When Husband has failed to prove that wife was previously married to some other person?

On being summoned, the petitioner filed his written statement before the learned Magistrate in the proceeding No. 63/1993. The Written statement is at Exh.30 on the record. What is important to note from the written statement is that, the petitioner has not admitted his marriage with respondent No. 1 on 17.6.1991 at Mauje Sonosi as per Hindu rites and custom. He made a claim in the written statement that, prior to his marriage the respondent No. 1 was having illicit relations with Ankush Avhad. If the written statement is minutely scanned and scrutinized some what contradictory stand is taken in the said written statement. At one place, it is the claim of the petitioner that prior to his marriage with respondent No. 1 on 17.6.1991 there was a love marriage between the respondent No. 1 and Ankush Avhad and at the next breath, he submitted in his written statement that prior to his marriage with respondent No. 1, respondent No. 1 was having illicit relations with Ankush Avhad.

Since the petitioner not only admitted in his pleading about the factum of his marriage with respondent No. 1 at Mauje Sonosi on 17.6.1991, but also he has admitted said fact when he entered into the witness box in order to substantiate his claim in the written statement. Thus, both in the pleadings and in the evidence the petitioner has admitted the fact that he married with respondent No. 1 on 17.6.1991. In that view of the matter, initial burden which was on the shoulder of the respondent No. 1 to prove that she is legally wedded wife of the petitioner stands discharged. Now, once that initial burden was discharged by the respondent No. 1, onus was shifted on the shoulder of the petitioner since he claimed that prior to his marriage with respondent No. 1, there was a marriage of respondent No. 1 with Ankush Avhad. If the entire evidence is properly scrutinized in the light of his pleading in the written statement Exh.30, then there is no iota of proof adduced before the Court to show that the petitioner has discharged the burden which was shifted on his shoulder to prove that prior to 17.6.1991 there was a marriage between respondent No. 1 and Ankush Avhad. Since the petitioner has failed to discharge said burden in order to prove his case, the claim of the petitioner that the respondent No. 1 is not his legally wedded wife has to be necessarily rejected and which is rightly rejected by both the Courts below.

5. In so far as criminal proceeding filed by Ankush is concerned, in the said proceeding, present respondent No. 1 was brought before the Court in the said criminal proceeding. Now there is no evidence adduced by present petitioner that from which place the respondent No. 1 was produced before the Court in the said Criminal Proceeding initiated by Ankush. Obviously, when those proceedings were initiated by Ankush, the police must have produced the respondent No. 1 from the house of the present petitioner. Leave apart said aspect, in the said proceeding, it was specifically stated by respondent No. 1 that she is wife of present petitioner and she is having no concern with said Ankush Avhad.

If any statement recorded in the said proceeding of the said person Ankush, those statements are surely not binding on the respondent No. 1. Any unilateral claim made by Ankush about his relationship with Respondent No. 1 can not be binding on respondent No. 1 to dis-entitle her to claim the right of maintenance from the present petitioner especially when there is nothing on record to show that any marriage was performed between Ankush Avhad and Respondent No. 1.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.592 OF 2000

Bhalsing Sahebrao Jagdale,

Vs

 Latabai w/o Bhalsing Jagdale,

CORAM : V.M. DESHPANDE, J.
      Dated   : July 24, 2014
Citation;2015ALLMR(Cri)1067

The petitioner/husband has approached to this Court 
since   he   is   aggrieved   by   the   Judgment   and   order   passed   by 
learned Judicial Magistrate First Class, Pathardi dated 9.3.1999 in 

