Bombay High Court
Bashir Husainbhai Shaikh vs Nayada Bashir Shaikh & Ors on 18 November, 2016
Bench: Z.A. Haq
(1) Cri. W.P. No. 340 of 2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Writ Petition No. 340 of 2004
District : Ahmednagar
Bashir s/o. Husainbhai Shaikh,
Age : 38 years,
Occupation : Laburer,
R/o. Village Kuldharan, .. Petitioner
Taluka Karjat, (Original
District Ahmednagar. Non-applicant).
versus
1. Smt. Nayada w/o. Bashir Shaikh,
Age : 30 years,
Occupation : Household &
Business (Hoteling),
R/o. Village Durgaon,
Taluka Karjat,
District Ahmednagar.
2. Amir s/o. Bashir Shaikh,
Age : 11 years (Minor),
under guardian of his mother
- Smt. Nayada w/o. Bashir .. Respondents
Shaikh / Respondent No.1. (Nos.1 & 2 -
Original applicants)
3. The State of Maharashtra.
............
Mr. Rajendra S. Deshmukh, Advocate, for the
petitioner.
Mr. R.K. Temkar, Advocate, for respondent nos.1 & 2.
Mr. P.N. Kutti, Addl. Public Prosecutor, for
respondent no.3.
............
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(2) Cri. W.P. No. 340 of 2004
CORAM : Z.A. HAQ, J.
DATE : 18TH NOVEMBER 2016
ORAL JUDGMENT:
Heard Mr. R.S. Deshmukh, learned Advocate
for the petitioner, Mr. R.K. Temkar, learned Advocate
for respondent nos.1 & 2, and Mr. P.N. Kutti, learned
Addl. Public Prosecutor for respondent no.3.
2. The petitioner has challenged the order
dated 15th April 2004, passed by the Ist Ad hoc Addl.
Sessions Judge, Ahmednagar, in Criminal Revision No.
338/2003, by which the order passed by the Judicial
Magistrate (F.C.), Karjat, on 05th November 2003, in
Criminal Misc. Application No. 171/2000, is
maintained and the petitioner is directed to pay the
amount of maintenance to the respondent nos.1 and 2.
3. The submission on behalf of the petitioner
is that the respondent no.1 has failed to bring on
record sufficient evidence to establish that marriage
between petitioner and respondent no.1 had taken
place and that respondent no.1 is legally wedded wife
of the petitioner. It is submitted that the
subordinate Courts have committed an error in relying
on photo-copy of certificate issued by Kazi, to
conclude that respondent no.1 is legally wedded wife
of the petitioner.
(3) Cri. W.P. No. 340 of 2004
4. The subordinate Courts have recorded finding
that respondent no.1 is legally wedded wife of the
petitioner, not only relying on photo-copy of
certificate issued by Kazi, but have also considered
the evidence of Kazi Mukhtar and evidence of Mahboob
Shaikh, who has deposed that he was present at the
time of marriage between petitioner and respondent
no.1. Apart from this, the subordinate Courts have
relied on the extract of voters' list which records
that the respondent no.1 is wife of the petitioner.
The learned Advocate for the petitioner has argued
that the voters' list (Exhibit 72) is prepared during
the pendency of proceedings before Magistrate and
therefore it could not have been relied upon. The
submission cannot be accepted. The petitioner has
not pointed out anything from the record which shows
that the petitioner objected to the description of
respondent no.1 as wife of the petitioner in the
voters' list. The findings of facts concurrently
recorded by the subordinate Courts are based on
proper appreciation of evidence on record.
5. The alternate submission on behalf of the
petitioner is that the amount of maintenance
determined by the Sessions Court is without any
basis. This submission also cannot be accepted. The
learned Magistrate had directed the petitioner to pay
Rs. 1,000/- per month to the respondent no.1, and Rs.
750/- per month to the respondent no.2 towards
(4) Cri. W.P. No. 340 of 2004
maintenance and this is modified by the Sessions
Court and the petitioner is directed to pay Rs.500/-
per month to the respondent no.1 and Rs.400/- per
month to the respondent no.2 towards maintenance.
The learned Addl. Sessions Judge has properly applied
his mind and determined the amount of maintenance.
6. I see no reason to interfere with the
impugned order. However, it is clarified that the
respondent no.2 would be entitled for the amount of
maintenance till he attained the age of 18 years.
With the above modification / clarification, the
Writ Petition is disposed of. Rule is discharged.
In the circumstances, parties shall bear their own
costs.
( Z.A. HAQ )
JUDGE
..........
puranik / CRIWP340.04
