Reserved On:- 05.09.2018 Delivered On:- 31.10.2018 Case :- Crl. Misc. Writ Petition – 14064 of 2010 Petitioner :- Smt. Santosh Kumari Respondent :- State Of U.P. & Another Counsel for Petitioner :- S.K. Chaubey, R.K.S. Chauhan, Sunil Kumar Yadav Counsel for Respondent :- Govt. Advocate, Jitendra Kumar Mishra
Hon'ble Siddharth, J.
1. This writ petition has been filed praying for quashing of the impugned judgment and order dated 07.05.2010 passed by Additional Sessions Judge, Court No. 3, Farrukkhabad in Criminal Revision No. 51 of 2008 and impugned order dated 17.10.2007 passed by Judicial Magistrate, Court No. 13, Farrukkhabad in Misc. Case No. 2712 of 2007 under Section 125 Cr.P.C.
2. No counter affidavit has filed despite the respondent no. 2 being represented through J.K. Mishra, Advocate.
3. The petitioner's case is that the petitioner filed application under Section 125 Cr.P.C. for grant of maintenance alleging therein that she was married with the respondent no. 2 on 29.04.1997 and after living for about 4 days she went with her father to the place of posting of the respondent no. 2 at Kamalganj, Farrukhabad. Within a week a lady came to the quarter of the respondent no. 2 and asked the petitioner how she has come here, then the petitioner came to know that 1st wife of the respondent no. 2, namely, Smt. Jalshri, is alive. After compromise the dispute was settled and the petitioner lived there for about 3-4 months and thereafter the respondent no. 2 and his 1 st wife started harassment of the petitioner for dowry regarding which complaint has already been made and is pending before the competent court of law.
4. The respondent no. 2 filed reply against the application with specific denial that he has not been married with the petitioner and further that false and fabricated complaint has been filed against him.
5. After considering the facts and circumstances of the case the learned Judicial Magistrate, Court No. 13, Farrukhabad vide it's order dated 17.10.2007 rejected the application of the petitioner under Section 125 Cr.P.C.
6. Being aggrieved by the order dated 17.10.2007 petitioner preferred a revision before the District and Sessions Judge, being Revision No. 51 of 2008. The revisional court dismissed the revision filed by the petitioner on the same grounds and affirmed the order dated 17.10.2007 passed by the learned trial court.
7. The learned counsel for the petitioner has submitted that the name of petitioner has been entered into electoral role prepared by the Election Commission of India wherein the respondent no. 2 has been shown as her husband.
8. He has further submitted that from perusal of the evidence on record it is quite clear that the petitioner was married with the respondent no. 2 in accordance with hindu rites and rituals and lived with him as his wife. So far the 1st marriage of the respondent no. 2 is concerned the respondent no. 2 has not informed the petitioner that the respondent no. 2 was already married with one Smt. Jalshree and concealing the aforesaid fact pertaining to 1st marriage the respondent no. 2 has performed the marriage with the petitioner but this aspect has completely been ignored by the learned trial court and learned revisional court. The learned trial court and revisional court have not framed any issue with regards to fraud committed by the respondent no. 2 pertaining 1st marriage as the same was not disclosed before arranging the marriage of the petitioner with the respondent no. 2. The marriage between the petitioner and respondent no. 2, even after denial by the respondent no. 2, has been proved which is apparently clear from perusal of the record by the learned courts below. However, the maintenance amount has been denied to the petitioner on the grounds that 1st wife of the respondent no. 2 is alive therefore, 2nd marriage is null and void which is apparently illegal. The concealment of material facts with regards to performing 2nd marriage with the petitioner by the respondent no. 2 has not been taken into the account by the learned trial court and revisional court and case has been decided by rejecting the application under Section 125 Cr.P.C.
9. A supplementary affidavit has been filed on behalf of the petitioner stating that at the time of decision of case under Section 125 Cr.P.C. some relevant documents could not produce before learned lower court, hence truth of this case could not come to the knowledge of lower court. Regarding the fraud played by the respondent no. 2 with the petitioner she has lodged a first information report against respondent no. 2 as Case Crime No. 917 of 2015, under Sections- 498-A, 323, 120-B I.P.C., Police Station- Amratpur, District- Fatehgarh. The respondent no. 2 is police personnel, therefore, the Investigating Officer has submitted the final report in favour of respondent no. 2. After submission of final report the petitioner filed Protest Petition before concerned court and the learned Court has rejected the final report and treated the same as complaint and recorded the statements of complainant and her witnesses under Sections- 200 and 202 Cr.P.C. Ram Prakash, brother of respondent no. 2, has given statement in the complaint in which he has stated that marriage was solemnized between the petitioner and respondent no. 2 and he was also present in marriage.
10. Learned counsel for the respondent no. 2 has submitted that the courts below have recorded concurrent findings of fact against the petitioner that she is not the wife of the respondent no. 2 and therefore not entitled to any amount of maintenance from the respondent no. 2. The findings of fact recorded by the court below do not suffer from any legal infirmity or perversity, warranting any interference under Article 226 of the Constitution of India and this writ petition may be dismissed.
11. After considering the rival pleadings it is clear that the courts below have not considered the question whether the respondent no. 2 has married the petitioner during subsistence of first marriage or not. The witnesses of the petitioner proved the marriage but the courts below have not considered the evidence of the witnesses. The courts below have not tried to find out whether the respondent no. 2 was already married at the time when he married the petitioner. The courts below have recorded the finding that the second marriage of the respondent no. 2 is void.
12. In view of the fact that the first marriage of the respondent no. 2 was subsisting and therefore the petitioner is not entitled to claim any maintenance under Section 125(3) Cr.P.C., only explanation takes notice of the fact that if a husband has contracted marriage with another women and keeps a mistress, it shall be considered to be just ground for his wife to refuse to live with him. There is no stipulation in the Section that contracting second marriage during subsistence of first marriage would disentitled the second wife to claim maintenance, in case he brings in a second wife without disclosure of the correct fact regarding subsistence of first marriage. The subsistence of first marriage is required to be decided conclusively by the court and also the fact whether the second wife knowingly married with a man or she was misled into second marriage. This issue has not been decided by the court below.
13. Therefore the order passed both the courts below are set aside.
14. This writ petition is allowed. The trial court is directed to proceed with the case again and decide the same within the period of six months from the date of production of certified copy of this order before it after permitting the party is to produce any further evidence they wish to lead.
Order date: 31.10.2018 Rohit