Criminal   Misc.   Application   No.63/1993,   whereby   the   learned 
Magistrate was pleased to allow the application filed on behalf of 
the   respondent   no.1/wife   under   section   125   of   the   Code   of 
Criminal   Procedure   and   granted   maintenance   in   her   favour   @ 
Rs.150/­ p.m. from the date of the application i.e. from 17.3.1993 
together with the cost of Rs.100, and judgment and order passed 
by   the   learned   4th   Additional   Sessions   Judge,   Ahmednagar   in 
Criminal Revision Application No.138/1999 by which the revision 
filed   on   behalf   of   the   petitioner/husband   was   dismissed   by   the 
learned Revisional Court.
I have heard Shri N.C.Garud, the learned counsel for 
2.
the   petitioner   inextenso.     Though,   respondent   no.1   Latabai   is 
served, nobody appeared on her behalf.  I have heard the learned 
APP Shri Shinde for the Respondent No.2 ­ State.  The basic fabric 
of the argument of Shri Garud is that, the respondent no.1/wife is 
not entitled for maintenance u/s 125 of Cr.P.C. since prior to his 
marriage with respondent no.1, respondent no.1 was married with 
one Ankush Avhad.   In that view of the matter, according to the 
petitioner,   she   cannot   be   termed   as   legally   wedded   wife   of   the 
petitioner   during   the   subsistence   of   her   first   marriage   with 
Ankush   Avhad.     In   order   to   buttress   the   said   submission,   the 

learned counsel relied upon the certified copy of the proceeding 
initiated   by   Ankush   Avhad   under   section   97   of   the   Code   of 
Criminal   Procedure   against   respondent   no.1   and   also   the 
judgment   and   decree   passed   by   learned   Civil   Judge   Junior 
Division, Shevgaon dated 17.12.1993 in RCS No.65/1993 by which 
a   decree   of   perpetual   injunction   was   granted   in   favour   of   the 
3.
present petitioner.
In   order   to   evaluate   the   submissions   of   the   learned 
counsel,   let   us   scrutinize   the   pleadings,   evidence   and   proved 
documents on record.
4.
Respondent No.1 filed an application on 17.3.1993 in 
the Court of Judicial Magistrate First Class, Pathardi.   The said 
application was under section 125 of Code of Criminal Procedure. 
Said   proceeding   was   registered   as   Misc.   Criminal   Application 
No.63/1993.     In   the   said   application,   a   specific   statement   and 
pleading   was   made   to   the   effect   that   she   married   with   the 
petitioner at Mauje Sonosi on 17.6.1991.   She has also disclosed 
that though for first 4­5 months she received good treatment at 
the hands of the petitioner, however, subsequently, the petitioner 
has shown his true colour and started causing harassment and 

ultimately   she   was   driven   out   from   her   matrimonial   house 
requiring her to take the shelter of her parental house.   She has 
also pointed out in her pleading that petitioner works as a Truck 
Driver and he is getting salary of Rs.2,500/­ to Rs.3,000/­ p.m. 
Besides he owns 5 Acres of irrigated land.
On being  summoned, the  petitioner  filed his  written 
5.
statement   before   the   learned   Magistrate   in   the   proceeding 
No.63/1993.   The Written statement is at Exh.30 on the record. 
What is important to note from the written statement is that, the 
petitioner has not admitted his marriage with respondent no.1 on 
17.6.1991   at   Mauje   Sonosi   as   per   Hindu   rites   and   custom.     He 
made a claim in the written statement that, prior to his marriage 
the   respondent   no.1   was   having   illicit   relations   with   Ankush 
Avhad.     If   the   written   statement   is   minutely   scanned   and 
scrutinized   some   what   contradictory   stand   is   taken   in   the   said 
written statement.   At one place, it is the claim of the petitioner 
that prior to his marriage with respondent no.1 on 17.6.1991 there 
was   a   love   marriage   between   the   respondent   no.1   and   Ankush 
Avhad   and   at   the   next   breath,   he   submitted   in   his   written 
statement   that   prior   to   his   marriage   with   respondent   no.1, 
respondent no.1 was having illicit relations with Ankush Avhad.

