Cri.Rev.Appln. Nos.283 of 2001,Cri.Rev.Appln. Nos.49 of 2002

17th January, 2006

Petitioner Counsel: S. S. SHETE,B. V. DHAGE
Respondent Counsel: B. V. DHAGE,S. S. SHETE,D. R. ADHAV

Cases Cited:
Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav, (1988)1 SCC 530 [Para 8,12]
Savitaben Somabhai Bhatiya Vs. State of Gujarat, 2005 ALL MR (Cri) 1309 (S.C.)=2005 Cri.L.J. 2141 (SC) [Para 8,13]

JUDGMENT

JUDGMENT :- Original opponent Dnyaneshwar Maroti Bhusari, being dissatisfied with the order dated 28-7-2001, passed by the Principal Judge, Family Court, Aurangabad, in Petition No.E-753/2000 directing him to pay maintenance at the rate of Rs.300/- per month to the original applicant No.1 - present Respondent No.1, from the date of application, filed Criminal Revision Application No.283/2001, whereas original applicants No.1 and 2, being dissatisfied with the said order refusing to grant maintenance to the applicant No.2 Yogesh and granting inadequate maintenance to the applicant No.1, filed Criminal Revision Application No. 49/2002 with a request to grant maintenance at the rate of Rs.1000/- per month to each of the applicants.

2. As both these Revisions are arising out of the very same order, passed by the Principal Judge, Family Court, Aurangabad, I feel it desirable to dispose of these Revisions by this common order.

3. The facts in nutshell, leading to the present Revisions, are that :

Original applicant No.1 Pushpabai and applicant No.2 Yogesh Bhusari have filed an application on 21-11-2000 for maintenance under section 125 of the Criminal Procedure Code before the Family Court, Aurangabad. In the said application, it was contended that marriage of applicant No.1 was performed with the opponent in the month of June, 1990 at village Dhangarwadi, Tq. Shrirampur, District Ahmednagar. It was further claimed that applicant No.1, after the marriage, started cohabiting with the opponent and out of the said wedlock gave birth to applicant No.2. It is further claimed that the opponent initially maintained the applicants properly and the relationship of applicant No.1 and opponent, as husband and wife, is still subsisting. It was, however, alleged that the opponent, after a period of two years, started illtreating applicant No.1 and he used to beat her under the influence of liquor. Even the sister of opponent, namely Sangeeta, tried to administer poison to the applicant No.1. It was alleged that the opponent thereafter driven out the applicants from his house. The applicants thereafter made an attempt to convince the opponent to allow them to reside with him, however, the opponent refused to the same and thereby neglected and refused to maintain them. It was claimed that the applicants are not able to maintain themselves. They are presently residing at Aurangabad. The applicant No.1 is doing household work and the applicant No.2 is taking education. It was further claimed that the opponent is having 100 acres agricultural land and getting income of more than Rs.15 to 20 lacs per year. It was contended that he is also doing the business of milk selling. It was further alleged that the opponent has performed second marriage somewhere in the year 1995 and, therefore, it is claimed that the applicants have every right to claim separate maintenance. A request was accordingly made to grant maintenance at the rate of Rs.1500/- per month to each of the applicants.

4. The opponent appeared in the matter and filed his say at Exhibit-4. So far as the claim of the applicant No.1 that marriage between her and opponent was performed in June, 1990, the same has not been disputed by the opponent. However, the other allegation that the said marriage is still subsisting, has been denied by the opponent. He also challenged the maintainability of the said application filed under section 125 of the Criminal Procedure Code, filed before the Family Court. It was contended that after the marriage, applicant No.1 started residing with the opponent and at that time, the opponent came to know that the applicant No.1 was pregnant from some other person before her marriage with the opponent and the period of gestation was approximately six months. It was further alleged that the opponent then took the applicant No.1 to the doctor at Newasa and thereafter to the hospital at Ahmednagar and confirmed that applicant No.1 was pregnant prior to her marriage with the opponent. The opponent has, therefore, filed Hindu Marriage Petition No.23/91 before the Civil Judge, Senior Division, Ahmednagar, under section 12 of the Hindu Marriage Act for annulment of the said marriage. Though notice was issued to the applicant No.1, in the said Petition, she remained absent. Accordingly, the said petition came to be decreed on 4-7-1991. It was further alleged that in spite of the said decree of annulment of marriage, the applicants are trying to insert the name of opponent as husband of applicant No.1 and father of applicant No.2. The opponent, therefore, filed a Suit bearing Regular Civil Suit No.318/91. The said suit was also decreed on 26-3-1996. The opponent has also denied the paternity of applicant No.2. According to him, as the relation between him and applicant No.1, as husband and wife, are not subsisting in view of the decree in Petition No.23/91, passed under section 12 of the Hindu Marriage Act, the application for maintenance is not maintainable. A request was, therefore, accordingly made to reject the said application.

