VEENA WANKHEDE vs SUBHASH RAO WANKHEDE

This Criminal Revision is filed under Section 397/401 r/w section 19(2) of Family Courts Act and is directed against the order passed by learned Principal Judge of family Court, Jhabua in Miscellaneous Criminal Case No.8/2015 dated 09.10.2015 whereby learned family Court dismissed an application filed by present applicant under Section 125 of Cr.P.C. and refused to grant any maintenance to her.

The relevant facts are that the present applicant filed an application before the family Court stating therein that she went to Bazar in the year 2014, when the respondent came in a Toofan vehicle alongwith his brothers Ravji, Ramesh, Tanu and sister Jhabba Bai and they forcibly took the prosecutrix with them and they forcibly got her married to the respondent. As his wife, she remained in house of the respondent for four months, and thereafter, she was left in her parental house by the respondent, and thereafter, he never came back to take her back to her matrimonial house. He subsequently, married to another woman Anita D/o of Savia. It is further stated that prior to the incident of taking the applicant by the respondent, she was engaged to the respondent and it was agreed between the family that marriage would take place after four months, however, before lapse of period of four months, she was taken forcibly by the respondent as aforesaid and she thereafter, remained in his house as his wife for four months.

This application is filed on the ground of desertion. The respondent remained absent inspite of service of notice, and therefore, the court proceeded ex parte against him.

In the impugned order, learned family Court found that marriage of the present applicant with the respondent was not proved. She was only engaged to him, and therefore, taking this view of the matter, the family Court dismissed the application finding that the applicant was not legally married wife of the respondent. This application is filed on the ground that the respondent remained ex parte, the oral evidence was not challenged by the respondent.

I have gone through the record of the lower Court. Statement of mother of prosecutrix was recorded, in which, she specifically stated that both herself and the applicant went to bazar from where the applicant was taken forcibly by the respondent and he got married to her. She came back and narrated the whole thing to her husband, and thereafter, their relatives Babu and Manju were also told about the incident. They all decided that the matter should not be reported to the police and they would sort it out by discussion, thereafter, their relatives Babu contacted with family of the respondent and they said that they had already married, therefore, they would not return the girl, however, only after four months, the applicant was left by the respondent to her parental house, and thereafter, she was not living with him. So far as second marriage is concerned, they have filed an invitation card of the second marriage and the whole story narrated by the mother of the applicant and applicant herself was not challenged by the respondent as he did not appear after receiving of the notice and case was proceeded ex parte.

Learned counsel for the respondent places reliance on judgment of Hon''ble the Apex Court in case of Surajmani Stella Kujur Vs. Durga Charan Hansdah SC 2001 page-938, Bhaunurao Vs. State of Maharastra AIR 1956 SC 1564 and Surjit Kaur Vs. Garja Singh AIR 1994. The principles laid down in aforementioned cases do not help the present applicant as facts narrated by the applicant and her mother were never challenged by the present applicant and they remained unchallenged. The applicant specifically stated that the respondent took her with him married her and remained as his wife for four months. This set of facts remained unchallenged, and therefore, there is no reason to disbelieve the statement of the applicant.

In this view of the matter, apparently, the learned family Court erred in not believing the statement of the applicant and did not treat her as legally wedded wife. Accordingly, finding of the family Court is set aside. So far as the questions No.2 and 3 are concerned, it is apparent that when she is legally wedded wife and respondent has married another wife, his first wife had valid reason to leave his house, therefore, she is entitled for maintenance. It is also proved that she was not having any source of income on her own, and therefore, respondent is in liability to pay her maintenance. Accordingly, this revision is allowed. The order passed by learned family Court is set aside. It is directed that the respondent should pay her maintenance of Rs.5,000/- per month from the day of impugned order i.e. 09.10.2015. The payment should be made before 5th day of each month. With observation as aforesaid, this revisions stands disposed of.