Criminal Revision Application No. 110 of 2009

3rd October, 2012

Petitioner Counsel: Mr. M.M. NERLIKAR
Respondent Counsel: Mr. P.A. KULKARNI

Cases Cited:
Smt. Yamunabai Anantrao Adhav Vs. Anantrao Shivaram Adhav and Anr., AIR 1988 SC 644 [Para 11]
Dwarika Prasad Vs. Bidyut Dixit, AIR 1999 SC 3348 [Para 12]
Badri Prasad Vs. Dy. Director of Consolidation and Ors., AIR 1978 SC 1557 [Para 12]

JUDGMENT

JUDGMENT :- The parties were put to notice that the matter is to be heard for final disposal. The matter is admitted. By consent, notice after admission made returnable forthwith. Heard both the sides after admission of the matter.

2. The revision is filed to challenge the judgment and order of Petition No. E-153/2007, which was pending in Family Court Aurangabad. The proceeding filed by the petitioner under section 125 of Criminal Procedure Code is dismissed by the Family Court.

3. It is the case of the petitioner, wife, that about 8 years prior to the date of proceeding, she was given in marriage to the present respondent as per the Hindu rites and customs and the marriage tie is still in existence. Out of this relationship, she gave birth to a son and son is aged about 7 years. The son is in the custody of the respondent.

4. It is the case of the wife that after some time of the marriage, the husband started giving ill-treatment to her and he started asking her to bring Rs. 50,000/- from her brother. She has contended that she cohabited with the respondent with a hope that one day the things will improve. She has contended that as her brother did not meet the aforesaid demand, she was driven out of the matrimonial house by the husband. After that she gave report to the police against the husband.

5. It is the case of the wife that the husband has refused and neglected to maintain her and she is unable to maintain herself. It is contended that the family of the husband owns 35 acres of irrigated agricultural land, he owns a tractor, a house etc. and his annual income is more than Rs. fifty lacs. It is contended that the husband is in a position to give separate maintenance to her. She had claimed maintenance at the rate of Rs.5,000/- per month and the cost of Rs.1,000/-.

6. The husband denied that he married with the present petitioner as per the Hindu rites and customs. He contended that he had married with one Kaushalyabai and as he could not get issue from Kaushalyabai, he married with the present petitioner in Gandharv form. He has contended that the petitioner cohabited with him in a house, where he was living with Kaushalyabai. He has denied the allegations made against him that he asked to bring Rs. 50,000/- from her brother and as the demand was not met with, she was driven out of the matrimonial house. He has contended that the petitioner has left matrimonial house on her own and he is still ready to accept her back in the matrimonial house.

7. It is the case of the husband that about 12 years prior to filing of the present proceeding, the petitioner had married with one Shivaji and she had obtained divorce from Shivaji as there was dispute between her and his husband. He has contended that the applicant is working as vegetable vendor and she is making sufficient income for her livelihood. The husband has contended that though he owns some agricultural land, he is not getting sufficient income from agriculture and he is not in a position to give separate maintenance.

8. Before the Family Court, the wife examined herself and she produced some record in respect of the property of the husband. The husband examined himself to given evidence in rebuttal.

9. Husband has admitted that he had married with the petitioner though he has contended that it was Gandharv form of marriage. It is his case that as he had no issue from Kaushalyabai, he married with applicant. On the date of the filing of the present proceeding, son of the applicant born from the applicant, was aged about 7 years. It appears that the wife had applied to J.M.F.C. under section 97 of Cr.P.C. for getting the custody of the son, but she could not get the custody of the son.

10. The wife has given evidence that her marriage took place as per the Hindu rites and customs and she cohabited for more than 5 years with the present respondent. Though she has given evidence on illtreatment given by the husband and on the demand of money made by the husband, the said evidence need not be considered as the husband has denied the relationship.

