JUDGMENT K.N. Ojha, J.
1. Instant revision has been preferred against judgment and order dated 12.8.94 passed by learned Judge, Family Court, Kanpur in Case No. 523 of 1993, Smt. Usha Dixit v. Vinod Kishore Dixit, whereby a direction was made to the revisionist to make payment to respondent No. 2 Smt. Usha Dixit @ Rs. 500/- per month, as maintenance allowance.
2. Heard Mr. A.C. Nigam, learned Counsel for the revisionist and Mr. Hardev Singh, learned Counsel for the respondent and have gone through the record,
3. The facts as revealed from the record is that Smt. Usha Dixit filed a complaint against revisionist Vinod Kishore Dixit under Section 125, Cr.P.C. for maintenance @ Rs. 500/- per month to her and the same amount for her daughter Km. Jyoti. Her claim for maintenance (c) Rs. 500/- per month was decreed on 12.8.94 by the Family Judge, Kanpur Nagar but it was dismissed in respect of Km. Jyoti.
4. According to Smt. Usha Dixit she was married with Vinod Kishore Dixit on 11.12.88 according to the Hindu Custom in Arya Samaj Temple, Govind Nagar, Kanpur Nagar. Earlier Smt. Usha Dixit was married to one Sheo Kant Shukla of Kanpur Dehat but he died in October, 1987. After his death Km. Jyoti was born from the wedlock of Sheo Kant Shukla and Usha Dixit. Vinod Kishore Dixit who is a doctor was willing to marry her because his first wife had died, therefore, after their marriage was celebrated on 11.12.1988 she started to live as wife of Vinod Kishore Dixit along with Jyoti and lived upto December, 1992 but Vinod Kishore Dixit started to cause torture to her and later on left her and started to live at his paternal house 42/3 Makhania Market, Moolganj, Kanpur. Smt. Usha Dixit went many times to meet him but he refused to maintain her, therefore, the case for maintenance was filed on 28.8.1993 when the age of Km. Jyoti was about six years, Vinod Kishore Dixit is doctor by profession and earns Rs. 4,000/- per month. Financial condition of Smt. Usha Dixit is so poor that she is unable even to pay monthly rent of Rs. 350/- of the house in which she is living.
5. Vinod Kishore Dixit filed written statement and denied that any marriage had taken place between him and Smt. Usha. It was alleged that he had already got three sons and two daughters from his first wife. His wife has died. Smt. Usha met him and expressed willingness to marry herself with him but he flatly refused her. Still she insisted and in order to create undue pressure on him she filed the case for maintenance. It was also alleged that she was only 28 years and revisionist was 60 years in age at the time the case was filed by her and, therefore, there arose no question of marrying her.
6. Smt. Usha Dixit examined herself as A.P.W. 1 and Ram Kishan Tewari as A.P.W. -2 she also filed marriage certificate dated 11.12.1988 issued by Arya Samaj Mandir, Kanpur. Sri Vinod Kishore Dixit examined himself as O.P.W. 1, Prahlad Awasthi as 6.P.W.-2 and Virendra Kumar as O.P.W. 3. In affidavit of Smt. Usha Dixit and her father Ram Kishan Tewari it was deposed that since husband of Smt. Usha and wife of Vinod Kishore Dixit had died hence they were in need of marriage and, therefore, by their mutual consent the marriage did take place in Arya Samaj Mandir, Govind Nagar, Kanpur Nagar on 11.12.1988. But opposite party and his witness deposed in affidavit that Smt. Usha Dixit expressed her willingness to be married with Vinod Kishore Dixit but he declined and marriage did never take place. Vinod Kishore Dixit deposed in his affidavit that she was earlier married to Sheo Kant Shukla and from their wedlock Km. Jyoti was born. After the death of Sheo Kant Shukla she was married with one Rajeev Kumar who filed Case No. 163 of 1994, Rajeev Kumar v. Smt. Usha @ Usha Devi, under Section 9 of Hindu Marriage Act, 1956 in Court of Civil Judge, Kanpur Dehat for restitution of conjugal right. Thus according to Vinod Kishore Dixit she is legally wedded wife of Rajeev Kumar and she is not his wife and, therefore, she is not entitled for maintenance from him.
