N.K. Jain, J.@mdashBy this petitioner, the petitioner seeks to quash the order of learned Additional Sessions Judge No. 2 Sri Ganganagar, dated 28 3.87 whereby order passed by Munsif Magistrate dated 27.3.86 was quashed and he has allowed the revision filed by Hardam Singh and dismissed the revision of the petitioners.
2. Brief facts giving rise to this petition are that on 27.7.80, the petitioner moved an application for demand of maintenance on the allegation that she is a wedded wife of the non-petitioner Hardam Singh, who gave birth to a male child Iqbal Singh. It was also alleged that trouble started when the non-petitioner brought his first wife Basant Kaur at home. He gave beating to the petitioner and turned out her from the house and thus she claimed Rs. 500/- as maintenance for her and her child. The non-petitioner contested the application and denied the fact that he never married with the petitioner and no maintenance can be granted as she does not fall within the purview of Section 125 of the Cr.P.C. The Trial Court has held that the non-petitioner has sufficient means and awarded Rs. 200/- per month as maintenan to the petitioner on 27.3.83 from the date of the filing of the applicationer but refused to grant maintenance to the petitioner No. 2 Iqbal Singh on the ground that he has attained 18 years of age. Being aggrieved by the order, both the petitioner Smt. Surjeet Kaur and Iqbal Singh and the non-petitioner No. 1 Hardam Singh filed revisions. The learned Additional Sessions Judge, allowed the revision of the non-petitioner No. 1 Hardam Singh and dismissed the revision filed by the petitioners. Being aggrieved by this order the petitioners have come up before this Court.
3. Mr. B.N. Kalla, learned Counsel for the petitioner has submitted that the petitioner has married with the non-petitioner and they lived together for the last 14 years and gave birth to the petitioner No. 2 Iqbal Singh, who was studying in VIIIth Class. He has further submitted that the petitioner and the non-petitioner lived together as husband and wife and were treated as such, therefore, by not drawing the presumption that the petitioner is legally wedded wife, it amounts to abuse of the process of the Court. He has also submitted that it is not within the knowledge of the petitioner that the non-petitioner was already married and has his first wife. He has further submitted that the Courts below have erred in not granting maintenance to the petitioner No. 2 Iqbal Singh. He placed reliance on Narotam Kumar v. Sucha Sarita (1984) DMC 210, Thanda Suraiah v. Thanda Sharada 2 (1989) DMC 322, and Krishna Kama Nath v. Kanchan Bala 2(1989) DMC 33.
4. Mr. S.L. Jain, learned Counsel for the non-petitioner has submitted that neither the petitioner No. 1 nor the petitioner No. 2 are entitled for main- tenance as the petitioner No. 1 is not a legally wedded wife so no presumption can be drawn on the ground that both were living together when the non- petitioner has already legally wedded first wife and the petitioner No. 2 has attained majority. He has placed reliance on Yamunabai v. Anantrao 1988 SC 644.
5. I have heard Mr. B.N. Kalla, learned Counsel for the petitioner and Mr. S.L. Jain, learned Counsel for the non-petitioner and perused the record.
6. In Narotam Kumar v. Sudha Sarita (supra) the wife has a reasonable case to stay away from the husband then the husband cannot grudge that he has been deserted.
7. In Thanda Suraiah v. Thanda Sharada and Anr, (supra) the husband lived together for three years and they have a child but the husband has said in reply that there was no marriage and the Magistrate found that no case has been made out for maintenance but in appeal the presumption was drawn a that there is a relation of husband and wife and the appeal was allowed.
8. In Krishna Kanta Nath v. Kanchan Bala Nath, (supra) it was con- tended by the petitioner that the minor child is not his son. Even though the opposite party is not the wife of the petitioner yet the petitioner is liable for maintenance of the minor son and it was found that the minor was the child of the petitioner so it has been held that for the aforesaid reasons this petition if partly allowed to the extent that the maintenance allowed to the opposite party is set aside while in so far as the maintenance to minor son allowed is concerned it is dismissed.
9. In Yamuna Bai v. Anant Rao (supra) it has been observed that the expression "wife used in Section 125 of the Code should be interpreted to mean only a legally wedded wife".
10. It is true that u/s 50 of the Evidence Act, the conduct of the parties can be taken into account to find out whether they are husband and wife so if a man and woman live together as husband and wife and treated as such by the community and the man treated the woman as his wife then there will be presumption that they are husband and wife but Section 125 debar the husband to second marriage without being divorced the first wife and this presumption can be drawn in the case of first wife and not for the second wife and the argument of the learned Counsel for the petitioner is not tenable and cases cited by him are not applicable. Regarding the fact that she was not informed that the non-petitioner has first wife nor had any knowledge when she married will not help the petitioner as per the intention of the legislature as the provision does not apply to a de facto wife where the marriage is void ab initio.
11. In the instant case admittedly the non-petitioner has his first wife and the illegitimate son has become major. I am, therefore, of the opinion that the petitioner is not the wife of the non-petitioner within the meaning and scope of Section 125 and was not entitled to maintenance. Regarding maintenance of the petitioner No. 2, though the legislature decided to bestow the benefit of the Section even on an illegitimate child but in this case, there is no finding that the petitioner No. 2 is the son of the non-petitioner, that apart he has attained majority at the time of passing of the order, so he is not entitled for main- tenance. Therefore, there is no good ground to interfere with the order passed by the learned Courts below.
12. Accordingly, this petition has no force, so it is hereby dismissed. Petition dismissed.
