Criminal Writ Petition No.51 of 2010

11th February, 2013

Petitioner Counsel: Mr. NASEEM R. SHAIKH, Mr. JAVED R.SHAIKH
Respondent Counsel: Mr. D.R. KORDE, Mr. S.S. GANGAKHEDKAR

Cases Cited:
Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit and another, 2000 CRI.L.J. 1(1) [Para 8]
Santosh s/o Naresh Pal Vs. Naresh Pal, 1999 (2) Mh.L.J. 262 [Para 10]
Nirmalabai w/o Uttam Dhanai Vs. Uttam s/o Rambhau Dhanai and another, 2001 (3) Mh.L.J. 131 [Para 12]
Smita Halarnkar Vs. Mahendra Halarnkar, 2008 ALL MR (Cri) 3441=2008 (4) Mh.L.J. (Cri) 484 [Para 13]
Savitaben Somabhai Bhatiya Vs. State of Gujrat and others, 2005 ALL MR (Cri) 1309 (S.C.) =2005 Cri.L.J. 2141 [Para 14]
Smt. Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and another, 1988 Cri.L.J. 793 (1) [Para 15]
Pyla Mutyalamma @ Satyavathi Vs. Pyla Suri Demudu & anr., 2012 ALL MR (Cri) 712 (S.C.)=2011 (9) SCALE 403 [Para 16]

JUDGMENT

JUDGMENT :- Rule was issued on 30th Sept., 2010, with Ad interim relief.

2. The petitioner Ambadas has questioned the order of maintenance at the rate of Rs.1500/- per month to respondent Smt.Malabai, by order in Criminal Revision Application No.203/2009 dated 4th Dec., 2009.

3. The gravamen of submissions is, the petitioner and Smt. Malabai had already subsisting spouse, there being no severance of their earlier relations, Smt.Malabai could not stake a claim for maintenance allowance under Section 125 of Cr.P.C.

4. The learned Judicial Magistrate, First Class, in paragraph no.11 of the order, evaluated and assessed the evidence which made him to decline maintenance as the respondents accepts her marital relations with Jagdish Hari Patil, 30 years prior to 30th Dec., 2007, and out of the said wedlock, she has delivered four children. She did not venture of its dissolution.

5. The learned Sessions Judge reversed the positive finding of fact, solely placing reliance to Exhs. 42 and 43, which is an information given by the petitioner to his employer about dependents, on 1.4.1998, and showing respondent Malabai to be his wife. Exh.43 is an application moved by the petitioner for leave travel concession giving information about two children and of Malabai.

6. The respondent claimed that she has married to petitioner on 15th May, 1989. Both the parties did not produce any evidence of severance of their marital ties before joining company of each other. Her evidence showed, a priest arranged marriage, she does not recollect place of marriage nor name of the priest, even relations of either side who were present at pious occasion. It was expected of her to disclose at least a single name and to examine.

7. Learned Sessions Judge was exercising powers under Section 397 Cr.P.C. of revision, which has a limited scope to dwell upon the facts. Mere staking in concession form, status of respondent to be wife would not be a sole document to accept marital relations. There was no perversity on appreciation of facts by the original Court, then exercise in revision was permissible; but, on the same set of facts, an altogether different explanation is not contemplated.

8. Learned Counsel for respondent has placed reliance to the judgment in the matter of Dwarika Prasad Satpathy V. Bidyut Prava Dixit and another (2000 CRI.L.J. 1(1) wherein the Hon'ble Apex Court has observed, the validity of the marriage for the purpose of summary proceeding under Section 125, Cr.P.C. is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceeding is not as strict as is required in a trial of offence under section 494 of the I.P.C. If the claimant in such proceedings establish that both lived together as husband and wife, the Court may presume that they are legally wedded spouses, and in such a situation, the party which denies the marital status can rebut the presumption. Once it is admitted that the marriage procedure is followed, then it is not necessary to further probe into whether the said procedure was complete as per the Hindu rites in the proceedings under Section 125 Cr.P.C.

9. In the instant case, the stand of petitioner, from inception is, there were no marital relations nor performance of any procedure of marriage with respondent. He has not attributed any fault to any procedure of marriage as advanced provenly by the wife. On the other hand, respondent has not led any primary evidence to substantiate her stand of living with the petitioner as his wife. The limited expectation to show relationship is not followed by respondent. Earlier marital tie is not broken.

