BEFORE THE HON’BLE HIGH COURT OF CHHATYISGARH AT BxLASPUR (C.G.) Cr.M.P. No. (3% /2oo7 PETETION UNDER. SECTION 482 OF THE CRIMINAL PROCEDURE CODE, 1973 Smt.' Sarita @ Kaushilya, wife of Shri Shesh Narayah @ Pomi Vishwakarma, D/o. Shri BaTgovind, aged about 30 years, Abhishek, S/o. Shri Shesh Narayan r @ Pomi VishWakaljma, aged about 11 years (minor) tiirough — natui’ai guardian - mother ‘ Le. Petitioner No.1 Both are resident of viiiage Basanpara, Sarbhoka, P.S. Patna, Tah. Baikunthpur, Distt. Korea (Chhattisgarh) VERSUS Shesn Narayan @F Pomi Vishwakarma, son of Shr Ramsharan Vishwakarma, caste Lohar, aged about 34 years, occupation — Service (s.E.‘c'.L.) Resident of viiiage Chif House Colony, Bartungi (Chirimiri) P.S. Chirmiri, Tah. Manendragarh, Distt. 1. Pét‘itione VS ,RESPoNDENT i a. Being aggrieved by the impugned order dated 16.10.2006, passed by Shri LR. Thakur, Additionai Sessions Judge, Baikunthpur, Distt. Korea in Criminai Revision No. 174/20€($hesh Narayan @ Pomi Vishwakarrna Vs. Sarita. aiias / Kaushilya and another) and 190/2005 (Sarita and another Vs. Sheshnarayan aiias Pomi Vishwakarma), the petitioners, named above, respectfuiiy prefer the instant petition inter alia on the foiiowing facts and grounds: FACTS OF THE CASE HIGH COURT OF CHHATTI$GARH : BILA$FUR Sinqie Bench: Hon’bie Shri Manindra Mohan Shrivastava. J. CLMP. No.63i201i7 PETiTlONER§ Smt. Sarita @ Kaushiiya and another Versus RESPONDENT Shesh Narayan @ Pomi Vishwakarma y PETiTiON UNDER SECTIGN £i32 (3F THE CéDE OF CRiMiNAL PROK‘EEDURE i #resent; - ShrE Shri Atanu Sunii Tripami, Ghash, ccunse! ccurisei fer for the ihe re‘spcndent.‘ petiiiorwers /‘« Gmf“. GREER (Passed an 2““ Q! Aggustg 2M1} This petition has been fiied by the petitioners aggrieved by order dated 16/10/06 passed by the revisionai Court by which the order dated 13/6/05 passed by the Magistrate has been reversed and the order of maintenance granted to the petitioner No.2 has been set aside and revision of the petitioner No.1 has been dismissed affirming the order of the Magistrate rejecting the application of the petitioner No.1 for grant of maintenance. 2. An appiication under $ection 125 CrPC was fiied by the petitioners before the Magistrate on the pieadings inter aiia that the petitioner No.1 was married to the respondent and out ofthe wediock, petitioner No.2 was born. it was aiieged that the petitioners were turned out of the house and the respondent is neither keeping them nor maintaining them. The respondent in his repiy denied soiemnization of marriage with the petitioner No.1 and stated that he had an affair with the petitioner No.1, and she iived aiong with him for a period of one month. The respondent further denied that petitioner No.2 was born out of the reiations between the petitioner Not and the respondent. After recording evidence, the teamed Magistrate rejected the appiication of the petitioner No.1 hoiding that there ts no proof of vatid marriage and therefore. petitioner No.1 cannot be termed as iegair‘y wedded wife, however, apptication of petitioner No.2 for grant of maintenance as ittegitimate chiid was aiiowed. Aggrieved by the order of the Magistrate, the respondent preferred a revision. The revisionai Court dismissed the revision of the petitioner No.1. However, the revisionai Court reversed the order passed by the Magistrate granting maintenance to petitioner No.2 by holding that there is no materiai to prove that petitioner No.2 was born out of the reiations between the petitioner No.1 and the respondent. t 3. Assaiiing the correctness and vaiidity ot' order passed by the Courts below, learned counsei for the petitioners submitted that the Courts beiow committed serious iiiegaiity in rejecting the application for grant of maintenance. in so far as reiection of appiigation of petitioner No.1 is concerned, learned counsei for the petitioners submitted that the petitioner No.1 in her testimony cteariy stated that she was married to the respondent which is uncontroverted because the respondent admitted his reiationship with the petitioner No.1. He submits that the version of the petitioner No.1 was supported by the witnesses of the petitioner even then the Court beiow wrongiy came to the conciusion that the petitioner No.1 has faiied to establish valid marriage between the petitioner No.1 and the respondent. 