11. In view of the aforesaid facts and circumstances of the case, one case reported as AIR 1988 SC 644 [Smt. Yamunabai Anantrao Adhav Vs. Anantrao Shivaram Adhav and Anr.] was cited. This case is considered by the Family Court. In this case, the Apex Court has laid down that the expression 'wife' means 'legally wedded wife' for the purpose of section 125 of Cr.P.C.

12. In the case reported as AIR 1999 SC 3348 [Dwarika Prasad Vs. Bidyut Dixit], the Apex Court has discussed the nature of proof of relationship required in a proceeding filed under section 125 of Cr.P.C. The Apex Court has laid down that as such proceeding is summary in nature, if there is the evidence of cohabitation and there is evidence to show that the marriage procedure was followed, it is up to the party, who denies the factum of marriage to prove that the marriage can not be treated as legal marriage. One case reported as AIR 1978 SC 1557 [Badri Prasad Vs. Dy. Director of Consolidation and Ors.] was cited. In this case, the Apex Court has considered the implication of section 114 of Evidence Act. It is observed that if a man and a woman were living as husband and wife for many years, strong presumption arises in favour of wedlock. It is observed that for proving the factum of marriage in such a case, the examination of priest and other witnesses is not necessary.

13. In the present case, the factum of marriage is admitted by the husband though he has tried to contend that it was Gandharv form of marriage. The wife has given evidence that she married with the respondent as per the Hindu rites and customs. Admittedly, there was cohabitation of more than 5 years and one son is borne out of this wedlock. The husband is not denying the paternity of the child and on the contrary, he wants to treat him as a legitimate child and that can be seen from the defence taken by him in a proceeding filed for custody of the child by the wife. In view of these circumstances, this Court holds that the wife has given sufficient evidence for proof of marriage for the purpose of proceeding under section 125 of the Cr.P.C. The evidence of the husband or the circumstance that he had wife Kaushalyabai living, is of no help to the husband in view of the peculiar circumstances of the case. The husband cannot be allowed to say that only for the purpose of having a son, he had kept relations with the present applicant by performing marriage in Gandharv form and he is treating his son only as a legitimate issue. In view of these peculiar circumstances of the case, this Court holds that Family Court has committed error in holding that the relationship is not established by wife for the purpose of section 125 of Cr.P.C. So the judgment and order of the Family Court needs to be set aside.

14. On the point of quantum of maintenance, the wife has given evidence that the husband owns agricultural land and he is getting Rs. 50 lacs as income from agricultural land per annum. Admittedly, the present respondent has admitted that the son born from the applicant is studying in Central School and he is paying the fees of the Central School. On this ground the custody of the child is kept with him. Some record like Khata extracts in respect of the lands standing in the name of respondent Bhimrao and his so called wife Kaushalyabai are produced. These documents at Exhs. 30 and 36 show that more than 11 Hector of agricultural land is owned by the Family of the husband. The 7/12 extracts produced on record show that the crops like Jawar, Bajara, cotton are being taken. In major portion of the land, there are the trees of sweet lime. In view of these circumstances, this Court holds that the husband has sufficient means to provide separate maintenance to wife. He has avoided to give exact income from the aforesaid sources. The wife has given evidence that she has no source of income and she is unable to maintain herself. In view of the status of the parties and the capacity of the husband to pay, this Court holds that the wife is entitled to get Rs. 1500/- per month as maintenance. Similarly, the cost amount of Rs. 1000/- needs to be granted to the wife. So the order.

ORDER

(I) The revision petition is allowed.

(II) The judgment and order of the Family Court in Petition No. E-153/2007 is hereby set aside.

(III) The proceeding filed by the wife for maintenance under section 125 of Cr.P.C. is hereby allowed.

(IV) The husband to pay maintenance at the rate of Rs. 1500/- (Rupees fifteen hundred) per month to the wife and maintenance amount would be payable from 8.5.2007 i.e. the date of presentation of maintenance proceeding by the wife.

(V) The husband to pay Rs.1000/- (Rupees one thousand) as cost of the present applicant.

(VI) A copy of this judgment be supplied free of cost to the wife.

Petition allowed.