Bombay High Court
Meerabai vs Bhimrao Asaram Vaidya on 3 October, 2012
Bench: T.V. Nalawade
Cri. Revn. Appln. No. 110/09
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 110 OF 2009
Meerabai w/o. Bhimrao Vaidya,
Age 32 years, Occu. Household,
R/o. C/o. Vitthal Nahaji Shelke,
R/o. Gajanan Nagar, Garkheda
Area, Aurangabad. ....Applicant.
Versus
Bhimrao Asaram Vaidya,
Age 50 years, Occu. Agri.,
R/o. Wakulni, Tq. Badnapur,
Dist. Jalna. ....Respondent.
Mr. M.M. Nerlikar, Advocate for applicant.
Mr. P.A. Kulkarni, Advocate for respondent.
CORAM : T. V. NALAWADE, J.
DATED : 3rd October, 2012.
JUDGMENT :
1. The parties were put to notice that the matter is to be
heard for final disposal. The matter is admitted. By consent,
notice after admission made returnable forthwith. Heard both the
sides after admission of the matter.
2. The revision is filed to challenge the judgment and
order of Petition No. E-153/2007, which was pending in Family
Court Aurangabad. The proceeding filed by the petitioner under
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section 125 of Criminal Procedure Code is dismissed by the Family
Court.
3. It is the case of the petitioner, wife, that about 8 years
prior to the date of proceeding, she was given in marriage to the
present respondent as per the Hindu rites and customs and the
marriage tie is still in existence. Out of this relationship, she gave
birth to a son and son is aged about 7 years. The son is in the
custody of the respondent.
4. It is the case of the wife that after some time of the
marriage, the husband started giving illtreatment to her and he
started asking her to bring Rs. 50,000/- from her brother. She has
contended that she cohabited with the respondent with a hope
that one day the things will improve. She has contended that as
her brother did not meet the aforesaid demand, she was driven
out of the matrimonial house by the husband. After that she gave
report to the police against the husband.
5. It is the case of the wife that the husband has refused
and neglected to maintain her and she is unable to maintain
herself. It is contended that the family of the husband owns 35
acres of irrigated agricultural land, he owns a tractor, a house etc.
Cri. Revn. Appln. No. 110/09
and his annual income is more than Rs. fifty lacs. It is contended
that the husband is in a position to give separate maintenance to
her. She had claimed maintenance at the rate of Rs. 5,000/- per
month and the cost of Rs. 1,000/-.
6. The husband denied that he married with the present
petitioner as per the Hindu rites and customs. He contended that
he had married with one Kaushalyabai and as he could not get
issue from Kaushalyabai, he married with the present petitioner in
Gandharv form. He has contended that the petitioner cohabited
with him in a house, where he was living with Kaushalyabai. He
has denied the allegations made against him that he asked to
bring Rs. 50,000/- from her brother and as the demand was not
met with, she was driven out of the matrimonial house. He has
contended that the petitioner has left matrimonial house on her
own and he is still ready to accept her back in the matrimonial
house.
7. It is the case of the husband that about 12 years prior
to filing of the present proceeding, the petitioner had married with
one Shivaji and she had obtained divorce from Shivaji as there
was dispute between her and his husband. He has contended that
the applicant is working as vegetable vendor and she is making
Cri. Revn. Appln. No. 110/09
sufficient income for her livelihood. The husband has contended
that though he owns some agricultural land, he is not getting
sufficient income from agriculture and he is not in a position to
give separate maintenance.
8. Before the Family Court, the wife examined herself
and she produced some record in respect of the property of the
husband. The husband examined himself to given evidence in
rebuttal.
9. Husband has admitted that he had married with the
petitioner though he has contended that it was Gandharv form of
marriage. It is his case that as he had no issue from Kaushalyabai,
he married with applicant. On the date of the filing of the present
proceeding, son of the applicant born from the applicant, was
aged about 7 years. It appears that the wife had applied to
J.M.F.C. under section 97 of Cr.P.C. for getting the custody of the
son, but she could not get the custody of the son.
10. The wife has given evidence that her marriage took
place as per the Hindu rites and customs and she cohabited for
more than 5 years with the present respondent. Though she has
given evidence on illtreatment given by the husband and on the
Cri. Revn. Appln. No. 110/09
demand of money made by the husband, the said evidence need
not be considered as the husband has denied the relationship.
11. In view of the aforesaid facts and circumstances of
the case, one case reported as AIR 1988 SC 644 [Smt.
