JUDGMENT
A.K. Gohil, J.
1. This is a husband’s criminal revision under Section 397, Cr.P.C. against the judgment passed by the Additional Sessions Judge, in Criminal Revision No. 115/1997 dated 22.9.1999 whereby he allowed the revision of wife and awarded Rs. 500/- per month to Nanibai and her two daughters reversing the order passed by the Additional Chief Judicial Magistrate, Narsinghgarh in Criminal Case No. 3/96 dated 22.7.1999 by which the application filed by the non-applicants’ wife was dismissed.
2. The admitted facts on record are that the non-applicant No. 1 Nanibai is a married wife of the applicant. Marriage took place 20 years before. Manjubai aged 9 years and Antibai aged 6 years are the two daughters. The non-applicant No. 1 Nanibai filed an application before the Judicial Magistrate, First Class, Narsinghgarh for claiming maintenance on the ground that the applicant was practising cruelty on her and she has been driven away with her two daughters from the house of the applicant on the ground that she is suffering from T.B. It was further alleged that the applicant performed ‘Natra’ with another woman Indarbai and the applicant is also haying two sons and one daughter with Indarbai, the second wife of the applicant. She is also residing with the applicant for the last 10 years. It was further alleged that the applicant is having 30-40 acres of irrigated land with well for irrigation and 4-5 bufffaloes and also having huge income of Rs. one lac per year from agricultural land and Rs. ten thousand from selling of milk. Therefore, she claimed a maintenance allowance of Rs.700/- each for her and two daughters from the applicant. In reply the applicant denied all the allegations and submitted that ‘Natra’ was done with the consent of non-applicant No. 1 Nanibai and second wife Indarbai is living with the consent of non-applicant No. 1 Nanibai. It was further submitted that the applicant is willing to keep the non-applicant No. 1 Nanibai with him but she herself wants to reside separately because she is suffering from T.B. and it was prayed that the application be dismissed.
3. In the Trial Court, non-applicant Nanibai herself examined as PW1 and also examined PW 2 Kahwarlal, applicant DW1 examined himself and also examined Onkar Singh DW 2, Chander Singh DW 3, Nathulal and DW 4 Kanwal Lai. PW 1 Nanibai in her statement denied the fact that she is suffering from T.B. The learned Trial Court by order dated 22.7.1999 rejected the application on the ground that the applicant has performed ‘Natra’ with the consent of non-applicant No. 1 Nanibai and her two daughters and Nanibai is residing separately of her own choice. Therefore she is not entitled for the maintenance from the applicant.
4. Against this order dated 22.7.1997 passed by the Additional Chief Judicial Magistrate, Narsinghgarh, the applicant Nanibai filed revision before the Additional Sessions Judge, Narsinghgarh, the learned Revisional Court allowed the revision and set aside the order passed by the, ACJM, Narsinghgarh and also allowed the application and awarded a sum of Rs. 500/- each to all the three applicants i.e. non-applicant No. 1 Nanibai and two daughters against which this revision has been preferred by the applicant husband.
5. I have heard the learned Counsels for the parties. The main submission of the learned Counsel for the applicant is that the order passed by the learned Additional Sessions Judge allowing the revision is illegal. The learned Additional Sessions Judge has not properly appreciated the evidence on record. The learned Additional Sessions Judge has not considered the evidence that the non-applicant Nanibai is suffering from T.B. and the fact that the ‘Natra’ was performed by the applicant with Indarbai with the consent of Nanibai, therefore, she cannot refuse to live with him on this ground. The learned Counsel further submitted that since the two daughters were not made as parry in the maintenance application, they are not entitled for the same, therefore, he prayed that the order under revision be set aside and the order of learned ACJM be restored.
6. In reply, the learned Counsel for the non-applicant supported the order of the ASJ passed in revision.
7. I have considered the impugned orders passed by the two Courts below and have also considered the evidence on record. No documentary evidence have been produced by any of the parties in the case. Only oral evidence have been produced.
8. In this case, it is not in dispute that the applicant has done ‘Natra’ which is known as second marriage and the applicant is also having two sons and one daughter with second wife Indarbai, PW 2, Chandrasingh in his statement has stated that ‘Natra’ was performed by the applicant with the consent of Nanibai on the ground that she was suffering from T.B., PW 1 Nanibai denied this fact, she has stated in her statement that she is not suffering from any disease or T.B. and the applicant has not filed any documentary evidence to show that Nanibai was suffering from T.B. or the applicant has spent any money on her treatment. In the absence of evidence it appears that the applicant has prepared this excuse to avoid the liability of maintenance.
