Criminal Writ Petition No.15 of 2003

3rd February, 2005

Petitioner Counsel: Mr. SHAMAL KADU,Mr. SAMEER ADKAR
Respondent Counsel: Mr. A. P. TATHOD

Cases Cited:
Indu Nimba Pawar Vs. Sumanbai Kadu Pawar, 1996(4) ALL MR 153=1996(2) Mh.L.J. 817 [Para 2]

JUDGMENT

JUDGMENT :- Invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner/husband has challenged the order dated 11-12-2002 passed by the learned Additional Sessions Judge in Criminal Revision No.39 of 2002, whereby the revision has been dismissed and the judgment and order dated 26-3-2002 passed by the learned J.M.F.C. in Misc. Crl. Case No.101 of 2001 granting maintenance at the rate of Rs.250/- per month from the date of the application is confirmed.

2. The learned counsel for the husband contended that the respondent/wife is the legally wedded wife of Chandrabhan Raut (A.W.2) and when the said marriage was still subsisting, the respondent/wife is not entitled to claim maintenance on the contention that she was residing with the petitioner Raju as his wife and that he performed marriage with her about five years back prior to filing of the petition. He contended that the alleged marriage of respondents/wife is void and as such she is not entitled to claim maintenance. In support of these submissions he relied on the decision of this Court in Indu Nimba Pawar Vs. Sumanbai Kadu Pawar, 1996(2) Mh.L.J. 817 : 1996(4) ALL MR 153.

3. Mr. Tathod, learned counsel, for the respondent/wife fully supports the impugned judgment and order passed by the learned Sessions Judge. He contended that the first husband of Baby, by name Chandrabhan Raut, had given divorce to her and thereafter the marriage between the petitioner and the respondent was solemnized in the temple of Jholebaba. He contended that the evidence of Mahadeo (P.W.3) on record would indicate that he is the neighbour of the petitioner and the respondent/wife lives in his house as his wife. He contended that even Chandrabhan Raut has also been examined and his evidence would reveal that he had given oral divorce to his wife Baby and the divorce-deed was written on a stamp paper. Thus, according to Mr. Tathod, the marriage of Baby with the petitioner/husband is perfectly legal and valid and if at all the petitioner husband wants that the said marriage should be declared as invalid, he can approach the Civil Court and get a declaration about the validity or otherwise of the marriage. He contended that strict proof is not required in the proceedings under Section 125 of Criminal Procedure Code for granting maintenance on the ground that the wife is the legally wedded wife. He, therefore contended that there is no merit in the present application which is liable to be dismissed.

4. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. In Indu Vs. Sumanbai, 1996(2) Mh.L.J. 817, cited supra, this Court has observed in para nos.13, 14, 16 and 17 as under:

"There is no provision in Hindu Marriage Act enabling the parties to come to an agreement that the marriage should be dissolved out of Court. Therefore, the question whether the alleged agreement between the wife and the first husband about divorce is a valid one and whether the wife's marriage with the petitioner is a valid marriage are all questions which cannot be decided in a proceeding under section 125, Criminal Procedure Code. It is a matter which had to be decided by the competent civil Court. In view of these admitted facts viz. That the wife has a first husband who is living and there is no decree of divorce through the Court under the provisions of the Hindu Marriage Act, I feel that the question should be left open so that the parties can approach a competent civil Court and get a declaration whether the marriage is valid or void. Since prima facie that marriage appears to be void, I feel that the wife could not be entitled to get maintenance in this case, except however giving an opportunity to her to approach a civil Court and get a declaration that her marriage is still valid in law. It is also open to the husband to approach the civil Court and ask for a declaration that the marriage between him and the first respondent is void in law. Till such a declaration is given by a competent civil Court and in view of the admitted facts, I hold that the wife is not entitled to claim maintenance in this proceeding.

The learned counsel for the respondents 1 to 3 invited may attention to a decision reported in 1987(3) Bom.C.R. 199, Dharmabai Vs. Shripat where it is pointed out that when husband and wife were living together for 25 years there is presumption of a valid marriage. In that case also the wife had a first husband. It was pointed out that though the wife lived with the second husband for 25 years, the first husband had not taken any action. The wife had alleged that there was a divorce between her and her first husband.

