Daniyal Qureshi | Symbiosis Law School Pune | 19th March 2020
Dinesh Mourya v. Anshu Mourya MANU/MP/0519/2020
Facts : The present case is a writ petition challenging the order of the Family Court which awarded a maintenance of Rs 2500 to Respondent No.1 and Respondent No.2.
The facts of the case being that the Respondent no. one claims that she is the wife of the Petitioner and Respondent No. 2 the daughter of Respondent No. 1 and the Petitioner. The Respondent 2 was out of the Live-in relationship between the Respondent 1. Subsequently to the birth of the daughter, Respondent No. 1 and the Petitioner got married which is disputed in the present case. The Respondents claim that the Petitioner is cruel and abusive and often used to beat the Respondents in a drunken state. Due to this the respondents acquired a separate residence from the petitioner.
However, prior to the relationship of the petitioner and the respondent no. 2 the respondent no. 2 was married to a man named Mahmood Khan and bore him a son who had passed away. At the same time the petitioner is also married to another woman and has 2 children with this woman. the respondent no. 1 was not made aware of and did not have any knowledge of the prior marriage of the petitioner.
Issue
Whether the respondents are entitled to maintenance
Judgement
The High court in making this judgement at the records produced on record. The High Court perused the finding of the Family Court which record that the petitioner used to maintain her as a wife. However, the petitioner disputed this fact stating that the marriage between the respondent 1 and the petitioner was not possible since the petitioner was already married.
At the same time the petitioner also disputed that the respondent 1 was not his wife and that she had fabricated the evidence of her marriage to the petitioner. Further the petitioner has disputed that he is incapable of providing any maintenance since the respondents have not provided any proof of his income.
The respondent 1 has produced on record witnesses of her marriage to the petitioner and the petitioner in dispute has produced witnesses for the marriage of respondent 1 to one Mahmood Khan.
In the their finding the High Court have examined the judgement of Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit and another[1]. In this judgement the Supreme Court has held that in a case under section 125 of Cr.P.C. the standard of evidence of a valid marriage is not as strict as in is in a trial under section 494 of the Indian Penal Code 1860. In Kamala Vs. M.R. Mohan Kumar[2] the Supreme Court held that maintenance cannot be denied where there is some evidence which established that the parties had lived together as husband and wife.
Given that the Petitioner has denied consent for the DNA test of himself and Respondent No. 2 the daughter, the High Court has the authority to assume that the Petitioner is the biological father of the child under the present circumstances.
Furthermore, the contention of the petitioner that he is already a legally married man therefore the marriage between him and the respondent is not a possibility does not stand valid. In Badshah Vs. Sou-Urmila Badshah Godse and another[3]the Supreme Court held that where in an extra marital relationship at the time of the second marriage of the man, the second wife was not aware and was not made aware of the fact that the man is already legally married, the second wife and the husband shall be considered legally married for the purposes of Section 125 Cr.P.C.
Lastly, the contention of the petitioner that the he is incapable of providing maintenance since the Respondents have failed in providing proof of his income, the High Court assessed the Income of the petitioner to be around Rupees 20,000 on basis absence of his denial of being an owner of Three tankers which transport petrol and diesel and being the owner of 2 four wheelers. Therefore, the petition is dismissed.
[1] (1997) 7 SCC 675
[2] AIR 2018 SC 5128
[3] AIR 2014 SC 869
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