1. This revision is directed against order dated 10.8.2009 passed by the learned Judge, Family Court, Cuttack in Criminal Proceeding No.812 of 2002 directing the petitioner under Section 125 of the Cr.P.C. to pay to the opposite party Rs.1,000/- and her son Rs.500/- towards maintenance from the date of application subject to adjustment of interim maintenance already paid alongwith litigation cost of Rs.2,000/-.
2. Asserting her to be the petitioner's wife, opposite party filed application for award of maintenance at the rate of Rs.2,000/- for herself and Rs.1,000/- for her minor son per month and Rs.2,000/- towards litigation expenses. According to opposite party, her marriage with the petitioner was solemnized on 12.3.1993 in accordance with Hindu rites and customs. In response to petitioner's demand, opposite party's father paid sum of Rs.40,000/- alongwith gold ornaments and other household articles at the time of marriage. Out of their wedlock a male child was born on 19.5.1994 after which the petitioner took them to his to Bhubaneswar where he was working. While living in Bhubaneswar the petitioner subjected the opposite party to physical and mental torture in connection with his demand for Rs.40,000/- as dowry in order to purchase a car. Opposite party's father could manage to pay to the petitioner Rs.20,000/- only which was utilized by the petitioner for purchasing household articles. Also, petitioner remained absent for a period of five to six days in a month on the pretext of undertaking official tours. On 15.9.2001 the petitioner came to his house with one Lovabati Mallik (O.P.W. 2) and on being asked he stated that she was working in his office. Petitioner also stated that O.P.W.2 would reside with them in the house as petitioner's mistress as he had married her. On enquiry she could learn that the petitioner had illicit relationship with O.P.W.2 prior to her marriage. During the stay of O.P.W.2 in their house, petitioner physically assaulted opposite party on many occasions at the instance of O.P.W.2. Finding no other way opposite party sent information regarding the situation to her father's house. On intervention of some persons including opposite party's cousin brother, the matter was compromised and it was decided that the petitioner would not have any relationship with O.P.W.2 and she would not be allowed to live in their house. However, on the very day, after departure of persons on whose intervention compromise had been effected, petitioner and O.P.W.2 tied opposite party's hands and legs and assaulted her by means of a lathi. When she shouted they gagged her by a piece of cloth. When opposite party's son started shouting, petitioner and O.P.W.2 left the house and resided together in another house. Opposite party apprehending danger to her life came to her father's house with her son. Opposite party's father and other relations tried to meet the petitioner but he avoided them. In such circumstances, opposite party lodged F.I.R. on the basis of which Khandagiri P.S. Case No.289 of 2001 was registered and in course of investigation petitioner and O.P.W.2 were arrested. Petitioner having no source of income to maintain herself and her son who was reading in Class-III whereas the petitioner's had income of Rs.7,000/- per month from salary and Rs.50,000/- per annum from agricultural land, application for maintenance was filed.
3. In his written statement petitioner admitted that he was an employee in the office of Executive Engineer, Central Ground Water Board, Bhubaneswar but he denied the allegations made by the opposite party. However, it was averred that his salary was around Rs.2,200/- per month. He also denied to have received Rs.40,000/- alongwith gold ornaments as well as other household articles towards dowry. It was asserted in the written statement that opposite party lodged F.I.R. against him and O.P.W.2 on false allegations. It was categorically averred in the written statement that paternity of opposite party's son is questionable.
4. In order to substantiate their respective assertions, opposite party examined three witnesses including herself as P.W. 1 and relied upon documents marked Exts. 1 to 7 whereas petitioner examined two witnesses including himself as O.P.W.1 and relied upon documents marked Exts. 'A' to 'D'.
5. In assailing the impugned order the following contentions were raised by the learned counsel for the petitioner:
(i) as opposite party's son did not figure as one of the petitioners in the application under Section 125 of the Cr.P.C., he is not entitled to maintenance; (ii) in the absence of any reason assigned by the learned Judge, Family Court, Cuttack, direction to pay maintenance amount from the date of application is not sustainable; and
(i) learned Judge, Family Court, Cuttack committed illegality in holding that opposite party is legally married wife of petitioner inasmuch as petitioner adduced cogent evidence to establish that petitioner had married O.P.W.2 and their marriage was subsisting when petitioner took opposite party as his wife.
