JUDGMENT
Ajai Lamba, J.
1. This is a petition under Section 482, Cr.P.C., for quashing of order passed by the CJM, Panchkula dated 10.2.2005 (Annexure P-3) whereby the respondent has been awarded maintenance under Section 125, Cr.P.C, to the tune of Rs. 3,500/- per month. Challenge is also to the order passed by the Additional Sessions Judge, Panchkula, dated 23.3.2005 (Annexure P-4) whereby the revision petition of the petitioner has been dismissed. Learned Counsel for the petitioner has raised only one issue viz. when, admittedly, the respondent is the second wife of the petitioner while the first marriage was subsisting, the respondent is not entitled to any maintenance under the provisions of Section 125, Cr.P.C. The issue raised is that the second marriage being void, the respondent cannot be construed in law as wife of the petitioner and, therefore, there is a bar on jurisdiction under Section 125, Cr.P.C., as such, the impugned orders being without jurisdiction are liable to be quashed.
2. The facts as emanating from the record are that the petitioner was married with one Divya on 6.12.2001. As alleged by the petitioner, while this marriage was subsisting, the petitioner contracted second marriage with the respondent on 1.2.2004. The respondent left the matrimonial home on 7.4.2004 and never came back. There are a number of cases instituted against the petitioner including a case under Section 494, IPC. It has been argued that while there is not an iota of evidence to indicate that the petitioner had divorced Divya, the respondent i.e. the second wife, had no right even to file an application under Section 125, Cr.P.C., for maintenance. Reference has been made to para-7 of annexure P-1 i.e. an application filed under Section 125, Cr.P.C. by the respondent, to contend that the respondent herself had admitted that the petitioner was married second time.
3. Learned Counsel for the respondent has disputed the facts as stated by the petitioner. Learned Counsel has pointed out towards para-5(a) i.e. a document Annexure P-2 authored by the petitioner himself viz. reply filed by the petitioner to the application under Section 125, Cr.P.C. Para 5(a) is reproduced hereinbelow:
a) That the marriage of the respondent and his first wife Divya was dissolved as per customs prevalent in their community, testimony to which is affidavit dated 25.9.2002 executed jointly by the respondent and his first wife Divya, in the presence of witnesses before Executive Magistrate, Ambala Cantt.
4. Thus, it has been contended by the learned Counsel for the respondent that it being the admitted case of the petitioner himself in the reply in these very proceedings to the effect that the marriage between the petitioner and his first wife-Divya stood dissolved, as per custom prevalent in their community and testimony of the same being a joint affidavit sworn by the petitioner and Divya, before Executive Magistrate, Ambala Cantt., in the presence of witnesses, no further proof is required to establish that the petitioner had taken divorce from Divya. In view of these facts, it is contended that the petitioner having taken this plea, cannot now plead that the marriage with the respondent was void. Learned Counsel for the respondent has also placed on record a photostat copy of the joint affidavit of the petitioner and Divya, the first wife, to establish the fact that the petitioner had divorced Divya and, therefore, cannot raise the present issue to contend that the marriage with the respondent was void.
5. With regard to the conduct of the respondent, it has been contended that the petitioner concealed the factum of first marriage from the respondent and, now, when faced with the consequences of his own actions, wants to run away from the responsibility of paying maintenance. Defining the scope of a Court while adjudicating upon the issue of deciding maintenance under Section 125, Cr.P.C., reference has been made to a judgment of the Hon’ble Supreme Court of India in Rajathi v. C. Ganesan . Reference may be made to paras 11 and 12, which read as under:
11. In the present case, the High Court minutely examined the evidence and came to the conclusion that the wife was living separately without any reasonable cause and that she was able to maintain herself. All this the High Court did in exercise of its powers under Section 482 of the Code which powers are not a substitute for a second revision under Sub-section (3) of Section 397 of the Code. The very fact that the inherent powers conferred on the High Court are vast would mean that these are circumscribed and could be invoked only on certain set principles.
12. It was not necessary for the High Court to examine the whole evidence threadbare to exercise jurisdiction under Section 482 of the Code. Rather in a case under Section 125 of the Code the trial court is to take a prima facie view of the matter and it is not necessary for the Court to go into the matrimonial disputes between the parties in detail.
6. Reference has also been made to Dwarika Prasad Satpathy v. Bidyut Prava Dixit 1999(4) RCR (Criminal) 577, to contend that only prima facie case is required to be seen while considering the case under Section 125, Cr.P.C. and strict proof of performance of essential rites is not required.
7. The other legal objection raised by the learned Counsel for the respondent is that the petitioner has raised the same issues which were raised before the Magistrate as also before the revisional court, which is barred under Sub-section (c) of Section 397, Cr.P.C. and Sub-section (3) of Section 399, Cr.P.C. Therefore, the present proceedings under Section 482, Cr.P.C., are being converted into a second revision.
8. I have considered the arguments raised by both the sides and have also gone through the record with their assistance. The scope of the Court while dealing with a petition under Section 125, Cr.P.C. has clearly been defined in the cases of Rajathi (supra) and Dwarika Prasad Satpathy (supra). Only prima facie case is required to be seen.
9. In my considered opinion, prima facie, it stands established from the affidavit, the execution of which has been admitted by the petitioner, and the pleadings of the petitioner in the very petition under Section 125, Cr.P.C., as noticed above, that the marriage of the petitioner with first wife- Divya stood dissolved. In the face of such admission and affidavit, it does not lie with the petitioner to argue that the first marriage was subsisting and, therefore, the respondent being the second wife through a void marriage, was not entitled to maintenance under Section 125, Cr.P.C. Having thus concluded, the judgment referred to on behalf of the petitioner i.e. Savitaben Somabai Bhatiya v. State of Gujarat and Ors. , to the effect that the claim of the second wife, the second marriage being void, cannot be entertained under Section 125, Cr.P.C. or the Hindu Marriage Act, 1955, is rendered dehors the controversy. Accordingly, this issue is decided against the petitioner.
10. Having held that the respondent is entitled to maintenance under Section 125, Cr.P.C., it was contended on behalf of the petitioner that there being no evidence on the record with regard to the income of the petitioner, compensation at the rate of Rs. 3,500/- per month could not have been awarded.
11. It has not been disputed by the learned Counsel for the petitioner that the father of the petitioner is owner of Lakshmi Jewellers, dealing in ornaments of gold and silver. It has further not been disputed that the petitioner is the only son of his father. The facts with regard to the income of the petitioner have been considered by the Magistrate as also the revisional Court while referring to the Income Tax Returns for the Assessment Years 2003-04 and 2004-05. I do not find any illegality or impropriety in the findings recorded therein. The claim of the petitioner that he was only doing a “labour job at the jewellery show-room of his father and earning meager amount of Rs. 2000/- per month” cannot be accepted.
12. In view of the above, this petition is without any merit and is hereby dismissed.