Judgement This criminal revision under Section 397/401 Cr.P.C. has been filed by the revisionists against the order dated 22.10.2003 passed by Additional Sessions Judge, Court no. 1, Unnao in Criminal Revision No. 121 of 2002, whereby the order dated 26.10.2002 passed by learned Additional Chief Judicial Magistrate, Unnao in Criminal Case No. 1729 of 2002, under Section 125 Cr.P.C. for grant of maintenance of Rs. 500/- to both the revisionists was set-aside.
The relevant facts for deciding this revision in nutshell are that an application under Section 125 Cr.P.C. has been filed by Smt. Saroj Awasthy and the present revisionists- Shiva Kant Awasthy and Km. Shivani Awasthy (minor) for grant of maintenance against Jagdish Prasad Awasthy-the opposite party with the allegation that Smt. Saroj Awasthy married with the opposite party-Jagdish Prasad Awasthy in accordance with Hindu rites and rituals. Revisionists Shiva Kant Awasthy and Km. Shivani Awasthy born out of wedlock of Smt. Saroj Awasthy and Shri Jagdish Prasad Awasthy. After birth of revisionist Shiva Kant Awasthy, the opposite party started neglecting and misbehaving Smt. Saroj Awasthy and her children and gave a small room to live in and stopped supporting his children and wife for their livelihood, education and for providing other necessities of life. Smt. Saroj Awasthy claimed herself unable to maintain and stated that she has no means for herself and her children, though the opposite party is legally bounded to maintain her and her children. It has also been alleged that the opposite party is possessing six bigha of agriculture land, two grove of Mangoes and as such he is earning Rs. 20,000-25,000 per annum. The opposite party is also serving as a Government Teacher and is also getting salary of Rs. 4,000/- per month.
In application moved under Section 125 Cr.P.C., she claimed Rs. 1,000/- as maintenance for herself and Rs. 500/- for her children Shiva Kant Awasthy and Km. Shivani Awasthy, who were minor at that time. This application moved on 30.10.1998 was contested by the opposite party by filing his reply wherein he denied any type of relationship with Smt. Saroj Awasthy and also disowned that the revisionists were born with cohabitation of opposite party and Smt. Saroj Awasthy. He married to Smt. Rani @ Pushpa thirty years ago in accordance with Hindu rites and rituals and his son Dharmendra Awasthy aged about 26 years was born with Smt. Rani Awasthy, who is alive and is living with opposite party. He also stated that Smt. Saroj Awasthy is a free lady and working in Aganwadi. She used to see village of opposite party so she knows the opposite party by name. On the instigation of some persons of the Village, to grab the property of the opposite party and to defame him, Smt. Saroj Awasthy filed this false claim of maintenance.
The applicant Smt. Saroj Awasthy filed certain documentary evidence including Domicile Certificate showing the name of Jagdish Prasad Awasthy as her husband, voter list showing her name as the wife of opposite party, birth certificate of Shiva Kant issued on 10.06.1989 by C.M.O. District-Unnao, birth certificate relating to delivery of a female baby by her on 27.01.1991 issued by C.M.O., Unnao, Domicile certificate issued by Jagdish Prasad Awasthy, the O.P., being Village Pradhan, some photographs of opposite party with Smt. Saroj Awasthy, receipt of Double Benefit Deposit certificate issued by Avadh Gramin Bank on 26.09.1999 of Rs. 20,330 in the name of Km. Shivani showing her father as Jagdish Prasad Awasthy issued, Passbook of Awadh Gramin Bank Musiganj Branch in which the name of Smt. Saroj Awasthy has been shown as the wife of Jagdish Prasad Awasthy, the card of National Vaccination Mission in the name of Shivani showing the name of her father as Jagdish, copy of first information report lodged by her against Rajendra and Girish, her Caste certificate issued on 18.04.2000, School leaving certificate of Km. Shivani Awasthy showing the date of birth, family register of Jagdish Prasad Awasthy wherein the name of Smt. Saroj Awasthy is shown as wife of Jagdish Prasad Awasthy.
The opposite party filed certificate of receiving honorarium of Smt. Saroj Awasthy to the tune of Rs. 531/-.
Smt. Saroj Awasthy examined herself as PW-1. Shri Jagdish Prasad also examined himself as DW-1 and also examined his alleged wife Smt. Rani as DW-2. Hiraday Narayan was examined as DW-3 and Dharmendra Awasthy, the alleged son,as DW-4.