5. To substantiate their claim, the applicant No.1 examined herself. The opponent has also examined himself and three other witnesses, namely Madhukar Mandlik, Vishwanath Markad and Abasaheb Satav. Through the evidence of the opponent, it is brought on record that applicant No.1 has got married with witness No.3 Vishwanath Markad in the year 1992. It was contended that in view of this position also, the application for maintenance is not maintainable.

6. The Principal Judge, Family Court, Aurangabad, after considering the evidence, concluded that the evidence of opponent and witness No.3 Vishwanath Markad, so far as performance of marriage between applicant No.1 and witness No.3 Vishwanath Markad in the year 1992, is not satisfactory and the said aspect has not been satisfactorily proved. He accordingly discarded the said evidence. The Family Court further concluded that in view of the admitted position that marriage of applicant No.1 was performed with opponent in the month of June, 1990 and in view of the decree passed in H. M. Petition No.23/91, she can be termed as a "divorced wife". The Principal Judge, Family Court, accordingly allowed the application for maintenance to the extent of applicant No.1 and directed the opponent to pay maintenance at the rate of Rs.300/- per month to her, while so far as applicant No.2 is concerned, he concluded that applicant No.1 was pregnant at the time of her marriage with opponent and there is no satisfactory evidence to conclude that applicant No.2 was born to the applicant No.1 from the opponent. He accordingly disallowed the claim of the applicant No.2 for maintenance. The said finding recorded by the Principal Judge, Family Court, Aurangabad, is challenged by both the parties by filing separate Revisions.

7. I accordingly heard Shri. S. S. Shete, advocate for the original opponent (petitioner in Criminal Revision Application No.283/2001) and Shri. B. V Dhage, advocate for original applicants (petitioners in Criminal Revision Application No.49/2002), at length.

8. It is submitted by Shri. Shete, advocate for the original opponent (Petitioner in Criminal Revision Application No.283/2001), that the Principal Judge, Family Court, has practically misdirected himself in considering the applicant No.1 as a "divorced wife". He submits that in fact, in the present case, the decree was not passed under section 13 of the Hindu Marriage Act, but the decree was passed under section 12(d) of the Hindu Marriage Act for annulment of marriage and in view of this position, the relation between the applicant No.1 and opponent, as husband and wife, does not subsist and, therefore, the applicant No.1 cannot be termed as a divorced wife. He submits that, however, the Court below misdirected himself in considering the said aspect as also the effect of decree passed under section 12 of the Hindu Marriage Act. In support of his contentions, he placed reliance on certain authorities i.e. in the case of Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and another, reported in (1988)1 SCC 530 and in the case of Savitaben Somabhai Bhatiya Vs. State of Gujarat and others, reported in 2005 Cri.L.J. 2141 (SC) : [2005 ALL MR (Cri) 1309 (S.C.)]. Relying on the ratio laid down in the said authorities, he submits that the order, passed by the Family Court, Aurangabad, granting maintenance to the applicant No.1, needs to be set aside.

9. On the other hand, it is submitted by Shri. Dhage, advocate for the original applicants (petitioners in Criminal Revision Application No.49/2002), that the Court below has rightly granted maintenance in favour of applicant No.1 considering the definition of "wife" as given under section 125 of the Code of Criminal Procedure. However, according to him, considering the income of the opponent, the maintenance granted by the Court below, in favour of applicant No.1, is inadequate. He further submits that the Court below has also wrongly rejected the claim of the applicant No.2 for grant of maintenance. He, therefore, requests to allow the Revision filed by the original applicants.

10. Considering the submissions, it is now necessary to see whether the conclusion arrived at by the Principal Judge, Family Court, Aurangabad, granting maintenance in favour of applicant No.1, is proper and justified. At the outset, it is necessary to make it clear that/the expression "wife" should be interpreted to mean only a legally wedded wife. It is true that the term "wife" includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. It is equally true that the benefit of the provision does not extend to a woman whose marriage is null and void. Thus, the term "wife" means a legally wedded wife in accordance with the personal or civil law governing the parties and, therefore, it does not cover a woman whose marriage is void ab initio being in contravention of the personal or civil law governing their marriage. Where the marriage is not solemnized in accordance with customary rites, it does not amount to valid marriage. A reference, in this respect, is necessary to section 12(d) of the Hindu Marriage Act, which reads as under :

Section 12. Voidable marriages : (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely :-

(a) ... ... .... ... .... ... ...

(b) ... ... .... ... .... ... ...

(c) ... ... .... ... .... ... ...

(d) that the respondent was at the time of marriage pregnant by some person other than the petitioner.

