ORDER
Dhirendra Mishra, J.
1. The applicant-husband has preferred this revision petition against the order dated 24-1-2003 passed by II Additional Sessions Judge, Jagdalpur in Criminal Revision No. 12/2001 which was filed by non-applicant Nos. 1 and 2 herein and thereby allowed the same and granted maintenance at the rate of Rs. 1000/- per month to non-applicant No. 1 and Rs. 500/- per month to non-applicant No. 2 w.e.f. 14-12-2000. This apart, learned Additional Sessions Judge also granted maintenance at the rate of Rs. 500/- per month to the son of applicant and non-applicant No. 1 namely Shankar Sheel though he was not the party to the said revision petition before him.
Brief facts necessary for the adjudication of this petition are as under:-
1. Non applicant No. 1 along with her son Shankar Sheel and non-applicant No. 2 filed an application under Section 125 of the Code of Criminal Procedure (hereinafter referred to as ‘Code’) claiming themselves to be wife, son and daughter respectively of the applicant herein. Their marriage was solemnized 23 years prior to the filing of the said application at Raigarha (Orissa) and thereafter they resided at Village Hatkachora in Jagdalpur District. Through the wedlock of applicant and non-applicant No. 1 daughter Rama Mona Sheel and Shankar Sheel were born. Their eldest daughter Rama has been married five years prior to the filing of the said application. Thereafter, applicant-husband started III treating non-applicant No. 1-wife and ultimately ousted her along with children from his house in the year 1982 and then kept one Renu Rai as his concubine. It has also come on record that husband, the applicant herein, is a Constable in the police department of State Government getting the monthly salary of Rs. 3,500/-. Apart from this he also has a house of his own and gets Rs. 1000/- per month as rent but even then he did not care to maintain the non-applicants in spite of the repeated insistence of the mother of non-applicant No. 1-wife for the same. Even though the children of the applicant and non-applicant No. 1 were the students of standard VIII and IV who were dependant on the mother of non-applicant No. 1 as there was no source of livelihood available to them, the applicant-husband did not care to look after them. Marriage with non-applicant – wife and paternity of children was also denied by the applicant-husband. It was averred that in fact non-applicant No. 1 was married to one Sachindra Nath in the year 1969. However, because of the illicit relation with one Parimal her husband left her. Thereafter, mother of the non-applicant No. 1 herein proposed the marriage of her daughter Smt. Sandhya Rani Sheel with the present applicant but she said proposal was turned down by him. The non-applicants had also filed an application for interim maintenance before the Trial Court and the Trial Court awarded interim maintenance at the rate of Rs. 400/- per month vide order dated 1-4-1997 w.e.f. 28-9-1996 in favour of the non-applicant Nos. 1 and 2. However, no interim maintenance was awarded to son Shankar Sheel.
2. Learned JMFC rejected the application of non-applicants by recording a finding that the non-applicant No. 1 has failed to prove her marriage with the applicant and that Rama Sheel and Shankar Sheel are the daughter and son of the present applicant. Learned Judicial Magistrate also recorded a finding that the non-applicants have also failed to prove their ouster by the applicant. Renu Rai was however held to be the legally wedded wife of the present applicant. Thus the application filed by the non-applicants was dismissed by the learned JMFC, Jagdalpur on 14-12-2000.
3. Aggrieved non-applicants herein preferred criminal revision against the order of the learned Magistrate before the learned Additional Sessions Judge who by the impugned order allowed the revision of the non-applicants herein and awarded maintenance at the rate of Rs. 1000/- per month to wife/non- applicant No. 1 and at the rate of Rs. 500/- per month to non-applicant No. 2 – daughter of applicant and non-applicant No. 1. Learned Additional Sessions Judge also awarded Rs. 500/- to son Shankar Sheel though no revision was filed on his behalf w.e.f. 14-12-2000. Arrears of maintenance at the rate of Rs. 1000/- per month was also made payable to the non-applicants which was however held to be adjustable.
