Dismissed

Ram Prakash Achari v. State of U.P. Thru. Its Secy. Deptt. of Home Affaira, Lko. and Another

Allahabad HC21 Jul 2023/2/2023

Case brief

AI extract

What is this about?

This criminal revision challenged the Family Court's dismissal of a petition seeking maintenance for the petitioner's second wife. The High Court held that validity of the second marriage is a matter of evidence for trial and cannot be denied at the threshold, dismissing the revision.

What did the court decide?

Revision under Section 19(4) of Family Court Act against the order maintaining the petition for maintenance was dismissed.

Ram Prakash Achari Vs State of U.P. Thru. Its… — Maintenance and Alimony | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:48082

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A.F.R.

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Judgment Reserved on 03.07.2023 Judgment Delivered on 21.07.2023

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Court No. - 29

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Case :- CRIMINAL REVISION No. - 2 of 2023 Revisionist :- Ram Prakash Achari

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Opposite Party :- State Of U.P. Thru. Its Secy. Deptt. Of Home Affaira, Lko. And Another

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Counsel for Revisionist :- Ashish Chaturvedi,Anilesh Tewari,Desh Deepak Singh Counsel for Opposite Party :- G.A.,Raj Kumar Hon'ble Mrs. Renu Agarwal,J.

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1. Heard Shri Ashish Chaturvedi & Shri Desh Deepak Singh, learned counsel for the revisionist, Shri Raj Kumar Pandey, learned counsel for opposite party no.2 and learned A.G.A for the State and perused the record.

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This criminal revision under section 19(4) of Family Court Act, 1984 has been filed against the order dated 22.09.2022 passed by Additional Principal Judge, Family Court, Faizabad, in Criminal Misc. Case No.388 of 2016 (Priyanka Achari Vs. Ram Prakash Achari), by which the application No.15B moved by the revisionist in the trial court concerned, challenging the maintainability of the petition filed by the respondent no.2, claiming maintenance has been, rejected.

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It is submitted by learned counsel for the revisionist that as per settled proposition of law of section 125 Cr.P.C. only the legally wedded wife can claim the maintenance from her husband. Additional Principal Judge, Family Court, Faizabad, considered the aadhar card of the opposite party no.2 as only basis to conclude that the opposite party no.2 is prima-facie wife of the revisionist. The opposite party no.2 is the legally wedded wife of one Lavkush Shukla and the decree of divorce has not been taken as per procedure under section 13 of Hindu Marriage Act. The opposite party no.2 herself alleged to be the second wife of revisionist and no proof of dissolution of her first marriage is ever produced in the concerned court below. Hence the order passed by the court below is perverse and against evidence on record, therefore, it is liable to be set-aside.

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Per contra learned counsel for opposite party no.2 submitted that opposite party no.2 is the legally wedded wife of revisionist, as the marriage of the

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revisionist and opposite party no.2 was solemnized on 08.06.2010 with their consent as per Hindu Rites and Rituals in the presence of both the families and their relatives etc. and at the time of marriage the father of opposite party no.2 has given gifts according to his capacity. It is further submitted that revisionist has not disclosed the facts that Leelawati Pandey, daughter of Sitaram Pandey was the first wife of the revisionist and after the death of his first wife on 21.06.2009 the revisionist solemnized the marriage with opposite party no.2 on 08.06.2010. The opposite party no.2 was firstly married with Lavkush Shukla on 10.05.2005 and due to some dispute both of them decided to take divorce on the ground of mutual consent and a petition for dissolution of marriage was moved by both the parties in the court of Judge Family Court, Court No.3, Ahamedabad Gujarat. Thereafter, on 15.01.2007 the application for execution of petition for dissolution of marriage was moved by both the parties and their marriage was got dissolved vide order dated 15.01.2007. Thereafter, the revisionist solemnized the marriage with opposite party no.2. In aadhar card, electoral card, pass book of bank etc., the name of revisionist is entered as husband of opposite party no.2 and copies thereof are filed with counter affidavit. The revisionist and his family members physically harassed and beaten the opposite party no.2 on 02.08.2011 at about 5.00 P.M. and detained her in a room. In the night she reached to the house of her parents and narrated the entire story to her family members. Thereafter, a complaint case bearing No.1232 of 2011, under section 12 of Domestic Violence Act was filed at Police Station Kotwali, District Faizabad. Objections were filed by the brother of revisionist Ved Prakash Achari and Deepak Achari and the A.C.J.M.-3 Ayodhya passed the order dated 12.04.2017 in favour of opposite party no.2. Brothers of revisionist namely Ved Prakash Achari and Deepak Achari filed a Criminal Revision, bearing No.41 of 2017 in the court of Additional Sessions Judge, Court No.9, Faizabad, which was rejected on merits vide order dated 29.09.2017. Thereafter, the opposite party no.2 has filed FIR bearing Case Crime No.1224 of 2011, under sections 498-A, 323, 504, IPC, and section 3/4 D.P. Act. Police Station Kotwali, District Faizabad, in which charge sheet has been filed against the revisionist and others. Being second legally wedded wife of the revisionist the present application under section 125

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Cr.P.C. was moved for maintenance disclosing all the facts regarding dissolution of first marriage, which was considered by the Additional Principal Judge, Family Court, Faizabad and appropriate order was passed on 22.09.2022. It is further submitted by learned counsel for opposite party no.2 that there is no illegality in the order passed by the learned Magistrate, hence the revisionist is liable to be dismissed.

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I have heard the rival submissions of learned counsel for the parties and perused the record.