After considering the evidence available on record, the application was allowed by a detailed order dated 26.10.2002 wherein it was held that Smt. Saroj Awasthy is living with Jagdish Prasad Awasthy as a wife but she is unable to establish that her marriage was solemnized in accordance with rites and rituals and in accordance with law. However, the Court opined that Shiva Kant Awasthy and Km. Shivani Awasthy born out of wedlock of Jagdish Prasad Awasthy and Saroj Awasthy and they are under the guardianship of Smt. Saroj Awasthy. Smt. Saroj Awasthy is unable to maintain herself and her children and consequently granted maintenance to each minor child i.e., Shiva Kant Awasthy and Km. Shivani Awasthy at the rate of Rs. 500/- per month. However, no amount of maintenance has been awarded to Smt. Saroj Awasthy.
The aforesaid order was put under challenge by both the sides. Aggrieved by the aforesaid order Jagdish Prasad Awasthy filed Criminal Revision No. 121 of 2002 and the present revisionists filed Criminal Revision No. 122 of 2002. The revisional Court after re-appreciating the evidence came to the conclusion that findings recorded by the trial Court that the revisionists born out of wedlock of Smt. Saroj Awasthy and Jagdish Prasad Awasthy is incorrect and set-aside the order . It was held that Smt. Rani @ Pushpa is one and same lady, who is the first wife of Jagdish Prasad Awasthy. Thus, the marriage of Smt. Saroj Awasthy with Jagdish Prasad Awasthy is not legal and set-aside the order passed by the trial Court and dismissed the application under Section 125 Cr.P.C.
I have heard learned counsel for the revisionists and learned counsel for the opposite party and also perused the record of the lower Court.
It has been submitted by learned counsel for the revisionists that it is well settled principle of Law that the revisional court can not re-appreciate the evidence and substitute its own finding. It is also submitted that the findings recorded by the trial Court that the Smt. Saroj Awasthy is married wife and children born out of wedlock of Shri Jagdish Prasad Awasthy and Smt. Saroj Awasthy are findings of fact but the Revision Court reversed the findings recorded by learned Magistrate and recorded its own findings that the revisionists were not born out of wedlock of Shri Jagdish Prasad Awasthy and Smt. Saroj Awasthy. Smt. Saroj Awasthy is not legally weeded wife of Jagdish Prasad Awasthy. The question of illegitimacy or legitimacy of children is a question of fact. Therefore, the revisional court can not interfere with the positive finding in favour of marriage and patronage of children. In this regard he relied upon the Judgement of Apex Court in the case of Pylamutyalamma @ Satyavathi Vs. Pyla Suri Demudu and another, (2011) 12 SCC 189.
It is further submitted that the learned Revisional Court also recorded the finding that there was no relationship of husband and wife in between Jagdish Prasad Awasthy and Smt. Saroj Awasthy. It is also observed by the revisional Court that the opposite party has admitted that he is the friend of brother-in-law of Smt. Saroj Awasthy so he was interested in Saroj. She is serving in Aganwadi. The revisional Court has also observed that it is true that Jagdish Prasad Awasthi was shown as the guardian in the Double Benefit Deposit Certificate prepared in the name of minor child Km. Shivani the revisionist, which shows that Smt. Saroj Awasthy was having relations with Jagdish Prasad Awasthy but it has not been mentioned in application under section 125 CrPC as to when Shiva Kant Awasthy was born or when Km. Shivani was born. The revisional Court in the light of judgment reported in 1999, ACC page 785, Smt. Rajmati Vs. Mithai and others, held- though revisional Court can not re appreciate the evidence nor he can substitute its own finding but in spite of that the revisional Court exceeded in its jurisdiction by setting-aside the order granting maintenance to minor children. At the most, if the revisional Court was of the view that findings recorded by trial Court are perverse and are liable to be set-aside than after setting-aside the judgement rendered by the trial Court should remanded the matter to decide afresh.
