N.K. Parekh, J.
1. The petitioner is this matter in the original opponent in Criminal Miscellaneous Application No. 39 of 1978 on the file of the Court of the Judicial Magistrate, First Class, Jamkhed. He has filed this petition to quash the said proceedings and the orders passed therein.
2. The petitioners case is that he was married to one Suman Shankar Bandal (who for brevity's sake is hereinafter referred to as the applicant) in or about 1971. That two months later, she left the matrimonial home. That she thereafter filed a criminal application being Criminal Application No. 18 of 1974 in the Court of the Judicial Magistrate, First Class, Jamkhed. In this application, she claimed maintenance. That she also filed another case being Case No. 124 of 1974, inter alia, contending that the opponent petitioner has married some other lady and had committed bigamy. That the petitioner himself had filed a petition under the Hindu Marriage Act being Petition No. 22 of 1974 against the applicant/1st respondent for restitution of conjugal rights. That the said Criminal Application No. 18 of 1974 was compromised on 26th December, 1977. That it was, inter alia, agreed that the applicant/1st respondent should go back to the opponent/petitioner. That in Case No. 14 of 1974 the opponent/petitioner was discharged. That after the compromise arrived at on 26th December, 1977, the applicant 1st respondent came back to the opponent petitioner and they cohabited together. That thereafter the applicant/1st respondent filed a case being Case No. 78 of 1978 in the Court of J.M.F.C., Jamkhed, inter alia, contending that on 10th April, 1978, the opponent petitioner, has assaulted her, (the applicant/1st respondent) with a stick and a hunter. That she was driven out of the house. That she was forced to take refuge elsewhere. That three days later, she had approached, Dr. Pande, who had treated her injuries. That in view of this she could not return to the house of the opponent petitioner. That in this case, however, he, the opponent/petitioner. That in this case, however, he, the opponent petitioner was acquitted. That thereafter, the applicant/1st respondent filed Criminal Miscellaneous Application No. 39 of 1978 in the Court of J.M.F.C., Jamkhed claiming a maintenance of Rs. 150/- per month. In this application, she contended that she was being ill-treated, and hence was obliged to leave the matrimonial home and secondly that the opponent petitioner had contracted a second marriage. In these proceedings, the opponent/petitioner denied these allegations. On the other hand, he contended that the applicant/1st respondent was vagrant and time and again ran away from the matrimonial home. This matter was proceeded with and during the course of matter, the applicant examined herself and one Dr. Pande. The opponent/petitioner, on his part, examined himself and his brother Manik. By an order and judgment dated 26th November, 1979, the learned J.M.F.C., Jamkhed, held that the applicant/1st respondent had proved the second marriage. Not only this but he also held that an incident had taken place on 10th April, 1978 wherein the applicant/1st respondent was assaulted and this constituted ill-treatment by the opponent/petitioner. In view of this, the learned Magistrate proceeded to award a maintenance of Rs. 50/- per month to the applicant/1st respondent. Being aggrieved by the said order the opponent/petitioner filed a revision in the Court of the Extra Additional Sessions Judge, Ahmednagar. This application came to be numbered as Criminal Revision Application No. 24 of 1980. This application was disposed of by an order and judgment dated 15th September, 1980. In this order and judgment, the learned Extra Additional Sessions Judge held that the second marriage was not proved. However, on the question of ill-treatment, the learned Extra Additional Sessions Judge held that since the learned Magistrate had, in view of the incident of 10th April, 1978, held that there was ill-treatment on the part of the opponent/ petitioner, he was inclined to accept the said position and proceeded to confirm the order of maintenance. Being aggrieved by this order, the opponent/petitioner has now preferred the present criminal application.
3. At the hearing of this application, Mr. Aggarwal, the learned Advocate for the opponent petitioner narrated the aforesaid facts and urged that the learned Extra Additional Sessions Judge held that the second marriage was not proved. That in view of this, ground no longer survived and admittedly no maintenance could have been or was awarded on this basis.
