Criminal revision filed by a former husband to challenge a Family Court order granting maintenance to his wife and rejecting his son's claim. The HC held it cannot re-evaluate evidence in maintenance matters and dismissed the revision.
The criminal revision challenging the Family Court order granting maintenance of Rs.7000/- to the wife was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 406 of 2021
---- Applicant
Versus
---- Non-applicant
For Applicant – Mr. Shikhar Sharma and Ms. Pushplata Khalkho, Advocates. For Non-applicants – Shri Pravin Kumar Tulsyan, Advocate.
Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board
14-09-2022
1 . The applicant/husband has filed the instant criminal revision challenging the order dated 31-03-2021 passed by the Family Court Bastar, Jagdalpur in MJC No.136/2019 whereby the application moved by the non-applicants (wife and son of the present applicant) has been partly allowed and maintenance claimed by non-applicant No.2 has been rejected whereas non-applicant No.1/wife has been awarded maintenance of Rs.7000/- per month from the date of filing of application, i.e., 30-07-2019.
2 . The contents of application filed under Section 125 of the Cr.P.C. by the non-applicants before the Family Court is that, on account of love and affection 22 years ago non-applicant No.1 and the applicant got married and from such wedlock non-applicant No.2 Tarun Panda born on 08-06-1998 and they were residing peacefully at Jagdalpur. The applicant herein used to visit Charbahal, Odisha as his parents were residing there. After few years he went to Kalahandi, Odisha, but he never came back and at the relevant time nonapplicants were residing in house of father of non-applicant No.1. After death of
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father of non-applicant No. 1, her brother asked her to go to her matrimonal house as he was unable to maintain them. Therefore, non-applicant No.1 and non-applicant No.2 along with her neighbour went to village Charbahal, Odisha. It is further stated in the application that when non-applicants reached there they came to know that real name of applicant is Ram Kumar Panda, whereas, the applicant had apprised his name as Ram Nayak to the nonapplicants. The non-applicants further came to know that the applicant is married one and has three children. The applicant refused to recognize the non-applicants and ousted them from his house. It is further pleaded that in the name of the applicant 40 acres of irrigated land is recorded in revenue records and is earning Rs.50000/- per month. The non-applicants claimed Rs. 10000/- - Rs.10000/-, total rupees Rs.20000/- as maintenance from the applicant.
3 . The applicant/husband filed reply to the application that there was no love affair between him and non-applicant No.1. He never married to her and non-applicant No.2 is not his son or in other words he is not biological father of non-applicant No.2. In reply, he has specifically stated that he never visited to Jagdalpur in last 22 years, therefore, there is no question of marriage.
4 . Non-applicant No.1/wife Smt. Kusum Panda examined herself as AW-1, one Nimmi Nag as AW-2 and Nirmala Kachchh as AW-3. It appears from the evidence of AW-1 (non-applicant No.1/wife) that she is innocent and honest lady and she has stated all the truth before the learned Family Court without suppressing any material fact. Nimmi Nag (AW-2) has supported the evidence of AW-1 (non-applicant herein). At the time of marriage AW-2, Nimmi Nag was aged about 14 years. Nirmala Kachchh (AW-3) has narrated the fact of marriage and birth of non-applicant No.2 and she has stated that the applicant/husband used to visit Odisha at proper interval and he was residing alongwith non-applicants.
5 . The non-applicants have exhibited documents Ex.-P/1C, Aadhaar Card
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of non-applicant No.1 showing her husband's name as Ram Nayak, Ex.-P/2C Election ID Card of Tarun Nayak (non-applicant No.2) showing his father's name as Ram Nayak, Ex.-P/3 Aadhaar Card of Tarun Nayak showing name of Ram Nayak, mark sheets of non-applicant No.2 showing name of his father as Ram Kumar and one birth certificate Ex.-P/7 in which name of father is mentioned as Ram Panda.
6 . The applicant/husband examined himself and stated that he is resident of Village Charbahal, District Kalahandi, Odisha. He was married to Satyabhama on 17-06-1998 and out of such wedlock one daughter Ku. Aripsa Panda and one son Abhay Kumar Panda were born. He does not know nonapplicant No.1 herein. In cross-examination he has denied the most of suggestions given by the counsel for the non-applicants. Parmeshwar Gahir (NAW-2) has stated on the same line.
7 . The learned Family Court framed 7 issues and held that the nonapplicant No.1 is legally married wife of the applicant and non-applicant No.2 is his son, the non-applicants are unable to maintain themselves, the applicant herein is residing separately without any sufficient cause, the applicant herein has sufficient source of income and the claim made on behalf of non-applicant No.2 is not maintainable as he is major.