On the contrary learned counsel for the opposite party submits that in this case findings recorded by trial Court are based on misreading of evidence as such are perverse. The revisional court has categorically held that findings arrived at by the trial Court that the amount deposited by opposite party- Jagdish Prasad Awasthy in the name of Km. Shivani on the basis of report of the bank is incorrect because such report is not available on record. It has been also urged that the opposite party had not pleaded the date of birth of revisionists Shiva Kant Awasthy and Km. Shivani Awasthy, so in absence thereof, the evidence adduced can not be accepted. It is further submitted that revisional Court rightly concluded that Domicile certificate/permanent residence certificate was issued to Smt. Saroj Awasthy by Jagdish Prasad Awasthy being Village Pradhan on account of friendship of brother-in-law of Smt. Saroj Awasthy. Therefore, it cannot be proved on the basis of it that she is the wife of Jagdish Prasad Awasthy and the same could not be taken as ground for allowing the application under Section 125 Cr.P.C. It is further submitted that if the findings recorded by trial Court are perverse, the revisional Court can set-aside the findings and correct the same which is within the competence of the revisional Court.
The Hon'ble Supreme Court in Pylamutyalamma @ Satyavathi's Case (supra) discussed the power of the revisional Court in Para No. 14, 15, 16 which are quoted herein below:-
"14. In fact, we also find sufficient substance in the plea that the High Court in its revisional jurisdiction ought not to have entered into a scrutiny of the finding recorded by the Magistrate that the appellant was a married wife of the respondent, before allowing an application determining maintenance as it is well settled that the Revisional Court can interfere only if there is any illegality in the order or there is any material irregularity in the procedure or there is an error of jurisdiction.
15. The high Court under its revisional jurisdiction is not required to enter into reappreciation of evidence recorded in the order granting maintenance; at the most it could correct a patent error of jurisdiction. It has been laid down in a series of decisions including Suresh Mandal V. State of Jharkhand that in a case where the learned Magistrate has granted maintenance holding the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the Revisional Court is very limited. The Revisional Court would not substitute its own finding and upset the maintenance order recorded by the Magistrate.
16. In a revision against the maintenance order passed in proceedings under Section 125 CrPC, the Revisinal Court has no power to reassess evidence and substitute its own findings. Under revisional jurisdiction, the questions whether the applicant is a married wife, the children are legitimate/illegitimate, being pre-eminently questions of fact, cannot be reopened and the Revisional Court cannot substitute its own views. The High Court, therefore, is not required in revision to interfere with the positive finding in favour of the marriage and patronage of a child. But where finding is a negative one, the High Court would entertain the revision, re-evaluate the evidence and come to the conclusion whether the findings or conclusions reached by the Magistrate are legally sustainable or not as negative finding has evil consequences on the life of both the child and the woman. This was the view expressed by the Supreme Court in Santosh v. Naresh Pal, as also in Pravati Rani Sahoo v. Bishnupada Sahoo. Thus, the ratio deciding which emerges out of a catena of authorities on the efficacy and value of the order passed by the Magistrate while determining maintenance under Section 125 CrPC is that it would not be disturbed while exercising revisional jurisdiction."
The Hon'ble Lordship further held that the proceedings under Section 125 Cr.P.C. are summary in nature and extended of proof is not so stringent as is required in civil cases. In the proceedings under section 125 CrPC for maintenance and if the husband takes a plea that marriage with the applicant wife is void due to existence of his earlier marriage with another lady the burden of proof of earlier marriage would be on the Husband. The Apex Court in Para 22 of the judgement has held that while dealing with the application under Section 125 Cr.P.C. the validity of marriage would not be a ground for refusal of maintenance because Section 125 Cr.P.C. proceeded on de facto marriage and not marriage de juri. In this regard the relevant paragraph nos. 21, 22, 23 of Pylamutyalamma @ Satyavathi's Case (supra) are reproduced herein below:-
"21. It was still further laid down in Sethurathinam Illai v. barabaraa Dolly Sethurathinam that if there was affirmative evidence on the aforesaid points, the Magistrate would not enter into complicated questions of law as to the validity of the marriage according to the sacrament element or personal law and the like, which are questions for determination by the civil Court. If the evidence let in a proceeding under Section 125 CrPC raises a presumption that the applicant was the wife of the respondeht, it would be sufficient for the Magistrate to pass an order granting maintenance under the proceeding. But if the husband wishes to impeach the validity of the marriage, he will have to bring a declaratory suit in the civil court where the whole questions may be gone into wherein he can contended that the marriage was not a valid marriage or was a fraud or coercion practised upon him.
