Dadasaheb Uttam Purnale vs Bebi Dadasaheb Purnale
2016 Latest Caselaw 6838 Bom

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                                                     906 CRIMINAL WRIT PETITION NO.602 OF 2005.odt


                  THE HIGH COURT OF JUDICATURE AT BOMBAY,
                           BENCH AT AURANGABAD.




                                                                                   
                      CRIMINAL WRIT PETITION NO. 602 OF 2005




                                                           
    Dadasaheb Uttam Purnale,
    Age : 35 years, Occu: Labourer,




                                                          
    R/o. Bhagur, Tal. Shevgaon,
    Dist. Ahmednagar.                                           ... PETITIONER


                      V E R S U S




                                              
    Bebi Dadasaheb Purnale,
                                 
    Age: 27 years, Occu: Labourer & Tailoring,
    R/o. Kham-Pimpri,
                                
    Tq. Shevgaon, Dist. Ahmednagar.                             ... RESPONDENT

                                        ...
    Mr. N. V. Gaware, Advocate for the Petitioner.
    Mr. D. A. Bide, Advocate for the Respondent. 
      


                                        ...
   



                                                 CORAM  : V. K. JADHAV, J.

                                                 DATE     : 01st December, 2016.





    ORAL JUDGMENT: 
     
    .                 Being   aggrieved   by   the   judgment   and   order   dated   22nd

August, 2003 in Criminal Miscellaneous Application No.52 of 1999

passed by the learned Judicial Magistrate First Class, Shevgaon and

the judgment and order dated 20th August, 2005 passed by the 2nd Ad-

hoc Additional Sessions Judge, Ahmednagar in Criminal Revision

906 CRIMINAL WRIT PETITION NO.602 OF 2005.odt

No.297 of 2003, confirming thereby the order passed by the

Magistrate as aforesaid, the original Respondent / husband preferred

this criminal writ petition.

2 Brief facts giving rise to the present criminal writ petition

are as follows:

a) Respondent is the legally wedded wife of the Petitioner

and their marriage was performed on 11th May, 1997. It

is the case of Respondent / wife that after the marriage,

she was treated well initially and thereafter, subjected to

ill-treatment on various grounds including demand of

cash amount. Even she was forced to terminate the

pregnancy at the instance of Petitioner / husband.

However, the Petitioner / husband driven her out from

the house and threatened that he would cohabit with her

only if she brings Rs.25,000/- from her father. It has also

alleged by the Respondent / wife that the Petitioner /

husband has also performed marriage with another girl.

She was not provided with the amount for her

maintenance. She is not in a position to maintain herself.

906 CRIMINAL WRIT PETITION NO.602 OF 2005.odt

Thus, the Respondent / wife had initiated the

proceedings under Section 125 of the Code of Criminal

Procedure vide Criminal Miscellaneous Application

No.52 of 1999 for grant of maintenance. It has also

contended in the application that the Petitioner / husband

though having sufficient means, refused and neglected

to maintain her.

The Petitioner / husband has strongly resisted the

said application by filing his say. He has denied the

relations. He has also denied rest of the allegations.

According to the Petitioner / husband, the relations as

husband and wife is not in existence between them and

thus he has no reason to provide any monthly

maintenance allowance to the Respondent / wife. It is

contended that the Respondent / wife has filed false

application for maintenance.

Both of them led oral and documentary evidence in

support of their rival contentions. Initially the learned

Judicial Magistrate First Class, Shevgaon by order dated

23rd May, 2001, dismissed the application with the

906 CRIMINAL WRIT PETITION NO.602 OF 2005.odt

observations that relations as husband and wife does not

exist. Being aggrieved by the same, the wife preferred

Criminal Revision No.194 of 2001 before the Sessions

Court, Ahmednagar and the learned II Additional

Sessions Judge, Ahmednagar vide its judgment and

order dated 10th May, 2002, partly allowed the said

revision application and remanded the matter to the

Magistrate with directions to give opportunity afresh to

the parties to adduce evidence. Thereafter, the parties

led their evidence in Criminal Miscellaneous Application

No.52 of 1999 afresh and after giving opportunity of

being heard to both the parties, the learned Magistrate

vide its impugned judgment and order dated 22nd August,

2003, partly allowed the application and thereby directed

the Petitioner / husband to pay the monthly allowance of

Rs.700/- to the Respondent / wife alongwith costs of

Rs.500/-. Being aggrieved by the same, the Petitioner /

husband preferred Criminal Revision Application No.297

of 2003 and the learned Additional Sessions Judge,

Ahmednagar vide its order dated 20th August, 2005,

906 CRIMINAL WRIT PETITION NO.602 OF 2005.odt

dismissed the criminal revision application by confirming

the order passed by the learned Magistrate. Hence, this

criminal writ petition.

3 The learned counsel for Petitioner submits that the

Petitioner's grand-father died on 1st May, 1997 and marriage as

alleged by the Respondent / wife could not have been performed on

11th May, 1997. The learned counsel submits that, as per the custom

and traditions, 13 days sad period is observed in case of death in a

family and therefore, there was no question of performing any

marriage as such. The learned counsel submits that the

Respondent / wife has examined her father and maternal uncle, who

have deposed about the presence of grand-father of the Petitioner /

husband in the so-called marriage, when the grand-father of Petitioner

/ husband died prior to the alleged date of solemnization of the

marriage. The learned counsel submits that the Courts below have

given reference to the general custom prevailing in the Hindu

community. It is nobody's case that after curtailing the sad period, the

marriage between the Petitioner and Respondent was solemnized.