4. Mr. Aggarwal further urged that both the courts had, however, awarded maintenance to the applicant/1st respondent on the footing that there was ill treatment on the part of the opponent-petitioner. That for this purpose both the courts were relying upon the incident of 10th April, 1978 and wherein the opponent/petitioner is supposed to have assaulted the applicant/1st respondent. That both the courts have lost sight of the fact that in respect of the very incident said to have taken place on 10th April, 1978, the applicant/1st respondent had filed a case, being Case No. 17 of 1978. That this case was proceeded with and the opponent petitioner was acquitted. That in view of this adjudication, it was not open to either Court to go behind the verdict and hold that such an incident had taken place, and/or that it was the opponent/petitioner who had assaulted the applicant/1st respondent and/or caused her injuries. In other words, both the Courts were in error in coming to the conclusion that there was an assault by the opponent/petitioner on the applicant/1st respondent on 10th April, 1978 and/or that he had caused her injuries. Mr. Aggarwal urged that the verdict given in Case No. 17 of 1978 was conclusive and there was no question of the said courts considering the said incident. That in the Application No. 39 of 1978 for maintenance, there was no other evidence adduced on behalf of the applicant/1st respondent to establish the position that there was any ill-treatment on the part of the opponent petitioner at any stage. Mr. Aggarwal contended that if the applicant/1st respondent has not been able to adduce any evidence, other than the incident of 10th April, 1978, then her case of her being ill-treated must fail. Mr. Aggarwal submitted that both the courts have committed the fallacy of going behind the verdict given in Criminal Case No. 17 of 1978, and this was an error apparent on the face of the record for if such a position is allowed then every case will be reopened by the back door. Mr. Aggarwal urged that the amount awarded is of course a paltry amount but be that as it may, the point involved was of some importance and hence this petition.
5. Mr. Dhorde, the learned Advocate on behalf of the applicant/1st respondent stated that he was not arguing the question of whether a second marriage had been established or not. However, in so far as the ill-treatment complained is concerned, the applicant/1st respondent was relying on the incident of 10th April, 1978 . That during the course of evidence, the applicant/1st respondent had deposed to the said incident and Dr. Pande had supported the position. That on the basis of this evidence, the J.M.F.C. had come to the conclusion that the applicant/1st respondent was ill-treated by the opponent/petitioner. That the Extra Additional Sessions Judge had also confirmed this position. Mr. Dhorde urged that it is true that this incident of 10th April, 1978 was the subject matter of Case No. 17 of 1978 and in this case, the opponent/petitioner was acquitted, but this makes no difference to the matter. Mr. Dhorde urged that in Case No. 17 of 1978, the learned Magistrate had gone on to hold that the applicant/petitioner had not proved his case beyond reasonable doubt. However, in so far as this matter is concerned, viz, the application, (being Criminal Miscellaneous Application No. 39 of 1978), for maintenance, it was not necessary for the applicant/1st respondent to adduce that degree of proof which would have been necessary to bring home the charges in Case No. 17 of 1978. It was sufficient for her to depose to the incident of 10th April, 1978, and if the learned trial Judge and the Extra Additional Sessions Judge accepted the evidence, then irrespective of the finding in Case No. 17 of 1978 they could proceed to award maintenance and they have done so.
6. In support of his contention that in an application under section 125 it was not necessary for the applicant to establish the degree of proof which would be required to prove an offence, Mr. Dhorde relied upon the decisions in the case of Jalandar Gorakh Kirtikar v. Shobha J. Kirtikar, 74 Bom.L.R. 755 and the case of State of Maharashtra v. Vithabai Laxman Hedau, 75 Bom.L.R. 447. Mr. Dhorde also placed reliance on the case of Vimal Sukumar Patil v. Sukumar Anna Patil and another, 1981 Mh.L.J. 83 : 1981 Bom.C.R. 494.
7. Now, considering the rival contentions, it may be stated that in so far as the ground of the opponent/petitioner having contracted a second marriage is concerned, the same has been given up and hence it is not necessary to deal with this.
