Madras High Court: In a criminal revision against the Family Court order granting maintenance of Rs. 10,000/- to the wife and to pay the entire arrears of maintenance amount within one month, K. Murali Shankar, J. held that even if marriage was not legal due to the existence of first marriage, the second wife and the children born out of the second marriage are entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973 (‘CrPC’)
In this case, the wife has filed an application claiming maintenance for herself and for her minor daughter under Section 125 CrPC. The husband has filed counter statement disputing the very marriage and also, the paternity to the daughter and consequently, liability to pay maintenance.
The husband submitted that he is already married and also has a child. Since there was no marriage between him and his alleged wife, he is not liable to pay for any of the claim. No doubt, since the first marriage is still subsisting, the marriage between the husband and the wife even if proved, cannot said to be valid.
The Court after perusing the records, said that that the husband’s application for divorce against his first wife, after full trial was ordered to be dismissed on 31-08-2015. Aggrieved by the dismissal of the divorce petition, he has preferred an appeal, thus his first marriage is still subsisting. Since the first marriage is still subsisting, the marriage between the alleged wife and the husband even if proved, cannot said to be valid.
The Court noted that when a specific question was put to the respondent during his cross examination as to whether he is ready to take DNA Test to prove the paternity of the daughter, he was not willing to take the test. After perusing the evidence, the Court said that it is evident that the wife has proved that they were living together as husband and wife and due to their relationship, a daughter was born to them.
The Court said that the Family Court rightly observed that the husband’s deliberate cheating and fraudulent intention can very well be gathered from his stand that he did know his wife before filing of the maintenance case and that there was no relationship between him and her wife and daughter.
The Court viewed that for the purpose of Section 125 CrPC, the alleged wife can very well be considered as wife and the child as the daughter of the husband. Thus, the finding of the Family Court that the petitioners are entitled to get maintenance from the husband cannot be found fault with.
Concerning the quantum of maintenance, the Court noted the wife’s stand that the husband is working in ATG Tyre Company and is getting monthly salary of Rs. 50,000/- and that he is owning 11 houses and is getting Rs. 90,000/- as rent. But according to the husband, he is only receiving Rs. 16,000/- and after deduction, he is only getting Rs. 11,500/- as salary. Further, those house properties were owned by his father. Thus, the Court said that concerning the present economic scenario and the status of the parties, the fixation of the monthly maintenance at Rs. 10,000/- for the wife and daughter is very much reasonable and the same cannot be said to be excessive.
Hence, the Court dismissed the revision petition.
[Loyola Selva Kumar v M.Sharon Nisha, 2023 SCC OnLine Mad 4523, Order dated 26-06-2023]
Advocates who appeared in this case :
For Petitioner: Advocate H. Arumugam;
For Respondents: Advocate A. Mohamed Hasim.