9. I have gone through the order passed by the learned Trial Court. The learned ACJM has not properly considered the evidence on record and the provision of Section 125, Cr.P.C. It is an admitted fact on record that the applicant had performed ‘Natra’ but there is no evidence on record that the ‘Natra’ was performed with the consent of the non-applicant. Therefore, the learned First Revisional Court rightly came to the conclusion that the applicant has performed ‘Natra’ but without the consent of the non-applicant Nanibai, who is the first wife. It is also clear from the record that the learned ACJM was not justified in rejecting the maintenance application of the non-applicant on this ground that ‘Natra’ was performed with the consent of non-applicant Nanibai. It was also wrongly held that the applicant has every right to compel the non-applicant Nanibai the first wife to live with him and on refusal the non-applicant is not entitled to claim any maintenance allowance. As per the customs ‘Natra’ is a recognised form of marriage. The explanation added to second proviso to Sub-section (3) of Section 125 is also very wide to include the second marriage in the form of ‘Natra’. The explanation provides, ‘if a husband has contracted marriage with another woman or keeps a mistress; it shall be considered to be just ground for his wife’s refusal to live with him. No doubt judicial notice of this fact can also be taken that in the applicant’s society custom of Natra marriage is prevailing and it is recognised as a valid marriage for all purposes and it is more than to keep a mistress. In this case in view of the admission of the applicant himself, and also as per the law it shall be a just ground for the wife to refuse to live with the applicant husband.
10. The second ground raised by the applicant is that the application has been filed by the wife alone and the minor children were not added as a party in the application. Therefore, the application was not maintainable and the minor daughters were not entitled to claim maintenance. Recently in case of Rohtas Singh v. Ramendri and Ors., reported in AIR 2000 SC 952=11 (2000) SLT 385=1 (2000) CCR 268 (SC), the Apex Court has reiterated the nature and scope of these provisions in the Cr.P.C. and it has been held :
“This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause – the cause of the derelicts.”
11. Considering the scope of these provisions of Section 125, Cr.P.C. under Chapter 9 of the Cr.P.C. it is clearly provided that if any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate minor child the Magistrate of First Class, upon such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such children, as Magistrate thinks fit No doubt application for minor children for maintenance can only be filed by the mother of the minor children who is also the natural guardian and it is nowhere provided under the provisions of this section that the application should be filed by the minors only. Under the spirit of provisions of law the mother is also entitled to file an application on behalf of the minor children and claim maintenance for her own and also for the minor children. In view of the provisions of law and also in the spirit of decision in case of Rohtas Singh (supra) it is not necessary that application should be filed by only minor children and mother cannot claim maintenance on their behalf. Therefore, it is held that the application is maintainable when the maintenance is claimed for the minor child by the mother and the application cannot be dismissed on this ground that the minor children were not added as party. It is the mother who can file an application on behalf of the minor children or minor children can file the application through the mother. It is also a. prudent rule that such application of maintenance should not be dismissed merely on the technical ground.
12. The next point urged by the learned Counsel for the applicant is that the applicant is ready and willing to maintain the non-applicant wife and also two daughters, therefore, the non-applicant is not entitled for any maintenance, but this ground also does not hold good in view of the fact that applicant has performed second marriage and also in view of the false allegation made by the applicant about the illness of the non-applicant that she is suffering from T.B., whereas the applicant has failed to prove this fact that she is or was suffering from T.B. The burden of proof was on the applicant but the applicant has not produced any documentary or oral evidence to prove this fact. Therefore, in the absence of any evidence and proof on record it cannot be held that the non-applicant was suffering from T.B. In fact it appears that the applicant has taken this plea to find excuse for performing ‘Natra’ and keeping the non-applicant away from the home. It is a known fact, now-a-days that T.B. is curable ailment and, therefore, this cannot be a ground for the husband to desert the wife instead of maintaining and providing medical help. Law permits to the non-applicant to refuse to live with the husband on the ground of “Natra”, second marriage and under such circumstances the applicant cannot compel the non-applicant to live with him and cannot refuse to maintain her and cannot avoid the liability.
13. Considering the submissions and the findings given by the first Revisional Court and also in view of the above discussion the first Revisional Court was justified in allowing the revision and setting aside the order passed by the learned Magistrate. Therefore, I do not find any ground to interfere in the order passed by the first Revisional Court. No case is made out by the applicant for interference in this revision. Accordingly the revision is-dismissed.