Since the petitioner not only admitted in his pleading 
about the factum of his marriage with respondent no.1 at Mauje 
Sonosi on 17.6.1991, but also he has admitted said fact when he 
entered into the witness box in order to substantiate his claim in 
the   written  statement.     Thus,  both  in  the  pleadings   and   in  the 
evidence the petitioner has admitted the fact that he married with 
respondent no.1 on 17.6.1991.   In that view of the matter, initial 
burden which was on the shoulder of the respondent no.1 to prove 
that she is legally wedded wife of the petitioner stands discharged. 
Now, once that initial burden was discharged by the respondent 
no.1, onus was shifted on the shoulder of the petitioner since he 
claimed that prior to his marriage with respondent no.1, there was 
a marriage of respondent no.1 with Ankush Avhad.   If the entire 
evidence is properly scrutinized in the light of his pleading in the 
written statement Exh.30, then there is no iota of proof adduced 
before the Court to show that the petitioner has discharged the 
burden which was shifted on his shoulder to prove that prior to 
17.6.1991   there   was   a   marriage   between   respondent   no.1   and 
Ankush Avhad.   Since the petitioner has failed to discharge said 
burden in order to prove his case,  the claim of the petitioner that 
the   respondent   no.1   is   not   his   legally   wedded   wife   has   to   be 
necessarily   rejected   and   which   is   rightly   rejected   by   both   the 

In   so   far   as   criminal   proceeding   filed   by   Ankush   is 
6.
Courts below.
concerned, in the said proceeding, present respondent no.1 was 
brought  before the Court  in the said criminal proceeding.   Now 
there   is   no   evidence   adduced   by   present   petitioner   that   from 
which place the respondent no.1 was produced before the Court in 
the   said   Criminal   Proceeding   initiated   by   Ankush.     Obviously, 
when those proceedings were initiated by Ankush, the police must 
have produced the respondent no.1 from the house of the present 
petitioner.  Leave apart said aspect, in the said proceeding,  it was 
specifically stated by respondent no.1 that she is wife of present 
petitioner and she is having no concern with said Ankush Avhad. 
If any statement recorded in the said proceeding of the 
said person Ankush, those statements are surely not binding on 
the respondent no.1.  Any unilateral claim made by Ankush about 
his   relationship   with   Respondent   No.1   can   not   be   binding   on 
respondent   No.1   to   dis­entitle   her   to   claim   the   right   of 
maintenance from the present petitioner especially when there is 
nothing   on   record   to   show   that   any   marriage   was   performed 
between Ankush Avhad and Respondent no.1.

In so far as argument of Shri Garud in respect of the 
7.

decree of perpetual injunction is concerned, it is not helpful to the 
present petitioner in as much as the said suit was simple suit for 
permanent   injunction   without   there   being   any   relief   of 
declaration.  Further the said suit was decreed ex­parte.  So there 
was no adjudication in between the contesting parties.  Further, if 
really   there   was   no   marriage   between   the   petitioner   and 
respondent no.1, he ought to have sought declaratory decree from 
8.
the competent Civil Court.
Both the Courts below have bestowed their thoughtful 
consideration   to   the   case   as   advanced   and   put   forth   by   the 
present petitioner before them respectively.   Both the Courts on 
the   available   material   and   evidence   has   rightly   reached   to   the 
conclusion   that   respondent   no.1   is   legally   wedded   wife   of   the 
petitioner.  I see no reason to disturb the said con­current findings 
of   fact   reached   by   both   the   courts   below   and   also   on   the 
evaluation   of   the   evidence   as   brought   on   record   in   the 
maintenance proceeding, as observed in the preceding paragraphs 
of   the   present   judgment   and   hence   I   reject   the   arguments   and 
claim on behalf of the petitioner that respondent no.1 was not his 
wife and she is dis­entitle to claim any maintenance.  

It   is   not   in   dispute   that,   at   the   relevant   time   the 
9.

petitioner   was  working   as  Truck  Driver   and   there   is  no  serious 
dispute   about   the   fact   of   his   income   and   other   agricultural 
property which he has owned.   Learned Trial Court has granted 
maintenance of Rs.150/­ only.  There is no reason for this Court to 
interfere with the quantum which is meager one.  Hence, no case 
is made out for interference. Writ Petition is dismissed.   Rule is 
       ( V.M. DESHPANDE )
     
discharged.

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