Subhash Kumar vs The State of Jharkhand and Others

Harish Chandra Mishra, J.—Heard learned counsel for the petitioner and learned counsel for the State as also learned counsel for opposite party No. 2.

The petitioner is aggrieved by the order dated 9.5.2013 passed by learned Principal Judge, Family Court, Hazaribag, in Maintenance Case No. 95 of 2012, whereby rejecting the application of the petitioner, challenging the maintainability of the application for maintenance filed under Section 125 of the Cr.P.C., against the petitioner by opposite party No. 2 claiming herself to be the legally wedded wife of the petitioner, the Court below has directed the parties to enter into the evidence.

Opposite party No. 2 filed the application in the Court below under Section 125 Cr.P.C., for maintenance from the petitioner claiming herself to be legally wedded wife of the petitioner. The petitioner filed an application challenging the maintainability of that application stating the applicant is not his legally wedded wife, rather, she is wife of cousin of the petitioner and she is falsely claiming to be the wife of the petitioner. The reply thereto was filed by the opposite party No. 2 admitting the fact that she was the wife of cousin of the petitioner, but stating that her husband was traceless for about ten years and thereafter she married the petitioner, presuming her first husband to be dead. This fact, however, is challenged by the petitioner. The Court below rejected the application filed by the petitioner asking both the parties to lead their evidence.

The aforesaid interlocutory application has also been filed by the petitioner for stay of the proceedings in the Court below during pendency of this petition.

Learned counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal, inasmuch as, the applicant in the Court below is not the wife of the petitioner, rather, she is the wife of cousin of the petitioner, who is still alive and accordingly, the application under Section 125 Cr.P.C., was not maintainable in the Court below.

Learned counsel for the State as also learned counsel for opposite party No. 2 submitted that there is no illegality in the impugned order, inasmuch as, in view of the disputed question of fact, the Court below has directed the parties to enter into their evidence.

After having heard learned counsels for both the parties and after going through the record, I find that the maintainability of the proceeding in the Court below has been challenged by the petitioner disputing the claim of the applicant that she is the legally wedded wife of the petitioner. The fact whether the applicant in the Court below is the legally wedded wife of the petitioner or not, is now a disputed question of fact and, in my considered view, the only course open to the Court below was to ask the parties to enter into the evidence to prove their respective cases. The question raised by the petitioner cannot be decided in this proceeding and it can be judged only on the evidence by both the parties on the point of marriage. As such, there is no illegality in the impugned order, asking them to enter into evidence.

There is no merit in this criminal miscellaneous petition and the same is accordingly, dismissed. Consequently, the aforesaid interlocutory application also stands dismissed.