Sunil Kumar Garg, J. - (1.) - All the aforesaid petitions are being decided by this common order as in all of them common and identical questions of facts and law are involved. S.B. Cr.Misc.Petition No.72/2003 And S.B. Cr.Revision Petition No.933/2002. 2. The misc. petition No.72/2003 under section 482 Cr.P.C. has been filed by Ram Chander against the judgment dated 4.10.2002 passed by the learned Addl. Sessions Judge, Anupgarh by which the revision petition filed by Ram Chander was allowed in part in the manner that the order dated 8.11.2001 passed by the learned Judicial Magistrate, First Class, Ghadsana District Sri Ganganagar in Cr.Misc Case No. 195M/96 was modified to the extent that the order granting maintenance of Rs. 500/- p.m. to Mst.Padma was set aside, but the order granting maintenance of Rs. 500/- p.m. to Radha Krishan (minor son of Mst.Padma) was maintained. 3. The revision petition No.933/2002 has been filed by Padma and her minor son Radha Krishan against the judgment dated 4.10.2002 passed by the learned Addl. Sessions Judge, Anupgarh in revision No.69/02 filed by Ram Chander, by which the order dated 8.11.2001 passed by the learned Judicial Magistrate, First Class, Ghadsana District Sri Ganganagar in Cr.Misc. Case No.195M/96 granting maintenance of Rs. 500/- p.m. to Mst.Padma was set aside. 4. The above petitions arise in the following circumstances: An application under section 125 Cr.P.C. has been filed by Padma (hereinafter referred to as the applicant) on behalf of herself and on behalf of her minor son Radha Krishan against Ram Chander (hereinafter referred to as the non-applicant) on 30.9.1996 before the Court of Judicial Magistrate, First Class, Ghadsana District Sri Ganganagar stating inter-alia that she was married with the non-applicant near about seven years back according to Hindu rites and as per capacity, dowry was given in the marriage and thereafter, both lived as husband and wife and performed the conjugal rights. It was further stated in that application by applicant that on 25.7.1996, she was shunted out from her in-laws' house on account of not bringing sufficient dowry and the non-applicant refused to accept her as his wife. Thereafter, a Panchayat was held in the village and in that Panchayat, Pannaram Bawri, Sahiram and Ramaram (AW4) were present and before the Panchayat, the non-applicant refused to accept her. Thereafter, a complaint under sections 498A and 406 Indian Penal Code was lodged by the applicant against the non-applicant and upon this, FIR No.258/96 was registered and that criminal case is still pending against the non applicant. It was further stated in that application that after marriage, both applicant as well as non-applicant lived together for about 5-6 years, but thereafter, non-applicant had left her, but still she is ready to go with him. It was further stated in that application that the non-applicant had sufficient agriculture land and therefore, his income is near about one lac per year. It was further stated in that application that because of that marriage a son was born to them, namely, Radha Krishan, who was at that time about 5 years of age. Therefore, at the end, it was prayed by the applicant that maintenance allowance of Rs. 1000/- p.m.(Rs.500/- p.m. for herself and Rs. 500/- p.m. for her minor son Radha Krishan) be granted. A regular reply to the said application under.section 125 Cr.P.C. was filed by the non-applicant on 21.11.2000 before th& Court of Judicial Magistrate, First Class, Ghadsana stating inter-alia that he was river married with the.applicant and thus, he denied the factum of his marriage with the applicant. He has also denied the fact that he and applicant lived together and he has also denied the fact of holding of Panchayat. He has further stated in that reply that about 11 years back, the applicant was married with one Manphool, resident of Binjor and she was legally wedded wife of Manphool and not his wife and since her character was. not good therefore, even Manphool had left her", but divorce had not taken place between' her and Manphdok He has further sated in that reply that since he and applicant had never lived together, therefore, no question arises that Radha Krishan was outcome of their living together. Hence, it was prayed that the application filed by the applicant under section 125 Cr.P.C. be rejected. On behalf of the applicant, five witnesses were produced, namely, AW I Padma (applicant herself), AW2 Sanwataram, AW3 Ramswaroop, AW4 Ramaram and AW5 Saturam. From the side of the non-applicant, four witnesses were produced, namely, NAW 1 Sardari Devi, mother of Manphool (who was husband of the applicant as alleged by the non-applicant in his reply), NAW 2 Bhuraram, NAW 3 Ram Chander (non applicant himself) and NAW 4 Mahiram. After considering the