11. In the present case, it will be seen from the record that the opponent had filed Hindu Marriage Petition No.23/91 under section 12 (d), of the Hindu Marriage Act, for annulment of marriage, on the ground that the applicant No.1 was pregnant at the time of marriage with the opponent from some other person. The said petition was decreed. On perusal of the evidence of applicant No.1, which is at Exhibit-13, it is seen that in cross-examination, she admitted that after marriage, she was dropped at her brother's house by the opponent after 7/8 months of her marriage and that the opponent has filed a case against her. Thus, it is clear that the applicant No.1 was having knowledge in respect of the said petition. Even notice of the said petition was also served on the applicant No.1, which aspect is clear on perusal of the judgment and decree in H. M. Petition No.23/91. In view of this position, the relation between the applicant No.1 and opponent as wife and husband does not exist as that marriage having been annulled in pursuance to the decree passed by the competent Court. The said judgment and decree has not been challenged by the applicant No.1. In view of this position, I find that the conclusion arrived at by the Court below that applicant No.1 can be termed as "divorced wife" is basically misconceived.

12. A reference, in this respect, is also necessary to the authorities on which reliance has been placed by Shri. Shete, advocate for the opponent. In the case of Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and another, reported in (1988)1 SCC 530, which deals with -

Hindu Marriage Act, 1956 - Sections 11, 5, 4 and 12 - Marriage in contravention of section 5 - Such marriage cannot be justified on the ground that the same was recognised under custom, usage or earlier Hindu law by overriding effect of section 4.

it has been observed to the following effect:

"Merely because Explanation (b) to section 125(1) of the Code entitles a divorcee to the benefits of the section, it cannot be said that a woman marrying according to Hindu rites a man who has a wife living should be brought within the sweep of the section by giving an extended meaning. For the purpose of extending the benefit of the section to a divorced woman and an illegitimate child, Parliament considered it necessary to include in the section specific provisions to that effect, but has not done so with respect to women not lawfully married."

13. A reference, in this respect, is also necessary to the authority in the case of Savitaben Somabhai Bhatiya Vs. State of Gujarat, reported in 2005 Cri.L.J. 2141 (SC) : [2005 ALL MR (Cri) 1309 (S.C.)], wherein it is observed to the following effect :

"The legislature considered it necessary to include within the scope of section 125 an illegitimate child but it has not done so with respect to woman not lawfully married. As such, however, desirable it may be, to take note of the plight of the unfortunate woman, who unwittingly enters into wedlock with a married man, the legislative intent being clearly reflected in section 125 of the Code, there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression 'wife'. This may be an inadequacy in law, which only the legislature can undo."

14. Considering the ratio laid down in the above authorities and considering the fact that a decree of annulment has been passed under section 12 of the Hindu Marriage Act, when the marriage between the parties i.e. applicant No.1 and opponent has been annulled, in such circumstances, the applicant No.1 cannot be termed as a "divorced wife". When the relation between the applicant No.1 and opponent, as husband and wife, does not subsist, granting of maintenance in favour of applicant No.1 by the Family Court is definitely not justified.

15. So far as applicant No.2 is concerned, there is no material on record to conclude that applicant No.1 gave birth to applicant No. 2 from the opponent and, therefore, the claim of the applicant No.2 for grant of maintenance has been rightly rejected by the Court below.

16. It is seen that the Court below, however, wrongly concluded about the neglect and refusal on the part of the opponent to maintain the applicants, when on bare perusal of the tenor of cross-examination of the opponent, wherein to a suggestion put on behalf of the applicant No.1 he replied to the following effect :

"It is true that I have got secondly married after the petitioner No.1 secondly married."

This reply given by the opponent to a suggestion put on behalf of the applicant No.1 is relevant, as in the evidence, opponent has contended that applicant No.1 has married in the year 1992 with Vishwanath Markad, the witness examined on behalf of the opponent. Even the evidence of Vishwanath Markad sufficiently makes it clear that the applicant No.1 has married with him in 'Gandharva' form in the year 1992. The evidence of opponent further makes it clear that he performed second marriage in the year 1995, which makes it clear, as stated by the opponent in his evidence, that he performed second marriage after the applicant No.1 has performed second marriage with Vishwanath Markad in the year 1992. This aspect has not been considered by the Court below.

17. At any rate, when there is a decree in favour of the opponent, passed under section 12 of the Hindu Marriage Act, annulling the marriage between him and applicant No.1, I find that the applicants have no right to claim maintenance from the opponent. In view of this position, the order dated 28-7-2001, passed by the Principal Judge, Family Court, Aurangabad, in Petition No.E-753/2000, to the extent of granting maintenance in favour of the applicant No.1, needs to be set aside and the application for maintenance filed by the applicants No.1 and 2 needs to be rejected. In this view of the matter, the Criminal Revision Application No.283/2001 needs to be allowed and the Criminal Revision Application No.49/2002, needs to be dismissed.

18. In the result,

(i) Criminal Revision Application No.283/2001, filed by original opponent Dnyaneshwar Maroti Bhusari, is allowed.

(ii) Criminal Revision Application No.49/2002 is accordingly dismissed.

(iii) Parties are directed to bear their own costs.

(iv) Record and Proceedings be returned to the lower Court.

Order accordingly.