Mukunda Ramaji Dunedar vs Smt. Sitabai W/O Mukunda Dunedar
2004 Latest Caselaw 654 Bom

JUDGMENT

S.T. Kharche, J.

1. By invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, this petition has been filed for quashing and setting aside the order dated 7-12-2001 passed by the learned Additional Sessions Judge in Criminal Revision Petition No. 4/2001 whereby revision came to be dismissed and the order dated 12-2-2001 passed by the learned Judicial Magistrate, First Class under Section 125 of the Criminal Procedure Code granting maintenance @ Rs. 300/- per month to the respondent-wife, was confirmed.

2. Brief facts are as under :

The respondent-wife filed an petition claiming maintenance on the contentions that she is legally wedded wife of the petitioner-husband and their marriage was solemnized about 50 years ago. It is contended that the wife joined the company of her husband and lived with him continuously for the period of about 10 to 12 years and during that period the couple was blessed with a daughter by name Baby. It is contended that the couple started living separate after 10-12 years from the time of their marriage because of the ill-treatment meted out to the wife and the husband has refused and neglected to maintain her having sufficient means. It is contended that the wife was unable to maintain herself, and therefore, she claimed maintenance.

3. The petitioner-husband combated the claim of wife on the contentions that she is not his legally wedded wife and in fact his marriage was solemnized with one Meerabai. He contended that since Sitabai was not his legally wedded wife, he was not liable to pay any kind of maintenance to her under Section 125 of the Code.

4. The parties adduced oral as well as documentary evidence in support of their contentions. The learned Magistrate on consideration of the evidence, granted maintenance @ Rs. 300/- per month to the wife from the date of the petition with cost by the order dated 12-2-2001. Being aggrieved by this order, the husband carried revision to the Sessions Judge. The learned Additional Sessions Judge, on hearing the parties and on consideration of the evidence, dismissed the revision on 7-12-2001. This order is sought to be challenged in this petition.

5. The learned counsel for the petitioner-husband contended that Sitabai is not his legally wedded wife and she has failed to established by adducing evidence on record to show that her marriage was performed about 50 years ago with him. He contended that the husband has solemnized marriage with Meerabai d/o Kanhu Waghade in the year 1952-53 according to the caste customs and their relationship was still subsisting and also one son is born out of this wedlock and his name is Nilkanth. It is contended that both the Courts below have committed an error in coming to the conclusion that Sitabai is legally wedded wife and erroneously granted maintenance under Section 125 of the Code. He contended that in the circumstances, the husband is said to have been having two wives namely Sitabai and Meerabai and in absence of any evidence to show that there was a divorce to either of the wife, the Courts below were not justified in coming to the conclusion that though the husband having sufficient means, has refused and neglected to maintain his wife Sitabai who is unable to maintain herself. He further contended that the impugned order passed by the Sessions Judge is not sustainable in law and hence the same may be quashed and set aside. In support of these submissions, he relied on the decision in the case of Sheshrao Ganpatrao Bhand v. Padminibai Govinda Akarge and Anr., 1994 Cri. L.J. 1558.

6. Mr. Bapat, the learned counsel for the respondent-wife contended that the husband has already availed the remedy of filing revision in the Sessions Court against the order granting maintenance passed by the Magistrate and therefore, the present petition filed under Section 482 of the Code is not maintainable in view of Section 397(3) of the Code of Criminal Procedure. He contended that it is well settled that the inherent powers of this Court under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code and in such situation, this petition itself is not maintainable. In support of these submissions, he relied on the decision of Division Bench of the Supreme Court in the case of Dharampal and Ors. v. Smt. Ramshri and Ors., .

7. Mr. Bapat further contended that the relationship of husband and wife between the parties has been established by leading cogent and convincing evidence. The evidence of the wife together with witnesses Gomaji (A.W. 2) and Tanaji (A.W. 3) clearly establish that the marriage of Sitabai was performed about 50 years ago prior to filing of the petition claiming maintenance. He contended that the ocular testimony of the aforesaid witnesses has been corroborated in material particulars by the documentary evidence. He contended that the voters' list of the year 1998 and the school leaving certificate in respect of Baby of the year 1997 clearly show that the name of the husband has been shown in both the documents as husband of Sitabai and father of Baby respectively. He therefore, contended that even on merits, the petition under Section 482 of the Code filed by the husband is liable to be dismissed. Both the Courts below were perfectly justified in granting maintenance under Section 125 of the Code and the impugned order is just, legal and correct and therefore, the present petition may kindly be dismissed.

8. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. So far as the maintainability of the petition under Section 482 of the Code of Criminal Procedure is concerned, the Hon'ble Supreme Court in the case of Dharampal, cited supra observed in para 4 that; the question that falls for our consideration now is whether the High Court could have utilised the powers under Section 482 of the Code and entertained a second respondent. Admittedly the first respondent had preferred a Criminal petition bearing Cr. R. No. 180/78 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment. The Sessions Judge had dismissed the said petition on 14th May, 1979. Section 397(3) bars a second revision petition by the same party. It is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent. On this short ground itself, the impugned order of the High Court can be set aside.

9. Sub-section (3) of Section 397 of the Code of Criminal Procedure contemplates that; If an petition under this section has been made by any person either to the High Court or to the Sessions Judge, no further petition by the same person shall be entertained by the other of them." In the present case there is no dispute that the wife had filed petition claiming maintenance under Section 125 of the Code before the Magistrate and the learned magistrate by his order dated 12-2-2001 passed in Criminal Petition No. 94/97, granted maintenance @ Rs. 300/- per month to the wife which was payable from the date of petition i.e. From 15-10-1997. It is not disputed that the husband, being aggrieved by that order, carried revision to the Sessions Judge and the learned Additional Sessions Judge passed order on 7-12-2001 in Criminal Revision Petition No. 4/2001 and dismissed the revision. Thus, invoking the jurisdiction of this Court under Section 482 by the husband against the order passed in revision by the learned Additional Sessions Judge, would not be maintainable in view of the ratio laid down by the Hon'ble Supreme Court in the aforesaid decision. In such circumstances, this petition is liable to be rejected on this short ground itself.

10. Now coming to the merits, it is evident that the wife is illiterate lady and claiming to have married with the petitioner about 50 years ago and she led oral as well documentary evidence in proof of this point. She has examined herself as well as two other witnesses namely; Gomaji (A.W. 2) and Tanaji (A.W. 3) who have supported her version that she was married with the petitioner-husband about 50 years ago and thereafter she lived with the husband continuously for a period of 10 or 12 years and thereafter the couple separated and started living separately. The version of these two witnesses has been corroborated in material particulars by the entries recorded in the voters' list as well as the school leaving certificate of her daughter Baby. It would reveal from these documents that the wife was living with her husband and their names appears in the voters' list and also that the couple was blessed with a daughter, Baby and the name of the petitioner-husband has been shown in the voters' list as well as in the school leaving certificate as father of Baby respectively. There is absolutely no reason whatsoever to disbelieve the ocular testimony as well as documentary evidence.

11. The contentions of the learned counsel for the husband that there are two wives to the petitioner and since there was no divorce between them, wife Sitabai is not entitled to claim the maintenance are totally misconceived and liable to be rejected. In support of these submissions, he relied upon the decision of this Court in Sheshrao's case 1994 Cri. L.J. 1558 cited supra. This authority has no bearing on the facts and circumstances of the present case. Though the husband claimed to have married with another lady Meerabai and that one son Nilkanth has been born from Meerabai to him, the evidence adduced on record does appear to be trustworthy so far as the marriage of Sitabai with the petitioner- husband is concerned and it is well settled law that while considering the petition for grant of maintenance under Section 125 of the Code, strict proof of the marriage is not required like for proving the offence of bigamy under Section 494 of the Indian Penal Code. In such a situation, it is obvious that the Courts below were perfectly justified in reaching the conclusion that the relationship of husband and wife has been established between the parties and this Court does not find any reason as to why the evidence adduced by the wife should be disbelieved. In the result, this Court is of the considered opinion that the petition is without merit and is liable to be dismissed. It is dismissed with costs, which are quantified to the tune of Rs. 500/- (rupees five hundred only).