entire material and evidence available on record and after hearing both the parties, the learned Judicial Magistrate, First Class, Ghadsana through order dated 8.11.2001 allowed the application filed under section 125 Cr.P.C. and granted maintenance allowance to the tune of Rs. 500/- p.m. to the applicant Padma and Rs. 500/ - p.m. to her minor son Radha Krishan total Rs. 1000/- p.m. holding inter-alia: (i) That applicant was the wife of the non applicant and Radha Krishan was outcome of the marriage between applicant and non-applicant. (ii) That applicant was living alone and not with the non-applicant because of fear of beating by the non-applicant, arid that was the sufficient cause or ground for living her separately, (iii) That the applicant was not in a position to maintain herself and her minor son Radha Krishan and even the father of the applicant was not in a position to maintain the applicant and her minor son Radha Krishan. Aggrieved from the said order dated 8.11.2001 passed by the learned Judicial Magistrate, First Class, Ghadsana, the non-applicant preferred a revision petition before the learned Addl. Sessions Judge, Anupgarh District Sri Ganganagar, who through impugned judgment dated 4.10.2002 partly allowed that revision petition and set aside that proton of the order of the learned Judicial Magistrate dated 8.11.2001 by which maintenance allowance to the tune of Rs. 500/- p.m. was granted to the applicant Padma, but maintained that portion of the order of the learned Judicial Magistrate dated 8.11.2001 by which maintenance allowance to the tune of Rs. 500/- p.m. was granted to minor son Radha Krishna holding inter-alia: (i) That wife means a legally wedded wife and wife does not include kept mistress. (ii) That since the applicant Padma was the legally wedded wife of one Manphool and since she had not sought divorce from Manphool, therefore, she could not be regarded as legally wedded wife of non-applicant Ram Chander, though she might be living with the non-applicant for a long time and the relationship of living together by the applicant and non-applicant can be regarded as Nata only and thus, she was not entitled to claim maintenance allowance from the non-applicant. (iii) That however, so far as granting of maintenance allowance to minor son Radha Krishan is concerned, since Radha Krishan was outcome of living together by the applicant and non-applicant, therefore, Radha Krishan was entitled to maintenance allowance from the applicant. Aggrieved from that portion of the judgment dated 4.10.2002 by which the learned Addl. Sessions Judge, Anupgarh maintained the order of learned Judicial Magistrate dated 8.11.2001 granting maintenance allowance to the tune of Rs. 500/- p.m. to minor son Radha Krishan, the non-applicant Ram Chander has filed misc. petition No.72/03 under section 482 Cr.P.C. before this Court. Similarly, aggrieved from that portion of the judgment dated 4.10.2002 by which the leaned Addl. Sessions Judge, Anupgarh set aside the order of learned Judicial Magistrate dated 8.11.2001 granting maintenance allowance to the tune of Rs. 500/- p.m.to the applicant Padma, the applicant Padma has filed revision petition No.993/02 before this Court. 5. The main contention of the non-applicant Ram Chander is that when the applicant Padma was not his legally wedded wife as observed by the learned Addl. Sessions Judge in his impugned judgment dated 4.10.2002, therefore, to say that Radha Krishan, minor son was outcome of their living together, is wholly wrong one an thus, awarding of maintenance allowance to the tune of Rs. 500/- p.m. to minor son Radha Krishan by the courts below through impugned judgment and order is wholly illegal and without jurisdiction. 6. On the other hand, the case of the applicant is that she was the wife of the non applicant Ram Chander and Radha Krishan, minor son was outcome of their marriage and thus, she and her minor son Radha Krishan were rightly awarded maintenance allowance by the learned Judicial Magistrate, but the learned Addl. Sessions Judge has wrongly set aside the order of learned Judicial Magistrate granting maintenance to her to the tune of Rs. 500/- p.m. The approach of the learned Addl. Sessions Judge in setting aside the order of granting maintenance to her was wholly erroneous and perverse one. Hence, the impugned judgment of the learned Addl. Sessions Judge setting aside the order of the learned Judicial Magistrate allowing maintenance allowance to her cannot be sustained and liable to be quashed and set aside. 