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Dhondanbai, W/O Nana Albat Vs. Nana Damodar Albat and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Family
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 534 of 1981
Judge
Reported in1983(1)BomCR408
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125
AppellantDhondanbai, W/O Nana Albat
RespondentNana Damodar Albat and anr.
Appellant AdvocateK.H. Chopda, Adv.
Respondent AdvocateM.V. Sali, Adv. for respondent No. 1 and ;R.T. Shinde, P.P. for state-respondent No. 2
DispositionPetition succeeds
Excerpt:
criminal - maintenance - section 125 of criminal procedure code, 1973 - petitioner and respondent living together for 15 years - maintenance claim filed by petitioner - magistrate concluded that petitioner was respondent's wife and granted maintenance - in revision additional sessions judge (asj) quashed magistrate's order - writ filed - fact that they lived together for 15 years raised inevitable inference that they lived as husband and wife - asj exceeded his jurisdiction under revision application by reappreciating entire evidence and quashing magistrate's orders - magistrate's orders restored. - - 15. the trial court placed strong reliance upon a photograph produced by the petitioner and the photograph shows that the petitioner and respondent no......the petitioner-wife is challenging the legality of the judgment dated may 2, 1981 recorded by the extra additional sessions judge, ahmednagar reversing the order dated may 19, 1980 passed by the chief judicial magistrate, ahmednagar awarding maintenance amount at the rate of rs. 75/- per month from the date of the institution of the application to the wife. 2. only few facts are required to be stated to appreciate the grievance of the petitioner-wife. the petitioner married the respondent no. 1 in gandharva form of the marriage in the year 1964. the gandharva form of marriage was adopted as both the petitioner and respondent no. 1 were divorces. the petitioner and respondent no. 1 lived together for about 15 years. in the year 1979, the petitioner claims that respondent no. 1 started.....
Judgment:

M.L. Pendse, J.

1. The petitioner-wife is challenging the legality of the judgment dated May 2, 1981 recorded by the Extra Additional Sessions Judge, Ahmednagar reversing the order dated May 19, 1980 passed by the Chief Judicial Magistrate, Ahmednagar awarding maintenance amount at the rate of Rs. 75/- per month from the date of the institution of the application to the wife.

2. Only few facts are required to be stated to appreciate the grievance of the petitioner-wife. The petitioner married the respondent No. 1 in Gandharva form of the marriage in the year 1964. The Gandharva form of marriage was adopted as both the petitioner and respondent No. 1 were divorces. The petitioner and respondent No. 1 lived together for about 15 years. In the year 1979, the petitioner claims that respondent No. 1 started having relations with his first wife Kanthabai to whom he had earlier given divorce. That relation led to the ill-treatment of the petitioner and she was driven out of the house. The petitioner thereupon filed the proceedings under section 125 of the Code of Criminal Procedure on March 6, 1979 claiming that respondent No. 1 is earning an amount of Rs. 500/- per month.

3. The proceedings were resisted by respondent No. 1 on various grounds by filing written statement at Ex. 7. The respondent No. 1 denied that he had married with the petitioner and claimed that he had never divorced his first wife Kanthabai. Respondent No. 1 also claims that the petitioner had not divorced her first husband and the petitioner was working as a maid servant on the salary of Rs. 10/- per month. On the question of earning respondent No. 1 claimed that he earns Rs. 150/- per month and has to maintain a large family.

4. The trial Magistrate, after recording evidence, came to the conclusion that the petitioner was legally married wife of respondent No. 1 and she is entitled to claim maintenance as she was ill-treated and driven out of the house. The trial Judge granted maintenance at the rate of Rs. 75/- per month. In coming to the conclusion that the petitioner was married to respondent No. 1, the trial Judge relied upon the deed of divorce executed by respondent No. 1 and his first wife and produced on record at Ex. 17 and also the deed of divorce dated April 7, 1960 executed by the petitioner and her husband and produced on record at Ex. 15. The trial Court placed strong reliance upon a photograph produced by the petitioner and the photograph shows that the petitioner and respondent No. 1 are sitting close to each other. The trial Magistrate also drew support from the fact that ration card was obtained in the name of the petitioner by respondent No. 1 after their marriage. The trial Judge accepted the oral testimony of the petitioner and found that respondent No. 1 is willing to make any statement to deny the just claim of his wife.

5. The respondent No. 1 husband carried a revision before the Sessions Court Ahmednagar and the Extra Additional Sessions Judge, observing that the trial Magistrate had admitted inadmissible evidence and has not properly considered the evidence, decided to re-examine the entire evidence in his revisional jurisdiction. After re-appreciating the evidence, the Additional Sessions Judge came to the conclusion that the petitioner and respondent No. 1 had not divorced respective spouses before entering into Gandharva form of marriage and, therefore, such marriage was totally invalid. On the strength of this finding the application filed by the wife came to be dismissed.

6. Shri Chopda, the learned Counsel appearing in support of the petition, submitted, and in my judgment very rightly that the Extra Additional Sessions Judge exceeded his jurisdiction by interfering with the order of the Magistrate in revisional jurisdiction. Shri Chopda submits that the trial Magistrate has carefully analysed the entire evidence on record and has correctly come to the conclusion that the marriage between the petitioner and respondent No. 1 was proved and was a valid and legal one. The submission of Shri Chopda that the Extra Additional Sessions Judge exceeded his jurisdiction requires acceptance. The Extra Additional Sessions Judge overlooked that the petitioner and respondent No. 1 were residing together for more than 15 years and an inference is inevitable that they were living together as husband and wife. The Extra Additional Sessions Judge, in these circumstances, was not justified in re-appreciating the evidence and recording a finding that the marriage between the petitioner and respondent No. 1 was not a valid one. The Extra Additional Sessions Judge must remember that the orders passed under section 125 of the Code of Criminal Procedure are always subject to the decision of Civil Court and it was open for the husband to file appropriate civil proceedings to get a declaration that his marriage was not valid. The Extra Additional Sessions Judge should not have re-appreciated the whole evidence and disturbed the finding the trial Magistrate and on this short ground, the order of Extra Additional Sessions Judge is required to be set aside. As I am holding in favour of the petitioner on this ground alone, it is not necessary to consider the submissions of Shri Chopda that even on merits each and every finding recorded by the Extra Additional Sessions Judge is wholly inaccurate.

7. Accordingly, the petition succeeds and the rule is made absolute and the judgment dated May 2, 1981 recorded by the Extra Additional Sessions Judge, Ahmednagar is set aside and that of the Chief Judicial Magistrate First Class, Ahmednagar recorded on May 19, 1980 is restored.


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