Case Note & Summary
The petitioners, a wife and her minor child, filed a writ petition challenging the judgment and order dated 26.07.2022 passed by the Additional Sessions Judge, Thane, in Criminal Revision Application No. 70 of 2016. The revision application was filed by the respondent-husband against the order dated 19.11.2015 passed by the Judicial Magistrate, First Class, 5th Court, Bhiwandi, in Miscellaneous Application No. 29 of 2010 under Section 125 of the Code of Criminal Procedure, 1973 (CrPC). The Magistrate had granted maintenance to both the wife and child, but the Sessions Judge modified the order, granting maintenance only to the child and rejecting the wife's claim. The wife and child approached the High Court. The facts reveal that the marriage between the wife and husband was solemnized on 28.01.2009, and the child was born on 04.11.2009. The wife alleged that after one month of marriage, the husband and his family started demanding money for purchasing a truck, and when she expressed inability, she was assaulted and harassed mentally and physically, and eventually left at her parents' home forcibly. The husband never cared for the child. The wife claimed maintenance of Rs. 15,000 per month for each petitioner. The husband admitted the marriage but denied paternity of the child, alleging that the wife was previously married to one Kaliram Bhiva Tare and had not obtained divorce. The legal issues were whether the wife is entitled to maintenance despite the husband's denial of paternity and allegation of prior marriage, and whether the child is entitled to maintenance. The court analyzed the provisions of Section 125 CrPC and held that a wife is entitled to maintenance if she proves she is unable to maintain herself and the husband has sufficient means. The husband's allegation of prior marriage does not automatically disentitle the wife; the burden is on the husband to prove the prior marriage. Regarding the child, the court held that the child is entitled to maintenance regardless of paternity denial, and a DNA test can be ordered to determine paternity. The court allowed the petition, set aside the Sessions Judge's order, and restored the Magistrate's order granting maintenance to both wife and child.
Headnote
A) Criminal Procedure Code - Maintenance - Section 125 CrPC - Wife's entitlement - The court considered whether a wife is entitled to maintenance when the husband denies paternity of the child and alleges a prior marriage. The court held that the wife's claim for maintenance cannot be defeated solely on the ground of a prior marriage if she proves she is unable to maintain herself and the husband has means. (Paras 1-10) B) Criminal Procedure Code - Maintenance - Child's entitlement - Section 125 CrPC - Paternity - The court held that the child is entitled to maintenance regardless of the husband's denial of paternity, and a DNA test can be ordered to determine paternity. (Paras 1-10)
Issue of Consideration
Whether the wife and child are entitled to maintenance under Section 125 CrPC when the husband denies paternity of the child and alleges that the wife was previously married.
Final Decision
The High Court allowed the writ petition, set aside the order of the Additional Sessions Judge dated 26.07.2022, and restored the order of the Judicial Magistrate dated 19.11.2015 granting maintenance to both petitioners.
Law Points
- Maintenance under Section 125 CrPC
- Wife's right to maintenance
- Child's right to maintenance
- Denial of paternity
- DNA test
- Prior marriage
- Burden of proof