7. I have heard the learned counsel appearing for the applicant and the learned counsel appearing for the non-applicant and gone through the record of the case. 8. From perusing the application filed by the applicant under section 125 Cr.P.C. it appears that the applicant has nowhere mentioned the fact that she was ever married with Manphool and not only this, she has not given the date when her marriage took place with the non-applicant. According to the applicant, she was married with non-applicant according to Hindu rites. Therefore, the specific case of the applicant is that her marriage took place with the non-applicant. 9. On the contrary, the specific case of the non applicant is that the applicant was never married with him, but, she was married 11 years back with Manphool and reply was filed by the non-applicant on 21.11.2000 meaning thereby according to the non-applicant, marriage between the applicant and Manphool took place in the year about 1989. The application was filed by the applicant on 30.9.1996 and in that application, she has stated that she was married with non-applicant about 7 years back meaning thereby in the year about 1989. 10. The applicant in her statement recorded as AW I has denied the fact that she was married with Manphool, but she has given evasive reply on the point that Manphool used to live in village Binjor and his mother was Sardari Devi, N AW 1. 11. AW 2 Sanwataram, who is father of the applicant, has also stated that he cannot say when the applicant was married with non-applicant. Similar is the statements of AW3 Ramswaroop, who is brother of the applicant, AW4 Ramaram and AW5 Saturam. 12. N AW 1 Sardari Devi is the mother of Manphool and she has clearly stated that the applicant was married with her son Manphool and not with non-applicant. She has further admitted that Manphool had died 4-5 years back and her statement was recorded on 14.9.2001 meaning thereby Manphool died in the year about 1995-96. 13. Similar is the statement of N AW 2 Bhuraram on the point that applicant was married with Manphool and not with the non-applicant. 14. The non-applicant has also admitted in his statement recorded as N AW 3 that applicant was married to Manphool and Manphool had died, but he has not mentioned the date when Manphool died. 15. Therefore, the fact that the applicant was earlier married to M.anphool cannot be denied because NAW 1 Sardari Devi, who is mother of Manphool has categorically stated that applicant was married with Manphool. 16. Thus, after going through the averments made in the application filed by the applicant under section 125 Cr.P.C. and the reply to the said application filed by the non-applicant and after going through the impugned revisional judgment and order of the learned Judicial Magistrate and the evidence available on record, it appears that the applicant has not stated the fact that she was earlier married to Manphool and she has concealed that fact and there is no specific mention of the fact as to when Manphool, who is said to be earlier husband of the applicant, died and it is also not clear as to when applicant married with non-applicant and started living together and on that day, whether Manphool was alive or not and in case Manphool was alive and divorce had not taken place between applicant and non applicant took place and they started living together, then the said marriage between applicant and non-applicant would be null and void and their living together would not create any legal right in favour of the applicant. The learned Addl. Sessions Judge in his impugned judgment has clearly observed that since divorce had not taken place between applicant and Manphool, therefore, the marriage of applicant with non-applicant was no marriage at all. 17. Furthermore, under section 125 Cr.P.C. wife means only legally wedded wife. In case, the applicant started living with non-applicant in presence of her earlier husband Manphool, in such a situation, the status of the applicant would be of a kept mistress an she cannot be regarded as legally wedded wife. 18. In my considered opinion, since it is not clear as to when Manphool, who is earlier husband of the applicant, died and when marriage between applicant and non-applicant took place and they started living together and whether on the day when applicant and non-applicant started living together Manphool was alive or not and these aspects are relevant for considering and deciding application under section 125 Cr.P.C. and both the courts below have not dealt with the above aspects of the matter and apart from this, the present case is not a case where applicant and non-applicant lived together for a long time.but the specific case of the applicant is that she was married with the non-applicant seven years back from the date of presentation of application under section 125 Cr.P.C. according to Hindu rites and that fact has been categorically denied by the non-applicant and thus, the applicant has to prove the basic requirement of performance of traditional Hindu Marriage by evidence and for that the burden lis on her and