4. Learned counsei for the petitioners further submitted that as far as rejection of appiication of petitioner No.2 is concerned, the learned Magistrate by weii reasoned order, based on evidence and material avaiiabie on record came to the conciusion that the petitioner No2 was born out of the reiationship between the petitioner Not and the respondent, which has been reversed by the iearned revisionai Court exceeding jurisdiction by recording finding of fact and secondiy by recording fresh appreciation of evidence on record which is not perverse in Learned counsei for the petitioners submits that as against ctear and unimpeachable orai evidence. of petitioner No.1, her witnesses as atso witnesses of the respondent, the revisionai Court perverseiy recorded that there is no materiai evidence to ‘‘ ‘ estabiish that petitioner No.2 was born out of the retattons between y exercise of revisionai jurisdiction. petitioner No.1 and the respondent. 5. On the other hand, teamed counsel for the respondent argued that the petitioner No.1 and 2 are not entitied to any maintenance. He submits that the petitioner No.1 neither pieaded ,nor ied any evidence to show a vatid marriage performed between the parties foliowing Hindu iaw with regard to marriage and in the absence of such evidence, a mere assertion of marriage wouid not iead to claim of maintenance as the maintenance 3 can be awarded oniy to iegaHy wedded wife. He further submits thai both ihe Courts below recorded concurrent finding on this aspect, therefore, under Section 482 CrPC, the peiitioner No.1 is not entitied to seek re- appreciation of the materiai evidence on record. i 6. in so far as ciaim for maintenance to petitioner No.2 is concerned, iearned counsei for the respondent argued that the respondent cieariy stated in his evidence that though he had iove affair with the petitioner No.1, she iived 'oniy for a period of one month and the chiid was born after aimost three years of their separation. He submits that the teamed revisionai Court has aiready come to the conciusion that the certificate of birth is doubtfui. Therefore, finding in this regard, do not warrant interference. 7. As far as ctaim for maintenance for petitioner No.1 is concerned? i what’xi find is that the pieadings made in the application under $ection 1'25 ‘ g. CrPC is that the petitioner No.1 vagueiy stated regarding marriage. However, from the evidence of petitioner No.1 and her witnesses, this aspect was not found to be proved by the Courts beiow. The petitioner did not examine her first reiations. The applicants witness No.2 is said to be a priest who conducted marriage. The evidence has not been betieved by the Courts below. Therefore, the finding which has been recorded by the Courts below to hoid that there was no valid marriage, cannot be said to be perverse particulariy when the respondent has specificaiiy denied soiemnization of marriage. However in so far as ciaim for grant of , UI maintenance to petitioner No.2 is concerned, i find that the teamed revisionai Court was not justified in reversing the order of the Magistrate granting maintenance to petitioner no.2. The respondent does not altogether deny existence of relationship between himseif and petitioner No.1. He however, stated that he and petitioner No.1 tived together oniy for one month and petitioner No.2 was born after three years. However as against this evidence, non-appiioant witness — Rajesh Kumar in para 4 of his deposition stated that he had seen the petitioner No.1 iiving with 7 Sheshnarayan in his house during the year 1993-94. The evidence of petitioner No.1 that the chiid was born two years after the marriage, has not been controverted in his cross examination. Therefore. the evidence ‘ shows that the child was born in the year 1994. Therefore, the evidence on record was there to sustain the finding recorded by the Magistrate that the child was born out of the relationship between the petitioner No.1 and the resrondent. This finding of fact based on evidence ought not to have been interfered with by the revietonai Court in exercise of its revisionai it ’ j jurisdiction by re-appreciating the evidence on record. Even if the birth E certificate (exhibit P11) is kept aside, there was enough oral evidence on record to sustain the finding by the learned Magistrate. 8. in the result, this petition is aiiowed in part. As far as rejection of claim of petitioner No.1 is concerned, no interference is cailed for. The proceedings under Section 125 CrF’C are summary in nature and only 3 summary enquiry is contempiated whiie considering the application for grant of maintenance. in case, the petitioner no.1 ciaims to4 be the iegaiiy wedded wifegthe remedy. of seeking deciaration from the Civii Court is always open for her. The order of the revisionai Court to the extent it orders rejection of ciaim to the petitioner No.2 is hereby set aside and that of the Magistrate that Rs.800l— shaii be granted to petitioner No.2 wef. Deepli i June, 2005 is afhrmed. f// 7‘ Sd/— /5""‘“J iVlanindra Mohan Shrivastava Judge Msrm