4. Learned Counsel for the applicant submits that Renu Rai is the wife of the applicant and her name is duly entered in the revenue record as nominee and that three issues were born out of the wedlock. He further submits that the application under Section 125 of the Code has been filed after more than 14 years from the date of her ouster by the applicant. He submits that learned Trial Court after appreciating the evidence adduced by the parties in extenso has held that the marriage of the non-applicant No. 1 with one Sachindra Nath is proved whereas the marriage between the applicant and non-applicant No. 1 is not proved. This finding of facts recorded by the Trial Court is based on appreciation of evidence available on record particularly the evidence of A.W. 1 and the Revisional Court ought not to have interfered with the same as there was no perversity in it. Learned Counsel submits that the Revisional Court has relied upon the documents of Ex. P-1 to P-7 being the joint photographs of husband and wife, the school certificate of children showing the applicant as their father, letters of Ex. P- 4, P-5, P-6 and P-8 purportedly written by the parents of the non-applicant No. 1 and Ex. P-7 the invitation card of marriage of their daughter Rama wherein the applicant is mentioned to be her father. It is further argued that the above documents have not been duly proved and therefore, no cognizance of the same could be taken. Learned Counsel submits that in the statements of witnesses Ganpati Viswas and Vinod Dewangan NAW 2 and 4 who participated in the marriage of ron-applicant No. 1 with Sachindra Nath, NAW 7, they have categorically stated that non- applicant No. 1 herein was married to Sachindra Nath in the year 1969 and there was no divorce between them and therefore, the claim of wife that she is legally married wife of the present applicant is without any basis. Relying upon the judgment of the Apex Court in the matter of Savitaben Somabhai Bhartiya v. State of Gujarat and Ors. reported in 2005(2) M.P.H.T. 382(SC) : AIR SCW 1601, submits that only the legally wedded wife is entitled for maintenance under Section 125 of the Code and the definition of wife can not be enlarged and marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law. He submits that the learned Revisional Court allowed the maintenance to son Shankar without there being any revision on his behalf inasmuch as he was not awarded the same by the learned Magistrate though he was major at the time of filing of the application under Section 125 of the Code which is evident from the application itself in which his age is shown to be 18 years at the relevant time.
5. On the other hand learned Counsel for the non-applicant No. 1 wife has supported the impugned judgment of the Revisional Court and submitted that the marriage of non-applicant No. 1 with the applicant is duly proved from the statement of AW 1 Sandhya Sheel, AW 2 Somla Rani – mother of the non-applicant No. 1, Surowala AW 3, neighbour of non-applicants Jagbandhu AW 8. Learned Counsel further submits that the document Ex. P-l being the joint photograph of the applicant and non-applicant No. 1 is not disputed by the applicant-husband and the same has been admitted by him to have been snapped 26 years back. He submits that from the school records of daughter Rama Ex. P-2 and P-2A, P-3 and P-3A, wedding card of daughter Rama Ex. P-7,letters Ex. P-5, 6 and 8 written by the parents of the non-applicant No. 1, it is established that non-applicant No. 1 lived with the applicant as his wife for a long period and gave birth to the children named above. Learned Counsel for the non-applicants further submits that the oral evidence adduced by the applicant regarding marriage of non-applicant No. 1 with Sachindra Nath is unreliable as the version of the witnesses is contradicted so far as place and duration of stay of the non-applicant No. 1 is concerned. He submits that certificate copy of the electoral roll for the year 1979-80 in which name of both the applicant and non-applicant No. 1 is mentioned as husband and wife. However, the electoral roll for the year 1996 does not mention her name as by that time she had been ousted by the applicant herein. As far as the award of maintenance in favour of son Shankar Sheel is concerned, learned counsel for the non-applicants submits that the applicant is challenging the order passed in favour of Shankar Sheel without impleading him as party in the present case which is not permissible under the law because no order could be passed behind the back without affording an opportunity to the person concerned. Learned Counsel for the non-applicants relying upon the judgment of the Supreme Court in the matter of Vimala (K) v. Veeraswamy (K) , submits that where the husband intends to disentitle the wife from receiving maintenance from her husband on the ground that she has already married some other man, strict proof of the earlier marriage is required and the husband has to satisfactorily prove the subsistence of a legal and valid marriage with some other person particularly when Section 125 of the Code is a measure of social justice intended to protect woman and children.