10. Learned Counsel for the petitioner has placed reliance to the judgment of the Honourable Supreme Court in the matter of Santosh s/o Naresh Pal V. Naresh Pal (1999 (2) Mh.L.J. 262). In the said case, learned Magistrate allowed the application for maintenance. Applicant Santosh was a divorcee. Naresh (husband) had also taken divorce from earlier wife and there was lack of evidence to establish of no dissolution of previous marriage. The High Court set aside the order of maintenance and the Apex Court entertained the same on the ground that in a proceeding for maintenance under Section 125 Cr.P.C., the Magistrate is expected to pass appropriate orders after being prima facie satisfied about marital status of the parties. It is obvious that said decision is tentative decision subject to any final order in the civil proceedings, if parties are so advised to adopt. The High Court was not justified in interfering with the pure finding of fact reached in the proceeding under Section 125, Cr.P.C. The Apex Court affirmed the order of maintenance granted by the learned Magistrate.

11. In the instant case, the learned Magistrate refused to grant maintenance on appreciation of facts.

12. In the matter of Nirmalabai w/o Uttam Dhanai v. Uttam s/o Rambhau Dhanai and another (2001 (3) Mh.L.J. 131), this Court was also considering finding of trial Court upholding relationship of husband and wife and observed, validity of marriage to be determined on the basis of the evidence brought in; inquiry being summary. In the said case, there was interference by the revisional Court holding against the wife on the ground of absence of documentary evidence. This order was set aside.

In the instant case, there was a question mark to the validity of the marriage between the parties, assessed by the learned Judicial Magistrate, First Class.

13. In Smita Halarnkar vs. Mahendra Halarnkar (2008 (4) Mh.L.J. (Cri) 484) : [2008 ALL MR (Cri) 3441], this Court considered scope of proceedings under Section 125 of Cr.P.C. and observed that they are placed in the Code of Criminal Procedure with a view to provide quick and summary remedy.

14. Learned Counsel for the petitioner has placed reliance to the judgment of Hon'ble Supreme Court in the matter of Savitaben Somabhai Bhatiya vs. State of Gujrat and others (2005 Cri.L.J. 2141) : [2005 ALL MR (Cri) 1309 (S.C.)] wherein the Apex Court considered scope of the term "wife" and observed that it cannot be enlarged to include a woman not lawfully married. It was observed in paragraph nos. 16 and 17, even if it is proved that husband was treating the applicant as wife, it is really in-consequential. It is the intention of the Legislature which is relevant and not the attitude of the party. The principle of estoppel cannot be pressed into service to defeat the provision of Section 125 of the Code.

15. In Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another (1988 Cri.L.J. 793 (1)), the Apex Court was considering import of a situation where a lady was married to a person having living spouse and observed, it is null and void and it is also observed that it is not voidable under Section 12. It was reinforced, the term "wife" means legally wedded wife. Marriage of a woman with a man already having living spouse, as per the Hindu rites, is complete nullity, she is not entitled to maintenance.

16. In Pyla Mutyalamma @ Satyavathi Vs. Pyla Suri Demudu & anr. (2011 (9) SCALE 403) : [2012 ALL MR (Cri) 712 (S.C.)], the Apex Court discussed the evidence in the said matter and observed, under the law, a second wife whose marriage is void on account of survival of the previous marriage of her husband with a living wife, is not a legally wedded wife and she is, therefore, not entitled to maintenance under Section 125 Cr.P.C. for the sole reason that "law leans in favour of legitimacy and frowns upon bastardy". But the law also presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a long number of years and when the man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.

In the matter of Pyla Mutyalamma the Hon'ble Supreme Court observed that the High Court in its revisional jurisdiction ought not to have entered into scrutiny of findings recorded by the Magistrate that the appellant was married wife of the respondent before allowing an application determining maintenance as it is well settled that the revisional Court can interfere, if there is any illegality in the order or, there is material irregularity in the procedure or there is an error of jurisdiction. It is observed, "the High Court under its revisional jurisdiction, is not required to enter into re-appreciation of evidence recorded in the order granting maintenance. At the most, it could correct patent error of jurisdiction".

Same principle applies while the learned Sessions Judge was exercising powers under Section 397 of Cr.P.C.

17. To revert to facts, unfortunately, there is no evidence between the couple of marriage, least of the divorce from earlier spouse. There is no proclivity to accept the long standing association, barring Exhs. 42 and 43.

18. The sum total of the aforesaid facts illustrate, as on the date of evidence i.e. 14th Dec., 2007, the respondent had four children from her earlier marriage. She was not in a position to establish divorce nor quote any date of divorce nor any witness or document. She, equally, could not, establish her marriage to petitioner. Petitioner indeed has established subsistence of marriage with his wife Ashabai.

The award of maintenance is quashed and set aside. If the respondent desires to exhaust remedies under civil law, it is open for her to establish her status.

Rule made absolute.

Ordered accordingly.