A stress was given by
the learned counsel for the husband on the fact that Nirmala has not
filed any proceedings u/s 494 of the IPC, that itself demonstrates the
hollowness of the claim made by her about her marriage. Merely
because a Criminal Complaint u/s 494 of the IPC is not filed, that
does not disentitle the rightful claimant of the maintenance. The
wife was claiming her maintenance. It is quiet possible that she
might not interested in the criminal prosecution of her husband but
that does not mean that there is no marriage.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.486 OF 2001
WITH
CRIMINAL REVISION APPLICATION NO.354 OF 1999
Datta S/o Dagadu Paul,
VERSUS
Nirmala W/o Datta Paul,
( CORAM : V.M.DESHPANDE, J.)
DATE : 17/07/2014
Citation; 2015ALLMR(CRI)1083
These two proceedings can conveniently disposed of by the
common judgment since both are arising from one proceeding
namely Misc.Application No.31/1995 before the learned Judicial
Magistrate First Class, Kallam.
2.
Misc.Appl.No.31/1995 was initiated in the Court of learned
Magistrate at Kallam by the present respondent. (For the sake of
convenience, the parties will be referred to as husband and wife.)
Wife moved an application u/s 125 of the Cr.P.C. for grant of
maintenance. She claimed maintenance @ Rs.500/ per month since
she was unable to maintain herself and she was deserted by the
husband. The application was allowed by the learned Magistrate
vide order dated 06/08/1998. The learned Magistrate, though found
in favour of wife that she is deserted and there is no means to feed
herself, the Magistrate granted maintenance of Rs.300/ per month.
This order give rise to the 2 revisions, one by the husband i.e.
Cri.Revision Application No.66/1998 and another Cri. Revision
Application No.80/1998 by the wife. Husband was dissatisfied with
the grant of maintenance in favour of wife, whereas wife was dis
satisfied with the quantum of maintenance. Both these revisions
were decided and disposed of by the learned Revisional Court by
common judgment dated 16/06/1999. By the said common
judgment, the Revisional Court was pleased to dismiss the Criminal
Revision No.66/1998 filed by husband whereas the revision by wife
bearing Revision No.80/1998 was allowed and the maintenance
amount was enhanced from Rs.300/ to Rs.500/.
Husband filed Criminal Writ Petition No.486/2001 challenging
the dismissal of his revision and preferred Criminal Revision
No.354/1999 questioning the correctness of the order of
enhancement by the learned Revisional Court.
3
The basic fabric of the written statement filed before the
Magistrate opposing the claim of the wife and the main limb of the
argument before this Court by the learned counsel for the husband is
about the very existence of the relationship as husband and wife
between the parties. The learned counsel tries to urge in order to
substantiate the claim of the husband that no date, year or place of
marriage is disclosed in the application by the wife. Further no
details of the said marriage are also disclosed. The learned counsel
submitted that the wife has not initiated the proceedings u/s 494 of
the IPC against the husband, which clearly shows and demonstrated
that Indubai is not his second wife with whom he has performed the
marriage during the subsistence of his marriage with wife. He
further submitted that the wife has utterly failed to discharge the
burden rests on her shoulder about the marriage. Hence he
submitted that both the Courts below have committed an error in
allowing the application of the wife. Hence he prayed that the orders
passed by the Courts below be set aside.
3.
Per contra, the learned counsel for the wife submitted that the
order passed by the Revisional Court is justiciable and there is no
fault in enhancing the maintenance from Rs.300/ to Rs.500/. In
as much as, the learned Revisional Court has rightly reached to the
conclusion that there is no error in the order passed by the
Magistrate about the factum of the relationship between the parties.
4.
Let us evaluate the arguments of the learned counsel for
husband about the factum of marriage. Much stress is given during
the course of argument by the learned counsel that the wife has not
pleaded the exact date of marriage in the application u/s 125 of the
Cr.P.C. Perusal of the application reveals that there is no date
mentioned in the application. However, the Court cannot overlook
Exh.48, which is a notice given by wife to husband in the year 1990.
More specifically the said notice is dated 24/12/1998. Further the
receipt of the notice of Exh.48 is not at all denied by the husband.
The receipt of the notice Exh.48 was the point of initiation of the
proceedings u/s 125 of the Cr.P.C. In the said notice, the fact was
specifically asserted by wife that her marriage took place with the
present petitioner on 11/06/1985. That was the first opportunity
that was available with the husband to deny the factum of marriage.
However, for the reasons best known to the husband/petitioner,
though that notice was received by him, there is no reply to the said
notice.
5.
The wife has entered into the witness box. She has stated in
her evidence about the requirements contemplated under the Hindu
Marriage Act for a valid marriage. The evidence of wife is not at all
shattered during her crossexamination. Further, she has examined
one Shrirang Mandavkar as her witness. This Shrirang is resident of
Terkheda, the ordinary place of residence of husband.
In the cross examination of this witness, it is specifically
brought on record by the husband himself that he has attended the
marriage and he has attended the marriage on the invitation given by
the husband. There is no reason to disbelieve the version of this
independent witness. Further, this witness appears to have attended
the marriage on the invitation given by the husband. That fact
clearly demonstrates that the plea of nonperformance of the
marriage with wife is taken only to deny the rightful claim of wife to
get herself maintained at the hands of the husband.
Further in the cross examination of the husband, he has
admitted that there is a scoring in the Gram Panchayat record in
respect of the date of marriage with wife Nirmala. That admission
clearly shows and suggests that their exist a marriage in between the
petitioner and the respondent and the factum of the said marriage is
duly recorded in the record maintained by the Gram Panchayat.
Further the husband / the petitioner has failed to point out any
documentary evidence to show that his marriage with Indubai has
performed prior to his marriage with Nirmala. A stress was given by
the learned counsel for the husband on the fact that Nirmala has not
filed any proceedings u/s 494 of the IPC, that itself demonstrates the
hollowness of the claim made by her about her marriage. Merely
because a Criminal Complaint u/s 494 of the IPC is not filed, that
does not disentitle the rightful claimant of the maintenance. The
wife was claiming her maintenance. It is quiet possible that she
might not interested in the criminal prosecution of her husband but
that does not mean that there is no marriage.
6.
Both the Courts below has rightly appreciated the evidence
brought on record by the parties. I see no reason why the findings
of fact, concurrently recorded by both the Courts below, which were
based on the available material evidence, to be disturbed in the
extraordinary jurisdiction of this Court. I refrain myself from
exercising the discretion in favour of the petitioner. Consequently,
both the petitions are dismissed with costs of Rs.1,000/ (Rs.One
thousand only). The interim stay granted in favour of the present
petitioner stands vacated. Rule discharged.
( V.M.DESHPANDE, J.)
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