2014 ALL MR (Cri) 987
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
T.V. NALAWADE, J.
Sau. Jaishree W/O. Premnath Gavandar & Anr. Vs. The State Of Maharashtra & Anr.
Criminal Revision Application No.72 of 2012
22nd August, 2013
Petitioner Counsel: Shri S.G. SHINDE
Respondent Counsel: Shri P.P. MORE
Other Counsel: Shri SK. ASHPAK PATAEL
Criminal P.C. (1973), S.125 - Claim for maintenance - Applicant wife's marriage was performed in "Gandharv" form without any rites or ceremonies of marriage - Held, 'Wife' mentioned in S.125 Cr.P.C. is a lady who has undergone marriage ceremony - Hence, wife's claim for maintenance rejected - However, maintenance to child born to applicant from respondent, allowed.
2010(5) LJSOFT (URC) 13, 2005 ALL MR (Cri) 1309 (S.C.) Rel. on. (Para 4)
Sau. Manda R. Thaore Vs. Ramaji Ghanshyam Thaore, 2010(5) LJSOFT (URC) 13 [Para 4]
Savitaben Somabhai Bhatiya Vs. State of Gujarat and others, 2005 ALL MR (Cri) 1309 (S.C.)=AIR 2005 SC 1809(1) [Para 4]
2. The revision is filed against judgment and order of petition bearing No.E-238/10 which was pending in family Court, Aurangabad. The proceeding was filed u/s 125 of Cr.P.C. by applicants. The family Court has granted relief of monthly maintenance in favour of applicant no.2 Master Harsh but application of applicant no.1 Smt. Jaishree is dismissed. Both sides are heard.
3. This Court has gone through the record of family Court. Applicant no.1 Jaishree has given admission that her so-called marriage with present respondent no.2 was in Gandharv form. Thus, she admits that there were no rites or ceremonies of the marriage. Respondent no.2 has admitted that Master Harsh was born to Jaishree from him. Due to these circumstances, family Court has rejected application of Jaishree and had granted maintenance at the rate of Rs.1000/- to the son of applicant no.1.
4. Family Court has taken support of observations made by this Court in case reported in 2010(5) LJSOFT (URC) 13, in the case of Sau. Manda R. Thaore V/s Ramaji Ghanshyam Thaore. On this point, case reported in AIR 2005 Supreme Court 1809(1) : [2005 ALL MR (Cri) 1309 (S.C.)] in the case of Savitaben Somabhai Bhatiya V/s State of Gujarat and others. The Apex Court has laid down that the wife mentioned in Section 125 of Cr.P.C. is a lady who has undergone marriage ceremony. In that case, when it was second marriage, Apex Court held that the second wife was not entitled to get maintenance. In the present case, though the facts are different, the evidence of Jaishree shows that there was no marriage between her and respondent no.2. In view of these circumstances, there is no possibility of interference in the decision of family Court given to dismiss the claim of Jaishree.
5. Maintenance at the rate of Rs.1500/- per month was claimed by Master Harsh and it is granted at the rate of Rs.1000/- p.m. by the trial Court. The relationship is admitted by respondent no.2. There is evidence given to prove that respondent no.2 runs a tea stall. Evidence is also given to the effect that respondent no.2 owns house property at Nakshatrawadi, Aurangabad. Jaishree has given evidence that monthly income from hotel business of respondent no.2 is atleast Rs.20000/-. On the other hand, respondent no.2 has given evidence that he earns Rs.50/- per day by doing business of tea on hand cart. He did not produce record in respect of his business. The family Court has observed that even a labour earns more than Rs.150/- per day and so, income must be more than Rs.4000/- p.m.
6. Master Harsh was aged about 5 years at the relevant time. He has started school education. There is no evidence to show that Jaishree is earning anything. In view of these circumstances, it cannot be said that the maintenance at the rate of Rs.1000/- per month is just and proper and it is sufficient for the maintenance of Master Harsh. This Court holds that as per status of the parties and as per requirement of Harsh, maintenance at the rate of Rs. 1500/- per month needs to be granted. To that extent, judgment and order can be modified. So order :