2018 ALL MR (Cri) 1336
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
S. B. SHUKRE, J.
Bandu @ Narayan s/o. Ramchandra Gote Vs. Sau. Tulsabai w/o. Narayan Gote
Criminal Writ Petition No.1126 of 2017
20th February, 2018.
Petitioner Counsel: Shri A.S. DESHPANDE
Respondent Counsel: Shri V.K. PALIWAL
Criminal P.C. (1973), S.125 - Maintenance - To second wife - No evidence that wife possessed knowledge of subsistence of first marriage of husband at time of her marriage - Admission of father of second wife that he knew about subsistence of first marriage of husband - But, he clarified that he was not aware of date or year when so called first marriage of husband took place - Nothing to show that father had informed his daughter about subsistence of first marriage of husband - Knowledge of father of woman cannot be said to be knowledge of woman herself - On contrary, husband admitted that he has daughter from his marital relationship with second wife - Wife is entitled to maintenance. (Para 9)
Cases Cited:
Badshah Vs. Sou. Urmila Badshah Godse and another, 2013 ALL SCR 3713=AIR 2014 SC 869 [Para 6,10]
S. Sethurathinam Pillai Vs. Barbara alias Dolly Sethurathinam, (1971) 3 SCC 923 [Para 6]
Chanmuniya Vs. Virendra Kumar Singh Kushwaha and another, 2011 ALL MR (Cri) 346 (S.C.)=(2011) 1 SCC 141 [Para 7]
Smt. Yamunabai Anantrao Adhav, AIR 1988 SC 644 [Para 7,8]
Savitaben Somabhai Bhatiya Vs. State of Gujarat and others, 2005 ALL MR (Cri) 1309 (S.C.)=AIR 2005 SC 1809 [Para 7]
Sanghmitra and others Vs. Ganpat, Cri. Appl., (APL) No.479/2012, Dt.22.1.2016 [Para 11]
JUDGMENT
2. Rule. Rule made returnable forthwith.
4. This petition challenges two orders one is of 31st March, 2017, passed by the Judicial Magistrate, First Class, Washim, in Misc. Criminal Case No.171/2014 and the other dated 19.8.2017, passed by the Sessions Judge, Washim in Criminal Revision No.16/2017.
5. By the order passed on 31.3.2017, maintenance of Rs.1,500/per month was granted to the respondent-wife under Section 125 of the Code of Criminal Procedure. It was also granted at the same rate to Madhuri, daughter begotten by the respondent during her wedlock with the petitioner. We are not concerned with the maintenance granted to the daughter as it is not under challenge in this petition.
6. The order of monthly maintenance granted to the respondent was confirmed by the learned Sessions Judge when he dismissed Criminal Revision Application No.16/2017, on 19th August, 2017. Learned Sessions Judge relied upon the case Badshah Vs. Sou. Urmila Badshah Godse and another, reported in AIR 2014 SC 869 : [2013 ALL SCR 3713].
7. In Badshah, Hon'ble Supreme Court held that as the respondent-wife was kept in the dark about the petitioner-husband's first marriage in that case, the petitioner-husband could not be allowed to take advantage of his own wrong and turn around to say that the respondent was not entitled to maintenance in a petition filed under Section 125 of Cr.P.C. The Hon'ble Apex Court further held that at least for the purpose of Section 125 Cr.P.C., on such facts, the respondent-wife would have to be treated as the wife of the petitioner-husband following the spirit of the two cases, namely, S. Sethurathinam Pillai Vs. Barbara alias Dolly Sethurathinam, reported in (1971) 3 SCC 923 and Chanmuniya vs. Virendra Kumar Singh Kushwaha and another reported in (2011) 1 SCC 141 : [2011 ALL MR (Cri) 346 (S.C.)]. The Hon'ble Apex Court also explained the law laid down in it's two previous cases of Smt. Yamunabai Anantrao Adhav reported in (AIR 1988 SC 644) and Savitaben Somabhai Bhatiya vs. State of Gujarat and others (AIR 2005 SC 1809) : [2005 ALL MR (Cri) 1309 (S.C.)] by observing that these judgments would apply only in those circumstances where a woman married a man with full knowledge of the subsistence of first marriage.
