Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 7339 of 2003 Petitioner :- Smt. Suman Devi Respondent :- State Of U.P. Through Home Secretary & Others Counsel for Petitioner :- Dhirendra Singh,K.P. Verma Counsel for Respondent :- Govt. Advocate
Hon'ble Aniruddha Singh,J.
1- None is present on behalf of the petitioner even in the revised list/call and the writ petition is being decided in the absence of learned counsel for the petitioner on merit.
2- Heard learned A.G.A. and perused the record.
3- This criminal writ petition has been preferred by the petitioner-Smt. Suman Devi against opposite party no.2-Suresh Babu, husband of petitioner, challenging the order dated 16.7.2003 passed by Additional District and Sessions Judge, Jalaun at Orai in Criminal Revision No.103 of 2002 (Smt. Suman Devi vs. Suresh Babu and aother) and order dated 14.3.2002, in Case No. 75 of 2001 (Smt. Suman Devi and others Vs. Suresh Babu), under Section 125 Cr.P.C. whereby an application filed by the petitioner-Smt. Suman Devi was rejected and was allowed in favour of her son and the opposite party no.2-Suresh Babu was directed to pay Rs.500/- per month as maintenance to his son from the date of application. Against which, the petitioner filed Criminal Revision Nos.103 of 2002, which was dismissed.
4- In brief, the facts are that Smt. Suman Devi, wife of petitioner, has filed an application under Section 125 Cr.P.C. for maintenance against the opposite party no.2- Suresh Babu. Petitioner has submitted written statement but she admitted that her marriage was solemnized with opposite party no.2-Suresh Babu about four years back and she also stated that for demand of dowry, the opposite party no.2 beaten her and she went to her parental house. After compromise between the petitioner and opposite party no.2, she returned back her in-laws house and he again beaten by the opposite party no.2 and she went to her parental house and demanding Scooter and T.V. The petitioner also made an allegation that opposite party no. 2 had an illicit relation with his elder's wife ('Bhabhi') and the petitioner is living separately and is unable to maintain her son and herself because there is no source of income.
5- From the perusal of the record, it transpires that concurrent findings have been recorded by both the courts below that petitioner is living separately with the opposite party no.2- Suresh Babu and her marriage was admitted.
6- Complainant examined herself as A.P.W.1 and two witness A.P.W.2- Ram Prakash and A.P.W.3-Balveer Singh were also examined. From the side of opposite party, Suresh Babu examined himself as O.P.W.1 and one witness O.P.W.2- Raj Narain was examined.
7- After considering the material available on record and hearing the parties, the impugned orders were passed. The allegation made by the petitioner was found false and maintenance of Rs.500/- per month was awarded to her son.
8- Marriage between the parties was admitted. The opposite party no.2 was having love affairs with his 'Bhabhi' was not proved by the petitioner. The burden lies upon the petitioner to prove this fact that opposite party no. 2- Suresh Babu was having love affairs with his 'Bhabhi'.
9- Section 112 of the Indian Evidence Act reads as follows:
"Birth during marriage, conclusive proof of legitimacy-The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and 80 days after its dissolution, the mother remaining unmarried, shall be conclusive proofs, that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."
10- According to Section 112 of the Evidence Act, the presumption will lie against the petitioner that the son of the petitioner Mohit was born out with the wedlock of the petitioner.
11- Both the courts find that the petitioner without any sufficient reason refuses to live with her husband, hence the application of the petitioner Smt. Suman Devi was rejected.
12- Both the courts have given concurrent finding of fact and plausible view has been taken, hence no interference is called for in writ petition by this Court. The amount awarded by the court below in favour of the son of the petitioner is not meagre amount, hence it is also liable to be dismissed.
13- Learned A.G.A. submitted that the ground raised in the petition is without substance. The courts below have recorded specific findings on this point and the revision has been dismissed.
14- Therefore, all grounds are without substance. No other ground has been pressed before this Court. The Courts below have carefully noticed all facts and has rightly decided the case in favour of petitioner. This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. No interference is called for. The present petition is bereft of merit and is hereby dismissed.
15- Certify this judgment to the lower Court immediately.
Order Date :- 24.8.2018 OP