In support of his contentions learned counsel for the petitioner relied upon the decisions in Savitaben Somabhai Bhatiya vrs.- State of Gujarat & Ors. : 2005 (4) SBR 91, Tankadhar Nath vrs.- Pravabati Nath : (1991) 4 OCR 11, Smt. Yamunabai Anantrao Adhav vrs.- Anantrao Shivram Adhav and another : 1988 CRI.L.J. 793, Arunabehn T. Ramanuj vrs.- Vasudev P. Nimavat : 1993 (1) Crimes 16 Gujurat, Raibari Behera vrs.- Mangaraj Behera : 54 (1982) C.L.T. 566, Mohd. Ismail vrs.- Smt. Bilquees Bano : 1997 (4) Crimes 154, Dharmendra Kumar Gupta vrs.- Mrs. Chandra Prabha Devi : 1990 (3) Crimes 206 Allahabad and Harpal vrs.- Smt. Meena Devi : 1993 (2) Crimes 623 Allahabad.
6. In reply, it was submitted by the learned counsel for the opposite party that in the body of the application opposite party had pleaded that she needed maintenance of Rs.2,000/- per month for her and Rs.1,000/- per month for her minor son. Therefore, even in the absence of portrayal of her minor son as one of the petitioners in the cause title and in the absence of specific mention in the prayer portion of the application for grant of maintenance to her minor son, learned trial court was perfectly justified in awarding maintenance to the minor son also. As learned trial court had granted interim maintenance during the pendency of the proceeding, upon considering the facts and circumstances of the case, no further reason was required to be assigned for grant of maintenance from the date of application. It was further contended that in his written statement the petitioner neither denied his marriage with opposite party nor pleaded that at the time of his marriage with opposite party, his marriage with O.P.W.2 was subsisting. There is no whisper in the written statement regarding marriage between the petitioner and O.P.W.2. In such circumstances, learned Judge, Family Court, Cuttack rightly ignored petitioner's assertions in this regard. Learned counsel for the opposite party relied upon the decisions in Smt. Jasbir Kaur Sehgal vrs.- The District Judge, Dehradun and others : 1997 (II) OLR (SC) 379, Iqbal Bano vrs.- State of U.P. and another : 2007 (II) OLR (SC) 773, Dwarika Prasad Satpathy vrs.- Bidyut Prava Dixit and another : AIR 1999 SC 3348 and Kanhu Charan Jena vrs.- Smt. Nirmala Jena : 90 (2000) C.L.T. 707 in support of his contentions.
7. The first contention raised on behalf of the petitioner objecting to award of maintenance in favour of opposite party's minor son desires mention to be rejected only. In paragraphs 11 and 12 of the maintenance application, the opposite party has pleaded :
"11. That the petitioner has no income of her own and she is leading a miserable life alongwith her son who is now reading in Class-III at Jojangi Abulpura U.G.M.E. School. The opp. Party who is earning Rs.7,000/- per month from service and Rs.50,000/- per annum out of agricultural land did not provide any maintenance to the petitioner.
12. that under the aforesaid fact and circumstances the petitioner needs Rs.2000/- per month for her maintenance and Rs.1000/- per month for her minor children's maintenance, clothing and education, unless the opp. party will be directed to prove the same the petitioner will die out of starvation." (sic)
In the body of the application also it has been categorically pleaded that a male child was born out of opposite party's wedlock with the petitioner and, therefore, there is absolutely no merit in the contention that the petitioner did not make application for award of maintenance to the minor child also. In Smt. Jasbir Kaur Sehgal vrs.- The District Judge, Dehradun and others (supra), arising out of proceeding under Section 24 of the Hindu Marriage Act, 1955, it has been laid down by the Hon'ble Supreme Court that if the wife has no independent income or support and for litigation expenses and also maintaining her daughter, her right to claim maintenance includes the right to claim maintenance of unmarried daughter.
8. Relying upon the decisions of the Allahabad High Court in Mohd. Ismail vrs.- Smt. Bilquees Bano (supra), Dharmendra Kumar Gupta vrs.- Mrs. Chandra Prabha Devi (supra) and Harpal vrs.- Smt. Meena Devi (supra), it was contended by the learned counsel for the petitioner that in absence of any special reason assigned by the learned Judge, Family Court, Cuttack, direction to pay maintenance from the date of application is not sustainable in law. However, in Kanhu Charan Jena vrs.- Smt. Nirmala Jena (supra) relied upon by the learned counsel for the opposite party, it has been held by this Court:-
" Ordinarily, if maintenance is granted, direction is usually given for payment of maintenance from the date of the application. Where, however, some interim maintenance is paid, subsequently the Court may direct that maintenance as decided in the final order may be paid from the date of the final order. Similarly, where the case is unnecessarily lingered due to laches of the wife, the Court may for justifiable reason direct that payment of maintenance should be from the date of order and not from the date of application. No hard and fast rule can be laid down on this aspect and the matter is essentially one of discretion of the Court. In the present case, the Magistrate had not given any reason as to why maintenance is to be paid from the date of the order and not from the date of application. The revisional Court has considered this aspect and has directed that maintenance should be paid from the date of application. While exercising jurisdiction under section 482, Code of Criminal Procedure, there is hardly any scope for interference with such discretionary order of the revisional Court."
