Amitav Kumar Gupta, J. - (1.) THIS Criminal Revision Application is directed against the order dated 02.04.2011 passed in Misc. Case No. 09 of 2005 by the learned Principal Judge, Family Court, Gumla, whereby the petitioner was directed to pay maintenance @ Rs. 2,000/ - per month to the minor daughter of O.P. No. 02.
(2.) MR . Ravi Prakash, learned counsel, for the petitioner, while assailing the impugned order, has submitted that O.P. No. 02 has not been able to prove that she is a legally wedded wife. At this juncture, he has filed photocopy of the judgment passed in G.R. Case No. 374 of 2005, which was instituted by O.P. No. 02, against the petitioner and other family members, wherein the court below has categorically held that O.P. No. 02 was not the legally wedded wife. It is further submitted that in the said case, O.P. No. 02 did not appear despite repeated notices sent to her, and this reflects on the conduct of O.P. No. 02, who is bent upon harassing the petitioner and other family members by filing frivolous and vexatious cases. That she has not come with clean hands. The other limb of the argument advanced by the learned counsel for the petitioner is that the learned Principal Judge has held that no documentary evidence was brought on record to substantiate the quantum of income of the petitioner. That the application was made by the O.P. No. 02 claiming maintenance @ Rs. 2,000/ - per month for herself and Rs. 7,00/ - per month for her daughter, however, the court below in spite of arriving at the finding that the petitioner did not have any source of income has awarded a sum of Rs. 2,000/ - per month to be paid to the minor daughter which is thrice the amount claimed by O.P. No. 02. That such an order is against the provisions of law, as there was no application for enhancement for the maintenance. On the above grounds, learned counsel, for the petitioner, has submitted that the impugned order is fit to be set aside as the factum of marriage has not been established and in view of the finding of the court in the case under Section 498A, the O.P. No. 02 is not the legally wedded wife, hence, the petitioner cannot be said to be the father of the child. Mr. Kripa Shankar Nanda, learned counsel, for the O.P. No. 02, has submitted that the learned Family Court, after appreciating the evidence on record, and testimony of the witnesses as also the documents produced, has held that the marriage of O.P. No. 02 was not valid as the petitioner's first marriage with Aashrita Devi was subsisting at the time of marriage of O.P. No. 02 with the petitioner accordingly, in terms of Section 5 of the Hindu Marriage Act. However, the court below has held that as per the custom prevalent in the community of O.P. No. 02 and petitioner, second marriage was permissible and the petitioner and O.P. No. 02 led conjugal life and a daughter was born from the said wedlock. That the claim of O.P. No. 02 was for maintenance amount of Rs. 2,000/ - for herself and Rs. 7,00/ - to the minor daughter thus, the award of Rs. 2,000/ - to the daughter is reasonable and the petitioner as a father of the child is morally and legally bound to provide for the maintenance to the daughter
(3.) HEARD . On going through the discussion of the evidence, by the learned court below it is evident that the learned trial court has held that as per the custom governing the parties second marriage was permissible but in view of Section 5 of the Hindu Marriage Act, 1955 the said marriage was not valid hence in terms of Section 125, O.P. No. 02, is not entitled to maintenance. It is amply clear that O.P. No. 02 had knowledge about the subsistence of the first marriage of the petitioner with one Aashrita Devi. On going through the show cause of the petitioner, it is explicit from Para - 2 that he has admitted that the O.P. No. 02's father induced him to sign on an affidavit and he had put his signature in haste as he did not have time to read the narration made in the affidavit. The learned Family Court has considered the evidence of P.W. - 3, Uday Shankar, the advocate clerk, who testified that he had typed the affidavit on the asking of the petitioner. His testimony has remained un -rebutted hence, the inference is drawn that the petitioner had full knowledge about the contents of the affidavit regarding the marriage with O.P. No. 02. It establishes the fact that petitioner and O.P. No. 02 led a conjugal life. Admittedly O.P. No. 02 entered into marriage with the petitioner having knowledge about the subsistence of the first marriage of the petitioner, hence, she does not come within the purview of legally wedded wife in terms of the explanation (b) of Section 125(1)(a) of Cr.P.C. However, the daughter born from said marriage is entitled to maintenance in terms of Section 125(1)(c) of Cr.P.C. The petitioner is legally and morally responsible for providing the maintenance to the daughter born out of the wedlock of the second marriage. While assessing the income the court below has held that no documentary evidence were adduced to substantiate the quantum of income of the petitioner however it held that the petitioner is an able bodied person. It has held that the minimum wages payable to a laborer is Rs. 2,00/ - per day and accordingly assessed the income of the petitioner @ Rs. 6,000/ - per month.;