Anjaney Sharma v. State of U.P. and Another

Neutral Citation No. - 2024:AHC:74827

Court No. - 77 Case :- CRIMINAL REVISION No. - 5107 of 2023

Revisionist :- Anjaney Sharma

Opposite Party :- State of U.P. and Another

Counsel for Revisionist :- Tripathi B.G. Bhai

Counsel for Opposite Party :- Adil Jamal,G.A.

Hon'ble Rajeev Misra,J.

1. Heard Mr. Tripathi B.G. Bhai, the learned counsel for revisionist, the learned A.G.A. for State and Mr. Adil Jamal, the learned counsel representing opposite party 2.

2. Perused the record.

3. Counter affidavit filed by the learned counsel representing opposite party 2 in Court today, is taken on record.

4. Learned counsel for revisionist submits that he does not wish to file any rejoinder affidavit to the same.

5. This criminal revision has been filed challenging the order dated 18.6.2023 passed by Additional Principal Judge, Family Court, Court No. 4, Aligarh, in Case No. 28 of 2019 (Smt. Deepka Sharma Vs. Anjaney Sharma) under Section 125 Cr. P. C., Police Station Delhigate, District Aligarh, whereby Court below has allowed aforementioned maintenance Case and consequently directed the revisionist to pay maintenance at the rate of Rs.5,000/- per month to opposite party 2 from the date of application.

6. Mr. Tripathi B.G. Bhai, the learned counsel for revisionist in challenge to the order impugned has raised a solitary submission before this Court to the effect that in view of the admitted fact by opposite party 2 that she has solemnized second marriage with the revisionist during the subsistence of her first marriage, therefore, the marriage of opposite party 2 with the revisionist is void ab initio, Since the marriage of opposite party 2 with the revisionist is void ab initio, therefore, revisionist cannot be saddled with the liability to pay maintenance to opposite party 2 under Section 125 Cr. P. C. On the above conspectus, he, therefore, contends that the order impugned passed by Court below being manifestly illegal

1

and without jurisdiction is, therefore, liable to be set aside by this Court.

7. Per contra, the learned A.G.A. and the learned counsel representing opposite party 2 have vehemently opposed the present criminal revision. They submit that even if the marriage of opposite party 2 with the revisionist is void, yet the liability to maintain his wife shall continue till a declaration to that effect is granted by the competent Court of civil jurisdiction under Sections 11/12 of the Hindu Marriage Act. As no such declaration has been granted till date, therefore, the marriage between the parties still subsists and therefore, the opposite party 2 has a right to press her claim for maintenance under Section 125 Cr. P, C. It is then contended that the issue as to whether even if in respect of void marriage, the liability of the husband to maintain his wife till a declaration of the marriage being void is granted by the Court shall subsist or not, is no longer res integra and stands settled by the judgements of the Supreme Court in Chand Patel Vs. Bismillah Begum and Another, (2008) 4 SCC 774 and Chanmuniya Vs. Virendra Kumar Singh Kushwaha and Another, 2011 (1) SCC

14. On the above conspectus, the learned A.G.A. thus submits that in view of the law laid down by the Apex Court as mentioned above, the liability of the husband to maintain his wife cannot get curtailed simply by reason of a legal plea regarding the illegality in the marriage of the parties. As such, Court below has neither committed a jurisdictional error in passing the order impugned nor has it exercised it's jurisdiction with such material irregularity so as to warrant interference by this Court. As such, present criminal revision is liable to be dismissed.

8. When confronted with above, the learned counsel for revisionist could not overcome the same.

9. Having heard the learned counsel for revisionist, the learned A.G.A. for State, the learned counsel representing opposite party 2 and upon perusal of record, this Court finds that the arguments raised by the learned counsel for revisionist in challenge to the order impugned appears to be attractive at the first flush but is devoid of substance in view of the fact that the parties have already approached the Court of competent jurisdiction for declaration of their marriage as void. Therefore, the logical conclusion of the same is that marriage has taken place between the parties and a declaration with regard to the character of marriage is pending adjudication. As such, the marital relationship between the parties exists. In view of above, the revisionist, who is the husband, cannot absolve himself of his liability to maintain his

2

wife till a declaration of the marriage being void is granted by the competent Court of civil jurisdiction. Furthermore, the revisionist cannot absolve himself of his liability to maintain his wife by raising a legal plea with regard to the illegality in the marriage, as per law laid down by the Apex Court in Chand Patel (Supra) and

Chanmuniya (Supra).

10. In view of the discussion made above, the present criminal revision fails and is liable to be dismissed.

11. It is, accordingly, dismissed.

12. After aforesaid order was dictated, the learned counsel for revisionist fairly submits that considering the precarious condition of revisionist, some time may be granted by this Court for payment of arrears, which amount is on due, under the order impugned. It is hereby provided that the arrears payable by the revisionist under the order impugned shall be paid in three equal installment with the gap of three months each. The first installment shall be paid on or before 30.6.2024. In the interregnum, recovery proceedings qua arrears payable under the order shall remain in abeyance. However, the revisionist shall continue to pay monthly maintenance to opposite party-2 payable under the order impugned. It is, however, provided that in case of default in the payment of first installment or any further installment, the interim protection granted to the revisionist shall automatically come to an end without reference to the Court and Court below shall be free to adopt all coercive measures against revisionist for recovery of due amount.

Order Date :- 27.4.2024

HSM

3