Cri. Appln. No. 1299 of 1997

10th December, 1998

Petitioner Counsel: S. R. MORE with A. V. ANTURKAR
Respondent Counsel: N. V. BANDIVADEKAR, Ms. USHA KEJARIWAL, A.P.P.

Cases Cited:
1988 (4) Bom. C.R. 177 : 1988 Mh. L.J. 1135 [Para 5]
1991 (2) Bom. C.R. 92 : 1991 Mh. L.J. 458 [Para 6]
1994 Mh. L.J. 1443 [Para 7]
AIR 1967 SC 341 [Para 7]

JUDGMENT

JUDGMENT :- Heard Mr. Anturkar for the applicant and Mr. Bandivadekar for the respondent No.1.

2. This application is filed by the wife against the order of the Vth Additional Sessions Judge, Satara (R.D. Jadhav), by which he allowed the revision filed by the husband and set aside the order of the J.M.F.C., Wai, granting maintenance at Rs. 500/- per month to the wife.

3. It appears from the record that the wife petitioner had earlier filed petition for maintenance under section 125 of the Cr.P.C. vide Criminal Application No. 2 of 1989. That application was dismissed in default and thereafter she filed the Misc. Application No. 109 of 1992. It was the contention in the second application that she was legally wedded wife of the respondent-husband but he was ill-treating her and driven her out of the house and therefore she had claimed maintenance. The husband filed a reply, completely denying the contentions of the wife. He not only denied the marriage but also having denied any concern with her and further contended that he was already married to one Sulochana and his first wife was alive and had never entered into marriage with the petitioner. He relied upon the proceedings initiated by the wife vide Criminal Application No. 2 of 1989 wherein according to him the present petitioner Rukmini admitted that she was the second wife of the respondent Mahadeo. Thereafter Rukmini adduced evidence in support of her contention regarding the marriage and regarding her claim for maintenance. She filed her photograph with the respondent husband after her marriage and filed certificate of marriage issued by Block Development Officer, which is a extract of marriage register at Exhibit 34, ration card wherein her name is shown as the wife of Mahadeo, voters list etc. Accepting her case the trial Court granted maintenance to her at Rs. 500/- per month.

4. However, the Sessions Judge, Satara, set aside this order of maintenance mainly on the ground that in her earlier application the wife had admitted that she was married with Mahadeo with the consent of the first wife.

5. Counsel for the wife relied upon the judgment of Justice Kantharia reported in 1988(4) Bom. C.R. 177 : 1988 Mh. L.J. 1135 (Malan Vs. Balasaheb), wherein it was held that even if husband denies the marriage and contends that his marriage was voidable because his consent was obtained by force, Justice Kantharia held it is not the function of the Criminal Court dealing with an application under section 125 of the Cr.P.C. to decide the validity of the marriage. For this purpose it is only the Civil Court which is competent to give declaration and since in that case husband has not obtained any declaration in that regard he was ordered to pay maintenance.

6. Mr. Anturkar placed reliance on Judgment of Justice Saldanha reported in 1991(2) Bom. C.R. 92 : 1991 Mh. L.J. 458 (Anusayabai Vasudeo Adkar Vs. Vasudeo Sambhu Adkar & another), wherein it was held that where a party takes up a contention that the spouse is not covered by a legal definition of the term "wife", it is not sufficient merely to plead it but it must also be fully established. In that case the husband has challenged the status of his wife and contended that the marriage was void since it was in contravention of the provisions of Bombay Prevention of Bigamous Marriage Act, 1946, Court held that no conclusive evidence was led by the husband for the purpose of establishing that she was never married to him and therefore in those circumstances it was held that wife was entitled to maintenance. Third judgment i.e. cited by Mr. Anturkar is unreported judgment in Criminal Writ Petition No. 1498 of 1998 by Justice Rebello on 11-11-1998, wherein it was held that as per the construction of section 125 of Cr. P.C. which is put by the earlier authorities, even a second 'marriage contracted with the knowledge of the wife i.e. the second wife that applicant was already married will not come in the way of a woman from claiming maintenance under section 125 of Cr.P.C.

