Criminal Writ Petition No.10 of 2003

11th February, 2015.

Petitioner Counsel: Mr. R.R. TEMKAR
Respondent Counsel: Mr. S.K. SHINDE, Mr. D.R. KALE

JUDGMENT

JUDGMENT :- Present Writ Petition arises out of the Judgment and Order dated 6th July, 2002 passed by the learned Additional Sessions Judge, Sangamner, Dist. Ahmednagar in Criminal Revision Application No.97 Of 2000 whereby, the learned revisional court allowed the Criminal Revision Application filed on behalf of present respondent - Suman and, thereby, allowed her application filed under Section 125 of the Code of Criminal Procedure and granted monthly maintenance allowance @ Rs.300/- to her from the date of filing of said Application.

2. None present for the petitioner. Mr. S.K. Shinde, learned counsel for respondent No.1 is present.

3. This Writ Petition pertains to the year 2003. While granting interim stay in favour of the petitioner, this court [ Coram : N.V. Dabholkar, J.] on 29th January, 2003 directed the petitioner to pay all the arrears of maintenance allowance.

4. Since the matter is old one and pertains to the maintenance and since the Record & Proceedings which were called for, are available, this court proceeds further in the matter.

5. The respondent is the wife of the petitioner. She filed Cri. M.A. No. 692/1991 under Section 125 of the Code of Criminal Procedure in the court of the learned Judicial Magistrate, F.C., Sangamner, Dist. Ahmed -nagar, on 4th October, 1991. By the said, it was stated by the wife that marriage between her with the present petitioner was solemnized in the year 1972. Though for first two years, she was treated nicely by the petitioner subsequently, his behaviour was changed and ill-treatment was started to her. It is specifically alleged in the application that the petitioner is having extra marital relations with other lady. On that count, he used to demand divorce. In the application itself, the wife has specifically asserted that the petitioner has married with one Vithabai Gajaba Umap and from the said wedlock, he is having two sons. It was further stated that two years prior to filing of the proceedings under Section 125 of the Code of Criminal Procedure, she was driven out of matrimonial house.

6. The application was contested by the petitioner by filing his Written-Statement. In the Written-Statement defence was taken that the petitioner stood as guarantor in respect of agreement executed between brother of wife and Sugar Factory, Rahuri and her brother obtained advance from said Sugar Factory and ran away. Thereafter, it was the present petitioner, who repaid the said amount and when he demanded the said amount, at the behest of her brother, present proceedings were initiated against him, by his wife. It is further contention of the petitioner in the Written Statement that she herself has left the company of the petitioner.

7. Parties entered into the witness-box and also adduced evidence of other witnesses. The learned Judicial Magistrate, F.C., Sangamner, Dist. Ahmednagar vide its Judgment and Order dated 30th September, 1993 dismissed the proceedings under Section 125 of the Code of Criminal Procedure on the ground/s :-

(i) It is not pleaded in the application that the wife is unable to maintain herself.?

(ii) That, she herself left the company.

The Criminal Revision Application was carried against the said order which came to be allowed, as observed in the opening paragraph of this Judgment.

8. With the assistance of learned counsel for the respondents, I have gone through both the Judgments and Orders passed by the courts below. The observations of the learned trial court that, it is not pleaded by the wife that she is unable to maintain herself is contrary to the record. In paragraph No.4 of the application under Section 125 of the Code of Criminal Procedure it has been specifically stated as under :-

"lk-okysl ckxk;r 'ksrh vlqu ml o ?kklkps fid ?ksr vlrks o 5@6 tlhZ xk;k vlwu rks /kkU;kpk O;kikj dfjr vlwu R;kal ;k loZ O;ogkjkiklwu o"kkZyk 2 yk[kkps mRiUu feGr vkgs- R;keqGs R;kph vtZnkjkal :i;s 500@& vUuoL= ns.;kph ,sir vkgs- ;k myV vtZnkj fgl dkghgh dke/kank ulqu frl mRiUukps dkghgh lk/ku ukgh- vls vlqu ns[khy lk-okyk ;kus vtZnkjkps vUuL=kps dkghgh lks; dsyh ukgh-"

9. Those specific pleadings were made by the applicant in her application itself that she is not having any means to maintain herself. Further in the application itself the applicant has specifically stated that the petitioner has married with one Vithabai and from said wedlock he is having two sons. In examination in chief itself Respondent - Suman has deposed as under :-

"He entered into marriage with one Vithabai and is having a son, and daughter from him."

This version from the witness-box which is in consonance with her pleadings is not at all challenged by the petitioner / husband when respondent / wife was under cross-examination. When the petitioner was in the witness box, he has admitted as under :-

"I am facing prosecution for bigamy in this court."

10. The wife has brought on record the school leaving certificate of Asha and Tukaram Exhibit -27 and Exhibit - 28. These are the children of the petitioner from his second wife. This aspect is also not denied. Further though the second marriage is not duly proved that by itself is not sufficient to dis-entitle the claim by the present petitioner. Wife is entitled to reside separately if it is found that her husband is residing with another lady. That fact is sufficient for legally wedded wife to reside separately and on that count her claim cannot be denied by the court, that she is not residing with the husband.

11. The revisional court in my view has correctly evaluated the pleadings and evidence brought on the record and rightly reached to the conclusion that the Judgment and Order passed by the learned Magistrate is suffered from perversity and has rightly allowed the claim of the respondent - wife. I see no reason to interfere with well reasoned order passed by the revisional court. For aforesaid reasons, Writ Petition is dismissed. Rule discharged.

Petition dismissed.