A.S.NEHRA,J - (1.) KASHMIR Singh has filed this petition under Section 482 of the Code of Criminal Procedure for quashing the orders passed by the Additional Session Judge and Additional Chief Judicial Magistrate dated February 8, 1993 and December 2, 1991 respectively.
(2.) THE brief facts of the case are that Smt. Jito, her daughter Raj (minor) and her son Jarnail Singh (minor) filed an application under Section 125 of the Code of Criminal Procedure for seeking maintenance from the petitioner on the ground that Smt. Jito was the legally wedded wife and Raj and Jarnail were their children. It is further averred in the application that the petitioner was not maintaining them and had turned them out from his house. It is further alleged that the petitioner used to maltreat respondent No. 1 and that in 1982, she was taken to the house of the petitioner by the respectables on which the petitioner gave undertaking in writing that he would behave properly and keep the respondents with him, but he again started maltreating all the respondents and they were turned out again by the petitioner from his house without any reasonable cause and he was not maintaining them. In the written reply, the petitioner took the plea that Jito was not his legally wedded wife. He further averred that his first wife Jagir Kaur is living and she gave birth to two children from his loins; that his first wife developed mental incapacity and she is living with her parents with his consent and that thereafter, he came contact with Jito respondent No. 1 and started co-habiting with her and out of their union, respondent Nos. 2 and 3 were born. The petitioner further averred in the reply that as Jito respondents No. 1 did not like his children from his first wife and used to compel him to send his children out of the house to which he did not agree the respondents left his house without his consent. The petitioner further averred that he never maltreated the respondents.
(3.) IT is admitted fact that Jito was living with the petitioner and out of their wedlock respondent Nos 2 and 3 were born. Jito was living with the petitioner as his legally wedded wife. Petitioner examined Gurbax Singh RW 2 who deposed that Jagir Kaur the first wife of the petitioner is alive and living with her parents. If it was so, then the best evidence was to produce Jagir Kaur as witness in support of his contention that she was his first wife. Had Jagir Kaur been alive, she would have been produced as witness to rebut the claim of Jito respondent. There is no congent evidence on the record that co-respondent No. 1 disliked the children of the petitioner from his first wife Jagir Kaur. From the evidence of the AWs, it is proved that the marriage between Kashmir Singh-petitioner and Jito-respondent No. 1 was conducted through Anand Karaj. From the writing Ex. A-1, it in further proved that the relationship between Kashmir Singh and Jito was that of husband and wife and Kashmir Singh gave the undertaking that he would not maltreat her and he would keep the respondents. it means that Kashmir Singh had been maltreating the respondents and that is why the respondents are living separately from Kashmir Singh petitioner.;