Bombay High Court
Kasturibai Venkat Patil vs Venkat Vishwambar Patil on 19 October, 2013
Bench: A.M. Thipsay
1 WP 1130.11
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1130 OF 2011
1. KASTURIBAI VENKAT PATIL
age 26 years, Occ. Household,
R/o Malegaon, Tq. Deglor,
District Nanded.
2. GAYATRI D/O VENKAT PATIL,
age 7 years, Occ. Student,
(Through its natural guardian
Kasturibai w/o Venkat Patil)
R/o as above. PETITIONERS.
VERSUS
VENKAT VISHWAMBAR PATIL
age 33 years, Occ. Agri,
R/o Ucha (BK), Tq. Mukhed,
District. Nanded. RESPONDENT
...
Advocate for Petitioners : Mr. Anandsing Bayas
APP for State : Mr. P.N.Muley
Mr. K.B.Jadhav h/f Mr. S.B. Bhapkar advocate For sole respondent.
...
CORAM : ABHAY M. THIPSAY, J.
Dated: October 19, 2013
...
ORAL JUDGMENT :-
1. RULE. By consent, Rule made returnable forthwith. By
consent, heard finally.
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2. The petitioner, claiming to be the wife of the respondent,
filed an application for maintenance as contemplated u/s 125 of the
Code of Criminal Procedure, for herself and for her minor daughter -
Gayatri. The learned Magistrate, after holding due inquiry in the
matter, directed the respondent to pay maintenance @ Rs.800/- p.m. to
the petitioner and @ Rs.400/- p.m. to the said Gayatri. The respondent
approached the Sessions Court by filing revision application challenging
the order of maintenance, passed by the learned Magistrate. The
learned Additional Sessions Judge, Biloli, District Nanded, who heard
the revision application, allowed the same, partly. The learned
Additional Sessions Judge cancelled the order of maintenance so far as
it related to the petitioner herein, but maintained the order directing
the maintenance to be paid to the minor daughter Gayatri. The
petitioner is aggrieved by the order passed by the Additional Sessions
Judge in revision, and has approached this Court invoking its
Constitutional jurisdiction.
3. The matter has been pending before this Court since the
year 2011 and on 23.1.2012 itself the Court had indicated that the
petition would be disposed of finally at the admission stage, itself. In
fact, Record and Proceeding have also been called for.
4. The revisional Court cancelled the order directing to pay
the maintenance to the petitioner on the ground that, the petitioner was
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not proved to be the legally wedded wife of the respondent. Except this,
there was no reason for cancelling the maintenance. In other words,
that, the means of the respondent and the inability of the petitioner to
maintain herself were not the questions regarding which a dispute was
raised before the revisional Court.
5. The learned Magistrate had came to the conclusion that
the petitioner is the legally wedded wife of the respondent. The only
question that needs to be determined is whether the conclusion arrived
at by the revisional Court viz :- the petitioner had failed to prove that
she was the legally wedded wife of the respondent is proper and legal;
or whether same suffers from any patent error, illegality or impropriety.
6. A perusal of the Judgment delivered by the learned
Magistrate shows that, that the petitioner was not his legally wedded
wife was contended by the respondent before the Magistrate, also. The
respondent took a somewhat bold stand of saying that he had illicit
relationship with the petitioner. The respondent also admitted the
minor daughter - Gayatri - to be the child of the petitioner and the
respondent. Thus, he did specifically admit that there was sexual
relationship between him and the petitioner, but according to him, it
was illicit and not on the basis of any wed-lock.
7. The petitioner had stated about her marriage having taken
place with the respondent. The petitioner had also examined one
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witness - Shankar Telange - who deposed about the marriage between
the petitioner and the respondent. The learned Magistrate observed
that it was not necessary for the petitioner to have produced any
documentary evidence with respect to the claim of her marriage with
the respondent and that, if the oral evidence of the petitioner would be
found satisfactory, the fact of marriage would be accepted on the basis
of the evidence adduced by her. The learned Magistrate was of the view
that, there was no reason to disbelieve the evidence of the petitioner
and of her witness with respect to the marriage between the petitioner
and the respondent. The Magistrate also observed that though the
respondent no.1 claimed that he had already married some other
woman, he did not produce any satisfactory evidence with respect to the
previous marriage. The learned Magistrate observed that, in the cross
examination, the respondent showed his readiness and willingness to
maintain the petitioner and the minor child - Gayatri, if they would stay
with him. The Magistrate observed - rightly in my opinion - that, if the
relationship between the petitioner and the respondent was illicit and
that, such illicit relationship was only for a certain period, there was no
need on the part of the respondent to her offer to maintain the
petitioner by taking her with him.