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Application 15-B is moved by the applicant/revisionist in the court concerned contention that Priyanka Achari (opposite party no.2) is the legally wedded wife of Lavkush Shukla. Lavkush Shukla is alive and their marriage is not yet dissolved by any court. The wife of revisionist Leelawati Achari was died in the year 2009, leaving two children Abhinav Achari and Ayushi Achari. Learned Additional Principal Judge, Family Court, Faizabad, considered the rival submissions made by learned counsel for the revisionist as well as the counsel for opposite party no.2. On the contrary the opposite party no.2 moved application No.22-B in the trial court stating that revisionist solemnized marriage with her hiding the facts of his first marriage and two son and she is living with the revisionist as his legally wedded wife. 7. Learned trial court relying upon the aadhar card, voter card and the pass book of SBI Bank, wherein the name of revisionist is mentioned as husband of opposite party no.2, hold that the opposite party no.2 is apparently wife of the revisionist. It is also mentioned in the impugned judgment that aadhar card of opposite party no.2, which was got prepared has been rejected by Regional Office, Lucknow. Voter card (Annexure No.2) reveals that Ram Prakash Achari is mentioned as the name of the husband of opposite party no.2 and voter card itself was issued on 14.10.2010. In aadhar card also the name of present revisionist is mentioned as husband of opposite party no.2. However, it is submitted by learned counsel for the revisionist that aadhar card of opposite party no.2 has been cancelled on the application moved on behalf of the revisionist. Annexure no.1 is the order passed by the Family Court No.3, Ahamedbad Gujarat dated 15.01.2007, by which the concerned court has dismissed the case on the basis of agreement of divorce. Learned counsel for the revisionist submitted that this paper is not decree of divorce.

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This paper does not disclosed which of the case is dismissed. The agreement of divorce is not annexed with the counter affidavit. However, it transpires from annexure no.3, which is the order passed by A.C.J.M.-3, Faizabad dated 12.04.2017 that Case No.1224 of 2011 was rejected on the basis of agreement on non judicial stamp of Rs.100/-. It is true that decree of divorce is not on record, but revisionist has not denied that opposite party no.2 was not living with him. The only objection is that opposite party no.2 did not obtained valid decree of divorce from her first husband, therefore, there was no possibility of legal marriage with present revisionist.

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Opposite party no.2 filed annexure no.2 with supplementary counter affidavit, which is statement of Deepak Achari son of Ram Krishna Achari

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(real brother of revisionist), in which he is stated on oath that "राम्ቚकाश आचारी मेरा सगा भाई है। परन्तु मै तथा मेरी पत्नी कृष्णा माँ वि�मला � भाई �ेद ्ቚकाश अलग रहते हैं। यविद राम्ቚकाश ने विदनांक 08-06-10 को विहन्दू रीतित के मुतावि)क वि्ቚयंका आचारी से शादी विकया था दोनो के )ीच विकसी मामले को लेकर मतभेद हो गया जि+स कारण वि्ቚयंका आचारी को भाई राम्ቚकाश ने छोड़ विदया है। राम्ቚकाश हम लोगो से अलग

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रहता है। जि+स कारण वि्ቚयंका ्ቛारा लिलखाया गया एफ.आई.आर. में हम लोगो को झूठा नाविमत कर विदया गया है। इस ्ቚकार +ुम7 से इनकार करना )ताया।"। Annexure no.4 to the supplementary counter affidavit of opposite party no.2 is the pass book of state bank, in which Priyanka Achari is shown as the wife of Ram Prakash Achari. Few photographs are also annexed as annexure no.4 of supplementary counter affidavit.

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The complete evidence produced, goes to show that opposite party no.2 continue to live with the revisionist as his wife. The legality divorce of opposite party no.2 with her first husband and marriage with present revisionist is the matter of evidence to be produced at the time of trial. At this stage it cannot be held that there is no relationship between the parties. Aadhar card of opposite party no.2 which is cancelled on the application of revisionist was issued in the year 2010 and revisionist never tried to delete his name as husband of opposite party no.2 in the aadhar card, voter card, bank passbook of SBI, till present dispute arise between the parties.

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In the case of “Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga” the apex court held that as per Hindu Marriage Act, 1955, the second marriage is void and such marriages are illegal as per the provisions of the Act, but still they are not immoral and financially dependent women cannot be denied maintenance on this ground. In Chanmuniya Vs. Virendra Kumar Singh Kushwaha, the Apex Court interpreted the meaning of expression wife and states that broad and expansive interpretation should be give to the term wife which would include even those cases where a man and woman are living for long period of time as husband wife.

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In the present scenario when the revisionist was married to one Leelawati who expired in the year 2009 and opposite party no.2 who filed an agreement before the court of law regarding dissolution of marriage and after filing the contract of dissolution of marriage in the court of law she solemnized marriage with the present revisionist. Now it is the matter of evidence, whether opposite party no.2 is entitled for maintenance or not. Therefore, at the very outset it cannot be said that the maintenance application moved by opposite party no.2 should be thrown out at the very threshold, without going into merit of the case. Learned trial court discussed the above mentioned facts in the impugned order. Hence the order of Additional Principal Judge, Family Court, Faizabad, passed on the application No.15-B moved by revisionist, suffers with no illegality, infirmity or irregularity, hence the revision has no merit and is liable to be dismissed.

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Accordingly, the present revision is dismissed.

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(Justice Renu Agarwal,J.)

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Order Date :- 21.07.2023 VKG

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Digitally signed by :- VIJAY KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench

Ram Prakash Achari v. State of U.P. Thru. Its Secy. Deptt. of Home Affaira, Lko. and Another

Case brief

What is this about?

What did the court decide?

Ram Prakash Achari v. State of U.P. Thru. Its Secy. Deptt. of Home Affaira, Lko. and Another

Case brief

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What did the court decide?

What the court decided

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