7. The Family Court perused the affidavits and papers including marriage certificate filed by Smt. Usha Dixit and examined parties also and held that Smt. Usha was married with Vinod Kishore Dixit in Arya Samaj Mandir Govind Nagar, Kanpur Nagar on 11.12.1988 and since then till 1994, she was living as his wife, therefore, she is entitled for maintenance from him. He is a doctor and is quite capable to make payment @ Rs. 500/- per month as his per month income was Rs. 5,223/- in July, 1996 according to salary papers. It was also held that since Km. Jyoti was born from the wedlock of Smt. Usha and Sheo Kant Shukla, therefore, Km. Jyoti was not entitled for maintenance from the revisionist but the fact of marriage of Smt. Usha Dixit with Vinod Kishore Dixit being proved and she having lived as wife with Vinod Kishore Dixit since the year 1994 to 1998 she was entitled for maintenance @ Rs. 500/- per month. The plea of Vinod Kishore Dixit that Smt. Usha Dixit used to earn from Jyoti Garments, Kanpur and was capable to maintain herself was not believed.
8. By filing this revision it has been alleged that the learned Family Judge has made finding contrary to the evidence adduced in the case. It is also alleged that parties and their witness were not examined. Besides it Smt. Usha Dixit took contrary pleas when she filed case for her maintenance and a separate case for maintenance of her daughter Km. Jyoti. In her case she alleged that income of Vinod Kishore Dixit was Rs. 4,000/- per month while in the case filed by Km. Jyoti it was alleged that revisionist was earning Rs. 7,000/- per month. It was also alleged that there was considerable difference in the age of parties and, therefore, the marriage could not take place. Vinod Kishore Dixit retired from service in the year 1996 and his pension was only Rs. 1,300/- per month and, therefore, he was not in a position to make payment @ Rs. 500/- per month.
9. The first contention of the revisionist is that statement of parties and their witnesses were not recorded by the Family Court. Thus there has been violation of Sections 14, 15, and 16 of the Family Courts Act, 1984.
10. These sections of the Act 1984 contemplate as below:
Section 14 provides that "A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872)."
Section 15 contemplates that "In suit or proceedings before a Family Court, it shall not be necessary to record the evidence of witness at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes; and such memorandum shall be signed by the witness and the Judge and shall form part of the record."
Section 16 envisages that "(1) The evidence of any person where such evidence is of a formal character, may be given by affidavit and may subject to all just exceptions, be read in evidence in any suit or proceeding before a Family Court.
(2) The Family Court may, if it thinks fit, and shall, on the application of any of the parties to the suit or proceeding summon and examine any such person as to the facts contained in his affidavit."
11. Thus from the provision of Family Court Act which are applicable in this case as the case being tried by a Family Court and not by a Magistrate in respect of maintenance of the wife from the husband, the parties had right to examine themselves and their witnesses but if a party is given opportunity and he or she does not examine himself or herself and their witnesses the Court has not to compel to examine such witnesses. A perusal of the judgment shows that parties were given opportunities to adduce evidence. It is observed in the judgment that parties did not only file affidavits but the Court examined them also. The Lower Court record of Case No. 523 of 1993, Smt. Usha Devi v. Vinod Kishore Dixit, has been summoned and it shows that first summons were served on the revisionist-defendant but he did not appear, therefore, the case proceeded ex parte. Then the revisionist moved application to recall ex parte order and his prayer was allowed and the ex parte order was recalled. He sought for adjournment for evidence and ultimately filed affidavits. As a matter of precaution the Family Court recorded the statement of Smt. Usha Devi and Vinod Kishore Dixit on 27.4.1994. There is no application on the record of the Lower Court moved by Vinod Kishore Dixit that he wanted to examine any witness in addition to the affidavits filed by him and his witnesses and the statement of the parties which was recorded by the Court. The case was fixed for argument. It was adjourned. If there was any grievance to the revisionist he could move application that he had to examine witness but no such application was moved. Therefore, now 11 years after the statement of parties was recorded it is not open to the parties to say that they were not afforded proper opportunity to adduce evidence.