8. In the revision, the learned Additional Sessions Judge
undertook the exercise of re-appreciating the evidence adduced before
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the Magistrate during the inquiry. The learned Additional Sessions
Judge observed that the petitioner had not stated as to what rites and
customs were observed in the performance of her marriage with the
respondent. The learned Additional Sessions Judge observed that, the
petitioner was unable to give the date of marriage. The learned
Additional Sessions Judge observed that there was evidence to show
that the respondent had married one woman in the year 1999 and that,
there were two children born out of the wedlock of the respondent and
said lady. The learned Additional Sessions Judge formed an opinion
that, since the respondent was already married, his marriage with the
petitioner was not valid and that, therefore, she was not entitled for any
maintenance.
9. The order passed by the learned Additional Sessions Judge
in revision, is patently illegal and improper. It is not in accordance with
law, for a number of reasons.
10. In the first place, it ought to have been kept in mind that
the revisional jurisdiction is different from the appellate jurisdiction. An
independent re-appraisal of the evidence adduced before the Lower
Court cannot be undertaken by the revisional court for the purpose of
disturbing a finding of fact arrived at by the lower Court. The orders
passed under section 125 of the Code do not purport to decide the civil
rights of the parties finally. The said provision is meant for providing a
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speedy relief to neglected wives and children. Legislature, in its
wisdom, has not made such orders appealable. Therefore, interference
with such orders in the revisional jurisdiction would be justified, only
where the order is based on a patent error of law ; or where the
conclusion arrived at is based on inadmissible and irrelevant material
or, where relevant and admissible material is kept out of consideration,
or, where proper procedure or the principles of natural justice have not
been followed, or other like grounds. Simply because the revisional
Court, had it been the trial court, would have taken a different view of
the matter, interference in the revisional jurisdiction would be totally
uncalled for, when the view taken by the trial court would also be a
possible view of the matter.
11. Moreover, the revisional Court has not dealt with the
reasoning of the learned Magistrate and has not discussed why and how
it is wrong. If a strict view viz : 'that, the marriage between the
petitioner and the respondent was not proved', was to be taken on the
basis that the respondent was already married, then, revisional Court
ought to have taken a similar strict view with respect to the alleged first
marriage of the respondent also, and ought to have considered as to
whether there was satisfactory evidence with respect to the first
marriage. It is because, the respondent had audacity to contend that he
was in illicit relationship with the petitioner. Once a person makes it
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clear that he has no moral inhibitions for keeping illicit relationship with
a woman, his relationship with another woman may not be presumed to
be marital, only by reason of his cohabitation with her.
12. The revisional Court did not consider a vital circumstance
Viz :- 'the readiness shown by the respondent to maintain the petitioner,
if she would stay with him' (aukano.;kl r;kj vkgs ). The inference drawn by
the Magistrate from this :- 'that the relationship - between the
petitioner and the respondent was actually a marital relationship, or at
any rate clearly treated as such' cannot be said to be wrong.
ig As
aforesaid, the orders passed under section 125 of the Code do not
purport to decide the civil rights of the parties finally and if the
respondent was serious in disputing the fact of marriage inspite of
admitting that the relationship between him and the petitioner has
given birth to a child, then it would have been appropriate to leave the
respondent to approach a Civil Court, for an appropriate declaration.
13. The impugned order passed by the Additional Sessions
Judge in the revisional jurisdiction is patently incorrect. The learned
judge has acted in excess of the revisional jurisdiction vested by law in
her. The impugned order has resulted in miscarriage of Justice. The
same therefore, needs to be set aside.
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14. The petition is allowed.
The impugned order is set aside. Consequently, the order
passed by the learned Magistrate is restored.
15. The respondent shall pay the costs of Rs.1,000/- (Rs. One
thousand) to the applicant.
16. Rule is made absolute in the aforesaid terms.
( ABHAY M. THIPSAY, J. )
ig ...
aaa/-
