NEK RAM DOFARA Vs. CHANCHAL KUMARI

JUDGEMENT

(1.) Respondent and her son Sachin Kumar filed maintenance application under Section 488 Cr.PC in the Court of learned Judicial Magistrate, Sub Judge, Nowshera on 22nd of December, 2003 on the ground that the respondent is the legally wedded wife of the petitioner, which marriage was solemnized in the year 1982 in accordance with Hindu Rites. It was also pleaded that out of the said wedlock, the claimant no.2 Sachin Kumar was born and is living with his mother. The maintenance application was filed on the ground that the petitioner herein has deserted the respondent. The petitioner who was respondent in the maintenance application denied his marriage with respondent no.1 and specifically pleaded in the objections filed before the learned Trial Court that the present petitioner was married to one Kamlesh Devi in the year 1970 in accordance with Hindu Rites and that the Kamlesh Devi has begotten children to the petitioner. In order to support his pleadings, copies of voter list for the year 1975 and 1980 were also placed on record along with the objections of the petitioner.

(2.) After conclusion of the Trial, the learned trial Magistrate vide order dated 4th December, 2010 allowed the maintenance application and recorded the finding that respondent is legally wedded wife of the petitioner and that the petitioner has failed to maintain her and ordered for payment of maintenance to the respondent @ Rs.15,00/- per month. The petitioner feeling aggrieved of the said order, challenged the same in Criminal Revision before the learned Sessions Judge, Rajouri, which petition was dismissed by the learned Revisional Court vide its order dated 4th December, 2010. The petitioner being aggrieved of this order has called it question in this petition filed under Section 561-A Cr.PC.

(3.) Mr. Raina, learned Senior Advocate, submitted that the petitioner was married to one lady and out of the said wedlock, 4 children were born. Learned counsel submitted that in presence of the marriage, the respondent could not legally marry with the petitioner and is not entitled to any maintenance. Learned counsel also submitted that since the order of the trial Court, holding the respondent to be legally wedded wife of the petitioner and directing for payment of maintenance has direct impact on the status of the wife of the petitioner, notice was required to be issued to the said lady and after giving the opportunity of hearing, the appropriate orders could have been passed by the learned Trial Magistrate. Learned counsel also referred to the statement of the respondent and submitted that she has not tendered any explanation in respect of the first marriage of the petitioner. Learned counsel in support of his contentions referred to and relied upon the judgment in case titled D.Velusamy vs. D.Patchaiammal, 2010 10 SCC 469, case titled C.S. Krishnamurthy Vs. State of Karnataka, 2005 CrLJ 2145 and case titled Smt. Yamunabhai Anantrao Adhav Vs. Anantrao Shivram Adhav and another, 1988 CrLJ 793 and submitted that in view of the law laid down, this petition deserves to be allowed. Learned counsel also submitted that the contention of the petitioner that he was married, has not been accepted by the Trial Court as also by the Revisional Court on the ground that there was inconsistency between the pleadings and evidence. Learned counsel in order to explain it, submitted that since the petitioner as also one of his sons stepped into witness box to prove the marriage, the learned Trial Court as also the Revisional Court should not have rejected the claims so made. Learned counsel also submitted that this petition be allowed and in the alternative, the impugned order be set aside and the case be remitted back to Trial Court with the direction that he shall issue notice to the lady, who is said to be wife of the petitioner, and after hearing her, pass the orders.