7. On the other hand Mr. Bandivadekar relied upon two judgments one of which is of this Court reported in 1994 Mh. L.J. 1443 (Mangala Pralhad Awad Vs. Pralhad Haribhau Awad), wherein it was held that a wife whose marriage is void because of subsistence of a former marriage of her husband, she is not entitled to claim maintenance. However, it was also held that in order to dis-entitle a woman from claiming maintenance on the ground that her marriage was void, both the alleged former marriage and its alleged subsistence at the relevant time when the second marriage took place must be conclusively proved. Mr. Bandivadekar also contended that since the petitioner has admitted in her Criminal Application No. 2 of 1989 that she is the second wife, her admission has to be accepted against her in view of the Supreme Court decision reported in A.I.R. 1967 Supreme Court 341 (Basant Singh Vs. Janki Singh & Others), wherein it was held that an admission by party in the plaint signed and verified by him may be used as evidence against him in other suits.

8. It is true that in the earlier proceedings No.2 of 1989 wife has made certain statement regarding the first marriage of the husband. What she has stated in para 2 is that Sulabai was the first wife of Mahadeo as he had married her. However, she did not have any issue and therefore Mahadeo married Rukmini with the consent of first wife. It is true that on the face of it, this is an admission by Rukmini. However, as has been held in the aforesaid Supreme Court judgment i.e. 1967 Supreme Court 341, admissions can be used by the Court and may be used by the Court as evidence against the person making those admissions. However, the Supreme Court had held that such admissions cannot be regarded as conclusive and the party can be permitted to show that those admissions were not true.

9. So far as the marriage of the present petitioner Rukmini with Mahadeo is concerned, there is more than sufficient evidence on record in the form of certified extract of marriage register, ration card, voters list, photograph and even then as against this voluminous evidence, the husband has simply denied the existence of the marriage. He has no explanation to offer regarding the extract of the marriage register, voters list, ration card, photograph and other documents. In his reply the husband has contended that Rukmini is the niece of his wife Sulochana. She could not be married even though she had advanced in her age and she came to his house i.e. Sulochana's house as a guest. Apart from this, husband Mahadeo had no concern or relation with her. In his evidence however he states that Rukmini came to his house as maid servant and she worked for 3-4 months but since her behaviour was not normal she was sent back to her parents. The evidence -statement on oath is totally contradictory to the plea raised in the reply. When he was confronted with the ration card he had courage to say that the ration card does not belong to him and he also stated that he could not read without spectacle which he had not brought on that day. The case was therefore adjourned and when he was again confronted with the ration card he stated that it does not belong to him. When he was asked to produce the ration card, he stated that it is not available, when he was confronted with the voters list, wherein Rukmini's name is shown as his wife, he could not give any answer at all. So far as the previous statement of Rukmini in Criminal Application No. 2 of 1989 is concerned, she was cross-examined in that regard. However, it appears from the cross-examination that she was not confronted with the previous statement made in Criminal application No. 2 of 1989 and no opportunity was given to her.

10. Considering therefore all these facts, the matter is required to be remanded.

11. When questioned about maintenance, Counsel for the husband contended that no interim maintenance can be granted to the petitioner as she has not proved her status and that during the pendency of her application no interim maintenance was granted to her.

12. It is true that no interim maintenance was granted to the wife Rukmini while her application was pending before the Magistrate or before the Sessions Judge. It is also true that the husband even though in application under section 125 of Cr.P.C. can raise any plea and deny the marriage shifting the burden of proof on the applicant wife, it is also true that if the first marriage is subsisting then the second marriage is void under the Hindu marriage Act. However, since the matter is being remanded afresh for giving proper and necessary opportunity to wife Rukhmini to give explanation regarding admissions by her and considering the evidence tendered by her regarding her marriage with Mahadeo in the form of marriage registration certificate, ration card, voters list, photographs and other documents, she is entitled for interim maintenance. I, therefore, pass the following order.

ORDER

The impugned order of the Sessions Judge, Satara and J.M.F.C., Wai, are set aside and quashed.

The matter is remanded to J.M.F.C., Wai, for fresh hearing. Parties will be at liberty to amend their pleadings and particularly the petitioner wife will be at liberty to amend the pleadings and to give explanation regarding her admissions. Parties are at liberty to adduce evidence, if necessary, and therefore the Magistrate will decide the case after hearing both the sides. All the questions are kept open.

Husband to pay Rs. 300/- per month to the wife from 1-1-1999 till the matter is decided by the Magistrate. Magistrate is directed to decide the matter as expeditiously as possible.

Order accordingly