opposite party No. 2 and is facing difficulties in maintaining herself and the daughter. The claim was resisted by the petitioner, while admitting the marriage as also the second marriage, that the opposite party No. 1 had been living happily with him without any dispute but that during his absence at Calcutta, she left on her own accord on 10.4.1989. In the written statement the petitioner had taken the stand of not having married for the second time but during the evidence, admitted the fact. The claims of the opposite parties were allowed since both the Courts came to the conclusion that in view of the admitted second marriage of the petitioner, a claim for maintenance ipso facto was made out.

(3.) Mr. Dhal, the learned counsel appearing for the petitioner has urged two submissions, the first being that the fact of second marriage does not ipso facto entitle a wife to maintenance unless it is further established by her that the husband has refused to maintain her, and secondly that even if 4:00 a second marriage automatically entitles the first 5. wife to maintenance, yet if the wife has in fact condoned such lapse of the husband and has lived with him thereafter along with the second wife and had given birth to children, such cause of action cannot be resorted to, after lapse of long years, to maintain a petition under Section 125, Cr. P.C.