12. In a case of maintenance it has been held by Hon'ble the Apex Court in 1999 SCC (Crl.) 1345, Dwarika Prasad Satpathi v. V. Dixit, that "where claimant establishes that she and alleged husband lived together as husband and wife a rebuttable presumption arises that they are legally married. Section 125, Cr.P.C. does not finally determine the status, rights and obligations of parties. The section only provides for maintenance of indigents wives, children and parents." It has been held, in 1982 Crl. Law Journal, 539 Orissa, Saudamini v. Bhagirathi, that living as husband and wife and if treated by the public as such is quite sufficient proof of marriage. It was held in 1979 Crl. Law Journal 454 Calcutta, Bangali Prasad v. Draupdi Devi, that certificate of marriage relating to registration of marriage between the parties is sufficient proof that the parties were married. If the parties are living as husband and wife presumption is in favour of marriage and against concubinage. In instant case certificate issued by Arya Samaj Mandir has been filed which shows that Smt. Usha was married with Vinod Kishore Dixit on 11.12.1988. The contention of Vinod Kishore Dixit is not maintainable that there was considerable difference in their age. Both were living alone because of husband of Smt. Usha and wife of Vinod Kishore Dixit have expired and this is the reason that he married Smt. Usha. It does not appeal to the reason that in order to usurp his property Smt. Usha Dixit is unnecessarily harassing him alleging herself to be his wife. So far quantum of maintenance is concerned it is not denied that he retired as doctor in the year 1996 and was earning more than Rs. 5,000/-per month. The minimum pension which a Government employee gets is about Rs. 1,300/- which comes to about Rs. 2,000/- including D.A. According to his own version he is married and had all his sons and daughter from his first wife. Thus if he is getting Rs. 2,000/- per month as pension and has got retiral benefits also the amount of Rs. 500/- per month cannot be said to be an excessive amount of maintenance.
13. The contention of Vinod Kishore Dixit is that after the death of Sheo Kant Shukla Smt. Usha Dixit married herself with one Rajeev Kumar. The case of Smt. Usha Dixit is that when she filed the case of maintenance in the Principal Judge, Family Court, Kanpur Nagar on 28.8.1993 copy of which is on record Vinod Kishore Dixit got a false case filed from his friend Rajeev Kumar on 12.5.1994 bearing Case No. 163 of 1994, Rajeev Kumar v. Smt. Usha @ Usha Devi, while no such marriage had taken place between Rajeev Kumar and Smt. Usha. There is no evidence to show the marriage between Rajeev Kumar and Smt. Usha. The revisionist did not examine Rajeev Kumar in support of this contention. There is no paper, which may show that Smt. Usha admitted her marriage with Rajeev Kumar. There is no paper, which may show that Rajeev Kumar ever lived with Smt. Usha any time or he was maintaining her. The case under Section 9 of Hindu Marriage Act filed by Rajeev Kumar against Smt. Usha in the Court of Civil Judge, Kanpur Dehat shows that it was filed after the summons was served on the revisionist Vinod Kishore Dixit in the case filed by Smt. Usha Dixit against Vinod Kishore Dixit. Thus the marriage of Rajeev Kumar with Smt. Usha is not proved and it cannot be taken to be a ground to refuse maintenance allowance to Smt. Usha. It may be mentioned that under Section 401 of the Cr.P.C. this Court can exercise the power of appeal conferred under Sections 386/389/390/391 and 307, etc. in revision also and on perusal of the evidence adduced by the parties this Court does not find any perversity in appreciation of evidence by the Principal Judge, Family Court, Kanpur Nagar.
14. The learned Family Judge has rightly disbelieved the contention of the revisionist that the income of Smt. Usha is not proved from Jyoti Garments, Kanpur. There is no record, which may show that she is earning anything from such shop.
15. In view of these circumstances and the evidence of the facts if the learned Family judge, Kanpur Nagar has awarded maintenance @ Rs. 500/- per month there is no illegality in the order and the revision deserves to be dismissed. Smt. Usha Dixit is entitled to get maintenance allowance @ Rs. 500/- per month from 12.8.1994 as was directed by the Family Court. She is entitled to get arrear which has accrued due to stay order passed by this Court subject to adjustment of the amount which has been deposited by the revisionist in the Family Court, Kanpur Nagar which may be withdrawn by Smt. Usha Dixit after moving application in the Family Court Kanpur Nagar.
16. The revision is dismissed.
17. Let the arrears of the maintenance allowance as directed by the Family Court, Kanpur Nagar on 12.8.1994 be paid by the revisionist Vinod Kishore Dixit to Smt. Usha Dixit within two months from today and he is directed to make payment of Rs. 500/- per month as maintenance allowance to Smt. Usha Dixit by 15th day of each month by depositing of the amount in the Family Court/Kanpur Nagar. In case of default it will be open to the Family Court, Kanpur Nagar to proceed for recovery of the amount on the execution application moved by Smt. Usha Dixit.