Moreover, in the present case, considering the facts and circumstances, interim maintenance had been granted. Therefore, the learned trial court required to assign no further reason in support of the direction that the opposite party and her son were entitled to maintenance since the date of application.
9. The third and most vital contention raised on behalf of the petitioner is with regard to opposite party's claim to be his legally married wife. This contention is based on the assertion that the petitioner had married O.P.W.2 prior to his marriage, if any, with the opposite party, it is argued that the term 'wife' refers only to legally married wife. If either party has a spouse living at the time of marriage, marriage is invalid and void under the Hindu Marriage Act. Marriage of a woman with a man already having spouse living as per Hindu rites is a complete nullity. In this context decisions in Savitaben Somabhai Bhatiya vrs.- State of Gujarat & Ors. (supra), Tankadhar Nath vrs.- Pravabati Nath (supra) and Smt. Yamunabai Anantrao Adhav vrs.- Anantrao Shivram Adhav and another (supra) were pressed into service. There is no dispute to the proposition of law that a wife claiming maintenance under Section 125 of the Cr.P.C. has to be a legally married wife and that the Hindu Marriage Act does not recognize a second marriage during subsistence of previous marriage. However, in the present case, it is observed that the petitioner in his written statement did not deny status of the opposite party as his wife as claimed by her in the application under Section 125 of the Cr.P.C. The written statement filed by the petitioner is also altogether silent regarding his marriage, if any, with O.P.W. 2. Opposite party laid cogent evidence regarding solemnization of her marriage with the petitioner by examining herself as well as two other witnesses. Out of whom P.W.2 took photographs of the marriage ceremony. She also filed voter identity cards depicting her as wife of the petitioner. It was only in course of cross-examination of the opposite party it was suggested on behalf of the petitioner that she was not married to him and that O.P.W.2 is his married wife. No independent witness was examined on behalf of the petitioner to prove solemnization of his marriage with O.P.W.2. In course of his cross-examination, petitioner, in spite of categorically denying his relationship with the opposite party and her minor son, deposed; "I do not know if I have a son through the petitioner Urmila and if that son is now residing with petitioner. I do not know if video recording of my marriage with Urmila Nayak, petitioner is filed in this case in a C.D."
10. Learned counsel for the petitioner made an attempt to come over the obstacle of non-pleading of material facts upon reliance to the decisions in Arunabehn T. Ramanuj vrs.- Vasudev P. Nimavat (supra) and Raibari Behera vrs.- Mangaraj Behera (supra). Neither of the decisions relied upon by the learned counsel for the petitioner supports the plea that even in the absence of pleading in the written statement filed in a proceeding under Section 125 of the Cr.P.C., evidence adduced in support of an objection can be accepted. In the aforesaid decisions it has simply been held that the law of pleading for civil cases is more strict and loose pleading in an application under Section 125 of the Cr.P.C. would not be fatal to the applicant. As has been reiterated by the Hon'ble Supreme Court in Iqbal Bano vrs.- State of U.P. and another (supra), proceedings under Section 125 of the Cr.P.C. are civil in nature. In Dwarika Prasad Satpathy vrs.- Bidyut Prava Dixit and another (supra), it has also been laid down that in proceedings under Section 125 of the Cr.P.C., which are summary in nature, strict proof of performance of essential rites is not required. In the present case, opposite party categorically pleaded, and also laid evidence to substantiate the pleading, that her marriage with the petitioner was solemnized as per Hindu rites and customs. In his written statement, the petitioner did not deny such averments made in the application. He also did not plead regarding his marriage with O.P.W.2. Therefore, this is not even a case of loose pleading on the part of petitioner. In the absence of pleading, denial of factum of marriage at a belated stage on the ground of subsistence of previous marriage, has to be ignored. There is no merit in the third contention also.
11. In view of the above discussion, there is no merit in the revision application. Therefore, the revision is dismissed. Revision dismissed.