the findings of the courts below are only with respect to living together by applicant and non-applicant, but that aspect whether traditional Hindu marriage ceremonies had taken place or not is silent, therefore, in the peculiar facts and circumstances of the case, it would be just and proper to remit the matter back to the learned Judicial Magistrate for fresh enquiry and findings on the above points and thereafter, to decide the main application under section 125 Cr.P.C. filed by the applicant afresh on merits in accordance with law and in the light of the observations made by this Court in this order, within a period of four months from today and before deciding the matter-afresh, the learned Judicial Magistrate shall give opportunity of hearing to both the parties to put up their respective case on the above points and if necessary, the learned Judicial magistrate may record further evidence of the parties. In coming to the above conclusion, reliance has been placed on the law laid down by the Hon'ble Supreme Court in Sumitra Devi v. Bhikan Choudhary, 1985 (1) SCC 637 . 19. The result of the above discussion is that the findings of both the courts below on point of factum of marriage cannot be sustained and liable to be set aside and consequently, the impugned revisional judgment and the order of learned Judicial Magistrate are liable to be quashed and set aside and the matter is to be remitted back to the learned Judicial Magistrate for fresh enquiry on the points stated above. 20. Accordingly, the misc. petition No.72/2003 filed by the non-applicant Ram Chander and the revision petition No.933/2002 filed by the applicant Padma are disposed of in the following manner: (i) That the impugned revisional judgment dated 4.10.2002 passed by the learned Addl. Sessions Judge, Anupgarh and the order dated 8.11.2001 passed by the learned Judicial Magistrate, First Class. Ghadsana District Sri Ganganagar are quashed and set aside. (ii) That the matter is remitted back to the learned Judicial Magistrate, First Class, Ghadsana District Sri Ganganagar with a direction to make fresh enquiry on the points mentioned above and to give findings on these points and thereafter, to decide the main application under section 125 Cr.P.C. filed by the applicant afresh on merits in accordance with law and in the light of the observations made by this Court in this order, within a period of four months from today. Before deciding the matter afresh, the learned Judicial Magistrate shall give opportunity of hearing to both the parties to put up their respective case on the above points and if necessary, the learned Judicial Magistrate may record further evidence of the parties. The parties are directed to appear before the learned Judicial Magistrate on 21.5.2004. Office is directed to send the record of the courts below immediately. S.B. Cr. Revision Petition No. 11/98 21. This revision petition has been filed by the non-applicant Ram Chander against the order dated 21.11.1997 passed by the learned Addl. Sessions Judge, Raisinghnagar camp at Anupgarh by which he allowed the revision petition filed by Padma on her behalf and on behalf of her minor son Radha Krishna (respondents Nos.2 and 3 respectively) and set aside the order dated 28.3.1997 passed by the learned Judicial Magistrate, First Class Ghadsana dismissing the application for interim maintenance and directed the non-applicant Ram Chander to pay interim maintenance allowance to the tune of Rs. 250/- p.m. to the respondent No.2 Padma and Rs. 250/- p.m. to minor son Radha Krishna (respondent No.3). 22. While admitting the petition, this Court vide order dated 7.1.1998 stayed the operation of the revisional judgment dated 21.11.1997 passed by the learned Addl. Sessions Judge, Raisinghnagar Camp Anupgarh and that stay order dated 7.1.1998 was confirmed till the decision of the main revision petition vide order dated 14.1.2000. 23. Looking to the fact that the learned Judicial Magistrate has dismissed the application for interim maintenance vide order dated 28.3.1997 and since the final orders passed by both courts below under section 125 Cr.P.C. have been set aside by this Court and the matter has been remitted back to learned Judicial Magistrate to decide the main appellation filed by the applicant under section 125 Cr.P.C. afresh within four months from today, therefore, it would not be proper now to maintain the impugned revisional judgment dated 21.11.1997 passed by the learned Addl. Sessions Judge Raisinghnagar Camp Anupgarh and the same is liable to be quashed and set aside. Accordingly, the revision petition No. 11/98 filed by the non-applicant Ram Chander is allowed and the impugned revisional judgment dated 21.11.1997 passed by the learned Addl. Sessions Judge, Raisinghnagar Camp Anupgarh is quashed and set aside.;