22. Fortifying this view, it was further laid down by the Supreme Court in Rajathi v. C. Ganesan also, that in a case under Section 125 CrPC, the Magistrate has to take prima facie view of the matter and it is not necessary for the Magistrate to go into matrimonial disparity between the parties in detail in order to deny maintenance to the claimant wife. Section 125 CrPC proceeds on de facto marriage and not marriage de juri. Thus, validity of the marriage will not be a ground for refusal of maintenance if order requirements of Section 125 CrPC are fulfilled.
23. When the appellant's case is tested on the anvil of the aforesaid legal position, it is sufficiently clear that the appellant has succeeded in proving that she was the legally married wife of the respondent with three children out of which one had expired while the other two are major and well settled. It has further been proved that the respondent husband started deserting the appellant wife after almost 25 years of marriage and in order to avert the claim of maintenance, a story of previous marriage was set up for which he failed to furnish any proof much less clear proof. Thus, it was not open for the High Court under its revisional jurisdiction to set aside the finding of the trial court and absolve the respondent from paying the maintenance of Rs. 500/- per month to the appellant wife.
The Apex Court also held that burden to prove lies upon husband that the applicant is not entitled to pay maintenance to the subsequent married wife on account of continuous of the first marriage.
Here in this case there are ample documentary evidence to establish the actual date of birth of both revisionists. The documents show that opposite party introduced himself as a father in different institutions including bank account. The revisional Court has wrongly mentioned that there is no report of bank on record.
I have gone through the record of lower Court which reveals that there is a report of Awadh Gramin Bank, which has been called for during trial, which is annexed as paper No. 14-Ka and is of dated 31.08.2002 wherein it has been categorically mentioned that a sum of Rs. 10,000/- has been deposited on 23.02.1993 for a period of six years in DBD Certificates of Bank by Jagdish Prasad Awasthy showing her as his daughter. The date of birth is mentioned in the bank record of Km. Shivani is 10.11.1991. The Domicile certified issued by Jagdish Prasad Awasthy being village pradhan indicated that Smt. Saroj Awasthy is the his wife. While issuing this certificate by Jagdish Prasad Awasthy being village Pradhan acknowledged the relationship of Shri Jagdish Prasad Awasthy and Smt. Saroj Awasthy as husband and wife. The certificate of date of birth duly issued by Government Officers of both children have been brought on record. Certificate of domicile/ residence issued by Jagdish Prasad Awasthy indicating therein that opposite party is husband of Smt. Saroj Awasthy is also an important piece of evidence. The opposite party did not disown the photographs of Smt. Saroj Awasthy. He also did not disown the other documents showing the name of Jagdish Prasad Awasthy as father of the revisionists. It is not stated by the opposite party that these documents are fictitious or forged.
This Court after scrutiny of evidence and material available on record of the lower court in the light of submissions made by the counsels for the parties is fully satisfied that learned Magistrate legally and correctly recorded the findings on the basis of material on record and the findings recorded are not perverse. While allowing the application under section 125 CrPC so far as it relates to revisionists, no irregularity of procedure was occasioned. Reversal of such findings by Additional Sessions Judge (Court of Revision) was not at all required. Moreover the grounds on which findings were reversed by Court of Revision are not sustainable as discussed herein above. The Court of Revision committed a manifest error of law in setting-aside the order of learned Magistrate awarding maintenance to the revisionists. Proprietary demands that mistake committed by Revisional Court be corrected , which is in the domain of this Court while exercising the jurisdiction under section 397 read with 401CrPC.
Therefore, this Court is of the firm view that the revisional Court was not justified in setting-aside the order passed by the trial Court granting the maintenance to the revisionists being minor son and daughter of the opposite party, though may be his illegitimate Children.
In view of the above, the judgement rendered by the revisional Court rejecting the application under Section 125 Cr.P.C. by impugned order dated 26.10.2002 passed in criminal revision no. 121 of 2002 can not be allowed to sustain so far it relates to the revisionists.
Hence this revision is allowed. The revisional order dated 26.10.2002 passed in criminal revision no. 121 of 2002 is set-aside . The order of trial Court is hereby restored and affirmed to that extend.
Let trial Court record as well as record of the revisional Court be sent back immediately.
The Office to ensure that the aforesaid records should reach to the first revisional Court positively within a period of three weeks from today.
The Senior Registrar of this Court shall ensure the compliance of this order.
Order Dated:15.12.2014 R.K.P.