Yamunabai Anantrao Adhav Vs. Anantrao Shivaram Adhav
and Anr.] was cited. This case is considered by the Family Court.
In this case, the Apex Court has laid down that the expression
'wife' means 'legally wedded wife' for the purpose of section 125
of Cr.P.C.
12. In the case reported as AIR 1999 SC 3348 [Dwarika
Prasad Vs. Bidyut Dixit], the Apex Court has discussed the
nature of proof of relationship required in a proceeding filed under
section 125 of Cr.P.C. The Apex Court has laid down that as such
proceeding is summary in nature, if there is the evidence of
cohabitation and there is evidence to show that the marriage
procedure was followed, it is up to the party, who denies the
factum of marriage to prove that the marriage can not be treated
as legal marriage. One case reported as AIR 1978 SC 1557
[Badri Prasad Vs. Dy. Director of Consolidation and Ors.]
was cited. In this case, the Apex Court has considered the
implication of section 114 of Evidence Act. It is observed that if a
Cri. Revn. Appln. No. 110/09
man and a woman were living as husband and wife for many
years, strong presumption arises in favour of wedlock. It is
observed that for proving the factum of marriage in such a case,
the examination of priest and other witnesses is not necessary.
13. In the present case, the factum of marriage is
admitted by the husband though he has tried to contend that it
was Gandharv form of marriage. The wife has given evidence that
she married with the respondent as per the Hindu rites and
customs. Admittedly, there was cohabitation of more than 5 years
and one son is borne out of this wedlock. The husband is not
denying the paternity of the child and on the contrary, he wants
to treat him as a legitimate child and that can be seen from the
defence taken by him in a proceeding filed for custody of the child
by the wife. In view of these circumstances, this Court holds that
the wife has given sufficient evidence for proof of marriage for the
purpose of proceeding under section 125 of the Cr.P.C. The
evidence of the husband or the circumstance that he had wife
Kaushalyabai living, is of no help to the husband in view of the
peculiar circumstances of the case. The husband cannot be
allowed to say that only for the purpose of having a son, he had
kept relations with the present applicant by performing marriage
in Gandharv form and he is treating his son only as a legitimate
Cri. Revn. Appln. No. 110/09
issue. In view of these peculiar circumstances of the case, this
Court holds that Family Court has committed error in holding that
the relationship is not established by wife for the purpose of
section 125 of Cr.P.C. So the judgment and order of the Family
Court needs to be set aside.
14. On the point of quantum of maintenance, the wife has
given evidence that the husband owns agricultural land and he is
getting Rs. 50 lacs as income from agricultural land per annum.
Admittedly, the present respondent has admitted that the son
born from the applicant is studying in Central School and he is
paying the fees of the Central School. On this ground the custody
of the child is kept with him. Some record like Khata extracts in
respect of the lands standing in the name of respondent Bhimrao
and his so called wife Kaushalyabai are produced. These
documents at Exhs. 30 and 36 show that more than 11 Hector of
agricultural land is owned by the Family of the husband. The 7/12
extracts produced on record show that the crops like Jawar,
Bajara, cotton are being taken. In major portion of the land, there
are the trees of sweet lime. In view of these circumstances, this
Court holds that the husband has sufficient means to provide
separate maintenance to wife. He has avoided to give exact
income from the aforesaid sources. The wife has given evidence
Cri. Revn. Appln. No. 110/09
that she has no source of income and she is unable to maintain
herself. In view of the status of the parties and the capacity of the
husband to pay, this Court holds that the wife is entitled to get Rs.
1500/- per month as maintenance. Similarly, the cost amount of
Rs. 1000/- needs to be granted to the wife. So the order.
ORDER
(I) The revision petition is allowed.
(II) The judgment and order of the Family Court in
Petition No. E-153/2007 is hereby set aside.
(III) The proceeding filed by the wife for
maintenance under section 125 of Cr.P.C. is hereby
allowed.
(IV) The husband to pay maintenance at the rate of
Rs. 1500/- (Rupees fifteen hundred) per month to the
wife and maintenance amount would be payable from
8.5.2007 i.e. the date of presentation of maintenance
proceeding by the wife.
(V) The husband to pay Rs.1000/- (Rupees one
thousand) as cost of the present applicant.
(VI) A copy of this judgment be supplied free of cost
to the wife.
[ T. V. NALAWADE, J. ]
Cri. Revn. Appln. No. 110/09
ssc/
