Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 3567 of 2003 Petitioner :- Smt. Vibhawati Respondent :- State Of U.P. & Others Counsel for Petitioner :- Atul Srivastava Counsel for Respondent :- Govt. Advocate,R.C. Yadav
Hon'ble Aniruddha Singh,J.
Case called out in the revised list.
None is present on behalf of opposite party No. 3, namely, Suresh Chauhan. The case is fixed for hearing as peremptorily today.
Heard Shri Atul Srivastava, learned counsel for the petitioner and learned Additional Government Advocate appearing for the State and perused the record of the case.
This writ petition has been filed against the judgments and orders dated 28.4.2003 and 13.11.2001 passed by learned Additional Sessions Judge (Fast Track Court No. 3), Ghazipur and learned Additional Chief Judicial Magistrate-III, Ghazipur in Case No. 433 of 2001 and Revision No.
328 of 2001, under Section 125 Cr.P.C.(Smt. Vibhawati vs. Suresh Chauhan), whereby the application of petitioner was dismissed vide order dated 13.11.2001 and revision was also dismissed and Rs. 250/- per month was awarded as maintenance to Mannu (the son of Smt. Vibhawati).
Learned counsel for the petitioner submitted that the application and revision of petitioner, Vibhawati were dismissed only on the ground that she was unable to prove the allegation made by her that his husband has performed second marriage and that he has illicit relation with his Bhabhi.
Learned counsel for the petitioner has placed reliance upon the decision of Hon'ble the Supreme Court in the case of Rajathi vs. C. Ganesan; 1999 (6) SCC 326 and submitted that the wife is entitled for maintenance even if she failed to prove her allegations of second marriage by the husband under Section 494 IPC.
From perusal of record, it transpires that in the application of petitioner under Section 125 Cr.P.C. there are several other allegations about the torturing and beating for living separately, but that issue was not considered by the court below. It is also alleged that in application under Section 125 Cr.P.C. as well as in evidence of petitioner, the behaviour of the Geeta Devi (Bhabhi of the husband) was very bad and torturing of the revisionist.
On the above discussions, this Court found that both the orders of courts below are liable to be set aside and writ petition is liable to be allowed.
The writ petition is allowed and the orders dated 28.4.2003 and 13.11.2001 passed by learned Additional Sessions Judge (Fast Track Court No. 3), Ghazipur and learned Additional Chief Judicial Magistrate-III, Ghazipur in Case No. 433 of 2001 and Revision No. 328 of 2001, under Sections 125 Cr.P.C. against Smt. Vibhawati are set aside.
The case is remanded back to the court concerned to decide the case as fresh after giving opportunity of hearing and leading evidence by both the parties in the light of the observations made herein above.
However, it is made clear that the order passed by the competent court in favour of Mannu, son of Smt. Vibhawati shall intact.
Let the copy of this order be transmitted to the court concerned for compliance.
Order Date :- 26.7.2018 Sumaira