6. From the rival pleadings of the parties following two questions of disputed facts are involved in the present matter :-
(i) Whether the non-applicant No. 1 was already married to one Sachindra Nath in the year 1969 as alleged by the applicant ? And
(ii) Whether the non-applicant No. 1 and the applicant are legally married husband-wife and non-applicant No. 2 and son Shankar Sheel are the daughter and son born out of the their wedlock ?
It is a settled law that under Section 125 of the Code wife means legally married wife as recently held by the Supreme Court in the matter of Savitaben (supra) and the woman who is not lawfully married is not entitled for maintenance from her husband under Section 125 of the Code.
7. In this case the applicant-husband has taken a plea that non-applicant No. 1 -wife was already married and thereafter subsequent marriage if any is void due to subsistence of earlier marriage. Once the husband takes this defence to disentitle his wife from receiving maintenance, onus of proof regarding the earlier marriage is strictly upon the husband as is held by the Apex Court in the matter of Vimala (K)(supra).
8. Now adverting to the evidence adduced by the husband in this regard, who has examined AW 2, AW 4 and AW 7 to establish that the non-applicant/wife was married to Sachindra Nath in the year 1969. However, after going through the oral evidence of the above witnesses it can safely be said that they do not inspire confidence and the finding of the Judicial magistrate First class recorded on the basis of the statements of these witnesses to the effect that the non-applicant No. 1 was married to said Sachindra Nath in the year 1969, are perverse as the learned Magistrate has ignored the glaring inconsistency in the oral account given by the said witness regarding the date of marriage, the date when Sachindra Nath left the non-applicant No. 1 etc. The manner in which the marriage has been demonstrated by these witnesses it is revealed that they are tutored witnesses and on the basis of their statements without being supported by any document, the finding of the leaned Magistrate has rightly been set aside by the Revisional Court. Thus the husband has utterly failed to prove the earlier marriage of non-applicant No. 1 with Sachindra Nath.
9. Now the second question remains whether the applicant married the non-applicant No. 1 or not. Hon’ble the Supreme Court in the matter of Santosh v. Naresh Pal has held that the learned Magistrate is expected to pass appropriate order after beingprima facie satisfied about the marital status of the parties and such decision has to be a tentative decision subject to the final order of any civil proceedings if the parties are so advised to adopt.
10. In the present case AW 1 Sandhya Sheel, her mother AW 2 Somla Rani Sheel, neighbours AW 3 Surowala and AW 8 Jagbandhu have stated in their statements that the applicant married non- applicant No. 1 and thereafter they lived together as husband and wife. Their statements are duly corroborated by the evidence of Ex. P-1 to P-7 being the photographs, school certificate of children, letters, invitation card of marriage of daughter where the applicant is shown to be their father. Entire evidence led by the non-applicant/wife is un-rebutted by the applicant. Even the joint photograph has been admitted by the applicant/husband to have been snapped 26 years ago.
11. Thus on the basis of material available on record I am of the view that there is prima facie evidence to show that the non-applicant No. 1 is the legally married wife of the applicant and through their wedlock non-applicant No. 2 and son Shankar Sheel were born.
12. Consequently, the Revisional Court has not committed any illegality by arriving at the conclusion that the applicant has failed to prove that non-applicant was earlier married to one Sachindra Nath in the year 1969 and thus they were husband and wife.
13. The other question that has to be adjudicated by this Court is the legality of the order passed by the Revisional Court allowing the maintenance to son Shankar Sheel at the rate of Rs. 500/- per month. It is not disputed that Shankar Sheel was 18 years old at the time of filing the application under Section 125 of the Code which is evidence from the application itself. In these circumstances, son Shankar Sheel was rightly not allowed interim maintenance by the JMFC Jagdalpur. Even though the application for maintenance on behalf of Shankar Sheel was rejected by the Magistrate, no revision was filed on his behalf before the learned Additional Sessions Judge and even then the learned Additional Sessions Judge awarded him monthly maintenance of Rs. 500/- which is manifestly illegal and contrary to the provisions of Section 125 of the Code.
14. In the aforesaid circumstances, the revision preferred by the applicant is partly allowed. The impugned order is modified to the extent that the applicant’s son Shankar Sheel is not entitled for any maintenance. So far as the impugned order relates to award of maintenance to Shankar Sheel at the rate of Rs. 500/- per month, it is set aside.