The learned Family Court recorded the finding that non-applicant No.1 is legally wedded wife of the applicant herein after relying upon the evidence of other witnesses and documents produced by her. The learned Family Court further held that the applicant/husband has sufficient source of income and he is liable to pay maintenance to non-applicant No.1 and after appreciation of the evidence awarded Rs.7000/- to the wife/non-applicant No.1 and rejected the claim of non-applicant No.2/son on the ground that he has attained the majority as at that time he was aged about 21 years.
8 . Learned counsel for the applicant submits that the non-applicant No.1 is
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not legally married wife of the applicant. There is no evidence in this regard, no place or date of marriage is pleaded in the application, nor it has been proved by the non-applicants, non-applicant No.2 is not son of the applicant. Therefore, he is not liable to pay maintenance to non-applicant No.1 as awarded by the learned Family Court.
9 . On the other hand learned counsel counsel for the non-applicants Mr. Tulsyan submits that strict standard of proof is not required in proceeding under Section 125 of the Cr.P.C.. Witnesses Smt. Kusum Panda (AW-1), Nimmi Nag (AW-2) and Nirmala Kachchh (AW-3) have clearly stated that the applicant was residing along with non-applicant No.1 and from cohabitation non-applicant No.2 was born on 08-06-1998. He further submits that an application was moved by the applicant before this Court on 22-11-2021 for DNA test and the same was allowed vide order dated 23-11-2021. The DNA test of the present applicant (husband), non-applicant No.1 (wife) and nonapplicant No.2 (son) was conducted and as per the DNA report, the applicant herein is the biological father of non-applicant No.2. The DNA report is part of record of this Court. Therefore, there is no doubt that the applicant herein is father of non-applicant No.2 and he stayed along with non-applicant No.1 for a considerable period.
10. I have heard the learned counsel for the parties and perused the records.
11. From the records it appears that the application under Section 125 of the Cr.P.C. was moved by non-applicants herein and the same was partly allowed by the learned Family Court holding therein that non-applicant No.1 is the wife and non-applicant No.2 is the son of the applicant herein.
12. In the case of Pyla Mutyalamma alias Satyavathi v. Pyla Suri
Demudu and Anr. , 2011 AIR SCW 6749 Hon'ble the Supreme Court has held in para No.10 that:-
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“10. In revision against the maintenance order passed in proceedings under Section 125, Cr.P.C., the revisional 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 a 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 child and the woman. This was the view expressed by the Supreme Court in the matter of Santosh (Smt.) v. Naresh Pal, as also in the case of Parvathy Rani Sahu v. Bishnu Sahu. Thus, the ratio decidendi 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, Cr.P.C. is that it should not be disturbed while exercising revisional jurisdiction.”
13. From reading of para 10 of the aforesaid judgment, it is conspicuous that the revision against the order granting maintenance in a proceeding under Section 125 of Cr.P.C. the revisional Court has no power to re-assess the evidence and substitute its own findings. In the present case, the Family Court has assessed and enumerated the evidence in proper perspective, it would not be apt to re-appreciate the evidence looking to the ratio laid down by the Hon'ble Supreme Court. Further, in case of Kamala v. M.R. Mohan Kumar , AIR 2018 SC 5128 Hon'ble the Supreme Court has held that in case of maintenance to wife strict proof of marriage is not necessary. Evidence of wife,
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birth certificate of children and other documentary evidence establishing the marriage between her and husband are sufficient.
14. Considering the evidence of the parties, findings recorded by the learned Family Court and the law laid down by the Hon'ble Supreme Court in
above cited cases, I am not inclined to interfere with the order passed by the learned Family Court. Consequently, this criminal revision is dismissed.
Sd/-
(Rakesh Mohan Pandey) Judge
Aadil
2 issues framed by the court
Whether the High Court can re-assess evidence and substitute findings in a revision against a Family Court order granting maintenance under Section 125 Cr.P.C.
Whether the Family Court's finding that the wife is legally married and the son is legitimate is legally sustainable.
Colour shows how this judgement treated each authority
Pyla Mutyalamma alias Satyavathi v. Pyla Demudu and Anr.Followed¶33
Pyla Mutyalamma alias Satyavathi v. Pyla Demudu and Anr., 2011 AIR SCW 6749 · Who else cites this
Santosh (Smt.) v. Naresh PalDistinguished¶35
Santosh (Smt.) v. Naresh Pal
Parvathy Rani Sahu v. Bishnu SahuDistinguished¶35
Parvathy Rani Sahu v. Bishnu Sahu
Kamala v. M.R. Mohan KumarApplied¶36
Kamala v. M.R. Mohan Kumar, AIR 2018 SC 5128 · Who else cites this
1 provisions across 1 enactments
Ram Panda S/o Nab Kishore Panda
Smt. Kusum Panda W/o Ram Panda
Tarun Panda S/o Ram Panda
Rakesh Mohan Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