However, the Courts below have considered the said custom and

906 CRIMINAL WRIT PETITION NO.602 OF 2005.odt

drawn inference that the marriage could have been performed in the

period within 13 days after the death of the grand-father of Petitioner /

husband. The learned counsel submits that the Respondent / wife

has failed to prove the marriage invitation card and the medical card

showing the termination of her pregnancy, though produced on

record. The learned counsel submits that, however, the Courts below

have unnecessarily given weightage to the charge-sheet vide R.C.C.

No.33 of 1999 wherein the Petitioner / husband came to be acquitted

by the Court. The learned counsel submits that the impugned

judgment and orders are therefore, liable to be quashed and set

aside.

4 The learned counsel for Respondent / wife submits that in

a proceeding under Section 125 of the Code of Criminal Procedure

seeking maintenance, strict proof of marriage is not required. The

learned Magistrate has also observed that the Criminal Court has no

jurisdiction to decide the validity or invalidity of the marriage. The

learned counsel submits that till this date, the Petitioner / husband has

not sought declaration of the status of his relation with Respondent /

wife by approaching the Civil Court. The learned counsel submits that

the Respondent / wife has filed a complaint against the Petitioner and

906 CRIMINAL WRIT PETITION NO.602 OF 2005.odt

his family members for having committed the offence punishable

under Sections 323, 498-A and 504 read with 34 of the Indian Penal

Code. Though the Petitioner / husband and his family members came

to be acquitted in the said case, the fact remained as it is that after

due investigation, the police submitted charge-sheet against the

Petitioner / husband and his family members. Further, in the said

case, the Petitioner / husband has not raised a defence that there

exist no relation as husband and wife with Respondent (Complainant

in the said criminal case). The learned counsel submits that

considering the source of income of the Petitioner / husband and the

status of the parties, the Courts below have rightly granted the

maintenance. No interference is required.

5 According to the Respondent / wife, the marriage was

solemnized on 11th May, 1997 at Paithan in the Math of Gangubai.

The Petitioner / husband has produced on record the death certificate

of his grand-father and it is rather an admitted position that the grand-

father of Petitioner / husband died on 1st May, 1997. Both the Courts

below have agreed that there is general custom in Hindu community

that after the death of a family member, 13 days sad period is

followed. However, the Courts below also agreed with one another

906 CRIMINAL WRIT PETITION NO.602 OF 2005.odt

custom wherein the marriage is also permitted to be performed by

curtailing the said sad period. In view of this, the Courts below have

rightly observed that the burden is on the Petitioner / husband to

prove that even though there is custom in Hindu community to curtail

such a period of 13 days, even then his family has observed the sad

period of 13 days after the death of his grand-father. The Petitioner /

husband has not deposed anything about the observance of the said

sad period after the death of his grand-father. He has also not stated

that the said sad period was observed including the day on which the

marriage alleged to have been solemnized. The Petitioner / husband

has only suggested the possibility that in case of death of a family

member, within 13 days from the date of death, no holy ceremony or

other functions are solemnized in the family and therefore, there could

not have been any possibility to perform the marriage on 11 th May,

1997 as alleged. However, in absence of any evidence in this regard,

only on the basis of such averments nothing can be concluded. Both

the Courts below have rightly given weightage to registration of

Regular Criminal Case No.33 of 1999, a copy of the same is placed

on record and marked as Exhibit - 56. After due investigation, the

police submitted the charge-sheet against the Petitioner / husband

906 CRIMINAL WRIT PETITION NO.602 OF 2005.odt

and his family members for having committed the offence punishable

under Sections 498-A, 323 and 504 read with 34 of the Indian Penal

Code. Needless to say that complaint under Section 498-A of the

Indian Penal Code can be filed only against the husband and his

family members, if at all the wife is subjected to cruelty as defined

under the said section.

6 It has further come in the evidence of the Respondent /

wife and her father and uncle that after the marriage, for initial period

she was treated well and thereafter, subjected to ill-treatment on

various reasons including non-fulfillment of demand of cash amount.

Both the Courts below have recorded a concurrent finding that the

Petitioner / husband though having sufficient means, refused and

neglected to maintain the Respondent / wife. The learned counsel for

the Petitioner / husband has not pointed out anything contrary to draw

any other conclusion.

7 So far as sufficient means possessed by the Petitioner /

husband is concerned, it has come in the evidence that the

Petitioner / husband owned and possessed certain land at village

Bhagur, Taluka Shevgaon. Even accepting that the Petitioner /

906 CRIMINAL WRIT PETITION NO.602 OF 2005.odt

husband is doing the labour work, the amount of maintenance

allowance granted at the rate of Rs.700/- per month is quite just and

reasonable considering the financial condition of the Petitioner /

husband and the status of the parties to the proceedings. No

interference is required. Hence, the following order:

O R D E R

The criminal writ petition is hereby dismissed. Rule is discharged.

[ V. K. JADHAV, J. ] ndm