The learned counsel for the respondents also referred to AIR 1991 M.P. 47 Laxmibai Vs. Ayodhya Prasad. In that case, the validity of the marriage was in question since the husband had a first wife living. It was observed by the High Court that for granting interim maintenance under section 24 of the Hindu Marriage Act, the validity of the marriage need not be considered, hence in my view, the said decision has no application to a case where we are concerned with the final order of maintenance to be granted to wife under section 125, Criminal Procedure Code. Sometimes interim maintenance may have to be granted on prima facie consideration irrespective of the validity of the marriage. But in the present case we are not concerned about granting interim maintenance.

As far as children are concerned, a clear finding of fact is recorded by the learned Sessions Judge that they are born to the petitioner and the first respondent. Even if it is held that the marriage is not valid, then the children will become illegitimate. Even in such a case the children are entitled to claim maintenance. Section 125(1)(b), Criminal Procedure Code clearly provides that both legitimate and illegitimate minor child is entitled to claim maintenance from the father. Therefore, irrespective of the question whether the marriage is valid or not, in view of the finding recorded by the learned Sessions Judge, the children viz. Respondents 2 and 3 are entitled to claim maintenance till they attain majority. Therefore, that finding of the learned Sessions Judge will have to be confirmed."

5. In the present case, Baby (P.W.1) admitted in her cross-examination that Chandrabhan Raut is her first husband and she got two children by name Raju and Tushar. The evidence of Chandrabhan would reveal that the applicant Baby was his wife and he got two sons from her and since five years he is not residing with her and he has performed second marriage. Prior to that he took divorce and is residing at Mangrulpir. In the cross-examination, he admitted that in the voters' list name of Baby has been shown as "Baby w/o Chandrabhan Raut". He also stated that their divorce was oral. On 20th November, they wrote divorce on the stamp paper, but those stamp papers are in custody of Baby. He does not know whether Baby had purchased those stamp papers by mentioning as Baby w/o Chandrabhan Raut.

6. Satish (N.A.2) is the stamp vendor. His evidence would reveal that since 1999 he was working as stamp vendor at Mangrulpir and Baby w/o Chandrabhan Raut had purchased stamp of Rs.20/- from him on 20-2-2002 vide Stamp No.4179. He also stated that he wrote the name Baby w/o Chandrabhan Raut and had obtained the thumb impression on the stamp register after its sale. His evidence also reveals that on the same day he had sold stamp of Rs.50/- to Chandrabhan Raut vide stamp No.4178 and had taken entry of the same in the stamp register. The evidence of this witness would clearly reveal that the marriage of respondent was solemnized with Chandrabhan earlier and the said marriage is still subsisting because admittedly the marriage has not been dissolved by decree of divorce by the competent court. In such circumstances, it is not possible to accept the contention of Mr. Tathod that there was a customary divorce between Chandrabhan and Baby and thereafter she performed the marriage with the present petitioner and as such, she is entitled to maintenance. The decision of this Court in Indu Vs Sumanbai, 1996(2) Mh.L.J.817 : 1996(4) ALL MR 153, cited supra is squarely applicable to the facts and circumstances of the present case. Therefore, this Court is of the view that conclusion can be reached that the first marriage of Baby was subsisting and her alleged marriage with the petitioner is void and consequently she would not be entitled to claim maintenance under Section 125, Criminal Procedure Code. In this situation, it is obvious that the learned Additional Sessions Judge has committed an error in confirming the order passed by the learned Magistrate regarding grant of monthly maintenance to the respondent/wife and the impugned order deserves to be set aside. This application is, therefore, allowed and the impugned order passed by the learned Additional Sessions Judge is quashed and set aside. It is made clear that this Court should not be taken to have expressed any opinion regarding the validity of the marriage between the petitioner and the respondent because the parties can approach the Civil Court and get a declaration about the validity or otherwise of the marriage and claim interim as well as future maintenance.

Petition allowed.