Bombay High Court
Ashok Gangaram Gade vs [email protected] Shantabai Ashok Gade And ... on 15 November, 2016
Bench: V.K. Jadhav
1 CRI WP 326.2007.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 326 OF 2007
ASHOK GANGARAM GADE
age 45 yrs, Occ. Labour,
R/o Takrala, Taluka Himayatnagar,
District Nanded. Petitioner.
VERSUS
1. [email protected] SHANTABAI ASHOK GADE
age 27 yrs, Occ. Labour,
R/o Pota, Tq. Himayatnagar, Dist Nanded.
2. Umakant s/o Ashok Gade,
age 7 yrs, minor u/g of resp no.1.
R/o as above. Respondents.
...
Advocate for Petitioner : Mr S D Hiwrekar
Respondents absent.
...
CORAM : V.K. JADHAV, J.
Dated: November 15, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the judgment and order passed
by the Judicial Magistrate First Class, Himayatnagar
dated 6.5.2006 in Cri. M.A. 11/2004 and the Judgment
and order dated 19.4.2007 passed by the Sessions
Judge, Nanded in Criminal Revision Petition
No.72/2006 confirming thereby the order passed by the
Magistrate, the original non-applicant husband has
2 CRI WP 326.2007.odt
preferred this criminal writ petition.
2. Brief facts, giving rise to the present writ petition
are as follows :-
According to respondent no.1 wife she got married
with petitioner husband six years back prior to filing the
application for grant of maintenance before the
Magistrate and respondent no.2 born to them out of
their marital wedlock. It is also case of respondent wife
that for initial period of 5-6 months after marriage she
was treated well and thereafter she was subjected to
mental and physical harassment by the petitioner
husband. Even in the month of June, 2000 she was
subjected to severe beating and she therefore came to be
admitted in the Government Hospital at Bhokar. Even
she had filed a complaint in Tamsa Police station in
respect of the said incident. Thereafter, the petitioner
husband had driven her out from the house and since
then she is residing with her parents. Respondent wife
therefore constrained to file an application bearing Cri.
M.A No.11/2004 for grant of maintenance against the
petitioner-husband. According to the respondent-wife
3 CRI WP 326.2007.odt
she herself and her minor son are unable to maintain
themselves and they have no independent source of
income. Petitioner-husband though having sufficient
means refused and neglected to maintain them. Thus,
respondent wife has claimed maintenance @ Rs.1,500/-
p.m. from the petitioner-husband.
Petitioner husband has strongly resisted the
application for maintenance by filing his say. It has
contended that respondent no.1 is not his legally
wedded wife and initially he had married with one
Muktabai, however, he divorced her in the year 1989
and thereafter he married with Babybai. He had also
given divorce to her in the year 1990. It has also
contended that thereafter illicit relations were developed
with respondent no.1 and accordingly out of said illicit
relations she had conceived and given birth to
respondent no.2. It has also contended that he has no
independent source of income and he earns by doing
labour work on daily wages. He had declined to pay
maintenance to respondent no.1 wife as she is not his
legally wedded wife, however, he has shown his
4 CRI WP 326.2007.odt
readiness and willingness to maintain respondent no.2,
who is his son.
3. The learned Judicial Magistrate First Class,
Himayatnagar by its impugned judgment and order
dated 6.5.2006 partly allowed the maintenance
application and thereby directed the petitioner to pay
maintenance allowance @ Rs.800/- p.m. to respondent
no.1-wife and Rs.500/- p.m. to respondent no.2 son
from the date of application alongwith costs of Rs.500/-.
Being aggrieved by the same, the petitioner-husband
preferred criminal revision petition no.72/2006. The
learned Sessions Judge, Nanded by its impugned
judgment and order dated 19.4.2007 dismissed the
revision by confirming the order passed by the
Magistrate. Hence, this writ petition.
4. Learned counsel for petitioner submits that,
respondent no.1 is not legally wedded wife of petitioner
and at the time of filing of the application for
maintenance, the marriage of the petitioner with one
Bebibai was in subsistence. Learned counsel submits
5 CRI WP 326.2007.odt
that, on the basis of the complaint filed by the said
Bebibai charge sheet came to be submitted against the
present petitioner and his family members for having
committed an offence punishable u/s 498A, 323, 504
r/w 34 of IPC and accordingly the petitioner alongwith
his parents came to be tried by the JMFC, Hadgaon vide
RCC 192/1994. The learned Magistrate, Hadgaon by
Judgment and order dated 20.4.1996 acquitted the
petitioner and his family members in RCC 192/1994.
Learned counsel submits that, it is thus clear that,
respondent no.1 herein is not legally wedded wife
however, courts below have not considered the same.
Learned counsel submits that, petitioner-husband has
no sufficient means to pay the maintenance. He has no
fixed income and he is doing labour work on daily
wages. Learned counsel submits that, petitioner
husband is unable to pay maintenance as awarded by
the trial court.
5. None present for the respondent-wife.
6. On careful perusal of the judgment and order
6 CRI WP 326.2007.odt
passed by the Magistrate, it appears that, respondent
no.1 wife has examined herself on oath and also
examined one Sajjanrao Suryawanshi in support of her
contention. Both of them have deposed before the court
that in the year 1997 respondent no.1 wife got married
with petitioner-husband in the temple of God
Basveshwar at village Yeoli as per Hindu rites and
rituals. They have given all details of the marriage
including antarpat, performance of saptapadi etc. There
is nothing in the cross examination to disbelieve their
version.
7. Petitioner-husband contends that he had given
divorce to his wife bebibai in the year 1990. In the year
1994 bebibai though filed complaint against the
petitioner Ashok for having committed an offence p/u/s
498-A of IPC, she herself or her witness in the said case
have not supported the prosecution case in any manner
and therefore, petitioner herein came to be acquitted in
the said case. In the year 1997 as per his own case,
petitioner husband had given divorce to the said Bebibai
and he was residing alone. Under these circumstances,
7 CRI WP 326.2007.odt
complaint filed by said Bebibai in the year 1994 on the
basis of which the petitioner-husband herein came to be
tried by the Magistrate vide RCC 192/1994 looses its
significance. Furthermore, petitioner husband has also
accepted during the course of his cross-examination
that respondent no.1 wife cohabited with him till the
year 2000 and respondent wife gave birth to respondent
no.2. Even though petitioner husband has examined
Pujari of said temple, however, said witness has failed to
bring with him register maintained by the said temple
wherein entry usually taken in respect of the marriage
performed in the said temple. Both the courts below
have observed that evidence of said Pujari is
meaningless and his evidence is not helpful to petitioner
husband in any manner.
8. Thus, considering the oral evidence adduced by
the parties in support of their rival contentions, both
the courts below have correctly held that respondent
no.1 is legally wedded wife of petitioner husband and
that, petitioner-husband though having sufficient
means to pay maintenance, neglected and refused to pay
8 CRI WP 326.2007.odt
maintenance to respondent-wife, who is unable to
maintain herself and her minor son. It further appears
from the evidence led by respondent no.1 wife that she
has just cause to reside separately and claim
maintenance. Thus, considering the standard of living
and income of petitioner-husband, the learned
Magistrate has rightly granted maintenance @ Rs.800/-
p.m. to respondent wife and Rs.500/- p.m. to
respondent no.2 Son. No interference is called for.
There is no merit in the criminal writ petition. Hence,
following order.
O R D E R
I. Criminal writ petition is hereby
dismissed.
II. Rule discharged.
III. Criminal writ petition accordingly
disposed off.
sd/-
( V.K. JADHAV, J. )
...
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