8. In the case of Savitaben Hon'ble Supreme Court held that meaning of the term 'wife' used in section 125 of the Cr. P.C. cannot be enlarged to include a woman not lawfully married. It held that the question as to whether or not a woman is a wife can be decided only by reference to the personal law applicable to the parties and it is only where the woman establishes the fact that she is a wife in accordance with the personal law applicable to the party that an application for maintenance can be entertained. It also observed that the marriage of a woman in accordance with the Hindu rights with a man having living spouse is a nullity in the eye of law and if the first marriage is proved, the woman whose marriage with the man is subsequent to the first marriage is not entitled to the benefit of Section 125 of the Cr.P.C. However, as stated earlier, these observations of the Hon'ble Apex Court have been explained by the Supreme Court in the subsequent decision of Badshah. Same were the observations of the Hon'ble Apex Court in the case of Yamunabai Anantrao Adhav (supra) and they have also been explained in similar fashion in the subsequent decision of the Supreme Court in Badshah.
9. In the present case, there is no evidence brought on record to prove that when the marriage of the respondent was solemnized in the year 1995 with the petitioner, the respondent possessed knowledge of the subsistence of the first marriage of the petitioner. A reference was made to the evidence of the father of the respondent (PW 2) by the learned counsel for the petitioner to enable this Court to infer from an admission given by him in his crossexamination that at least father of the respondent knew about the subsistence of the first marriage of the petitioner. On a careful reading of the crossexamination of the PW 2 Arjun, however, I could not notice any such admission having been given by PW 2 Arjun. The only admission that he gives is that he was aware of the first marriage of the petitioner, but he clarifies that he was not aware of the date or the year when so called first marriage of the petitioner took place. Unless, the year or the date is stated or admitted by a witness, no conclusion about the marriage being first in point of time can be made. That apart, knowledge of father of a woman cannot be said to be the knowledge of the woman herself. There has to be a further admission in the matter. The father must admit that he had informed his daughter about subsistence of the first marriage of the petitioner and thereafter the daughter should also admit that she was so informed by her father. These further admissions are absent in the present case and, therefore, whatever has been admitted by the father of the respondent cannot be conceived to be the personal knowledge of the respondent. The respondent, on her part has not admitted anything about subsistence of the first marriage. On the contrary, the petitioner has admitted that Madhuri is his daughter against the averment of the respondent that she is the daughter conceived by her from her marital relationship with the petitioner. If the petitioner admits that Madhuri was his such daughter, the contention of the petitioner that respondent is not entitled to receive any maintenance from him cannot be accepted unless and until he brings on record cogent evidence about his first marriage and also about its subsistence at the time when he performed marriage with the respondent. The petitioner has not adduced any such evidence and proved at least the fact of subsistence of his first marriage. He could have examined Taibai, his first wife as per his claim, to prove this fact. But, petitioner did not examine her.
10. In view of above, I find that on facts, the petitioner could not prove subsistence of his first marriage at the time when he performed marriage with the respondent. I also find that the petitioner could not prove the knowledge of the respondent about subsistence of the first marriage. As such, the law laid down by the Hon'ble Apex Court in the case of Badshah, [2013 ALL SCR 3713] (supra) would squarely apply to the facts of the case and has been correctly applied by the Courts below.
11. In the case of Sanghmitra and others Vs. Ganpat, Criminal Application (APL) No.479/2012, decided on 22.01.2016, learned Single Judge of this Court has also taken a similar view when he found that the pleadings made in the application themselves left no doubt to advance the submission that the marriage of the husband with the woman was on account of any concealment of the fact of previous marriage. These facts sufficiently show that in the case of Sanghamitra, it was proved by the husband that at the time when he entered into a wedlock with the wife, the wife possessed personal knowledge of subsistence of the first marriage. So, even this case would render no assistance to the case of the petitioner.
12. In the result, I find no merit in this criminal writ petition and it deserves to be dismissed.