8. However, in so far as the question of ill-treatment is concerned, it is an admitted position that the only evidence adduced by the applicant/1st respondent is of the incident of 10th April, 1978 wherein she alleges that there was an assault by the opponent/petitioner and she had come to sustain certain injuries. Admittedly, this incident has been the subject matter of Case No. 17 of 1978 wherein the learned Magistrate held that the applicant/1st respondent had not conclusively proved beyond reasonable doubt that there was an assault on the appellant/1st respondent by the opponent/applicant. It is also admitted that in the said matter, the petitioner was acquitted. I do not see how in view of this adjudication, both the courts could have gone behind this verdict and held that the opponent/petitioner was guilty of ill-treating the applicant/1st respondent. There is admittedly no other evidence of other incident adduced by the applicant/1st respondent about any other ill-treatment save and except that at one stage she has stated that she was being ill-treated which is neither here nor there . If this be the position. I do not see how the trial Court and/or the Extra Additional Sessions Judge could, on the basis of the so called incident, proceed to hold that the applicant/1st respondent was ill-treated and proceed to award maintenance on the said basis.
9. As regards the decision in Jalandar Gorakh Kirtikar v. Shobha J. Kirtikar, 74 Bom.L.R. 755 , the facts were that the wife had filed an application for maintenance on the ground of ill-treatment, assault and desertion. The husband had contested the claim stating that she was not his legally wedded wife and was not entitled to maintenance. It was on this basis that the matter was proceeded with and the wife adduced certain evidence to show that she was cohabiting with the husband. In deciding this matter, the Court took various circumstances into consideration, and in view of the circumstantial evidence, the Court came to the conclusion that the said lady was married to the said person from whom she had claimed maintenance. It was in dealing with this situation that the Court went on to hold that in a proceeding under section 488 of the Criminal Procedure Code, the standard of proof that the parties to proceeding are validly married need not be so high as in a proceeding under sections 494, 495, 497 or 498 of the Indian Penal Code or in a proceeding under the Indian Divorce Act. In so far as the above case is concerned, the facts are clearly distinguishable. In that case, there was no previous adjudication by any competent Court which needed to be considered. Secondly, what the learned Judge relied upon were the several circumstances to come to the conclusion that the parties were married. In this case, there is a clear adjudication by a competent Court of jurisdiction with regard to the very incident. Apart from this, no other evidence, circumstantial or otherwise, was adduced to establish the position that the applicant/1st respondent was ill-treated in any manner.
10. Coming next to the decision in the case of State of Maharashtra v. Vithabai Laxman Hedau, 75 Bom.L.R. 447, here again a similar position arose viz., that the contest was that the lady claiming maintenance was not the legally wedded wife. In dealing with this matter, the Court held that under section 488 of the Criminal Procedure Code, a prima facie case to support a claim that the applicant is the legally wedded wife of the non-applicant has to be established by the applicant. Evidence tendered on oath by both the parties, circumstances relating to the conduct of the parties, their previous admissions, their movements prior to coming in Court were all valuable guides in such matters. That the preponderence of probabilities, therefore may indicate that the applicant's claim is trust-worthy. That would be sufficient to enable the Court to Act under section 488 of the Code.
11. Here again, the facts in this case are wholly different. In this case, there is a previous adjudication as regards the incident of 10th April, 1978 whilst in the case cited above, the subject matter was never in dispute in any other proceeding. Apart from this, as stated earlier, barring the incident of 10th April, 1978, which is said to have taken place, there is no other evidence adduced by the applicant/1st respondent to show that there was any ill-treatment on the part of the opponent/petitioner at any stage. If such evidence was adduced, or some circumstances brought on record, perhaps there would have been different complexion to the matter but then this is not so. The ratio in the said case would, therefore, be of no assistance to the applicant/1st respondent.
12. The totality of the discussion is that both the courts erred in placing reliance on the happenings said to have taken place on 10th April, 1978, more particularly in view of the clean acquittal which the opponent/petitioner had secured. Since this was the basis on which the maintenance was granted, the order and the proceedings need to be quashed.
13. In the result, the rule is made absolute.