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Judgment
This criminal revision has been filed under Section 19(4) of Family Courts Act read with Section 397 of Cr.P.C. against the order dated 30.8.2016 passed by learned Principal Judge, Family Court, Ratlam in M.Cr.C.No.219/2015, whereby learned Principal Judge allowed the applicant''s application filed under Section 127 of Cr.P.C and partly modified its earlier order dated 12.2.2015 passed in M.Cr.C.No.706/2014 whereby he had directed the non applicant to pay Rs 2500/- per month as maintenance to applicant and Rs.1000/- per month to her minor daughter and set aside his earlier direction regarding giving Rs.2,500/- per month as maintenance to applicant.
Brief facts of the case which are relevant to the disposal of this petition are that earlier applicant filed an application under Section 125 of Cr.P.C. before Principal Judge, Family Court, Ratlam for getting maintenance from non-applicant for herself and her daughter Sofia. On that application M.Cr.C.No.706/2014 was registered, which was disposed by Principal Judge, Family Court, Ratlam by order dated 12.2.2015, whereby learned Principal Judge allowed the application and directed the non-applicant to pay Rs.2,500/- per month as maintenance to applicant No.1 and Rs.1,000/- per month to her daughter Sofia/applicant No.2.
After some time on 9.9.2015 non-applicant filed an application under Section 127 read with Section 125(5) of Cr.P.C.for modifying that order averring that applicant obtained that order by misleading the Court mentioning that she is unable to maintain herself, while applicant is working as a Helper in Anganwadi, Shivgarh and earned Rs.5,000/- per month and she also did sewing and embroidery work and earned Rs.5,000/- per month and is able to maintain herself. She is living with Jahid as his wife. She also married with Jahid on 20.10.2011. In this regard she also executed one document. She is living in adultery so she is not entitled to get maintenance from him and praying for rejection of earlier order dated 12.2.2015 by which Court directed the non-applicant to give Rs.2,500/- per month to applicant.
In reply, non-applicant opposed the prayer and denied all the allegations and also denied that she lived with Jahid as his wife or married with Jahid or executed any document in that regard. She also denied from the fact that she worked as Helper in Anganwadi, Shivgarh and earned Rs.5,000/- per month and prayed for rejection.
Learned trial Court after recording evidence of both the parties allowed the application of non applicant and modified the earlier order dated 12.2.2015 observing that it is proved that applicant has been married with Jahid and so she is not entitled to get maintenance from non-applicant from the date of second marriage i.e. 20/10/11. Being aggrieved with the same, applicant filed this criminal revision.
Learned counsel for the applicant submitted that learned trial Court wrongly held that applicant got married with Jahid and executed agreement Ex.P/1 in this regard relying on the Ex.P/1 which had been got fraudulently executed from the applicant.
This Court has gone through the record and the arguments put forth by the learned counsel for the parties. It appears from the record that non applicant Mohammad Khan filed an application under section 127 of the Cr.P.C for modifying the earlier order dated 12.02.2015 passed by the Principal Judge, Family Court, Ratlam in M.Cr.C.No.706/14 granting maintenance to the applicants on the ground that applicant/wife is working as an Anganwadi worker at Shivgarh and earns Rs.5,000/- per month and she also earns Rs.5,000/- per month from the work of stitching and embroidery work, hence she is capable to maintain herself. The further ground raised by the non-applicant is that applicant/wife got married with one Jahid on 20.10.2011 and she lives with him as wife.
As regards the allegation of nonapplicant/husband that the applicant/wife is capable of maintaining herself as she is working as an Anganwadi worker and also earns from the work of stitching and embroidery work, the non-applicant has not produced any documentary evidence in this regard to prove his allegation. On the contrary, the applicant in her Court statement clearly denied the allegation made by the non-applicant, therefore, it is not proved that the applicant is capable of maintaining herself and the child.
As regards the allegation that the applicant got married with Jahid and executed Ikrarnama (Ex.P/1) although non-applicant examined Rajendra Prasad Sharma (PW/2) who in his evidence deposed that applicant/wife executed one Ikrarnama (Ex.P/1) regarding her marriage with Jahid and he notarized that document but the applicant in her deposition clearly denied this allegation and stated that Jahid is the son of her aunt and he is mentally disabled and not in a position to enter into any wedlock. She also clearly denied the allegation that she is living with Jahid as his wife. She also denied from the fact of execution of Ikrarnama and stated that the document was executed fraudulently.
In the Ikrarnama (Ex.P/1) it is only mentioned that applicant married with Jahid on 20.10.2011 while this document was executed on 28.01.2012. It is not a Nikahnama but only an admission made by the applicant that she had earlier married with Jahid on 20.10.11. However, the applicant herself denied this fact and deposed that she did not marry Jahid, therefore, only on the basis of the Ikrarnama (Ex.P/1) it cannot be assumed that the applicant married with Jahid.
Although non applicant gave suggestion to applicant in her cross examination that her Nikah with Jahid took place at Halwai Wali Masjid situated at Sarvgyan Mohalla but non applicant did not opt to examine any of the witnesses, who had allegedly witnessed the Nikah of applicant and also did not examine the Qazi or the Wakil, by whom said Nikah was performed and neither produced any Nikahnama. If the applicant had married with Jahid, she would have been living with him after the marriage but non applicant did not opt to examine any of the witnesses, who has seen the applicant staying with Jahid. This way, the petitioner failed to prove that applicant got married with Jahid. In the considered opinion of this Court learned trial Court committed mistake in holding that the applicant got married with Jahid only on the basis of the alleged Ikrarnama. Hence, the non-applicant has failed to prove the allegation of marriage of applicant with Jahid.
Even otherwise, according to section 125 Cr.P.C, in order to deny maintenance, it is necessary to prove that applicant is living in adultery. While the applicant did not depose that he has seen applicant living with Jahid, nor has any such witness been presented by him who has seen applicant living with Jahid, therefore, only on the basis of the alleged Ikrarnama it cannot be held that applicant married with Jahid.
In view of the above, in the considered opinion of this Court, learned trial Court also committed mistake in holding that applicant got married with Jahid only on the basis of the alleged Ikrarnama and she is living with Jahid in adultery. Consequently, the revision petition is allowed and the impugned order is hereby set aside. This petition is disposed off accordingly.